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Public Hearing Notice

NOTICE OF PUBLIC MEETING/PUBLIC HEARING/BUSINESS MEETING
OF THE OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD
AND NOTICE OF PROPOSED CHANGES TO TITLE 8
OF THE CALIFORNIA CODE OF REGULATIONS

Pursuant to Government Code Section 11346.4 and the provisions of Labor Code Sections 142.1, 142.2, 142.3, 142.4, and 144.6, the Occupational Safety and Health Standards Board of the State of California has set the time and place for a Public Meeting, Public Hearing, and Business Meeting:

PUBLIC MEETING:

On September 18, 2003 at 10:00 a.m. in the
Auditorium of the Harris State Building,
1515 Clay Street, Oakland, California.

At the Public Meeting, the Board will make time available to receive comments or proposals from interested persons on any item concerning occupational safety and health.

PUBLIC HEARING:

On September 18, 2003 following the Public Meeting
in the Auditorium of the Harris State Building,
1515 Clay Street, Oakland, California.

At the Public Hearing, the Board will consider the public testimony on the proposed changes noticed below to occupational safety and health regulations in Title 8 of the California Code of Regulations.

BUSINESS MEETING:

On September 18, 2003 following the Public Hearing
in the Auditorium of the Harris State Building,
1515 Clay Street, Oakland, California.

At the Business Meeting, the Board will conduct its monthly business.

The meeting facilities and restrooms are accessible to the physically disabled. Requests for accommodations for the disabled (assistive listening device, sign language interpreters, etc.) should be made to the Board office no later than 10 working days prior to the day of the meeting. If Paratransit services are needed, please contact the Paratransit office nearest you.


NOTICE OF PROPOSED CHANGES TO TITLE 8
OF THE CALIFORNIA CODE OF REGULATIONS
BY THE OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD

Notice is hereby given pursuant to Government Code Section 11346.4 and Labor Code Sections 142.1, 142.4 and 144.5, that the Occupational Safety and Health Standards Board pursuant to the authority granted by Labor Code Section 142.3, and to implement Labor Code Section 142.3, will consider the following proposed revisions to Title 8, Construction Safety Orders and General Industry Safety Orders of the California Code of Regulations, as indicated below, at its Public Hearing on September 18, 2003.

 

1.

TITLE 8:

Construction Safety Orders
Chapter 4, Subchapter 4, Article 2
Section 1523
Illumination for Nighttime
Highway Construction Projects

 

2.

TITLE 8:

General Industry Safety Orders
Chapter 4, Subchapter 7, Article 25
Section 3663
Maintenance of Industrial Trucks


A description of the proposed changes are as follows:

1.

TITLE 8:

Construction Safety Orders
Chapter 4, Subchapter 4, Article 2
Section 1523
Illumination for Nighttime
Highway Construction Projects

INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY STATEMENT OVERVIEW

This proposed rulemaking action is being initiated in response to a petition (Petition File No. 431) submitted by Mr. Ray Ruggles (Petitioner), Construction Safety Coordinator, District 11, California Department of Transportation (Caltrans). The Petitioner requested that the minimum illumination intensity level for road construction work be increased from 5 foot-candles to 10 foot-candles (fc), stating that the minimum illumination intensity level of 5 fc currently required by Construction Safety Orders Section 1523 for nighttime highway construction work is marginally adequate. The Petitioner stated that, due to high traffic densities in metropolitan areas during the daytime, most road construction work has gradually moved from daytime to nighttime. More than 90 percent of Caltrans contracts in metropolitan areas require night work schedules. In some areas the traffic densities are among the highest in the world. The current 5 fc standard for minimum illumination for outdoor construction areas was adopted when highway construction work was usually done during the day and the traffic densities were low. Current industry practice dictates that, in some situations, the highway construction workers perform their tasks in proximity to (sometime inches from) passing traffic.

The Petitioner further indicated that 5 fc intensity of illumination specified in the table in Section 1523 is barely enough for the typical outdoor construction work area. Modern-day nighttime highway construction work has become increasingly complex. In some cases, there is continuous entering and exiting of construction traffic in long, narrow areas adjacent to high-speed highway traffic. Under these conditions, the current illumination standard is not adequate for illuminating the large expansive areas and providing early warning to approaching motorists that workers are present in the vicinity. The Petitioner, therefore, believes that workers on foot would be more readily recognized with increased illumination.

This proposed rulemaking action contains several nonsubstantive editorial revisions. These nonsubstantive revisions are not all discussed in this Informative Digest. However, these proposed revisions are clearly indicated in the regulatory text in underline and strikeout format. In addition to these nonsubstantive revisions, the following actions are proposed:

Section 1523. Illumination.

Section 1523 contains specific regulatory language requiring all construction areas, ramps, corridors, offices, shops and storage areas, etc., to be provided with illumination that meets the intensities specified in a minimum illumination intensities table for various categories of indoor and outdoor construction sites and activities. The table currently specifies four different illumination intensities for various areas or operations. This table does not specify a category or an illumination intensity for nighttime highway construction work.

An amendment is proposed to include in the table an illumination intensity level of 10 fc for nighttime highway construction work. The proposed amendment will ensure that employees conducting nighttime highway construction work will be provided with adequate illumination to safely and efficiently perform his/her tasks and to be made visible to oncoming traffic. The proposed amendment will have the effect of requiring employers to provide a minimum illumination intensity level of 10 fc to employees performing nighttime highway construction work.

In addition, it is proposed to update the American National Standard, A11.1-1973, Practice for Industrial Lighting document reference, which is no longer in print and is unavailable to the general public, to the latest industrial lighting standard published by the Illuminating Engineering Society (IES) of North America, American National Standard (ANSI) IES, Publication RP-7-1991 for industrial lighting. The proposed amendment will replace the existing informational reference document with that which is currently available to the public and will have no effect on the regulated public.

A new subsection (b) is proposed which will clarify that nighttime construction illumination is to be provided in the work zone in a manner that will minimize glare to work crews and not interfere with the night vision of oncoming motorists by providing screens, varying the beam angle, etc. Proposed new subsection (b) will ensure that the increased illumination required to be provided during nighttime highway construction work will not create a glare problem to both construction site workers and the motoring public.

COST ESTIMATES OF PROPOSED ACTION

Costs or Savings to State Agencies

No costs or savings to state agencies will result as a consequence of the proposed action. It should be noted that the California Department of Transportation has already implemented the proposed 10 fc illumination requirement on all its highway construction jobsites in California. In addition, staff also learned that the 10 fc illumination requirement is a condition of Caltrans contracts with private sector highway construction companies through contractual arrangement between the state and private sector construction firms.

Impact on Housing Costs

The Board has made an initial determination that this proposal will not significantly affect housing costs.

Impact on Businesses

The Board has made an initial determination that this proposal will not result in a significant, statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

Cost Impact on Private Persons or Businesses

The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action.

Costs or Savings in Federal Funding to the State

The proposal will not result in costs or savings in federal funding to the state.

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

No costs to local agencies or school districts are required to be reimbursed. See explanation under “Determination of Mandate.”

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

This proposal does not impose non-discretionary costs or savings on local agencies.

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulation does not impose a local mandate. Therefore, reimbursement by the state is not required pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendments will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, this regulation does not constitute a “new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution.”

The California Supreme Court has established that a “program” within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)

The proposed regulation does not require local agencies to carry out the governmental function of providing services to the public. Rather, the regulation requires local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the proposed regulation does not in any way require local agencies to administer the California Occupational Safety and Health program. (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)

This proposed regulation does not impose unique requirements on local governments. All employers - state, local and private - will be required to comply with the prescribed standards.

EFFECT ON SMALL BUSINESSES

The Board has determined that the proposed amendments may affect small businesses.

ASSESSMENT

The adoption of the proposed amendments to these regulations will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.

REASONABLE ALTERNATIVES CONSIDERED

Our Board must determine that no reasonable alternative considered by the Board or that has otherwise been identified and brought to the attention of the Board would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.


 

A description of the proposed changes are as follows:

2.

TITLE 8:

General Industry Safety Orders
Chapter 4, Subchapter 7, Article 25
Section 3663
Maintenance of Industrial Trucks

INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY STATEMENT OVERVIEW

The Occupational Safety and Health Standards Board (Board) received a memorandum from the Division of Occupational Safety and Health (Division), dated July 27, 2001 with attached Cal/OSHA Form 9, Request for New, or Change In Existing, Safety Order, regarding GISO Section 3663, which addresses the maintenance of industrial trucks, such as but not limited to, industrial truck repair operations conducted in proximity to open flame, maintenance of water mufflers, keeping industrial trucks clean, care of truck batteries, etc. The Division’s memorandum stated that currently, Section 3663 does not require the same protection or requirements as specified in 29 Code of Federal Regulations (CFR) 1910.178, and requested that the Board adopt the language from the federal standard verbatim. The Division identified two federal requirements, 29 CFR 1910.178 (q)(6) and (q)(12), which address alterations to industrial trucks and industrial truck fuel conversions that are not addressed in Section 3663. These two federal regulations are important in terms of employee safety to: 1) ensure that when repaired, the integrity of the truck is not compromised through the use of incompatible parts which do not meet the manufacturer’s specifications; and, 2) ensure that gas fuel conversions are performed in a manner that will ensure the truck will operate safely, specific to the type of fuel used, and that only approved conversion equipment is used. The Division also suggested an editorial revision to existing Section 3663(e) to clearly emphasize to the employer that all industrial truck replacement parts are to be equal in safety to the original parts being replaced, consistent with counterpart federal language contained in 29 CFR 1910.178(q)(5).

This proposed rulemaking action incorporates the aforementioned federal language essentially verbatim, while maintaining consistency with existing Title 8 format as follows:

Section 3663. Maintenance of Industrial Trucks.

Section 3663 contains regulations which address the maintenance of industrial trucks including, but not limited to, truck repair operations conducted in proximity to open flames, maintenance of water mufflers, keeping trucks clean, care of batteries, etc.

Existing subsection (e) requires replacement truck parts to be equivalent in safety to the original part(s) they replace. A revision is proposed to specify that all replacement parts shall be equivalent in safety to the part(s) being replaced, consistent with 29 CFR 1910.178(q)(5). The proposed revision will ensure that the state’s standard is at least as effective as its federal counterpart regulation, and will clearly emphasize to employers that any and all truck parts that are replaced must provide safety equivalent to the parts being replaced so that the truck is maintained in a safe operating condition.

New subsection (g) is proposed, taken from 29 CFR 1910.178(q)(6), that will prohibit the alteration of trucks to the extent that the relative positions of parts are different from what was originally received from the manufacturer, and prohibit the addition of extra parts not provided by the manufacturer, or the elimination of parts except as provided in proposed new subsection (h), which regulates the conversion of truck fuel systems. In addition, new subsection (g) prohibits additional counterweighting of fork trucks unless it is approved by the truck manufacturer. Proposed new subsection (g) will make the state’s standard regarding maintenance of industrial trucks at least as effective as its federal counterpart regulation, and will ensure that industrial trucks are not altered in a manner inconsistent with manufacturer specifications.

New subsection (h) is proposed, taken from 29 CFR 1910.178(q)(12), which permits industrial trucks originally approved for the use of gasoline for fuel to be converted to liquefied petroleum gas fuel, provided the conversion yields a truck that is equipped with the features specified for LP or LPG* operation and that the conversion equipment is approved. The proposed new language will make the state’s standard regarding maintenance of industrial trucks at least as effective as its federal counterpart regulation, and will ensure that truck conversions contain only approved equipment and result in a truck that embodies the features specific to the type of fuel to be used.

COST ESTIMATES OF PROPOSED ACTION

Costs or Savings to State Agencies

No costs or savings to state agencies will result as a consequence of the proposed action.

Impact on Housing Costs

The Board has made an initial determination that this proposal will not significantly affect housing costs.

Impact on Businesses

The Board has made an initial determination that this proposal will not result in a significant, statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

Cost Impact on Private Persons or Businesses

The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action

Costs or Savings in Federal Funding to the State

The proposal will not result in costs or savings in federal funding to the state.

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

No costs to local agencies or school districts are required to be reimbursed. See explanation under “Determination of Mandate.”

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

This proposal does not impose nondiscretionary costs or savings on local agencies.

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulation does not impose a local mandate. Therefore, reimbursement by the state is not required pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed amendments will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, this regulation does not constitute a “new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution.”

The California Supreme Court has established that a “program” within the meaning of Section 6 of Article XIII B of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.)

This proposed regulation does not require local agencies to carry out the governmental function of providing services to the public. Rather, the regulation requires local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the proposed regulation does not in any way require local agencies to administer the California Occupational Safety and Health program. (See City of Anaheim v. State of California (1987) 189 Cal.App.3d 1478.)

This proposed regulation does not impose unique requirements on local governments. All employers - state, local and private - will be required to comply with the prescribed standards.

EFFECT ON SMALL BUSINESSES

The Board has determined that the proposed amendments may affect small businesses.

ASSESSMENT

The adoption of the proposed amendments to this regulation will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.

REASONABLE ALTERNATIVES CONSIDERED

Our Board must determine that no reasonable alternative considered by the Board or that has otherwise been identified and brought to the attention of the Board would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.

The above proposals do not contain building standards as defined by Health and Safety Code Section 18909.

A copy of the proposed changes in STRIKEOUT/UNDERLINE format is available upon request made to the Occupational Safety and Health Standard Board’s Office, 2520 Venture Oaks Way, Suite 350, Sacramento, CA 95833, (916) 274-5721. Copies will also be available at the Public Hearing.

An INITIAL STATEMENT OF REASONS containing a statement of the purpose and factual basis for the proposed actions, identification of the technical documents relied upon, and a description of any identified alternatives has been prepared and is available upon request from the Standards Board’s Office.

Notice is also given that any interested person may present statements or arguments orally or in writing at the hearing on the proposed changes under consideration. It is requested, but not required, that written comments be submitted so that they are received no later than September 12, 2003. The official record of the rulemaking proceedings will be closed at the conclusion of the public hearing and written comments received after 5:00 p.m. on September 18, 2003 will not be considered by the Board unless the Board announces an extension of time in which to submit written comments. Written comments should be mailed to the address provided below or submitted by fax at (916) 274-5743 or e-mailed at oshsb@hq.dir.ca.gov. The Occupational Safety and Health Standards Board may thereafter adopt the above proposal substantially as set forth without further notice.

The Occupational Safety and Health Standards Board's rulemaking file on the proposed actions including all the information upon which the proposals are based are open to public inspection Monday through Friday, from 8:30 a.m. to 4:30 p.m. at the Standards Board's Office, 2520 Venture Oaks Way, Suite 350, Sacramento, CA 95833.

The full text of proposed changes, including any changes or modifications that may be made as a result of the public hearing, shall be available from the Executive Officer 15 days prior to the date on which the Standards Board adopts the proposed changes.

Inquiries concerning either the proposed administrative action or the substance of the proposed changes may be directed to Keith Umemoto, Executive Officer, or Michael Manieri, Principal Safety Engineer, at (916) 274-5721.

You can access the Board’s notice and other materials associated with this proposal on the Standards Board’s homepage/website address which is http://www.dir.ca.gov/oshsb. Once the Final Statement of Reasons is prepared, it may be obtained by accessing the Board’s website or by calling the telephone number listed above.