INITIAL STATEMENT OF REASONS

CALIFORNIA CODE OF REGULATIONS
TITLE 8: GENERAL INDUSTRY SAFETY ORDERS
Chapter 4, Subchapter 7, Article 108, Sections 5157 and 5158;
Article 135, Section 5416;
SHIP BUILDING, SHIP REPAIRING, AND SHIP BREAKING SAFETY ORDERS
Subchapter 18, Article 4, Section 8355

Approved Testing Equipment


PROBLEM ADDRESSED BY PROPOSED ACTION

Pursuant to Labor Code section 142.3 the Standards Board is the only agency authorized to amend and adopt occupational safety and health standards that are at least as effective as federal standards. This proposal was developed by Board staff to address some concerns expressed by Division staff in a December 5, 1997 memorandum about the use of sampling equipment in potentially flammable and explosive atmospheres. In response to that concern, Board staff developed the proposal to specify that the approval of equipment and tools required by Electrical Safety Orders section 2540.2 apply to electronic and thermal testing equipment used to test such potentially hazardous locations.

SPECIFIC PURPOSE AND FACTUAL BASIS OF PROPOSED ACTION

The purpose of the proposal is to specify that when electronic and thermal testing equipment is used in an atmosphere that is potentially flammable or explosive, it must be approved for use in such atmospheres. Since testing devices are not a fixed or traditional piece of electrical equipment, the regulated public may not be aware of the application of section 2540.2 to these devices. Currently, manufacturers voluntarily have their device approved when they have a potential source of ignition like an electronic or thermal component and the device is intended for determining flammability or explosiveness. However, some testing devices may not be approved when they test for such conditions as oxygen deficiency or toxicity. These types of testing devices are commonly used in potentially flammable or explosive atmospheres. Therefore, an employer must determine from the manufacturer if the device has been approved and if not, the employer must ensure that it is approved before it is used in such environments.

Section 5157. Permit-Required Confined Spaces.

The purpose of amending subsection (b) is to specify that when electronic or thermal testing devices are used to assist the employer in determining if a permit space is flammable or explosive, the device must be approved to insure it will not be a potential source of ignition.

Section 5158. Other Confined Space Operations.

The purpose of amending subsection (d) is to specify that when electronic or thermal testing devices are used to assist the employer in determining if a confined space has a dangerous air contamination or oxygen deficiency, that the device must be approved to insure it will not be a potential source of ignition.

Section 5416. Flammable Vapors.

The purpose of amending subsection (c) is to specify that when an electronic or thermal testing device is used to assist the employer in determining if a location has hazardous levels of flammable vapors, the device must be approved to insure it will not be a potential source of ignition.

Section 8355. Confined and Enclosed Spaces and Other Dangerous Atmospheres.

The purpose of amending subsection (c) is to specify that when an electronic or thermal testing device is used to assist the employer in determining if an atmosphere is flammable or explosive, the device must be approved to insure it will not be a potential source of ignition.

REFERENCE TO COMPARABLE FEDERAL REGULATION

DOCUMENTS RELIED UPON

These documents are available during normal business hours at the Standards Board, 1300 I Street Suite 920, Sacramento, California.

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 businesses have been identified.

FINDING OF NECESSITY FOR REPORT REQUIREMENT

The Board finds that it is necessary for the health, safety and welfare of the people of the state that this regulation's reporting requirements apply to business because Labor Code section 9030 requires such reporting.

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 other businesses. As proposed, businesses will need to ensure that if they use electronic or thermal testing equipment in potentially flammable or explosive environments, the equipment must meet the current approval requirements of section 2540.2. The proposal is intended to specify that testing equipment must be approved before it is used to evaluate potentially flammable or explosive environments.

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 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, the 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 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.

ALTERNATIVES THAT WOULD AFFECT PRIVATE PERSONS

No alternatives 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.