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 April 17, 2003 at 10:00 a.m.

in the Auditorium of the State Resources Building,

1416 Ninth Street, Sacramento, 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 April 17, 2003 following the Public Meeting

in the Auditorium of the State Resources Building,

1416 Ninth Street, Sacramento, 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 April 17, 2003 following the Public Hearing

in the Auditorium of the State Resources Building,

1416 Ninth Street, Sacramento, 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, Occupational Safety and Health Standards Board Administrative Regulations and General Industry Safety Orders of the California Code of Regulations, as indicated below, at its Public Hearing on April 17, 2003.

 

 

1.

TITLE 8:

OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD ADMINISTRATIVE REGULATIONS

Chapter 3.5, Subchapter 1, Article 4

Sections 421, 422, 422.1, 423, 424.1-424.5, 425.1, 425.2, 426, 427.1-427.4 and 428

Hearings and Decisions Regarding Variances from

Occupational Safety and Health Standards

 

 

2.

TITLE 8:

GENERAL INDUSTRY SAFETY ORDERS
Chapter 4, Subchapter 7, Article 13
Section 3437 and New Section 3458
Fall Protection for Date Palm Operations

 

 

                                               

 


 

 

A description of the proposed changes are as follows:

 

 

1.

TITLE 8:

OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD ADMINISTRATIVE REGULATIONS

Chapter 3.5, Subchapter 1, Article 4

Sections 421, 422, 422.1, 423, 424.1-424.5, 425.1, 425.2, 426, 427.1-427.4 and 428

Hearings and Decisions Regarding Variances from

Occupational Safety and Health Standards

 

 

INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY STATEMENT OVERVIEW

 

Pursuant to Labor Code Section 142.3, the Board has adopted a number of administrative regulations that govern hearings and decisions pertaining to variances from occupational safety and health standards and appeals of temporary variance decisions.  The Board has determined that some of these regulations require clarification or deletion and that additional regulatory provisions are needed. The Board, therefore, proposes to make the following amendments to the administrative regulations:

 

 

Moreover, this proposed rulemaking action contains non-substantive, editorial and grammatical revisions.  These non-substantive revisions are not all discussed in this Informative Digest, but they are clearly indicated in the regulatory text in underline and strikeout format.  In addition to these non-substantive revisions, the following actions are proposed:

 

Section 421.  Time and Place of Hearing.

 

Section 421 states that the Standards Board may hold a variance hearing at its principal office or at a location as near as possible to the place of employment involved in the variance request.  The section further states that, when it is not practicable to have all the parties and their witnesses in one location for a hearing, the Board may hold separate hearings for each party.

 

An amendment is proposed which permits the Board to hold a variance hearing at its principal office or at a location designated by the Board that is more convenient for the employer.  In addition, instead of providing for separate hearings when the parties are unable to gather in one location, the proposal would provide for the use of videoconference hearings.  These changes will conform the regulation to the Board’s current practices and will allow the Board to better accommodate the needs of employers.

 

Section 422.  Witnesses and Subpoenas.

 

Section 422 specifies the requirements for witnesses and subpoenas.  It allows parties to seek a subpoena duces tecum and specifies the requirements for obtaining one, but is silent with respect to how such subpoenas are issued.  A proposed amendment would clarify that the Board will issue a subpoena if the affidavit required to obtain the subpoena is complete and if it supports the application for the subpoena.  A second amendment is proposed to clarify that the party seeking the subpoena duces tecum is responsible for serving it.  These amendments will have no effect on the regulated public other than to clarify the procedures pertaining to subpoenas duces tecum. 

 

Section 422.1.  Evidence by Affidavit.

 

Section 422.1 provides for the submission of evidence by affidavit.  An amendment is proposed to repeal this provision, because the regulation imposes a level of legal formality on the variance process that the Board does not observe.  Moreover, Section 424 specifies evidentiary rules sufficient to safeguard against the concerns that Section 422.1 is intended to address.  The proposed amendment will have no effect on the regulated public, because employers do not seek to submit evidence by affidavit in the manner addressed by this regulation.

 

In lieu of existing Section 422.1, the Board proposes to insert a regulation to address the handling of confidential information.  Parties, at times, submit information with their variance applications that they wish to keep confidential.  The proposed regulation acknowledges this and specifies that the Board will treat information defined in Civil Code Section 3426.1 as confidential information and will, to the extent it is able, take appropriate steps to maintain its confidentiality.  Consequently, the title of Section 422.1 is proposed for revision to read “Confidential Evidence.”  The effect of this modification will be to clarify the Board’s practices with respect to confidential information.

 

Section 423.  Conduct of Hearing.

 

Section 423 addresses the use of interpreters during variance proceedings.  The Board proposes to add provisions clarifying that the Board provides notice of the right to an interpreter in the notice of hearing and to specify that language assistance will be provided if requested at least ten days prior to the hearing.  The Board proposes to add a provision stating that the interpreter, whether provided by the Board or by the party requiring the interpreter, may not have any prior involvement in the matter being heard.  Also, the Board proposes to clarify that the determination regarding who shall pay for the interpreter shall be made consistent with Government Code Section 11435.25(b), which governs the payment of costs associated with providing interpreters.  These modifications will have the effect of clarifying the Board’s practices with respect to the use of interpreters.

 

Section 424.1.  Official and Judicial Notice.

 

Section 424.1 states the bases on which the Board will take judicial or official notice of certain matters and it specifies the parties’ right to present information relevant to the propriety of taking such notice and on the tenor of the matters to be noticed.  The Board proposes to editorially revise these provisions to clarify them and to remove references to “judicial notice,” because the Board does not have judicial officers. 

 

Consequently, the Board proposes to remove “and Judicial” from the title of Section 424.1.  These changes will have no effect on the regulated public.

 

Section 424.2.  Continuance of Hearings and Further Hearings.

 

Section 424.2 addresses continuances of hearings and the holding of further hearings.  The section states that the Board, on its own motion, may order further hearing or a hearing continuance and it allows parties, upon a showing of good cause, to request a continuance.  The regulation states, however, that requests for continuances by parties are disfavored, because parties are expected to submit all matters in controversy at a single hearing. 

 

Amendments are proposed to clarify the intent of this section, to delete non-regulatory language and to better organize its contents.  In addition, a provision that allows notice of a continued hearing to be given orally at a hearing is proposed for deletion, because the Board’s practice is to issue such notices in writing.  The proposed amendments are for clarification purposes and will have no effect on the regulated public.

 

Section 424.3.  Representation at Hearing.

 

Section 424.3 explains that employers may appear at variance hearings in person or through a representative.  The regulation further specifies that the representative need not be an attorney and it specifies that affected employees who are represented by an authorized employee representative may appear through that representative.  The regulation also states that a representative may be withdrawn by filing a written notice of withdrawal and by serving a copy of the notice on all parties. 

 

A revision is proposed to add a statement requiring that an employer attend the hearing, in person or through a representative.  This change will have the effect of clarifying that attendance at a hearing is mandatory even though there are options regarding how to attend.  Additional changes are proposed to delete non-regulatory and unnecessary language in the regulation.  It is also proposed to require that notice to withdraw a representative be submitted to the Board in lieu of requiring that it be served on all parties.  The Board is better equipped to ensure that documents reach all interested parties, so it has assumed responsibility for serving these documents.  The proposed amendments will clarify the regulation and will better reflect the Board’s current practices.

 

Section 424.4.  Exclusion of Witnesses.

 

Section 424.4 allows the parties to a variance to file motions to exclude witnesses from a variance hearing, but specifies that a party or its representative cannot be excluded.  The standard further states that the Division of Occupational Safety and Health may have both counsel and an officer or employee present in the room at all times.  A revision is proposed which will require parties to show good cause to exclude a witness in lieu of simply requiring that they file a motion.  The effect of this change will be to ensure that witnesses are excluded from variance proceedings only when there is a good reason to do so. 

 

In addition, a revision is proposed which will permit both a party spokesperson and the party’s representative to be present in the proceedings at all times instead of just allowing the Division to have both a representative and a spokesperson present.  The Board believes that all parties to the variance should be treated similarly and that a party should be entitled to have a spokesperson and a representative present at all times.  The Board recognizes that representatives often lack the breadth of knowledge that party spokespeople may possess and believes it is beneficial to the process to ensure that the people with the greatest knowledge about the variance be present at all times.  The effect of this change will be to ensure that a variance hearing is as efficient and effective as possible. 

 

Section 424.5.  Oral Arguments and Briefs.

 

Section 424.5 allows the parties to request the opportunity to present oral argument and written briefs and states that the Board shall grant the requests.  The Board proposes to delete this provision, because it suggests a degree of legal formality that the Board does not observe in the variance process.  The Board routinely provides the opportunity for oral presentations at variance hearings and it permits employers to submit written information prior to and during the variance hearing in accordance with Section 423.  The Board, however, rarely receives briefs and does not entertain any written submissions after the hearing is closed.  Because the Board believes that Sections 423 and 424 adequately state the parties’ rights with respect to submitting written and oral information, it believes that this section is duplicative and misrepresents the Board’s practices.  This change will have the effect of deleting duplicative regulations and of clarifying the Board’s regulatory practices.

 

Section 425.1.  Witness Fees.

 

Section 425.1 states that witnesses subpoenaed to a variance hearing are entitled to the fees and mileage provided for in Government Code Section 68093 if a written demand is filed with the hearing officer not later than 10 days after the date on which the witness appeared at the hearing.

 

The Board proposes to require fees and mileage to be paid as set forth in Government Code Section 11450.40 as well as Section 68093.  Section 11450.40 states that witnesses subpoenaed to administrative hearings are entitled to the same mileage and fees afforded witnesses in civil cases.  Section 68093 specifies the witness fees and mileage provided for in civil cases.  Section 11450.40 further states that the party who subpoenas the witness must pay the fee.  Although the Board is not bound by Government Code Section 11450.40, it believes witnesses who are subpoenaed should be compensated for their time and believes that the procedure and formula specified in Section 11450.40 are the appropriate standards to follow.  Accordingly, the Board proposes to delete the requirement that a written demand be filed with the hearing officer within 10 days of the appearance.  The effect of these changes will be to clarify that a party who subpoenas a witness is responsible for ensuring that witness fees and mileage are paid.

 

Section 425.2.  Default.

 

Section 425.2 states the actions that the Board may take if a party fails to appear at a variance hearing.  The Board proposes to add a subsection that would allow the Board to reinstate a proceeding, at its discretion, if an employer fails to appear at a hearing, but submits to the Board a reasonable, written explanation for the failure to appear within ten days after the notification of intent to dismiss is served.  It is also proposed to revise the section title to read, “Failure to Appear.”  The effect of these proposed revisions will be to provide employers with an opportunity to preserve their variances despite their failure to attend the hearing.

 

Section 426.  Decision; Action on Proposed Decision.

 

Section 426 explains: 1) which entities may hear a variance; 2) how a proposed decision should be drafted; 3) how the Board may respond to a proposed decision; and 4) the Board’s right to decide a case itself.  This section contains a variety of duplicative provisions and much of the contents are unclear.  A number of non-substantive editorial changes are proposed to clarify the regulatory intent and to conform the regulation to the Board’s practices. 

 

In subsection (a), it is proposed to delete the requirement that the hearing officer “who presided at the hearing” be present during the Board’s consideration of the application or appeal and, if requested, assist and advise the Board.  Instead, the section will require only that the hearing officer, if requested, assist and advise the Board.  This proposed modification recognizes that the hearing officer who initially heard the matter may leave the position and may be unable to fulfill this function.  The new hearing officer might be in a position to assist the Board, but would be unable to do so under the existing language.  This change will have the effect of allowing the Board’s hearing officer to assist it to the greatest extent possible.

 

In proposed subsection (c) (existing subsection (d)), the Board proposes to remove the reference to a transcript, because the Board does not prepare transcripts of variance hearings.  In addition, the Board proposes to delete the requirement to refer the case to “the same” hearing officer or hearing panel to take additional evidence, if it does not adopt the proposed decision.  While the Board would always strive to re-assign a matter to the same hearing panel and hearing officer that originally heard the variance, that may not always be possible because of potential changes in staff and Board composition.  By removing the requirement to assign follow-up hearings to the same hearing officer and panel, the Board will be able to gather the information necessary to resolve a variance.  This change will have no effect on the regulated public.

 

Section 427.  Petitions for Re-Hearing.

 

Section 427 states the time parameters and bases for filing a petition for re-hearing.  The Board proposes to add a provision to the regulation clarifying that failure to file the petition within the time specified constitutes sufficient grounds to deny the petition.  This change will have no effect on the regulated public other than to clarify the regulatory intent.

 

Section 427.1.  Form of Petition for Re-Hearing.

 

Section 427.1 explains the required contents for a petition for re-hearing.  The Board proposes to add a provision explaining that the petition will be denied if the petitioner fails to provide the information required.  This change will have no effect on the regulated public other than to clarify the regulatory intent.

 

Section 427.2.  Proof of Service for Petition for Re-Hearing.

 

Section 427.2 states that the party petitioning for re-hearing must serve the petition on all parties.  The section also explains that failure to do so constitutes grounds for denying the petition.  The Board proposes to rename this section to: “Service of Petition for Re-Hearing” for clarity purposes and to change this section to state that the Board will assume responsibility for serving the petition on all parties as opposed to requiring the petitioner to do so.  It is the Board’s practice to serve all documents it receives on all interested parties in order to ensure that the documents are properly disseminated.  It would be duplicative to require the petitioner to do the same.  This change will relieve the petitioner of the duty to serve the petition for re-hearing on all interested parties.

 

Section 427.3.  Re-Hearing.

 

Section 427.3 states that, if a re-hearing is granted, the Board may re-hear the case or refer it to a hearing officer.  The Board proposes to expand this section to state all the ways in which the Board may respond to a petition for re-hearing.  The proposal states that, when a petition is filed in a timely manner, the Board may grant the petition, affirm the Board’s initial decision, take no action, in which case the petition would be deemed denied after 30 days, or deny the petition and provide its reasons for doing so.  It is proposed to add a provision explaining that, if the Board opted to deny the petition by taking no action, the Board would nonetheless notify the employer of the denial. 

 

Also, it is proposed to add a requirement allowing the Board to refer the petition to a hearing panel.  Currently, the regulation only provides for referral to a hearing officer.  Revisions will clarify that the re-hearing may be made on the existing record, or that additional evidence may be requested.  A new provision will state that a notice of hearing will be issued if additional hearing time is needed to resolve the matter.  Under those circumstances, the provision will also require employers to comply with the employee notification requirements contained in Section 411.2(a)(3) and (b)(3).  Another new provision will state that, if the Board decides to hear a matter on the existing record, it may do so without notice and without affording the parties further opportunity to submit information.  The proposed revisions will have no effect on the regulated public other than to clarify the regulatory intent and the Board’s practices with respect to petitions for re-hearing. 

 

Section 427.4.  Decision on Petition for Re-Hearing.

 

Section 427.4 states that a decision issued on a re-hearing petition shall be in the same manner and form as prescribed in rule 426.1 and it states that the petition will be deemed denied if the board takes no action on the petition within thirty (30) days.  The Board proposes to move the statement indicating that inaction by the Board for 30 days constitutes a denial of the petition by the Board to Section 427.3 and to make editorial revisions to the remainder of the provision.  These modifications will clarify the regulatory requirements and organize them in a more logical fashion.

 

Section 428.  Method of Publication.

 

Former Section 428, “Method of Publication”, was repealed during a previous rulemaking action.  New Section 428, entitled “Modifications to a Permanent Variance”, is proposed to address situations in which an employer seeks to modify a permanent variance.  Labor Code Section 143(d) allows employers, the Board, the Division of Occupational Safety and Health and employees to seek variance modifications.  Although employers regularly seek to modify variances, the Board does not currently have any regulations to address this topic.  Because the Board, the Division and employees have yet to seek any variance modifications, the Board believes that regulations to address such actions are unnecessary at this time.  The effect of this new section will be to specify when an employer must seek to modify a variance and how to do so.

 

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 non-discretionary costs or savings on local agencies.

 

DETERMINATION OF MANDATE

 

The Occupational Safety and Health Standards Board has determined that the proposed regulations do 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, these regulations do 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 that 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.)

 

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public.  Moreover, these proposed regulations do 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.)

 

These proposed regulations do 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 13

Section 3437 and New Section 3458

Fall Protection for Date Palm Operations


INFORMATIVE DIGEST OF PROPOSED ACTION/POLICY STATEMENT OVERVIEW

 

This rulemaking action was initiated at the request of the Division of Occupational Safety and Health (Division).  The Division submitted a letter to the Occupational Safety and Health Standards Board (Board), dated November 17, 2000, outlining the need to develop specific regulations to address fall protection for workers involved in growing and harvesting dates.  With the assistance of an advisory committee, this rulemaking action develops a new proposed Section 3458 in the GISO to address fall protection specific to date palm operations.

 

Section 3437.  Definitions.

 

GISO Section 3437 provides the definitions related to Article 13, Agricultural Operations. 

The word “frond” is used in the language of proposed Section 3458 and is proposed to be added to the definitions contained in Section 3437.  The proposed revision will have the effect of providing clarity to the requirements proposed in Section 3458 regarding fall protection for date palm operations. 

 

Proposed New Section 3458.  Fall Protection for Date Palm Operations.

 

Section 3458 is proposed to address the use of fall protection for workers that must access date palms for activities such as thinning, dethorning, pollinating, tying, bagging and harvesting of the date palm fruit.

 

Subsection (a)

 

Proposed subsection (a) requires that employees working in or on date palm trees be protected from falling at heights greater than 7 ½ feet by the use of approved elevating work platforms, aerial devices or by the use of approved personal fall arrest, fall restraint or work positioning systems meeting the requirements of Section 1670 of the Construction Safety Orders.  The proposed subsection will have the effect of ensuring workers are protected from falling at heights greater than 7 ½ feet.

 

Subsection (b)

 

Proposed subsection (b) provides that lanyards used in a fall protection system be constructed of wire rope or chain when there is a hazard of cutting or damaging the lanyard.  Proposed subsection (b)(1) requires that wire rope lanyards meet the minimum strength requirements contained in Section 1670 of the Construction Safety Orders (CSO).  CSO Section 1670 outlines the strength requirements for fall protection system components and devices such as lanyards, lifelines, and anchor points.  Proposed subsection (b)(2) requires that chains used in a fall protection system maintain a safety factor of at least 10.  A note in subsection (b)(2) defines the term “safety factor”.  Proposed subsection (b) will have the effect of ensuring that effective and appropriate fall protection equipment and devices are used when work must be completed at hazardous heights in date palms. 

 

Subsection (c)

 

Proposed subsection (c) addresses the use of date palm saddles, which are part of a custom-built positioning device system used for work that is performed primarily below the crown of the date palm tree.  Subsection (c) requires that a competent person design the date palm saddle and that the saddle be used in accordance with subsections (c)(1) - (c)(3).  Subsections (c)(1), (c)(2), and (c)(3) require that date palm saddles incorporate the use of an approved body belt; that lanyards be attached to at least two fronds; and that dead, decayed, or damaged fronds shall not be used for anchorage.  Subsection (c) will have the effect of ensuring that date palm saddles provide appropriate fall protection when used as part of a positioning device system and that the system is appropriately and substantially anchored.

 

Subsection (d)

 

Proposed subsection (d) addresses the use of positioning device systems used in the crown of date palm trees and requires that these positioning device systems meet the provisions of subsections (d)(1) – (4).  Subsection (d)(1) requires that lanyards be attached to at least two fronds.  Subsection (d)(2) limits lanyards to a maximum length of 8 feet and requires that lanyards be rigged in such a manner that an employee cannot fall more than two feet.  The maximum lanyard length of 8 feet is necessary to provide sufficient lanyard length to wrap around the date palm trunk and fronds when a single lanyard system is used as part of a positioning device attached to a D-ring and body belt.  Subsection (d)(3) prohibits the use of dead, decayed, or damaged fronds for anchorage.  Two lanyard positioning device systems are also used in the crown of date palms with lanyards approximately up to 5 feet in length attached to a D-ring and body belt.  Subsection (d)(4) requires that when changing work positions, at least one lanyard remains attached to provide fall protection at all times.  The proposed section will have the effect of ensuring that effective means and methods of fall protection are provided for employees working in the crown of date palm trees.

 

Subsection (e)

 

Proposed subsection (e) requires a job briefing to be conducted before each work assignment begins.  The effect of this provision will be to ensure that employees are made aware of the hazards unique to a specific assignment, including the work procedures necessary to ensure that the work is completed safely.

 

Subsection (f)

 

Proposed subsection (f) provides that prior to each use, a qualified person shall inspect fall protection equipment and any found to be defective shall be immediately removed from service.  The regulation will have the effect of ensuring fall protection equipment is frequently inspected and in good operating condition in order to provide effective fall protection. 

 

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.  The date palm industry is unique and limited to cultivation in desert-like areas of Southern California and the California/Arizona border.  There are no state agencies involved in the cultivation of dates.

 

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 Saving 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 regulations do 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, these regulations do 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.)

 

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public.  Rather, these regulations require local agencies to take certain steps to ensure the safety and health of their own employees only.  Moreover, these proposed regulations do 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.)

 

These proposed regulations do 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.

 

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 containinga 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 April 11, 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 April 17, 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 John D. MacLeod, 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.