INITIAL STATEMENT OF REASONS

CALIFORNIA CODE OF REGULATIONS
TITLE 8: RULES OF PROCEDURE FOR INTERIM AND PERMANENT VARIANCES,
AND APPEALS FROM TEMPORARY VARIANCES
Chapter 3.5, Subchapter 1, Article 3, Section 417.1

Objection to Hearing Panel or Hearing Officer or Board Member


PROBLEM ADDRESSED BY PROPOSED ACTION

Presently, the Occupational Safety and Health Standards Board’s ("Board") administrative regulations permit a party to a variance to request a hearing before the Board itself, as opposed to before a hearing panel, and to request the disqualification of a Standards Board member or the hearing officer assigned to a variance hearing. Under the existing regulation, no time limitation is placed on submitting a request to have a variance heard by the Board itself and the request to disqualify may be made at anytime prior to the taking of evidence at the hearing.

Decisions on these types of requests are made as follows: (1) Requests to hold a hearing before the Board are decided by the Board chairperson, at his/her discretion, (2) Requests to disqualify a Board member from a hearing panel are decided by the remaining Board members at a regularly scheduled Board meeting, and (3) Requests to disqualify the hearing officer are decided by the Board if the Board itself hears the case with the hearing officer, and, in all other cases, by the hearing officer.

Because these requests can be made after the hearing participants have traveled to and prepared for a variance hearing and, for the most part, cannot be decided by those present at the hearing, last minute requests of this nature can result in inconveniences to hearing participants. Moreover, because of the part-time status of the Board members, and the number of people involved in the variance, scheduling hearings can be difficult. If a hearing must be re-scheduled, it can significantly delay the variance process and the employer’s ability to implement viable, alternative safety measures.

Also, requiring the hearing officer to determine whether to disqualify himself/herself unnecessarily creates the potential for, or the appearance of, a conflict of interest. Specifically, the hearing officer may feel obligated to step aside in order to avoid the appearance of impropriety, or he/she may decline to step aside and cause the relevant party to believe it has not received a fair and impartial hearing.

SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION

This proposed rulemaking action contains numerous nonsubstantive editorial, reformatting, and grammatical revisions. These nonsubstantive revisions are not all discussed in this 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 actions are proposed:

Section 417.1. Objections to Hearing Panel or Hearing Officer or Board Member.

Subsections (a) and (b).

The proposed changes to Section 417.1 will require that requests for a hearing before the Board itself, or to disqualify a hearing panel member and/or hearing officer, be submitted in writing at least 5 working days before the scheduled hearing date. In the case of a request to disqualify, if the parties to a variance are not notified of the hearing panel and/or hearing officer assignments, or changes to those assignments, the revised regulation would allow them to raise their objections, verbally or in writing, anytime prior to the taking of evidence at the hearing. These proposed changes will prevent the inconveniences associated with attending a variance hearing that cannot proceed as planned. By requiring parties to state these requests before the hearing convenes, those planning to attend will not spend unnecessary time preparing for and traveling to the hearing.

The proposed changes further clarify that a request to hold a hearing before the Board itself, as opposed to before a hearing panel, must be submitted in writing. This change is necessary to clarify the intent of the existing regulation.

The proposed changes also include a statement indicating that failure to file a request in a timely manner is grounds for denying the request. In addition, the changes will specify that the variance hearing shall not begin until a determination is made on the request, unless, in the case of a request to disqualify, the parties were not timely notified of a change in the hearing officer and/or hearing panel assignments. These proposed changes are necessary to clarify the importance of submitting a timely request and the effect of making such a request on the proceedings.

An additional proposed change will eliminate the need for the hearing officer to rule on requests to disqualify himself/herself. That responsibility will instead be placed on the Board. This change will allow for a greater sense of fairness for all involved by preventing a hearing officer from removing himself/herself from a proceeding unnecessarily while preserving the parties right to obtain a review of the hearing officer’s ability to preside impartially.

DOCUMENTS RELIED UPON

None.

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 business 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

No costs or savings to state agencies will result as a consequence of the proposed action.

Impact on Housing Costs

The proposal will not significantly affect housing costs.

Impact on Businesses

This 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.

Cost Impact on Private Persons or Entities

The proposal will not require private persons or entities to incur additional costs in complying with the proposal.

Costs or Savings in Federal Funding to the State

The proposal will not result in costs or savings in federal funding to the state.

Costs or Savings to Local Agencies or School Districts Required to be Reimbursed

No costs to local agencies or school districts are required to be reimbursed. See explanation under "Determination of Mandate."

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

This proposal does not impose nondiscretionary costs or savings on local agencies

DETERMINATION OF MANDATE

The Occupational Safety and Health Standards Board has determined that the proposed regulation does not impose a mandate requiring reimbursement by the state 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 employers - state, local and private - will be required to comply with the prescribed standard.

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 amendment 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.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternative 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.