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Occupational Safety & Health Standards Board (OSHSB)

January 2004 public hearing notice

Notice of Public Meeting/Public Hearing/Business Meeting
of the Occpational 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 January 15, 2004 at 10:00 a.m.
in the council chambers, second floor of Glendale City Hall
613 E. Broadway, Glendale, California 91026-4308.

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 January 15, 2004 following the public meeting
in the council chambers, second floor of Glendale City Hall
613 E. Broadway, Glendale, California 91026-4308.

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 January 15, 2004 following the public hearing
in the council chambers, second floor of Glendale City Hall
613 E. Broadway, Glendale, California 91026-4308.


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, Construction Safety Orders and General Industry Safety Orders of the California Code of Regulations, as indicated below, at its public hearing on January 15, 2004.

1.

Title 8:

Construction Safety Orders
Chapter 4, subchapter 4, article 4
Section 1529(g)
Asbestos control measures

2.

Title 8:

General Industry Safety Orders
Chapter 4, subchapter 7, group 2,
Article 7, section 3314
The control of hazardous energy

3.

Title 8:

General Industry Safety Orders
Chapter 4, subchapter 7, article 107
Section 5148
Prohibition of smoking in the workplace


A description of the proposed changes are as follows:

1.

Title 8:

Construction Safety Orders
Chapter 4, Subchapter 4, Article 4
Section 1529(g)
Asbestos control measures

Informative digest of proposed action/policy statement overview

Labor Code Section 142.3 mandates that the Board adopt regulations at least as effective as federal regulations addressing occupational safety and health issues. This requirement applies to Construction Safety Orders (CSO) Section 1529 and its federal counterpart, 29 Code of Federal Regulation (CFR) 1926.1101. The Division of Occupational Safety and Health (Division) noted in a Form 9, Request for New, or Change in Existing Safety Order, dated December 2, 2002, that a discrepancy exists between CSO Section 1529 and 29 CFR 1926.1101. The requirement for specific control methods for Class I work in 1529 (g)(5) is stated differently than the requirement contained in 29 CFR 1926.1101(g)(5). The federal rule was adopted, and the requirements for specific control methods were published in Federal Register Volume 59, No. 153, dated Wednesday, August 10, 1994. CSO Section 1529 uses the permissive term “may” whereas the federal standard uses the mandatory term “shall”. This difference makes the state’s standard less effective than its federal counterpart. The proposed change to Section 1529 will make the requirement identical to its federal counterpart.

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 a standard 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 comments and the responses 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 upon filing with the Secretary of State, as provided by Labor Code Section 142.3(a)(3). The regulation 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.

Cost estimates of proposed action

No additional costs are anticipated based on this change.

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, this 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 proposed amendment will not require local agencies or school districts to incur additional costs in complying with the proposal. Furthermore, 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 amendment may affect small businesses.

Assessment

The adoption of the proposed amendment to the 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 description of the proposed changes are as follows:

2.

Title 8:

General Industry Safety Orders
Chapter 4, Subchapter 7, Group 2,
Article 7, Section 3314
The control of hazardous energy

Informative digest of proposed action/policy statement overview

This rulemaking action is the result of an Occupational Safety and Health Appeals Board (OSHAB) Decision (Docket No. 99-R4D5-2285, Helical Products Co, Inc., dated June 8, 2000) and a Request For Change in an Existing Regulation (Form 9) received from the Division of Occupational Safety and Health (Division) on August 21, 2000.

The OSHAB Decision was based on difficulties in applying GISO Section 3314(a) and (b) due to arguable distinctions between adjusting and setting-up operations of prime movers, machinery, and equipment. GISO Section 3314(a) is intended to apply to the control of hazardous energy during cleaning, servicing and adjusting operations. GISO Section 3314(b) is intended to apply to the control of hazardous energy during repair work and setting-up operations. The terms “cleaning, servicing, adjusting, repairing and setting-up” are not defined in the regulations, and the distinction between the two subsections and their application to the control of hazardous energy, led to an appeal of a citation. Based on testimony received at the hearing, the Administrative Law Judge rendered an opinion that the Division had cited the incorrect subsection and set aside the citation issued to the Appellant.

The Division Form 9 requested the Board to update terminology used in the Title and body of Section 3314 for consistency with Federal OSHA and with common usage in the workplace. The Division also requested the Board to require specific procedures and instructions to be developed for specific machines or pieces of equipment, to ensure that employers and employees would not depend on “boilerplate” language commonly seen in written hazardous energy control procedures. Furthermore, the Division requested the Board to add a vertical training requirement for equivalence with the Federal OSHA standard.

This proposed rulemaking action also 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 3314. Cleaning, Repairing, Servicing and Adjusting Prime Movers, Machinery and Equipment.

This proposal would amend the Title of this Section to read (new language underscored), “The Control of Hazardous Energy for the Cleaning, Repairing, Servicing, Setting-Up, and Adjusting Operations of Prime Movers, Machinery and Equipment, Including Lockout/Tagout.” The term “Lockout/Tagout” has been added to the Title in order to assist members of the regulated public who are familiar with the corresponding federal requirement and terminology in locating California’s requirements. The effect of this amendment will be to clarify what the requirements of Section 3314 pertain to and aid the regulated public in locating these requirements.

Subsection (a)

Existing subsection (a) requires that machinery or equipment capable of movement be stopped and the power source de-energized or disengaged; and if necessary, the moveable parts shall be mechanically blocked or locked out to prevent inadvertent movement during cleaning, servicing or adjusting operations unless the machinery or equipment must be capable of movement during this period in order to perform a specific task. If so, the employer shall minimize the hazard by providing and requiring the use of extension tools or other methods or means to protect employees from injury due to such movement. The section also requires that employees be made familiar with the safe use and maintenance of such tools by thorough training. Finally, existing subsection (a) states that, “for the purpose of Section 3314, cleaning, repairing, servicing and adjusting activities shall include unjamming prime movers, machinery and equipment.”

This proposal would revise and relocate the bulk of subsection (a) to subsection (c), in order to accommodate two new subsections, the first of which is new subsection (a) enTitled “Application”. It is proposed to further subdivide new subsection (a) into two subsections and add an informative “Note” as follows:

Proposed subsection (1) reads, “This Section applies to the cleaning, repairing, servicing, setting-up and adjusting of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy could cause injury to employees.” This subsection is substantially based on 29 Code of Federal Regulation (CFR), Part 1910.147(a)(1)(i) and will clarify the scope and application of Section 3314. Subsection (2), taken from the last sentence of existing subsection (a) and kept for clarity purposes, reads, “For the purposes of this Section, cleaning, repairing, servicing and adjusting activities shall include unjamming prime movers, machinery and equipment.” An informative “Note” is proposed which states that requirements for working on energized electrical systems are prescribed in the Electrical Safety Orders, Sections 2320.1 through 2320.9 or 2940 through 2945. This note is added to clarify that requirements for working on energized electrical systems are prescribed in the Electrical Safety Orders. The effect of these proposed changes is to clarify the application and scope of Section 3314, including directing the regulated public to the Electrical Safety Orders for applications involving work on energized electrical systems.

Subsection (b)

Existing subsection (b) requires that prime movers, equipment, or power-driven machines equipped with lockable controls or readily adaptable to lockable controls shall be locked out or positively sealed in the “off” position during repair work and setting-up operations. It also states that machines, equipment, or prime movers not equipped with lockable controls or readily adaptable to lockable controls shall be considered in compliance with Section 3314 when positive means are taken, such as de-energizing or disconnecting the equipment from its source of power, or other action which will prevent the equipment, prime mover or machine from inadvertent movement. Finally, the existing subsection requires that, in all cases, accident prevention signs or tags shall be placed on the controls of the equipment, machines and prime movers during repair work. An “exception” following existing subsection (b) states that minor tool changes and adjustments, and other minor servicing activities, which take place during normal production operations are not covered by the requirements of Section 3314 if they are routine, repetitive, and integral to the use of the equipment or machinery for production, provided that the work is performed using alternative measures which provide effective protection.

Due to the addition of proposed new subsections (a) and (b), this proposal would revise and reletter existing subsection (b) as subsection (d). A new “Definitions” subsection (b) is proposed which will define lockout/tagout terms: “Locked out,” “Normal Production Operations,” and “Prime Mover.” An ad hoc advisory committee convened to review proposed amendments to Section 3314 was in consensus that these terms should be defined in order to add clarity to the regulations. The definition for “Locked out” is based in large part on an existing clarifying note under subsection (b). The definition for “Normal Production Operations” is taken from 29 CFR 1910.147(b), while the definition for “Prime Mover” is based on a definition in GISO Section 3281. “Setting-up” and “Adjusting” are not defined, as many committee members felt these are common terms that are not possible to define were they cover all industries and processes that could be affected by the regulations. Also, attempts to define them could result in loss of flexibility in applying them to unique needs in particular industries. The effect of these proposed changes will be to clarify necessary terms as they are used in the proposed modifications to GISO Section 3314.

Subsection (c)

Existing subsection (c) requires the employer to provide a sufficient number of accident prevention signs, tags, padlocks, seals or other similarly effective means which may be required by any reasonably foreseeable repair emergency. It also requires means by which signs, tags, padlocks and seals can be readily secured to the controls and specifies attachment means for tagout devices.

This proposal would revise and reletter existing subsection (c) as subsection (e) and enTitle it “Materials and Hardware.” Existing subsection (a) is proposed to be relocated to subsection (c) and enTitled: “Cleaning, Servicing and Adjusting Operations.” Clarifications to existing, relettered subsection (a) are proposed, which add “release of stored energy” to the hazards to be prevented and clarify that accident prevention signs or tags are to be placed on the controls of the power source during this period. This proposal would further subdivide those provisions of existing subsection (a) pertaining to work that is necessary while the machinery or equipment is capable of movement into new subsection (c)(1), and to clarify that interlocks are included among the permissible methods or means of minimizing hazards during this time. The effect of these amendments will be to assist the public in locating regulations pertaining to cleaning, servicing and adjusting operations, and to clarify these requirements.

Subsection (d)

Existing subsection (d) requires that during repair, prime movers, machines or equipment shall be effectively blocked or otherwise secured to prevent inadvertent movement if such movement can cause injury to employees.

This proposal would delete existing subsection (d) as it overlaps proposed new subsection (d). Existing subsection (b) is proposed to be relettered as subsection (d), enTitled “Repair Work and Setting-Up Operations,” and revised by adding “release of stored energy” to the hazards included and adding that setting-up operations also require accident prevention signs, tags or both. The exception relettered from existing subsection (b) is proposed to be clarified as being applicable to the proposed new subsections (c) and (d). A new second exception to (c) and (d) is proposed for work on cord and plug-connected electric equipment for which exposure to the hazards of unexpected energization or start up of the equipment is controlled by the unplugging of the equipment from the energy source and by the plug being under the exclusive control of the employee performing the work. It was the advisory committee consensus to add the second exception, taken essentially verbatim from 29 CFR 1910.147(a)(iii)(A), so as not to require lockout procedures for cord-and-plug connected equipment that is under the exclusive control of the employee performing the work. The effect of these amendments will be to clarify regulations pertaining to repair work and setting-up operations, to clarify applicability of the exceptions, and to assist the public in locating these regulations.

Subsection (e)

Existing subsection (e) contains provisions for repair, adjustment testing, or setting up operations on repetitive process machines, such as numerical control machines, which require power or current continuance to maintain indexing and where such operations cannot be accomplished with the prime mover or energy source disconnected.

This proposal would revise and reletter existing subsection (e) as (f), and enTitle it “Repetitive Process Machines.” Existing subsection (c) is proposed to be revised and relettered as subsection (e). The phrases “sufficient number,” and “reasonably foreseeable” are proposed to be deleted from the first sentence of the relettered subsection, as they are vague and unenforceable. The proposal would also delete “emergency” from the same sentence, as signs, tags, padlocks, seals, or other accident prevention means are required for all repairs where there is an exposure and not just for emergency repairs. The effect of these amendments will be to align requirements for the provision of accident prevention means with federal counterpart regulations and use terminology consistent with usage common in the industry and federal counterpart regulations.

Subsections (f) and (g)

Existing subsection (f) contains requirements for an energy control procedure to be developed and utilized by the employer when employees are engaged in the cleaning, repairing, servicing or adjusting prime movers, machinery and equipment. The existing subsection also prescribes the content of the procedure. Existing subsection (g) requires the hazardous energy control procedures to be documented in writing.

This proposal would combine existing subsections (f) and (g) into a single subsection relettered as (g) and enTitled “Hazardous Energy Control Procedures.” The term “hazardous” is added to describe the type of energy to be controlled, and “setting-up” is added for consistency with other parts of the regulation. The effect of the proposed amendments will be to assist the regulated public in understanding requirements for hazardous energy control procedures by consolidating the requirements for procedures and documentation into one subsection.

This proposal would further subdivide new subsection (g) into two parts: (g)(1) incorporates the contents of existing subsection (f), which outlines the requirements of hazardous energy control procedures; and (g)(2), which is existing subsection (g), requires the employer’s hazardous energy control procedures to be documented in writing. An exception to the requirement for documentation of hazardous energy control procedures is proposed, whereby a particular machine or equipment must satisfy an eight-part test based on the federal exception to 29 CFR 1910.147(c)(4). The effect of this proposed exception will be to reduce the paperwork load on employers without jeopardizing employee safety. The documentation exception only applies to single-energy source equipment where control of the energy source is under the exclusive control of the employee performing the cleaning, repairing, servicing, setting-up and adjusting operations and where the machine or equipment has no potential for stored or residual energy or reaccumulation of stored energy after shut-down.

Proposed new subsection (g)(2) is further subdivided into two parts: (A) specifies that the employer’s hazardous energy control procedure shall include separate instructions for the safe lockout/tagout of each machine or piece of equipment affected by the hazardous energy control procedure; and (B) requires that these machine/equipment-specific lockout/tagout instructions are to be readily available and understandable to all affected employees. In addition to the eight-part exception to (g)(2), an exception to subsection (g)(2)(A) is proposed which will permit hazardous energy control procedures to be written for a group or type of machinery/equipment where certain elements exist such that the procedures for each machine or equipment are essentially similar. The effect of this proposed subsection is to clarify hazardous energy control procedure documentation, availability, and conditions where a single procedure for a group or type of machinery or equipment may be permissible.

Subsection (h)

Existing subsection (h) requires that hazardous energy control procedures shall be inspected at least annually to ensure that the procedures and requirements of this section are being followed. The subsection also prescribes the manner in which the inspections shall be conducted and certified.

This proposal would add the Title “Periodic Inspection” to existing subsection (h) and revise the subsection to replace the term “authorized employee” with “qualified person” in subsection (h)(1). Additionally, the term “hazardous energy” is proposed to be used consistently throughout. The effect of these proposed amendments will be to clarify requirements by providing consistent terminology throughout the subsection. Furthermore, the change from “authorized employee” to “qualified person” in subsection (h)(1) is based on committee consensus that the inspection/audit should be performed by an individual with qualifications as defined in GISO Section 3207.

Proposed new subsection (j)

A new subsection (j) is proposed, enTitled “Training”, which specifies that: (1) affected employees are to be trained on the hazardous energy control procedures and on the hazards related to performing any activity required for cleaning, repairing, servicing, setting-up, and adjusting prime movers, machinery and equipment; and (2) such training shall be documented and kept in the employee’s training records as required by Section 3203. The effect of this proposed new subsection will be to ensure that affected employees are properly trained regarding hazardous energy control procedures and the overall hazards associated with cleaning, repairing, servicing, setting-up, and adjusting prime movers, machinery and equipment. The proposed new subsection will also provide employers with more specific guidance on training in hazardous energy control as a supplement to training documentation and retention requirements contained in the Title 8, Injury and Illness Prevention Program of GISO Section 3203.

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, because the proposed modifications are clarifying changes to existing regulations necessary for equivalency with federal lockout/tagout standards.

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 nondiscretionary costs or savings on local agencies.

Determination of Mandate

The Occupational Safety and Health Standards Board has determined that the proposed regulations 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 this 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.)

This 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.

EFFECT ON SMALL BUSINESS

The Board has determined that the proposed amendments may affect small businesses.

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 description of the proposed changes are as follows:

3.

Title 8:

General Industry Safety Orders
Chapter 4, Subchapter 7, Article 107
Section 5148
Prohibition of smoking in the workplace

Informative digest of proposed action/policy statement overview

Labor Code Section 6404.5 was enacted in 1994 (Assembly Bill 13, Friedman) to prohibit smoking in the workplace and became fully in effect by 1998. There are currently no counterpart regulations in Title 8 that implement the statewide prohibition of smoking in the workplace. Labor Code Section 6404.5(k) specifies that the Division of Occupational Safety and Health (Division) is not required to respond to complaints regarding the smoking of tobacco products in enclosed spaces at places of employment, unless the employer has been found guilty at the local level of three violations within the previous year. The Division has cited employers statewide from 1998 to 2003 for alleged violations of Labor Code Section 6404.5. In the matter of Robert D. Schultz and James A. Noll (OSHAB 01-125) issued May 29, 2003, the Occupational Safety and Health Appeals Board (Appeals Board) decided that the Division does not have authority to enforce the provisions of Section 6404.5 absent a regulation promulgated by the Occupational Safety and Health Standards Board. The proposed addition of Section 5148 will address the Appeals Board decision and clarify for all affected employers that the Division is authorized to enforce the provisions of Labor Code Section 6404.5.

The Division has initiated this rulemaking in response to the Decision After Reconsideration of the Occupational Safety and Health Appeals Board in the matter of Robert D. Schultz and James A. Noll (OSHAB 01-125). Proposed Section 5148 would adopt verbatim the statewide enforceable provisions of Labor Code Section 6404.5. Labor Code Section 6404.5(b) provides that no employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment. Labor Code Section 6404.5(c) details “reasonable steps” that employers must take to ensure compliance with the provisions of Section 6404.5(b) and details particular actions that are not required as “reasonable steps” to prevent smoking by a non-employee in the workplace.

The proposed adoption of Section 5148 also references provisions in Labor Code Section 6404.5(d) specifying establishments that are not included within the meaning of “place of employment” and consequently would not be subject to subsections (a) and (b) of Section 5148. Specifically, subsection (c) of proposed Section 5148 refers to subsections (d)(1) through (d)(6) and (d)(9) through (d)(14) of Labor Code Section 6404.5 as encompassing the “places of employment” that would not be covered by Section 5148. Subsections (d)(7) and (d)(8) of Labor Code Section 6404.5 refer, respectively, to gaming clubs, bars, and taverns as being among those establishments not considered to be “places of employment” covered by the other provisions of Labor Code Section 6404.5. However, this exclusion from coverage ended on January 1, 1998, under the provisions of subsection (f) of Labor Code Section 6404.5. The referenced parts of subsection (d) of Labor Code Section 6404.5 are not reprinted verbatim in Section 5148 due to their length and accessibly by the regulated public in the Labor Code. Other parts of Labor Code Section 6404.5 were not reprinted in Title 8 since they apply only to local enforcement of the law.

There is no comparable federal standard with regard to smoking in the workplace.

Cost estimates of proposed action

Costs or savings to state agencies

No costs or savings to state agencies are anticipated to 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

Since Labor Code Section 6404.5 is already state law, the Board has made an initial determination that this proposal is not anticipated to 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

Since Labor Code Section 6404.5 is already state law, 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 is not anticipated to 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 this 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 state, local and private employers 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.

Assessment

The adoption of the proposed 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.

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 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 January 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 January 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 proposals 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.