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Chapter 3.3. Occupational Safety and Health Appeals Board

Article 3. Prehearing Procedure Discovery, and Motions

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§371.2. Amendments

(a) Amendment of a citation or appeal is permitted in the following circumstances so long as any party opposing the amendment has an opportunity to demonstrate any prejudice that the requested amendment will create. In determining whether prejudice is shown by a party opposing an amendment, consideration shall be given to the specific evidence that the opponent of the amendment would be unable to present because of the timing of the request, if the amendment were granted.

(1) A request for an amendment that does not cause prejudice to any party may be made by a party or the Appeals Board at any time.

(2) A request for an amendment that causes prejudice to the opposing party shall be granted if one of the following circumstances apply:

(A) In the case of a request filed and served at least 20 days before the hearing:

(i) The amended citation or appeal arises out of the same general set of facts as the original citation or appeal such that the amended citation or appeal relates back to the original citation or appeal; and

(ii) The request for the amendment is in writing and directed to the Appeals Board; and

(iii) The request is filed and served pursuant to section 355; and

(iv) The party opposing the amendment is provided ten days from the date of service of the request to file and serve written opposition pursuant to section 355.

(B) In the case of a request brought less than 20 days before the hearing or during a hearing:

(i) The amended citation or appeal arises out of the same general set of facts as the original citation or appeal such that the amended citation or appeal relates back to the original citation or appeal; and

(ii) The party seeking the amendment shows good cause for the failure to bring such request at least 20 days before the hearing; and

(iii) Any prejudice created by granting such amendment can be remedied by a continuance or other order of the administrative law judge.

(b) Amendment of a citation or an appeal is not permitted when:

(1) The amendment concerns a general set of facts sufficiently different from the facts contained in the citation or appeal that the proposed amendment does not relate back to the original citation or appeal; and

(2) The violation alleged in the original citation occurred more than six months prior to the date of the request to amend the citation.

Note: Authority cited: Section 148.7, Labor Code. Reference: Section 11507, Government Code; and Sections 6317 and 6603(a), Labor Code.

HISTORY

1. New section filed 10-30-92; operative 11-30-92 (Register 92, No. 44).

2. Amendment of section heading and subsection (b) filed 8-16-99; operative 9-15-99 (Register 99, No. 34).

3. Amendment of subsection (a) filed 11-26-2007; operative 12-26-2007 (Register 2007, No. 48).

4. Amendment of section heading and repealer and new section filed 4-15-2013; operative 7-1-2013 (Register 2013, No. 16).

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