INITIAL STATEMENT OF REASONS

CALIFORNIA CODE OF REGULATIONS
TITLE 8: Chapter 4, Subchapter 7, Article 5,
Sections 3281, 3282, 3286, 3291, and New Appendix A
of the General Industry Safety Orders
Controlled Descent Apparatus,
Operating Procedures Outline Sheet, and
Counterweighted Outrigger Beams


PROBLEM ADDRESSED BY PROPOSED ACTION

This proposed rulemaking action is the result of Petition File No. 312 granted by the Occupational Safety and Health Standards Board (Board) to the extent that Board staff convene an advisory committee to consider the development of regulations concerning the use of Controlled Descent Apparatus (CDA). The recommendations, if any, from the advisory committee would be presented to the Board at a future public hearing.

Over the past 20 years, CDA approval in California has gone through several changes, including their configuration and how they are used. Because of a federal rulemaking action, advisory committee meetings were convened in 1990, to review Article 5, Window Cleaning and Article 6, Powered Platforms for Building Maintenance. During the review of Articles 5 and 6, a subcommittee was formed to review the possibility of developing regulations to address the hazards associated with the use of CDAs. The subcommittee was unable to reach a consensus opinion after a year of meetings. Because the subcommittee was unable to reach a consensus opinion concerning any of the CDA issues, the Board was petitioned (OSHSB Petition File No. 312) to have another advisory committee conduct an independent review to determine if regulations were needed to control the use of CDAs. The Board granted Petition File No. 312 requesting Board staff to convene an advisory committee to see if a general consensus could be reached concerning the wide range of issues necessary to provide safe worksites for employees using CDAs. The Petition Decision mentioned that the Division of Occupational Safety and Health (Division) concurred with the Board’s recommendation that an advisory committee be convened to address the use of "state of the art" controlled descent equipment.

In addition to reviewing Board staff’s proposal for the design and use of CDA equipment, the advisory committee discussed the possibility of including recommendations to address methods for the safe use of roof mounted exterior building maintenance equipment (e.g., counter weighted outrigger beams). The request was a committee suggestion issued verbally to staff in response to the Petition submitted by Mr. Hector Garcia pertaining to the use of swing stage scaffolding by two employees for exterior building maintenance. The discussion culminated in the development of 18 conditions governing the use of counter-weighted outrigger beams (see page 26 of staff’s minutes of the January 9-11, 1996 advisory committee). The 18 conditions were intended to serve as the basis for development of specific regulatory text by staff at a later date. The advisory committee reached a general consensus opinion to have Board and Division staff develop proposed regulations that specifically state how a building’s roof mounted building maintenance equipment would be used by contract employees. This document would be called an Operating Procedures Outline Sheet (OPOS).

The proposed rulemaking was originally scheduled for public hearing on July 17,1997, but was postponed to allow additional parties the opportunity to comment on the proposed language via the advisory committee process. Board staff issued a "Notice of Postponement" on July 3, 1997. Board staff convened a second advisory committee on October 15, 1997 and at that meeting reviewed the CDA/OPOS proposal and new language addressing the issue of counterweighted outrigger beams [Section 3291(d)].

This proposed rulemaking action, which includes proposed OPOS and counterweighted outrigger beam regulations, is the result of a general consensus opinion reached at the January 9 - 11, 1996 and October 15, 1997 advisory committee meetings to review Petition File No. 312 and proposed revisions to Sections 3281, 3282, 3286, and 3291.

SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION

This proposed rulemaking action contains numerous nonsubstantive, editorial, and grammatical revisions. These nonsubstantive revisions are not all discussed in the Initial Statement of Reasons. However, these proposed revisions are clearly indicated in the regulatory text in underline and strikeout format. In addition to these nonsubstantive revisions, the following are proposed:

California Code of Regulations, Title 8, Chapter 4,
Subchapter 7, Article 5, Window Cleaning

Section 3281. Definitions.
This section contains definitions of terms used in the window cleaning and building maintenance industries. It is proposed to adopt new definitions for the following terms: "Controlled Descent Apparatus (CDA)," "Danger Zone," and "Height of Suspension," Also, it is proposed to amend the definition for "Boatswain’s Chair." The proposed new and amended definitions are necessary to clarify the provisions proposed for inclusion in Article 5 of these orders.

Section 3282. General Requirements for All Window Cleaning Operations.
Subsection 3282(p).

Subsection 3282(p)(1), which is proposed to be editorially revised to be subsection 3282(p)(1)(A), requires building owners to provide employers with written assurance that the building’s safety devices and equipment meet the requirements of these orders. The subsection contains examples of some of the safety devices and equipment that building owners are required to consider when developing their written assurance. The subsection also provides that employers shall not allow their employees to perform building maintenance on buildings or use the building’s safety devices or equipment without receiving written assurance from the building owner.

Proposed new subsection 3282(p)(1)(B) will require building owners to perform, at a minimum, yearly inspections and, where necessary, conduct tests on equipment and safety devices, such as those specified in subsection 3282(p)(1)(A). The subsection also requires that all such tests shall be conducted as required in Section 3296(b).

Proposed new subsection 3282(p)(1)(B) is necessary to ensure that all safety devices and equipment mentioned in the written assurance provision is inspected and, if necessary, tested at minimum time intervals. The existing section is silent on the frequency of inspections and/or tests required for safety devices and building maintenance equipment as provided for in this article.

The majority of buildings less than 130 feet in height are not equipped with building maintenance support and safety equipment. Most of these buildings only have roof tie-backs, if anything at all, for securing roof supported equipment and safety devices. There are a number of buildings under 130 feet in height that are equipped with some form of outriggers or davits system to use when performing exterior building maintenance. Therefore, this proposal is necessary to ensure the safety of employees by requiring that those buildings with roof mounted building maintenance equipment or window anchors are inspected at least once every 12 months. Furthermore, this proposal is necessary to ensure the inspection and test requirements for buildings under 130 feet in height are the same as those for similar building maintenance equipment on buildings over 130 feet in height.

The proposal does not specify who can perform the inspections. This is intentional because it is up to the building owner to ensure that the person conducting the inspections is qualified. However, tests on any building structural components or roof mounted building maintenance equipment must be conducted by a person qualified as required in Section 3296(b). This proposal is necessary to ensure that a qualified person as determined by the Division oversees all tests on the building’s structural components associated with window cleaning or roof mounted building maintenance equipment. This proposal will ensure that the person(s) performing tests on buildings under 130 feet in height have the same qualifications as the person(s) performing tests on buildings over 130 feet in height.

Furthermore, this proposal will clarify what is expected of building owners who have buildings that fall within the provisions of the California Labor Code, sections 7325 through 7332, which apply to window cleaning on buildings more than 36 feet in height. These Labor Code sections give the Division the authority to stop all window cleaning operations on buildings 36 feet in height and above. The regulations in Article 6 apply to buildings with powered platforms permanently dedicated to interior or exterior building maintenance regardless of the height of the building.

Article 6 provides minimum safety requirements for owners of buildings with permanently mounted building maintenance equipment. However, other buildings which are outside the requirements of Article 6 and are equipped with davits, outriggers or other types of building maintenance equipment do not have the benefit of the regulation to provide guidelines and direction to ensure a safe worksite. This proposal will provide the necessary direction to ensure employee safety.

The Division, as provided in Section 3296, maintains a list of certified inspectors authorized to conduct such inspections and tests on buildings with permanently dedicated powered platform(s). By using the Division’s list, building owners should not have any difficulty in finding certified inspectors or equipment manufacturer’s representatives to conduct tests on their building maintenance equipment or safety devices.

Proposed new subsection 3282(p)(1)(C)1. requires owners of buildings over 36 feet in height to have an Operating Procedures Outline Sheet (OPOS) if: (A) a building does not have an established window cleaning system or procedures meeting the requirements of Article 5 and 6; or (B) a building’s original window cleaning procedures prepared in accordance with the requirements of Articles 5 and 6 have been changed because of building modifications; or (C) a building has extreme architectural features or equipment, or uses rigging or equipment not covered by these orders. This proposal is necessary because most building owners or managers do not understand how the roof mounted building maintenance equipment operates. Knowledge of how the building maintenance equipment operates is usually left up to the company hired to perform the building maintenance. Because buildings are structurally different, buildings utilize different methods to accomplish building maintenance such as window cleaning.

The development and implementation of an OPOS has been used by the Board for several years to resolve issues regarding equivalent safety before granting a permanent variance to a building owner who has, for one reason or another, not installed the required roof mounted building maintenance equipment on their building. Board staff has discussed the use of OPOSs with employers involved in the development of OPOSs and employers that have used OPOSs on numerous buildings over the last four or five years. Employers involved with the use of OPOSs are of the opinion that buildings where OPOSs are used provide superior employee safety.

It should be emphasized that the development of an OPOS is a one time cost and that there is the possibility of future savings to building owners resulting from consolidation of building maintenance procedures into one user-friendly document requiring modification only if the building structure is modified in a way which would affect the exterior building maintenance process. Staff believes this really does not represent an added hidden cost because building owners are already required to ensure structural modification are performed in a manner which does not subject exterior building maintenance employees to fall hazards caused by equipment/system failure.

Proposed new subsection 3282(p)(1)(C)2. requires building owners to have a person(s) with knowledge in the design, installation and use of building maintenance equipment meaning, possessing Scaffold Inspection Testing certification as specified in Section 3296, to develop an OPOS for each building that falls within the provisions of subsection 3282(p)(1)(C)1. The proposal requires the OPOS to be prepared and written in a manner understandable to the employers. The proposal also requires that a professional engineer be involved in the development of any OPOS requiring structural modifications to a building or its building maintenance equipment. The necessity for this proposal is the same as that stated in subsection 3282(p)(1)(C)1. above.

Proposed new subsection 3282(p)(1)(C)3. provides that the content of proposed Appendix A or its equivalent shall be used in the development of an OPOS. This subsection is necessary because it identifies the location which contains the proposed minimum requirements for developing an OPOS.

Subsection 3282(p)(2) provides that employers shall not permit their employees to use any building’s safety devices or equipment prior to the employer receiving written assurance as required by these orders. Proposed amendments will require that employers receive a copy of the written assurance and, if required, an OPOS before permitting their employees to use the building’s safety devices and equipment. This proposal is necessary to ensure that the employees of the maintenance company have all of the necessary information to safely perform exterior building maintenance using the building’s roof mounted equipment and that they have been informed of any hazards that may not be easily seen or recognized.

Section 3286. Boatswain’s Chairs.
It is proposed to amend the title of this section to include "Controlled Descent Apparatus (CDA)." The proposed title will read: "Manual Boatswain’s Chairs and Controlled Descent Apparatus (CDA)." This proposal is necessary to address the proposed amendments to the section.

Subsection 3286(a) is entitled "Use and Application".
Subsection 3286(a)(1) provides that boatswain’s chairs shall be used for window cleaning operations only when windows cannot be cleaned safely and practicably by other means. Proposed amendments will renumber the subsection to subsection 3286(a)(1)(A), and include CDAs in the Use and Application requirements. This amendment is necessary to ensure that the regulated public are aware that CDA use is limited.

Proposed new subsections 3286(a)(1)(B)1. through 5. provide where windows cannot be cleaned safely and practicably by other means, the use of boatswain’s chairs or CDAs will be permitted provided: 1) manual boatswain’s chairs shall not be used where the suspension height exceeds 75 feet or unless otherwise accepted by the Division of Occupational Safety and Health (Division) in writing, 2) CDAs shall not be used where the suspension height exceeds 130 feet or unless otherwise accepted by the Division in writing, 3) roof tie-backs or other approved anchorage shall be provided, 4) each line shall be connected to a separate anchorage, and 5) an OPOS shall be developed for the building.

Proposed new subsections 3286(a)(1)(B)1. through 5. are necessary to place limits on the use of boatswain’s chairs or CDAs, when they are used as a substitute for the original method designed into the building for cleaning windows. The 75 feet and 130 feet height limits were discussed at length during the advisory committee that reviewed this proposal and a consensus was reached as proposed at the committee meeting. The 75 foot height limit is consistent with that recommended by national consensus standard ASME A39.1-1995, Safety Requirements for Window Cleaning. With regard to the height limit for CDAs, since 1974, California has required buildings over 130 feet in height to have permanent roof mounted building maintenance equipment and since 1941, all buildings over 36 feet in height have been required to have some form of window cleaning equipment and maintenance of the equipment has been required. Therefore, the advisory committee believes that the 130 feet proposal is necessary and consistent with existing regulations.

Subsection 3286(a)(2) provides that persons shall be trained in the use of boatswain’s chairs before they are permitted to use such equipment. Proposed subsection 3286(a)(2)(A) provides that employees shall be trained in the use of boatswain’s chair and/or CDAs prior to beginning work. This proposal is necessary to include the use of CDAs in the existing training requirements.

Proposed new subsection 3286(a)(2)(B) contains minimum elements to be included in the training program. This proposal is necessary as it provides the regulated public with the necessary information to establish a boatswain’s chair or CDA training program for their employees.

Subsection 3286(a)(3) provides when boatswain’s chairs are suspended over pedestrians or other types of traffic, the ground immediately below shall be blocked by barricades, or an attendant shall be stationed to keep the area clear. Warning signs are also required to be posted. Proposed amendments are necessary to include CDAs and to clarify the work zone may be larger than the area immediately below the boatswain’s chair or CDA.

Subsection 3286(a)(4) states that workers using boatswain’s chairs shall wear safety belts with lanyards secured to separate anchorages or other means affording equivalent safety acceptable to the Division. Proposed amendments will require that employees using boatswain’s chairs or CDAs shall wear full body harnesses as part of their fall arrest systems. Another proposed amendment will remove the Division’s approval provision and require that each safety line be attached to an approved independent anchorage. These proposed amendments are necessary to be consistent with the fall protection requirements in Article 6 for similar building maintenance equipment and with the new fall protection requirements in Article 24 of the Construction Safety Orders.

Subsection 3286(b), Rigging. An editorial revision is proposed to the title to include the term "Block and Tackle." This proposed editorial addition to the title will read "Rigging, Block and Tackle" to clarify the content of the subsection.

Subsection 3286(b)(2) provides that the upper hook of the block and fall shall be a closed hook or shackle. Proposed amendments will clarify the provision and require the use of a safety hook or shackle on the upper block to prevent disengagement. This proposal is necessary ensure the use of modern safety devices and terminology.

Subsection 3286(b)(4) states that thimbles shall not be used where the chair connects to the hook. Proposed amendments will delete the reference to thimbles and require that safety hooks be used to connect the chair to the lower block. These proposed amendments are necessary to be consistent with national consensus standards and current industry practice.

Subsection 3286(b)(5) states that tackle shall consist of rope equivalent in strength to at least 5/8-inch rope of first grade manila as well as be properly sized for the blocks. Proposed amendments will require that the rope be equivalent to 5,400 pounds in strength and ensure that the rope is the proper diameter for the blocks. The proposed amendments are necessary to be consistent with rope requirements in the applicable national consensus standard and these orders.

Subsection 3286(a)(6) states that parapet or cornice hooks shall be tied-back using rings for that purpose. The proposed amendments will require all parapet and cornice hooks be equipped with tie-back rings and wire rope be used for tie-back purposes, and connected to approved tie-back anchorage. The proposed amendments are necessary because it is not clear that the rings are required on all parapet and cornice hooks. The proposed amendment requiring the use of wire rope for the tie-back is necessary for several reasons. Firstly, attaching synthetic or natural fiber rope to roof tie-back anchorage, in most cases, requires the rope to be knotted or attached in a manner that weakens the rope. Secondly, leaving the tie-back ropes on a roof of a building is common practice and subjects the rope to environmental hazards. In some parts of California, common natural fiber rope left exposed to environmental hazards will become unusable within six months.

Subsection 3286(c), Specifications. Subsection 3286(c)(1) contains design requirements for boatswain’s chairs. Proposed amendments will renumber the subsection to subsection 3286(c)(1)(A) and include the title "Boatswain’s Chair" to indicate the device covered by this regulation.

Proposed new subsection 3286(c)(1)(C) requires buckets to be attached when using boatswain’s chairs. This proposal is necessary to ensure that a tool or wash bucket is secured in a manner to prevent it from falling and possibly causing injury to a person on the ground or surface below.

In proposed new subsection 3286(c)(2), a title is proposed entitled "CDA Seatboards." Proposed new subsections 3286(c)(2)(A) and (B) contain design requirements for CDA seatboards and require buckets to be attached in a manner to prevent it from falling to the ground or surface below. This proposal is necessary because it provides minimum design requirements for seatboards and ensures that when a tool or wash bucket is used it is secured in a manner to prevent it from falling and possibly causing injury to a person on the ground below.

In proposed new subsection 3286(d), a title is proposed entitled "CDA Seatboard (CDA)." Proposed new subsections 3286(d)(1) through (15) contain all of the necessary provisions to address the safe use of CDAs. These provisions include the items that makeup a CDA, such as, marking and identification requirements, fall arrest system requirements, controlled descent device configuration requirements, rope requirements, manufacturers’ instructions, provisions to remove defective ropes or webbing from service, time limits on the use of rope, proof load test requirements, chemical hazards to the rope, hazards that could cut the ropes or webbing, rope length requirements, hazards of rapid descent, visual inspection of buildings for hazards, safe access to drop sites, and use of fall arrest systems. This proposal is necessary to make it clear to those affected by this proposal what actions and safety precautions are to be followed when using CDAs for window cleaning.

Section 3291. Special Design Considerations-Permanent Roof Top Installations.
Subsection 3291(d). Roof Outrigger Beams, Portable or Fixed.

Subsection (d) contains various requirements pertaining to the use of roof outrigger beams which includes regulations which specifically prohibit their use on buildings exceeding 130 feet in height unless acceptable to the Division, requirements and specifications for the design and use of outrigger beams, identification of outrigger beams, and warning labels when used in proximity to high voltage lines.

Revisions are proposed to delete the terms "Roof" and "Portable or Fixed" from the title of subsection (d); to delete the word "Roof" from subsection (d)(1); to delete the ninth sentence in subsection (d)(1) which begins with "The use of counterweights at the inboard end …"; and to insert a new sentence at the end of subsection (d)(1) which prohibits the use of counterweights at the inboard end of mobile and fixed outrigger beams.

Further revisions are proposed to include a new subsection (d)(2)(A - K) which addresses the use of counterweights on the inboard end of portable or transportable outrigger beams under certain conditions which include, but are not limited to, the following: the building was constructed prior to July 23, 1990 (the promulgation date of federal OSHA’s window cleaning regulations contained in 29CFR1910.66); an OPOS is prepared; counterweights shall be secured to the inboard ends of the beams and shall consist of non-flowable solid materials; the counterweights shall have stability factors of at least 4 against overturning or upsetting; and sectional beam parts shall be identifiable and the parts of the outrigger beams shall not be interchanged or substituted, unless permitted by the manufacturer. An additional nonsubstantive revision is proposed for subsection (d)(3)(C) to delete the outdated Title 24 reference for replacement by a reference to Section 3105A.4.2.

The proposed revisions are necessary to ensure that the regulations are easily identifiable by the employer and consistent with Title 8 format. In addition, the proposed revisions are necessary to allow owners/employers performing window cleaning/building maintenance on older buildings to utilize a safe alternative method of performing exterior building maintenance using an outrigger beam system.

The proposed revisions requires the employer to prepare an OPOS; evaluate his/her outrigger beam system against the design and set-up criteria as contained in the proposal; establish new set-up procedures; and, if necessary, replace incompatible outrigger beam parts in accordance with the manufacturer’s recommendations. This proposal is necessary to ensure that employees understand the limitations of outrigger beams as a means of supporting suspended equipment and to prevent the system from failing catastrophically, resulting in serious employee injury.

New Appendix A
Proposed new Appendix A contains the essential elements of an OPOS. The proposed elements include: type of drawing including the identification of the building’s name, address, and the date the OPOS was prepared; drawing shall be legible; identification of the type of equipment to be used and the location where each unit will be lowered over the side of the building; identification of all anchorage points; identification of personal fall arrest systems and requirements; identification of "Danger Zone(s)"; identification of the means to move equipment from roof to roof or other levels; identification of equipment limitations and load ratings; information on all phases of the operational maintenance inspections; identification of all access and egress routes; equipment stabilization; emergency and rescue procedures; and methods used to control employee exposure to falls. These minimum elements are necessary to ensure that employees are provided with a safe worksite and to provide the building owner with minimum guidelines as an aid in developing their OPOS.

These 12 items are similar to conditions of equivalent safety contained in permanent variances regarding the same issues granted by the Board over the past several years. During the permanent variance process, it became evident that building owners needed guidelines for the development of an OPOS. Several exterior building maintenance companies contributed in identifying the necessary elements used in the OPOS for those permanent variances and the same companies participated in the advisory committee meetings that developed this proposed rulemaking action.

DOCUMENTS RELIED UPON

  1. Letter from Frank M. Boutelle, President, Tri-County Window Cleaning, Petition File No. 312, dated April 17, 1992.
  2. Memorandum from John Howard, Chief, Division of Occupational Safety and Health, Petition File No. 312 Evaluation Report, dated June 15, 1992.
  3. Occupational Safety and Health Standards Board (OSHSB), Petition File No. 312 Decision, dated August 27, 1992.
  4. Letter from Hector S. Garcia, President, HSG Professional Window Cleaners Inc., Petition File No. 284, dated July 25, 1990.
  5. Memorandum from R.W. Stranberg, Chief, Division of Occupational Safety and Health, Petition File No. 284 Evaluation Report, dated September 14, 1990.
  6. Occupational Safety and Health Standards Board, Petition File No. 284 Decision, dated December 13, 1990.
  7. Letter from Stefan D. Bright, Safety Director, International Window Cleaning Association, to William Baty, Senior Safety Engineer, OSHSB, dated January 2, 1996, with attachments.
  8. Occupational Safety and Health Standards Board Permanent Variance Decision OSHSB File No. 96-V-046, Crossroads Associates.
  9. Occupational Safety and Health Standards Board Permanent Variance Decision OSHSB File No. 95-V-092, Town Center East and attached OPOS.
  10. Occupational Safety and Health Standards Board Permanent Variance Decision OSHSB File No. 95-V-052, Oracle Corporation and attached OPOS.
  11. American Society of Mechanical Engineers National Consensus Standard ASME A39.1-1995, Safety Requirements for Window Cleaning.
  12. Letter from the International Window Cleaning Association, Stephen D. Bright, Safety Director, to the Occupational Safety and Health Standards Board (OSHSB), dated September 30, 1997.
  13. Memorandum from Mr. Hector Garcia, HSG Professional Window Cleaners, Inc., to Building Owners Management Association (BOMA), dated July 15, 1997.
  14. Memorandum from BOMA Southern California, to various parties including BOMA Northern California, Hector Garcia, Lyle Randles, et.al., dated August 22, 1997.
  15. Memorandum from Lyle Randles and Wilkins Randles, Presidents, BOMA California, to Hector Garcia and Steve Lynn, dated July 31, 1997, regarding progress of preparing meetings between BOMA and the International Window Cleaning Association (IWCA).
  16. Minutes of the Meeting Between BOMA and IWCA, Wednesday, September 3, 1997.
  17. Minutes of the Meeting Between BOMA and IWCA, Thursday, September 18, 1997.
  18. Letter from the OSHSB, to BOMA California, dated July 3, 1997, with attached "Notice of Postponement".
  19. Letter from Mr. Lyle Randles, President, BOMA California, to the OSHSB, dated June 17, 1997.
  20. Letter from Mr. Tom Rankin, California Labor Federation, to the OSHSB, dated October 13, 1997, regarding comments preliminary to the October 15, 1997 advisory committee to discuss control descent apparatus and counterweighted outrigger beams.
These documents are available for review during normal business hours at the Standards Board Office located at 1300 I Street, Suite 920, Sacramento, California.

IDENTIFIED ALTERNATIVES THAT WOULD LESSEN ADVERSE IMPACT ON SMALL BUSINESSES

No adverse impact on small businesses is anticipated from the implementation of the proposed amendments. Therefore, no alternatives which would lessen the impact on small businesses have been identified.

SPECIFIC TECHNOLOGY OR EQUIPMENT

This proposal will not mandate the use of specific technologies or equipment.

COST ESTIMATES OF PROPOSED ACTION

Costs or Savings to State Agencies
There will be a one-time cost incurred by the State when complying with proposed Section 3282(p)(1)(C). The proposed regulation allows owners of buildings, where window cleaning operations are conducted from roof-mounted building maintenance equipment, to develop an Operating Procedures Outline Sheet (OPOS). The proposal only affects buildings over 36 feet in height that have been modified or have extreme architectural features and allows building owners to use less expensive window cleaning equipment and methods if the building cannot be cleaned by more expensive conventional means. Consequently, the proposal’s impact is anticipated to be positive since the benefits and savings gained through the use of an OPOS will offset costs.

The cost of developing an OPOS will vary with the size of the building and the complexity of the roof-mounted building maintenance equipment. It is estimated that building owners could incur a one-time development cost for an OPOS of between $500 and $10,000. This cost is insignificant considering that, once developed, an OPOS should never need revision and should be usable for the life of the building or of its building maintenance equipment. OPOS development costs are insignificant compared to the costs involved in performing scheduled and nonscheduled building maintenance. For example, the Department of Justice’s building at 1300 I Street in Sacramento, California, has 325,000 usable square feet of floor space. From May 1995 to March 1997, the average maintenance cost was approximately $1.55 per square foot per year or $503,750 per year. This example shows that the $500 to $10,000 cost for an OPOS is 0.1% to 2% of the operating cost. The purpose of the OPOS is to inform those employees involved in the building maintenance how to properly use the building’s equipment and safety devices.

In considering the cost impact of this proposal, it should not be overlooked that this rulemaking action does not require building owners to develop an OPOS if either (1) a controlled descent apparatus (CDA) is not used, or (2) the building is less than 36 feet in height and none of the three conditions indicated in the proposed subsection 3282(p)(1)(C) apply. For buildings 130 feet or less in height where a CDA may be used, the cost impact is expected to follow the same relative cost estimates indicated above for the Department of Justice Building cited in the cost example. That is to say, the one-time OPOS development cost will account for a very small percentage of the building’s overall maintenance costs (0.1% to 2% of the operating cost).

It should be emphasized that the development of the OPOS is a one-time cost and that there is the possibility of future savings to building owners resulting from consolidation of building maintenance procedures into one user-friendly document requiring modification only if the building structure is modified in a way which would affect the exterior building maintenance process. Staff believes this really does not represent an added hidden cost because building owners are already required to ensure that structural modifications are performed in a manner which does not subject exterior building maintenance employees to fall hazards caused by equipment/system failure.

With regard to the proposed requirement in Section 3282(p)(2) pertaining to the design of modifications to building maintenance equipment or structural modifications to the building by a registered engineer, it should be noted that existing Section 3291(a) requires civil or mechanical engineering calculations to verify rooftop installations are performed properly. Section 3292 also requires building owners to have a registered engineer develop data assuring the safety of powered platforms and all exterior building maintenance equipment. This regulation already requires the building owner to perform tests before installation and after any major alteration to the building. Therefore the proposed requirement discussed above for CDA use is consistent in approach to what is already required for other types of exterior building maintenance equipment, and is not expected to adversely impact building owners in terms of added negative cost impact.

Impact on Housing Costs
The proposal will not significantly affect housing costs.

Impact on Businesses
The proposal will not result in a significant adverse economic impact on businesses, including the ability of California businesses to compete with businesses in other states. See response to "Costs or Savings to State Agencies." In addition to the one-time costs outlined in that section, complying with the proposal may also require employers to provide training to those employees involved in window cleaning using exterior building maintenance equipment. The training may be incorporated with the training already required by Section 3203 - Injury and Illness Prevention Program.

Cost Impact on Private Persons or Entities
See responses to "Costs or Savings to State Agencies" and "Impact on Businesses."

Costs or Savings in Federal Funding to the State
No impact.

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.

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 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 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.)

The 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.)

The 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 summary.

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.