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May 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

Public meeting: On May 20, 2004, at 10:00 a.m.
in the auditorium, room 102 of the office building 9,
744 P Street, Sacramento, 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 May 20, 2004, following the public meeting
in the auditorium, room 102 of the office building 9,
744 P Street, Sacramento, 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 May 20, 2004, following the public hearing
in the auditorium, room 102 of the office building 9,
744 P Street, Sacramento, 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 107
Section 5147
Respiratory protection for m. tuberculosis

2. Title 8:

Logging and Sawmill Safety Orders 
Chapter 4, subchapter 13, article 5
Section 6283(a)
Leg protection for portable chain saw operations

 


A description of the proposed changes are as follows:

1. Title 8: General Industry Safety Orders
Chapter 4, subchapter 7, article 107
Section 5147
Respiratory protection for m. tuberculosis

Informative digest of proposed action/policy statement overview

The Occupational Safety and Health Standards Board (Board) intends to proceed with the proposed rulemaking action pursuant to Labor Code Section 142.3, which mandates the Board to adopt standards at least as effective as federal standards addressing occupational safety and health issues.

The U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) published a final rule addressing Respiratory Protection for M. [Mycobacterium] Tuberculosis on December 31, 2003. In that final rule, OSHA vacated Title 29 Code of Federal Regulations, Section 1910.139 and required respiratory protection for TB to be covered by the general respiratory protection standard, 29 CFR section 1910.143. The Board is relying on the explanation of the provisions of the federal standards in Federal Register, Volume 68, No. 250, pages 75776-75780, December 31, 2003, as the justification for the Board’s proposed rulemaking action. The Board proposes to delete Section 5147 which is the same as the vacated federal section 1910.139 except for editorial and format differences.

Section 5147 currently establishes respiratory protection requirements for employees potentially exposed to M. Tuberculosis. This applies especially to workers in health care and correctional facilities where persons infected with M. Tuberculosis are more likely to be present than in other work settings. The primary differences between the respiratory protection standards in Section 5147 and Section 5144 that currently applies to other industries is that Section 5147 does not require a medical evaluation or an annual fit test for the respirator user. Therefore, Section 5144 is more protective and effective for respirator users.

The proposed deletion 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 responses to comments will be available in a rulemaking file on this matter and will be limited to the above areas. The final version of this proposal 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

The federal preamble, Table 1, estimates a nationwide, annual total cost to employers of $11,679,719, with the estimated cost for: (1) modifying the respirator program at $325,000, (2) fit-testing at $10,716,719, and (3) recordkeeping at $638,000. Based on the State’s portion of employers’ costs represented by this figure, the annual State cost to employers is estimated to be approximately ten percent of the national total, $1.17 million. Since the State’s standard is required to be at least as effective as the federal standard, these costs are the result of the federal changes.

Determination of mandate

The Occupational Safety and Health Standards Board has determined that the proposed regulatory change 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 regulatory change 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 regulatory change does not require local agencies to carry out the governmental function of providing services to the public. Rather, the regulatory change requires local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the proposed regulatory change 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 regulatory change 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 amendment may affect small businesses. Where small businesses have potential occupational exposure to TB, these businesses would incur a portion of the costs estimated previously for all employers.

Assessment

The adoption of the proposed amendment to the standard 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: Logging and Sawmill Safety Orders 
Chapter 4, subchapter 13, article 5
Section 6283(a)
Leg protection for portable chain saw operations

Informative digest of proposed action/policy statement overview

This rulemaking action was initiated at the request of the Division of Occupational Safety and Health (Division). In a memorandum from the Division to the Occupational Safety and Health Standards Board (Board) dated June 6, 2001, the Division asserted that the existing requirements in the Logging and Sawmill Safety Orders, Section 6283(a) do not provide employers clear and specific information as to what constitutes minimally acceptable leg protection for chain saw operators.

In order to clarify certain acceptable leg protection for logging employees using chain saws, amendments are proposed for Section 6283(a) to require that protective garments, such as chaps be labeled as meeting the specifications of American Society for Testing and Materials (ASTM) F 1897-98, Standard Specification for Leg Protection for Chain Saw Users.

Section 6283. Portable Chain Saw Operations.

Subsection (a)

Section 6283 provides the general requirements for portable chain saw operations. Existing subsection (a) requires that logging employees who operate chain saws shall use leg protection (chaps, pads, or inserts). An amendment is proposed for subsection (a) to require that leg protection such as chaps, inserts, or other protective garments or devices be labeled as meeting the specifications of ASTM F 1897-98, Standard Specification for Leg Protection for Chain Saw Users. The existing standard does not specify the minimum design standards that protective garments must conform to and ineffective materials could be used that result in injuries. The ASTM F 1897-98 standard is proposed as a labeling requirement because it specifies the design of protective garments for leg protection and includes inspection and performance testing for the manufacturer in order to ensure the effectiveness of the cut-resistant materials used. Leg protection for chain saw users is labeled by manufacturers as meeting the ASTM F 1897 Standard. Therefore, the employer will need to verify that the protective wear used is labeled as meeting the ASTM F 1897 Standard. The effect of the amendment will be to specify an industry accepted national consensus standard to address the appropriate design criteria for chain saw operator leg protection.

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. The proposal merely requires that leg protection used by chain saw operators will meet the specifications of the appropriate national consensus standard (ASTM F 1897-98, Standard Specification for Leg Protection for Chain Saw Users). According to contacts within the logging industry, it is already industry practice for chain saw operators to use leg protection that conforms to the requirements of the ASTM F 1897-98 standard.

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, as the proposal reflects the industry practice.

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 standard 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 standard 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 standard does not require local agencies to carry out the governmental function of providing services to the public. Rather, the standard requires local agencies to take certain steps to ensure the safety and health of their own employees only. Moreover, the proposed standard 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 standard does not impose unique requirements on local governments. All state, local and private employers 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, no economic impact is anticipated, as the proposal reflects the industry standard.

Assessment

The adoption of the proposed amendments to this standard 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 May 14, 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 May 20, 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.