Chapter 3.3. Occupational Safety and Health Appeals Board

Article 1.5. Service of Documents and Duty to Notify Others of Appeal and Hearing

§361.3. Issues on Appeal.

The issues on appeal shall be limited to those set forth in the Division action that is contested by a docketed appeal, subject to the following limitations:

(a) If the Division action appealed from is a citation, the employer must specify on the appeal form which one or more of the following issues it is raising in its appeal;

(1) The existence of the violation alleged in the underlying citation;

(2) The classification of the violation;

(3) The abatement period;

(4) The reasonableness of the changes required by the Division to abate the violation; or

(5) Only the reasonableness of the proposed penalty.

If the appeal contests only the reasonableness of the proposed penalty, the issues on appeal shall be limited to the classification of the violation and the reasonableness of the proposed penalty, unless a timely motion pursuant to Section 371 is granted to amend the appeal to contest the existence of the violation, the abatement period, or the reasonableness of the changes required by the Division to abate the violation.

(b) If a citation is classified as a repeat violation pursuant to Section 334(d), the earlier citation established by failure to appeal or the entry of a final disposition by the Appeals Board shall not be in issue and shall not be a docketed appeal.

(c) If an employer files a timely appeal from a notification of failure to abate but did not file an appeal from the underlying citation, the existence of the alleged violation shall be an issue in the same hearing if the employer files a motion, in accordance with Section 371, demonstrating good cause for having not appealed the underlying citation.

(d) If the Division amends a citation for the sole purpose of revoking an abatement credit, the employer may appeal the revocation within 15 working days from receipt of the amended citation. The amendment shall not give the Appeals Board jurisdiction over any other issue.

NOTE: Authority cited: Section 148.7, Labor Code. Reference: Sections 148.7, 6317, 6319.5 and 6601, Labor Code.

HISTORY

1. Renumbering and amendment of former section 359.2 to section 361.3 filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of first paragraph, repealer of subsection (a) and new subsections (a)(1)-(5) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).