A description of the proposed changes are as follows:

2. TITLE 8: CONSTRUCTION SAFETY ORDERS
Chapter 4, Subchapter 4, Article 4, Sections 1529, 1531, 1532, 1532.1, and 1535;
GENERAL INDUSTRY SAFETY ORDERS
Chapter 4, Subchapter 7, Article 10.1, Sections 3409 and 3411; Article 107, Sections 5144 and 5147; Article 109, Section 5190; and Article 110, Sections 5200, 5201, 5202, 5207-5214, 5216-5218, and 5220
SHIP BUILDING, SHIP REPAIRING, AND SHIP BREAKING SAFETY ORDERS
Chapter 4, Subchapter 18, Article 4, Section 8358
Respiratory Protection

INFORMATIVE DIGEST OF PROPOSED ACTION/PLAIN ENGLISH OVERVIEW

The Board intends to adopt the proposed rulemaking action pursuant to Labor Code Section 142.3, which mandates the Board to adopt regulations at least as effective as federal regulations addressing occupational safety and health issues.

The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) promulgated regulations addressing respiratory protection on January 8, 1998, as 29 Code of Federal Regulations, Section 1910.134 and other 1910 and 1926 standards that reference respiratory protection. The Board is relying on the explanation of the provisions of the federal regulations in Federal Register, Volume 63, No. 5, pages 1152 to 1300, January 8, 1998, as the justification for the Board's proposed rulemaking action. The Board proposes to adopt regulations which are the same as the federal regulation except for editorial and format differences.

The proposal updates the respiratory protection requirements for all workplaces. The new standard revises the requirements for a written program, selection, approval, fit testing, training, medical evaluation, use, and care for respirators. The proposal simplifies and eliminates several duplicative sections and appendices throughout Title 8. The proposal also clarifies the respirator and standby person requirements for Immediately Dangerous to Life and Health (IDLH) situations including specific requirements during interior structural firefighting.

The proposed regulations are substantially the same as the final rule promulgated by federal OSHA. Therefore, Labor Code Section 142.3(a)(3) exempts the Board from the provisions of Article 5 (commencing with Section 11346) and Article 6 (commencing with Section 11349) of Chapter 3.5, Part 1, Division 3 of Title 2 of the Government Code when adopting standards substantially the same as a federal standard; however, the Board is still providing a comment period and will convene a public hearing. The primary purpose of the written and oral comments at the public hearing is to: 1) identify any clear and compelling reasons for California to deviate from the federal standard; 2) identify any issues unique to California related to this proposal which should be addressed in this rulemaking and/or a subsequent rulemaking; and, 3) solicit comments on the proposed effective date. The responses to comments will be available in a rulemaking file on this matter and will be limited to the above areas.

The effective date is proposed to be 90 days upon filing with the Secretary of State to allow California employers the same amount of time to come into compliance with the new requirements as was allowed in the federal final rule. The regulations may be adopted without further notice even though modifications may be made to the original proposal in response to public comments or at the Board's discretion.

DOCUMENTS RELIED UPON

29 CFR Parts 1910 and 1926 Respiratory Protection; Final Rule. 63 Fed.Reg. 1152-1300 (January 8, 1998).

This document is available for review during normal business hours at the Standards Board Office located at 1300 I Street, Suite 920, Sacramento, California.

DOCUMENTS INCORPORATED BY REFERENCE

None.

COST ESTIMATES OF PROPOSED ACTION

The Standards Board relies on the benefit and cost estimates provided on pages 1171-1178 of the preamble to OSHAs final rule. OSHA summarizes that the proposal will benefit workers by reducing their exposures to respiratory hazards. Nationally, OSHA estimates the proposal will result in 843 to 9,282 fewer work related injuries and illnesses per year and 351 to 1,626 fewer deaths per year.

OSHA estimates the annual costs for employers to comply with the new proposal to be $111 million nationwide. OSHA states that the proposal is economically feasible and estimates the cost to the average establishment to be 0.002% of sales and 0.03% of profits. OSHA also certified that the proposal will not have a significant adverse economic impact on small business.

OSHA does not consider the proposal to be an unfunded mandate on state or local government. In particular, fire departments in state plan states would incur an estimated $3.5 million annual cost which is insignificant since it is less than 0.1% of their total budget.

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulations do not impose a mandate requiring reimbursement by the state pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because 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, the regulations require local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the 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.

PLAIN ENGLISH STATEMENT

It has been determined that the proposal may affect small business. The express terms of the proposal written in plain English have been prepared by the Board pursuant to Government Code Sections 11342(e) and 11346.2(a)(1) and the informative digest for this proposal constitutes a plain English overview.

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.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternatives considered by 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.