WSR 17-17-133
EXPEDITED RULES
DEPARTMENT OF
LABOR AND INDUSTRIES
[Filed August 22, 2017, 10:11 a.m.]
Title of Rule and Other Identifying Information: WAC 296-900-17005 Appealing a citation and notice (C&N).
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposal is to update the appeal extension dates within WAC 296-900-17005 to coincide with 2017 HB 1629 (chapter 13, Laws of 2017).
When the department issues a citation for a safety and health violation, an employer may appeal the violation and penalties to the board of industrial insurance appeals. An employee or employee representative may appeal the timeline in the citation within which the hazards must be corrected. If appealed, the department has an opportunity to "reassume" jurisdiction to attempt to reach a resolution to the appeal, including a settlement. The department has thirty working days to decide these reassumption appeals. If the parties agree, the thirty day time period may be extended. HB 1629 increased the extension time period from fifteen days to an additional forty-five days.
Additional updates being made during this rule making, not affiliated with HB 1629, are adding the option to file appeals electronically; housekeeping changes, and eRules formatting. These changes do not introduce new requirements or cause any costs to employers.
Changes being proposed in this rule making to be consistent with HB 1629:
•
In subsection (6)(b), change the extension time period from fifteen working days to up to forty-five working days to be consistent with HB 1629.
•
In subsection (7), change the language regarding the total reassumption time period to up to seventy-five working days if all parties agree to the extension of up to forty-five working days.
Other changes being proposed in this rule making include:
•
In subsections (2) and (4), add new language to allow for electronic submission via email to DOSHappeals@lni.wa.gov.
•
Change bullets and dashes to letters and numbers where applicable.
•
Move bold "you must" to beginning of sentence in the new numbered subsections (1) and (2) as part of eRules language reformatting.
•
Move bolded phrase "Employees or their designated representatives must" to beginning of the new numbered subsections (3) and (4) as part of eRules language reformatting.
•
In the definition of "reassume jurisdiction," add a period after the defined word and remove "means that" to make the definition a complete sentence.
Reasons Supporting Proposal: A reason supporting this proposal of adding an electronic option for customers to send in their appeal to a citation and notice to the division of occupational safety and health, is that we are making it easier for our customers to do business with the department.
Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060.
Statute Being Implemented: Chapter 49.17 RCW, chapter 13, Laws of 2017.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of Labor and Industries (L&I), governmental.
Name of Agency Personnel Responsible for Drafting: Chris Miller, Tumwater, Washington, 360-902-5516; Implementation and Enforcement: Anne Soiza, Tumwater, Washington, 360-902-5090.
This notice meets the following criteria to use the expedited adoption process for these rules:
Corrects typographical errors, make address or name changes, or clarify language of a rule without changing its effect.
Content is explicitly and specifically dictated by statute.
Explanation of the Reason the Agency Believes the Expedited Rule-making Process is Appropriate: The need for this expedited rule making is to meet the January 1, 2018, effective date of the changes that were introduced in HB 1629. This fits within the parameters of RCW 34.05.353 Expedited rule making.
NOTICE
THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Chris Miller, L&I, P.O. Box 44610, Olympia, WA 98504, phone 360-902-5516, fax 360-902-5619, email christopher.miller@lni.wa.gov, AND RECEIVED BY October 24, 2017.
August 22, 2017
Joel Sacks
Director
AMENDATORY SECTION (Amending WSR 12-02-055, filed 1/3/12, effective 7/1/12)
WAC 296-900-17005 Appealing a citation and notice (C&N).
IMPORTANT:
((•)) 1. Employers may appeal C&Ns.
((•)) 2. Employees of the cited employer, or their designated representatives, may only appeal abatement dates.
((•)) 3. The filing of an appeal does not stay the abatement date for violations classified as serious, willful, repeat serious, or failure to abate serious. Employers may request a stay of abatement date for these classifications of violations when they appeal a C&N.
((You must:
•)) (1) You must, when appealing, submit a written appeal to DOSH within fifteen working days after receiving the C&N. Include the following information:
((–)) (a) Business name, address, and telephone number.
((–)) (b) Name, address, and telephone number of any employer representative.
((–)) (c) C&N number.
((–)) (d) What you believe is wrong with the C&N and any related facts.
((–)) (e) What you believe should be changed, and why.
((–)) (f) Requests for stay of abatement date according to WAC 296-900-17006.
((–)) (g) A signature and date.
((•)) (2) You must send appeals in any of the following ways:
– Mail to:
Assistant Director for DOSH Services
Attn: DOSH Appeals
P.O. Box 44604
Olympia, WA 98504-4604
– Fax to: 360-902-5581
- Electronically to: DOSHappeals@lni.wa.gov
– Take to any department service location.
Reference:
See the resources section of the Safety and health core rules, chapter 296-800 WAC, for a list of the local offices.
Note:
The postmark is considered the submission date of a mailed request.
((Employees or their designated representatives must:
•)) (3) Employees or their designated representatives must, when appealing C&N abatement dates, submit a written request to DOSH within fifteen working days after the C&N is received. Include the following information:
((–)) (a) Name of employee, address, telephone number.
((–)) (b) Name, address, and telephone number of any designated representative.
((–)) (c) C&N number.
((–)) (d) What is believed to be wrong with the abatement date.
((–)) (e) A signature and date.
((•)) (4) Employees or their designated representatives must send appeals in any of the following ways:
– Mail to:
Assistant Director for DOSH Services
Attn: DOSH Appeals
P.O. Box 44604
Olympia, WA 98504-4604
– Fax to: 360-902-5581
- Electronically to: DOSHappeals@lni.wa.gov
– Take to any L&I service location.
Reference:
See the resources section of the Safety and health core rules, chapter 296-800 WAC, for a list of the local offices.
Note:
The postmark is considered the submission date of a mailed request.
What to expect from DOSH:
((•)) (5) After receiving an appeal, DOSH will do one of the following:
((–)) (a) Reassume jurisdiction over the C&N, and notify the person who submitted the appeal.
((–)) (b) Forward the appeal to the board of industrial insurance appeals. The board will send the person submitting the appeal a notice with the time and location of any board proceedings.
Definition:
Reassume jurisdiction ((means that)). DOSH has decided to provide the employer with an informal conference to discuss their appeal.
((•)) (6) When reassuming jurisdiction over a C&N, DOSH has thirty working days after receiving the appeal to review it, gather more information, and decide whether to make changes to the C&N. The review period:
((–)) (a) Begins the first working day after the appeal is received. For example, if an appeal is received on Friday, the thirty days will begin on the following Monday unless it's a state holiday.
((–)) (b) May be extended ((fifteen)) up to forty-five additional working days, if everyone involved agrees and signs an extension agreement within the initial thirty-day period.
((–)) (c) Will include an informal conference about the appeal that is an opportunity for interested parties to:
((•)) (i) Briefly explain their positions.
((•)) (ii) Provide any additional information they would like DOSH to consider when reviewing the C&N.
((•)) (iii) Provide any additional information they would like DOSH to consider when reviewing stay of abatement date requests.
Note:
DOSH might reassume jurisdiction over a C&N to do any of the following:
 
((■)) 1. Provide an employer and affected employees an opportunity to present relevant information, facts, and opinions during an informal conference.
 
((■)) 2. Give an employer, affected employees, and the department an opportunity to resolve appeals rapidly and without further contest, especially in routine compliance cases.
 
((■)) 3. Educate employers about the C&N, the DOSH appeals process, and DOSH compliance.
 
((■)) 4. Review citations, penalties, and abatement dates. Although informal, the conference is an official meeting and it may be either partially or totally recorded. Participants will be told if the conference is recorded.
 
((■)) 5. Review requests to stay abatement dates.
((•)) (7) On or before the end of the thirty working day review period, or ((forty-five)) up to seventy-five working days if everyone involved agrees to the ((fifteen)) extension of up to forty-five additional working days ((extension)), DOSH will issue a corrective notice of redetermination that:
((–)) (a) Reflects any changes made to the C&N.
((–)) (b) Grants or denies requests to stay abatement dates and includes the basis of the decision.
((–)) (c) Is sent to the employer, employees, and employee representatives participating in the appeal process.