INITIAL STATEMENT OF REASONS

CALIFORNIA CODE OF REGULATIONS
TITLE 8: CONSTRUCTION SAFETY ORDERS (CSO)
 ROLL-OVER PROTECTIVE STRUCTURES (ROPS) AND PROTECTIVE ENCLOSURES
Chapter 4, Subchapter 4,
Section 1596(b), (f) and (g)

PROBLEM ADDRESSED BY PROPOSED ACTION

Existing Section 1596 contains regulations which address the use of ROPS and protective enclosures on specified construction equipment such as scrapers, tractors, front-end loaders, bulldozers, motor graders, etc., and wheel-type agricultural and industrial tractors. These regulations include a schedule/timetable for installation, design criteria for ROPS and protective structures, labeling requirements for ROPS, use of seatbelts (e.g. design criteria) and ROPS approvals.

Board staff notes that Section 1596(b), (f) and (h), which address ROPS design criteria, ROPS labeling and agricultural tractor ROPS specifications/protective enclosure specifications, all refer to National Consensus Standards which are out of date and have been superseded by newer standards. The National Consensus Standards referenced include, but are not limited to: Society of Automotive Engineers (SAE), American Society of Agricultural Engineers (ASAE) and date back to 1971. It is very difficult, if not impossible, for employers to comply with regulations that reference out of date standards because many are no longer in print and cannot be acquired.

Section 1596(f) contains a labeling requirement, which in subsection (f)(4) requires the employer to include a statement of compliance on the ROPS label that references outdated SAE standards, along with CSO Section 1596(d) and 29 CFR 1926.1000(c)(2). Subsection (f)(4) has no federal counterpart. In staff’s opinion, subsection (f)(4) is unnecessary as well as impractical. Therefore staff believes subsection (f)(4) should be deleted.

Section 1596(h) lists several National Consensus Standards the employer may use to comply with the requirement. But, subsections (h)(2) and h(3) also refer to numerous outdated SAE and ASAE standards along with recommended practice or equivalent. There is no definition of what is "equivalent" to the listed standards, hence this regulation is also difficult for the employer to comply with and arguably difficult for the Division of Occupational Safety and Health to enforce.

SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION

To correct the problems indicated above with Section 1596(b), (f) and (h), the following approach is proposed to ensure employees are protected by ROPS and protective enclosures that perform their intended function effectively and reliably. Referencing a plethora of National Consensus Standards, which are frequently replaced by newer versions of the same standard, requires the referenced regulations to be updated to conform to the latest standard. Therefore, it is proposed to delete specific SAE and ASAE references for replacement by language using the term "approved" as defined in Section 1505 of the CSO.

Section 1505 defines in detail what constitutes approval and includes listing/conformance to a nationally or governmentally recognized standard via listing or labeling (such as SAE or ASAE standards). It also gives employers who utilize job-built or foreign made ROPS/protective enclosures with the ability to use these pieces of equipment; even if they don’t conform to a nationally or governmentally recognized standard, or are provided with engineering calculations or other technical documentation acceptable to the Division of Occupational Safety and Health.

This method of referencing "approved" definition versus specific National Consensus Standard reference has been used at least twice before, in the General Industry Safety Orders, with regard to the use of Tree Workers Saddles and Power Actuated Tools. The use of the term "approved" will eliminate the need to allocate time for research, identifying and continually updating specific regulations, bring clarity to a confusing regulation, and hence render the regulation more understandable, easier to comply with and more effectively enforced.

The proposed revisions are as follows:

Section 1596. Roll-Over Protective Structures (ROPS).

This section requires the installation of ROPS and seatbelts in accordance with an installation schedule on various types of construction equipment as described earlier. Also, specific ROPS design criteria in terms of conformance to specific SAE standards, requiring ROPS to be labeled, and addressing ROPS and protective enclosure design specifications for wheel-type agricultural or industrial tractors are discussed. Furthermore, this section addresses approvals for ROPS and canopies, and labeling bearing a California State Approval Number.

Section 1596(b) entitled ROPS Design Criteria specifies ROPS shall comply with SAE J-1040-a, 1975 or equivalent for equipment manufactured on or after April 1, 1971 or J-1040-c, 1979. The regulation contains an exception which refers the employer to Section 1596(i), which pertains to existing ROPS approvals (California Approval Number).

Revisions are proposed to amend the subsection title to read: ROPS Approval, and to delete language requiring conformance to SAE, the standards for ROPS mentioned above, for replacement by language requiring the ROPS to be approved as defined in Section 1505 of the CSO.

The proposed revisions are necessary to clearly indicate to the employer where the ROPS approval requirement is located, and to ensure that employees are provided with equipment equipped with ROPS that will not fail catastrophically. Such accidents, can cause serious injury to the employee as a result of a crushing blow to bodies coming in contact with an overturning piece of construction equipment.

Section 1596(f) requires each ROPS to bear a label containing information pertaining to manufacturer’s address, manufacturer’s ROPS model number, make and model of equipment for which ROPS is designed and a statement of compliance with SAE J-1040-a, 1975; J-1040-c, 1979; CSO Section 1596(d); or 29 CFR 1926.1000(c)(2).

Revisions are proposed to delete the requirement for a statement of compliance on the label as contained in subsection (f)(4) in its entirety. The proposed revisions are necessary to clearly indicate to the employer that only three specific pieces of information are necessary to ensure employers and employees can recognize a ROPS, which has been manufactured to accepted standards of design and compatibility with the piece of equipment to which it is attached. This will ensure employees are protected from the hazards of equipment roll-over which could result in serious injury or death.

Section 1596(h) pertains to wheel-type agricultural or industrial tractors and addresses the use of ROPS and seatbelts and requires them to be installed in accordance to the installation schedule contained in Section 1596(a)(1).

Subsection (h)(2) also requires ROPS to conform in design to one of a number of ASAE and SAE standards such as ASAE S306.5, 1974; ASAE S310.2, 1974; SAE J-344-b, 1974; SAE J-167-a, 1974; etc.

Subsection (h)(3) requires protective enclosures if used to meet the requirements of ASAE S336.1, 1974 or SAE J-168-a, 1974.

Revisions are proposed to delete language referencing the various SAE and ASAE standards described above for replacement by language requiring ROPS and for subsection (h)(3) protective enclosures which shall be approved as defined in Section 1505 of the CSO.

The proposed revisions are necessary to ensure employers use ROPS and protective enclosures which function reliably as intended in the event of a roll-over or situation in which the employee could be struck/crushed as a consequence of a roll-over, or falling object.

DOCUMENTS RELIED UPON

None.

IDENTIFIED ALTERNATIVES THAT WOULD LESSEN
ADVERSE IMPACT ON SMALL BUSINESSES

It is anticipated that no adverse impact on small business will occur as a result of the implementation of the proposed amendments. This is because the proposed amendments merely consist of technical, clarifying revisions to existing regulations and do not impose any new or different requirements upon the regulated public. The central issue addressed by the proposed revisions is to clearly indicate to the regulated public what constitutes approval for ROPS and protective enclosures consistent with existing CSO language in Section 1505. The proposed language provides greater flexibility for the employer by permitting several methods of achieving "approved" or "approval" status. Therefore, no alternatives which would lessen the impact on small businesses have been identified.

SPECIFIC TECHNOLOGY OR EQUIPMENT

This proposal does not mandate the use of specific technology 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 (revisions to Section 1596(b), (f) and (h)). This is because the proposal imposes no new or added requirements and merely consists of technical clarifying revisions of existing regulations to indicate what approval constitutes in relation to existing Section 1505 of the CSO.

Impact on Housing Costs

This 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 business to compete with businesses in other states. (See explanation under "Costs or Savings to State Agencies.")

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. (See explanation under "Costs or Savings to State Agencies.")

Costs or Savings in Federal Funding to the State

The proposal will 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" and "Impact on Businesses.")

Other Nondiscretionary Costs or Savings Imposed on Local Agencies

This proposal does not impose nondiscretionary costs or savings on local agencies. (See explanation under "Costs or Savings to State Agencies" and "Impact on Businesses.")

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.)

These proposed regulations do not require local agencies to carry out the governmental function of providing services to the public. Rather, these 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.)

These proposed regulations do 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 does 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 the 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.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternatives considered by the Board would be more effective in carrying out the purpose for which the regulations are proposed or would be as effective and less burdensome to affected private persons than the proposed action.