A description of the proposed changes are as follows:

1. TITLE 8:

GENERAL INDUSTRY SAFETY ORDERS
Chapter 4, Subchapter 7, Article 108, Section 5157,

Permit -Required Confined Spaces Amendment


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 a revision to their permit-required confined spaces final rule on December 1, 1998, as 29 Code of Federal Regulations, section 1910.146. The Board is relying on the explanation of the provisions of the federal regulations in Federal Register, Volume 63, No. 230, pages 66018 to 66040, December 1, 1998, as the justification for the Board's proposed rulemaking action. The Board proposes to adopt revisions to section 5157, Permit-Required Confined Spaces that are the same as the federal regulation except editorial and format changes or where the existing state standard is more protective.

The proposal expands the employee participation requirements by allowing employees and their authorized representatives to observe monitoring and access exposure documentation. The proposal will also expand the training required for rescue providers. California’s section 5157 is already more effective than 29 CFR 1910.146 with respect to requiring at least one standby person to be immediately available for rescue services. Therefore, California did not incorporate the less protective Federal OSHA revisions and non-mandatory appendix that allows employers to provide off-site rescue capabilities under certain conditions.

Except for the less effective rescue service provisions, the proposed regulation is 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 immediately upon filing with the Secretary of State as provided by Labor Code section 142.3(a)(4)(C). 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 Part 1910.146, Permit-Required Confined Spaces; Final Rule. 63 Fed.Reg. 66018-66040 (December 1, 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 66026-66037 of the preamble to OSHA’s final rule. OSHA concludes that the annual national cost for additional employee involvement will be less than $6 million which is an average annual cost of $24 per affected establishment. OSHA concludes that this cost is insignificant and negligible as a percentage of revenues and profits.

OSHA also certified that the proposal will not have a significant adverse economic impact on small business and does not consider the proposal to be an unfunded mandate on state or local government.

 DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulation does 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 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 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.