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April 2004 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 April 15, 2004, at 10:00 a.m.
in the county administration center,
1600 Pacific Highway, room 358, San Diego, 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 15, 2004, following the public meeting
in the county administration center,
1600 Pacific Highway, room 358, San Diego, 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.

Public meeting: On April 15, 2004, following the public hearing
in the county administration center,
1600 Pacific Highway, room 358, San Diego, 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, General Industry Safety Orders and Petroleum Safety Orders of the California Code of Regulations, as indicated below, at its public hearing on April 15, 2004.

1. Title 8:

General Industry Safety Orders
Chapter 4, subchapter 7, article 25
Section 3657
Elevating employees with industrial trucks

 

2. Title 8:

General Industry Safety Orders
Chapter 4, subchapter 7, article 109
Section 5194
Hazard communication amendments

 

3. Title 8:

Petroleum Safety Orders
Chapter 4, subchapter 15, article 5
Section 6777
Hot work permits


A description of the proposed changes are as follows:

1. Title 8: General Industry Safety Orders
Chapter 4, subchapter 7, article 25
Section 3657
Elevating employees with industrial trucks

Informative digest of proposed action/policy statement overview

This staff-initiated rulemaking action is based on an evaluation of respective requirements contained in Sections 3646, 3648 and 3657 with regard to elevating employees using elevating work platforms, aerial devices, and industrial trucks, respectively. Sections 3646 and 3648 both contain requirements prohibiting employees from sitting, standing, or climbing on guardrails or baskets, or using planks, ladders, or other devices to gain greater working height or reach. Section 3657, however, does not contain such requirements. Moreover, since Section 3657 is a vertical standard regulating the practice of elevating employees using industrial trucks, it may be difficult to apply either Section 3646(e) or 3648(e) for enforcement purposes. Board staff intends to correct this oversight by amending Section 3657 using language similar to subsection (e) of Sections 3646 and 3648.

Section 3657. elevating employees with lift trucks.

This section contains requirements pertaining to the practice of elevating an employee on a platform using a powered industrial truck and includes, but is not limited to: platform design, securing the platform, platform guardrail/toeboards, platform free fall control, falling object protection, and operating rules.

Existing subsection (a) outlines various specifications for platforms of industrial trucks when it is deemed necessary to elevate employees via this method. Nonsubstantive, editorial revisions are proposed to revise subsection (a) to make it consistent with similar language contained throughout Title 8, e.g., Section 3646(a), which is proposed to read, “Employees shall not be elevated using an industrial truck unless the following conditions are met.” The proposed revisions will have no effect on the regulated public, and are merely for clarification and consistency purposes.

New subsection (h) is proposed which prohibits employees from sitting, climbing or standing on the platform guardrails or using planks, ladders or other devices to gain elevation. Consequently, existing subsection (h) is proposed for relettering as subsection (i). In addition, new operating rule (9) is proposed, under proposed new subsection (i), which requires the employer to instruct employees not to sit, climb or stand on the platform guardrails or use planks, ladders or other devices to gain elevation prior to elevating personnel. The proposed revisions would have the effect of ensuring that employees do not utilize these unsafe means to gain additional altitude or reach while on industrial truck platforms, consistent with existing requirements pertaining to elevating work platforms and aerial devices. The proposed revisions would require the employer to make slight administrative amendments to their injury/accident prevention program to address these proposed prohibitions.

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 impact 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 amendment will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, the 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.)

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

Effect on small business

The Board has determined that the proposed amendments may affect small businesses. However, no economic impact is anticipated.

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.


2. TITLE 8: General Industry Safety Orders
Chapter 4, subchapter 7, article 109
Section 5194
Hazard communication amendments

Informative digest of proposed action/policy statement overview

The Occupational Safety and Health Standards Board (Board) intends to adopt the proposed amendments to Section 5194 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) amended the hazard communications standard 29 CFR 1910.1200, 1915.1200, 1917.28. 1918.90, and 1926.59 on February 9, 1994. These changes have not been incorporated into Title 8, Section 5194. The Board is relying on the explanation of the provisions of the federal regulations in Federal Register, Volume 59, No. 5, pages 6126-6184, February 9, 1994, 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 would clarify that the exemption for wood and wood products does not apply to wood that will be sawed or cut, generating dust. It would adopt federal language updating references in the standard to the Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment, published by the American Conference of Governmental Industrial Hygienists, to the latest edition of that publication. The proposal would also adopt federal language updating references in the standard and Appendix A to the latest editions of publications by the International Agency for Research on Cancer and the National Toxicology Program. The federal language updates the edition of the American National Standards Institute publication cited in Appendix A to the 1988 edition.

The proposal would establish a requirement that labels on hazardous substances be updated within three months of the manufacturer, importer, distributor or employer becoming newly aware of significant hazard information. The proposal would give explicit permission to employers to maintain material safety data sheets (MSDS) in languages other than English in addition to the required English-language version. The proposal also would give employers explicit permission to maintain material safety data sheets in non-paper versions, so long as the method of maintaining the MSDS does not create a barrier to immediate access. The proposal would require manufacturers or importers to provide MSDS to employers or distributors upon request. The proposal would adopt federal language requiring that training provided to employees be effective. Finally, the proposal would adopt federal language in Appendix A requiring that hazard data obtained through test methods other than those specifically included in Appendix B be evaluated for application of the hazard communication standard.

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 after 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 the Board's discretion.

Cost estimates of proposed action

The Standards Board relied on the benefit and cost estimates provided on pages 6126-6184 of the preamble to federal OSHA’s final rule. OSHA summarized that the proposal is a minor revision of the Hazard Communications Standard and the limited modifications may make implementation of the hazard communication standard more cost-effective.

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 amendment 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, the 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 business

The Board has determined that the proposed amendments may affect small businesses. However, the proposal essentially mirrors the existing Federal Occupational Safety and Health Administration rule and imposes no additional cost.

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.


3. Title 8: Petroleum Safety Orders
Chapter 4, subchapter 15, article 5
Section 6777
Hot work permits

Informative digest of proposed action/policy statement overview

This proposed rulemaking action is being initiated as a result of an Occupational Safety and Health Appeals Board (OSHAB) Decision After Reconsideration, Docket No. 94-R3D5-2087. In a memorandum to the Standards Board dated November 17, 1999, the OSHAB suggested the language in Section 6777 be revised to clarify the safety precautions an employer must take before introducing a source of ignition into a workspace and to emphasize that the employer’s responsibility for issuance of a hot work permit is an essential procedure for ensuring that these safety precautions have been completed.

Section 6777 is contained in the Petroleum Safety Orders, which apply to the refining, storage and handling of petroleum, natural gas, and their products; including the construction, maintenance and operation of such equipment. There is no federal counterpart to the Petroleum Safety Orders. Existing Section 6777(a) requires the employer to issue a hot work permit before a source of ignition is used, such as for welding, grinding, drilling. It also identifies hot work operations that are exempt from the permit requirement. Section 6777(b), (c), (d), and (g) contain requirements related to the posting, content, termination, and filing of hot work permits. Section 6777(e) and (f) identify the actions and conditions required before a hot work permit is issued. Finally, Section 6777(h) and (i) require fire extinguishing equipment for hot work and the control of ignition sources in locations where flammable gases or vapors may be present.

This proposal would amend Section 6777 to more clearly state (1) its scope and application, (2) the safety precautions that an employer must complete before hot work is begun, and (3) the provisions related to hot work permits and their issuance. It proposes to relocate many of the requirements contained in the existing regulation so that the provisions are easier to identify and understand. The proposal also would amend subsections in the current regulation to require employers to take basic safety precautions before performing hot work operations, regardless of whether a permit is required. Language would also be added to require that before hot work is begun, the employer shall test for flammable vapors and gases when it is reasonable to expect that they may be present in hazardous concentrations, much as the existing regulation requires the employer to test when hot work is resumed after the work is interrupted. Finally, in order to give guidance to the employer on how to comply with the existing requirement to eliminate or control sources of ignition when flammable vapors are present, the proposal would specify the maximum concentration of flammable vapors allowed.

This proposed rulemaking action contains numerous nonsubstantive, editorial, reformatting of subsections, and grammatical 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 6777. Hot Work Permits.

Section 6777 outlines various requirements pertaining to the performance of hot work and the issuance of hot work permits. It is proposed to amend the title of the section to read, “Hot Work Procedures and Permits,” adding “procedures” to more accurately reflect the contents of the section.

Subsection (a)

Existing subsection (a) requires a written and numbered hot work permit to be issued and signed by the employer or his authorized agent before a source of ignition is used. Existing subsection (a) further lists several exceptions to this hot work permit requirement.

A revision is proposed to relocate and reletter the hot work permit requirement to proposed new subsection (e), in order to consolidate the requirements specific to hot work permits to the latter part of the section. A new subsection (a) is proposed entitled, “Scope and Application,” which reads, “This section contains the required practices and procedures necessary to protect employees from fire and explosion hazards associated with hot work.” The proposed new subsection (a) further states, “This section applies to all hot work operations, except as provided in subsections (a)(1) and (a)(2).” Proposed new subsection (a)(1) would list operations that are exempt from all of the requirements of the section. The proposed new subsection (a)(2) would list operations that need only comply with the hot work safety procedures in proposed new subsections (b), (c), and (d). The exempt operations listed in existing subsection (a) would be retained, edited for clarity, and relettered as subsections of new (a)(1) and (a)(2).

The proposed revisions will have the effect of clarifying the scope and application of this section. It would distinguish between those operations that require adherence to hot work safety procedures and a hot work permit, and those operations that require adherence to the hot work safety procedures but do not require a permit.

Subsection (b)

Existing subsection (b) requires the employer to provide the employee or post a copy of the permit prior to initiation of a source of ignition, except as specified in subsection (a) of this section. The copy of the permit shall be kept on the job where the source of ignition is being used until the work is completed, the permit expires, or is revoked.

It is proposed that subsection (b) be relocated and relettered to proposed new subsection (f), in order to consolidate the requirements specific to hot work permits to the latter part of the section. A new subsection (b) is proposed, entitled “Hot work procedures,” composed primarily of existing subsections (e), (f) and (i), and revised to apply to hot work procedures rather than directly to permits.

Existing subsection (e) requires the employer to determine that the source of ignition may be safely used prior to issuing a hot work permit. Existing subsection (e) also prohibits a hot work permit from being issued unless the flammable gas or vapor content is less than 20 percent of the lower explosive limit (LEL). Existing subsection (f) states that when a hot work permit is issued, the following requirements (if applicable) shall be met: (1) Oil accumulations or other combustible materials in exposed areas shall be removed or protected from ignition, and (2) Gauge glasses containing flammable liquids, vapors or gases and exposed to the spatter of molten metal shall have their valves closed and be drained, or the gauge glasses shall be guarded. Finally, existing subsection (i) requires that in locations where flammable vapors may be present, precautions shall be taken to prevent ignition by eliminating or controlling sources of ignition.

Proposed new subsection (b) would combine these aforementioned subsections to read, “Before hot work is begun, the employer shall determine that a source of ignition can be safely used. In locations where flammable vapors may be present, precautions shall be taken to prevent ignition by eliminating or controlling sources of ignition. A source of ignition shall not be introduced into an area until all of the following required actions have been completed:

(1) Tests for the presence of flammable gases and vapors shall be made when the concentration of flammable gases or vapors may reasonably be expected to exceed 20 percent of the lower explosive limit (LEL). The tests shall confirm that the concentration of flammable gases and vapors does not exceed 20 percent of the LEL.

(2) Oil accumulations or other combustible materials shall be removed or protected from ignition when present in exposed areas.

(3) The gauge valves shall be closed and the gauges drained, or the gauge glasses shall be guarded when gauge glasses contain flammable liquids, vapors or gases and are exposed to the spatter of molten metal.”

Since proposed new subsection (b) is comprised of existing requirements, the proposed revisions will have no other effect other than to distinguish the requirements pertaining to hot work procedures, which apply to all hot work operations, from those requirements specific to hot work permits.

Subsection (c)

Existing subsection (c) outlines what a hot work permit shall contain. It is proposed that this requirement be relocated and relettered to a proposed new subsection (g) in order to consolidate the requirements specific to hot work permits to the latter part of the section.

New subsection (c) is proposed which would prohibit a source of ignition from being used where the concentration of flammable gases or vapors exceeds 20 percent of the LEL. This new subsection will have the effect of emphasizing to the employer that hot work cannot be performed where the hazard of fire and/or explosion exists.

Subsection (d)

Existing subsection (d) outlines the conditions for terminating a hot work permit. Existing subsection (h) requires that suitable fire extinguishing equipment be available to the employees who are using a source of ignition. It is proposed to editorially revise and switch these two subsections, relocating and relettering existing subsection (h) as proposed new subsection (d), and existing subsection (d) as proposed new subsection (h). Proposed new subsection (d) would require suitable fire extinguishing equipment to be readily available in the area where hot work is performed.

These proposed revisions are necessary to distinguish the general requirements pertaining to hot work procedures from those requirements pertaining to hot work permits, which are to be addressed in the latter part of the section. The proposed revisions to subsection (d) will have the effect of clarifying that the requirement to have suitable fire extinguishing equipment readily available pertains to all hot work operations, not merely those that require a permit.

Subsection (e)

Existing subsection (e) requires the employer to determine that the source of ignition may be safely used prior to issuing a hot work permit. Existing subsection (e) also prohibits a hot work permit from being issued unless the flammable gas or vapor content is less than 20 percent of the lower explosive limit (LEL). This requirement is proposed to be relocated to new subsection (b).

This proposal would editorially revise and relocate existing subsection (a) as a new subsection (e), entitled “Hot work permits.” Proposed new subsection (e) would state that, except for those operations identified in subsection (a)(2), a written and numbered hot work permit shall be completed, signed and issued by the employer or his authorized agent before a source of ignition is used. As part of this hot work permit issuance procedure, the employer would be required to verify that all of the required actions identified in proposed subsection (b) be completed before a hot work permit is issued.

The proposed revisions will have the effect of distinguishing the requirements pertaining to hot work permits from the hot work procedures which pertain to all hot work operations, and will ensure that the necessary, and newly clarified, hot work safety procedures are met prior to issuing a permit.

Subsection (f)

Existing subsection (f) states that when a hot work permit is issued, the following requirements (if applicable) shall be met: (1) Oil accumulations or other combustible materials in exposed areas shall be removed or protected from ignition, and (2) Gauge glasses containing flammable liquids, vapors or gases and exposed to the spatter of molten metal shall have their valves closed and be drained, or the gauge glasses shall be guarded. These provisions are proposed to be editorially revised and incorporated into subsection (b).

This proposal would editorially revise and relocate existing subsection (b) as new subsection (f), which states that before an employee introduces a source of ignition, the employer shall provide a copy of the hot work permit to the employee or shall post a copy of the permit in the area of the planned hot work. The copy of the permit shall be kept on the job where the source of ignition is being used until the work is completed, or the permit expires or is revoked.

Since it is an existing requirement, the proposed revisions will have no effect other than to distinguish the requirements pertaining to hot work permits from those that pertain to hot work procedures which apply to all hot work operations.

Subsection (g)

Existing subsection (g) requires that a copy of each permit issued be kept on file at the plant of issue for at least six months after date of issue. It is proposed that this requirement be relocated and relettered as subsection (i). It is proposed that the specifications in existing subsection (c), which outline what a hot work permit shall contain, be relocated and relettered as new subsection (g). The proposed relocation and relettering of the subsection will have no effect on the regulated public since it is already a requirement.

Subsection (h)

Existing subsection (h) requires that suitable fire extinguishing equipment be available to the employees who are using a source of ignition. Existing subsection (d) outlines the conditions for terminating a hot work permit. It is proposed to editorially revise and switch these two subsections, relocating and relettering existing subsection (h) as proposed new subsection (d), and existing subsection (d) as proposed new subsection (h). The editorial revisions, relocation, and relettering of the subsections will have no effect on the regulated public since it is already a requirement, but is necessary to distinguish the requirements applicable to hot work procedures vs. hot work permits.

Subsection (i)

Existing subsection (i) requires that in locations where flammable vapors may be present, precautions shall be taken to prevent ignition by eliminating or controlling sources of ignition. It is proposed to relocate this requirement to proposed new subsection (b) in order to consolidate the requirements for hot work procedures, which are applicable to all hot work operations, to the beginning part of the section.

Existing subsection (g) requires that a copy of each permit issued be kept on file at the plant of issue for at least six months after date of issue. It is proposed to relocate and reletter this requirement as new subsection (i). For clarity purposes, it is proposed that the phrase, “The employer issuing the hot work permit shall keep,” be added at the beginning of sentence. The proposed revision will have no effect on the regulated public since it is already an existing requirement.

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 impact 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 amendment will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, the 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.)

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

Effect on small business

The Board has determined that the proposed amendments may affect small businesses. However, no economic impact is anticipated.

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.

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 April 9, 2004. 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 15, 2004 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.