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Chapter 3.3. Occupational Safety and Health Appeals Board

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

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§364.1. Withdrawal of All or Part of Division Action.

(a) The Division may withdraw its action by written motion at any time by oral motion made in the presence of the Administrative Law Judge and all parties, or by issuing a Notice of Withdrawal of Citation which satisfies the service and posting requirements of Labor Code Sections 6317 and 6318 and is served on the Appeals Board. If no objection to the Notice of Withdrawal of Citation is received by the Appeals Board within 30 days of service of the Notice, the Notice will become a final order of the Appeals Board. An objection to a Notice of Withdrawal of Citation shall be in the form of a petition for reconsideration, the grounds for which shall be misrepresentation, fraud, undue influence, mutual mistake of fact, or violation of applicable law.
(b) If the Division makes a motion to withdraw a citation prior to the hearing, the Division shall serve a copy of the motion on each party and on any authorized employee representative known to the Division to represent affected employees. Service shall be in a manner as prescribed in Section 355.3 and proof of service meeting the requirements of Section 355.3 shall be filed with the Appeals Board.
(c) The Division may withdraw part of its action by issuing an amended citation that removes an item or instance alleging a violation or reduces a proposed penalty. Upon service of such amended citation on all parties and the Appeals Board, the amended citation will be consolidated into any pending appeal of the citation and replace the original citation. Any amendments that either remove items or penalties from the original citation, or grant an abatement credit not granted in the original citation, will become part of the Division action as if they were the original appealed citation unless an objection to partial withdrawal is filed within 30 days from the date the amended citation is served on all parties and the Appeals Board.
(d) The only grounds for an objection to an amended citation of an inspection withdrawing part or all of a Division action that is already the subject of an appeal pending before the Appeals Board are misinformation, fraud, undue influence, mutual mistake of fact, or violation of applicable law. Employer need not file a new appeal to amendments made under subdivision (c). Employer's original appeal shall remain valid. If an objection to the amended citation is received, the Administrative Law Judge shall rule on the objection in the final order or decision.
(e) The employer shall post for 15 working days a copy of the amended citation, pursuant to Section 356, subsection (a).
Note: Authority cited: Sections 148.7 and 6603(a), Labor Code. Reference: Sections 148.7, 6614 and 6625, Labor Code.
1. Amendment of section heading filed 8-14-85; effective thirtieth day thereafter (Register 85, No. 33).
2. Amendment of section heading, subsections (b) and (d), and repealer of subsections (e) and (f) filed 10-30-92; operative 11-30-92 (Register 92, No. 44).
3. Amendment of section heading, section and Note filed 5-18-2016; operative 7-1-2016 (Register 2016, No. 21).

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