PROPOSED RULES
LABOR AND INDUSTRIES
Original Notice.
Preproposal statement of inquiry was filed as WSR 01-07-102.
Title of Rule: Machine safety.
Purpose: This rule making is part of our four-year plan to rewrite for clarity all of our general occupational safety and health rules. Machine guarding requirements located in chapters 296-24, 296-78, and 296-302 WAC were reviewed to identify unnecessary design requirements, outdated terminology, incorporate necessary policies and requirements, rewriting and reorganizing for clarity and consolidate into one rule, chapter 296-806 WAC.
Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for
appearance in this issue of the Register. It will appear in the 04-05 issue of the Register.
Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060.
Statute Being Implemented: Chapter 49.17 RCW.
Summary: This rule making is part of our four-year plan to rewrite for clarity all of our general occupational safety and health rules. Machine guarding requirements located in chapters 296-24, 296-78, and 296-302 WAC were reviewed to identify unnecessary design requirements, outdated terminology, incorporate necessary policies and requirements, rewriting and reorganizing for clarity and consolidate into one rule, chapter 296-806 WAC. See also Purpose above.
Reasons Supporting Proposal: See Purpose above.
Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Michael A. Silverstein, Tumwater, (360) 902-5495.
Name of Proponent: Department of Labor and Industries, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The machine safety rules will assist in protecting workers from moving parts that create the possibility for workplace injuries. Providing safeguards is essential for eliminating or controlling the hazards. There are no anticipated effects due to the rule making.
Proposal Changes the Following Existing Rules: This proposed rule in chapter 296-806 WAC would require all employers in Washington using hog mills, chippers and other stationary machinery to comply with certain requirements to reduce the risk of injury to machine operators and nearby personnel. Chippers and hog mills would require protective safeguarding outlined in the rule summary section of this document. Work areas around stationary machinery would be required to allow for the unimpeded flow of materials and movement of operators, which is also outlined in the rule summary section.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Chippers and Hog Mills: WAC 296-806-48050 Follow these requirements for chipper mills, 296-806-48052 Follow these requirements for hog mills, 296-806-48054 Protect employees from falling into chipper and hog mills.
Work Area: WAC 296-806-20006 Arrange work areas to avoid creating hazards.
This proposed rule in chapter 296-806 WAC would require all nonagricultural employers in Washington using hog mills, chippers and other stationary machinery to comply with certain requirements to reduce the risk of injury to machine operators and nearby personnel. Chippers and hog mills would require protective safeguarding outlined in the rule summary section of this document. Work areas around stationary machinery would be required to allow for the unimpeded flow of materials and movement of operators, which is also outlined in the rule summary section.
These proposed rule requirements for chippers, hog mills and stationery machine work area are currently only in force for very specific industries in Washington. The proposed rule would expand their coverage to all nonagricultural industries that use these machines. This rule-making process is necessary to provide equal worker protection across all nonagricultural industries.
Mail surveys were conducted to estimate the compliance costs for the proposed rule. The hog mill survey revealed full compliance with the rule, therefore no disproportionate impact for small business can be said to exist as a result of this component of the rule.
The chipper survey showed that some affected firms would incur costs. The estimated cost per employee of the two small firms was four dollars and seventy-six cents and thirteen dollars respectively. The estimated cost per employee of the one large firm reporting is twenty-one dollars and ninety-six cents. Since large firms reported an expected cost per employee significantly higher than that of small firms, no disproportionate cost impact can be said to result from the rule.
With respect to the work area requirement, one firm did report expected and expected one-time compliance cost of one hundred thousand dollars. However, this firm reported that they had one hundred employees which makes it a large firm as defined under the statute. Therefore the costs that the firm reported can not be said to have a disproportionate impact on small business.
Economic Requirements of the Regulatory Fairness Act: Proposed rules and rule amendments must meet the requirements of the RFA, chapter 19.85 RCW before adoption. The RFA is intended to ensure, if legal and feasible, that rules do not impose disproportionate economic burdens on small businesses compared to larger businesses. The RFA requires that an SBEIS be prepared for proposed rules that impose more than minor costs on businesses in an industry. Although the (de minimis) value of a minor cost is not specified in statute, it has been widely interpreted in practice to mean $50 or less1 per business in real or constant 1990 dollars.
According to the RFA, the SBEIS must contain the following:
1) A brief description of the reporting, record keeping and other compliance requirement of the proposed rule along with the kinds of professional services that a small business is likely to need for compliance.
2) An analysis of all the business compliance costs of the proposed rule.
3) Consider whether compliance with the rule will cause businesses to lose sales or revenues.
4) The compliance cost of proposed regulations on small businesses2 is estimated and compared to the compliance cost estimates for the largest 10% of businesses3 in an industry. These cost comparisons can be estimated as per employee business costs.
5) A statement of the steps taken by the agency to reduce the costs of the rule on small businesses as require by RCW 19.85.030(2), or reasonable justification for not doing so, addressing the options listed in RCW 19.85.030(2).
6) A description of how the agency will involve small businesses in the development of the rule.
7) A list of industries that will be required to comply with the rule. However, this shall not be construed to preclude application of the rule to any business or industry to which it would otherwise apply.
The economic analysis in this SBEIS is based on new requirements that are not incorporated in national consensus codes.
Summary of the Proposed Rule: All analysis and conclusions contained in this SBEIS are based on the following requirements of the proposed rule (note that these requirements are for firms in all industries using the specified equipment).
1) Chippers and hog mill workplaces shall be operated in conformity with the following:
• Feed systems are arranged such that the operator does not stand in a direct line with the chipper blades or spout (hopper).
• The operator shall be protected from chips or chunks being thrown out from the blades while feeding the machine.
• The chipper's spout shall be enclosed to a height or distance of at least forty inches from the floor or operators station whichever is higher.
• A mirror or other viewing device shall be provided to permit monitoring of material when the operator otherwise could not readily observe the material being fed into the chipper.
• A safety belt (or harness) and a lifeline short enough to prevent employees working near the entrance from falling in the hog mill or chipper shall be provided.
2) This would require that work areas around fixed processing machinery provide enough free space that:
• Each operator can clean and handle material with the least interference from other workers or machines.
• Each operator does NOT have to stand in the way of passing traffic.
• Employees can bring in and remove materials safely.
Labor and industries has determined that no reporting, record-keeping or other compliance costs would arise from the proposed rule other than modifying or adding safety equipment or expanding work areas.
Survey Data: Department staff designed two separate survey instruments to assist in this analysis. Industries chosen for the first survey were considered likely to have chippers and/or hog mills as they are used for similar procedures; therefore, the survey questions for chippers and hog mills were combined on the same page and sent to a randomly-selected number of firms in those SICs. The second survey went to industries that were considered likely to be subject to the work area requirements of the rule. Note that these requirements apply to all nonagricultural firms that have the specified machinery, and not just the standard industrial classifications (SIC) listed. The industries targeted in the survey and their SICs are as follows:
| Chippers and Hog Mills | |
| Number in Population: | 2,041 |
| Number of Firms Surveyed: | 1,000 |
| Industries Surveyed: | |
| 2431 | Millwork |
| 2434 | Wood Kitchen Cabinets |
| 2439 | Structural Wood Members, Not Elsewhere Classified |
| 2441 | Nailed and Lock Corner Wood Boxes and Shook |
| 2448 | Wood Pallets and Skids |
| 2449 | Wood Containers Not Elsewhere Classified |
| 2493 | Reconstituted Wood Products |
| 2499 | Wood Products, Not Elsewhere Classified |
| 3084 | Plastics Pipe |
| 3085 | Plastics Bottles |
| 3086 | Plastics Foam Products |
| 3087 | Custom Compounding of Purchased Plastics Resins |
| 3088 | Plastics Plumbing Fixtures |
| 3089 | Plastics Products, Not Elsewhere Classified |
| 3931 | Musical Instruments |
| 3995 | Burial Caskets |
| 5712 | Furniture Stores |
| Work Area Requirements | |
| Number in Population: | 670 |
| Number of Firms Surveyed: | 670 |
| Industries Surveyed: | |
| 2261 | Finishers of Broadwoven Fabrics of Cotton |
| 2653 | Corrugated and Solid Fiber Boxes |
| 2679 | Converted Paper and Paperboard Products, Not Elsewhere Classified |
| 3221 | Glass Containers |
| 3531 | Construction Machinery and Equipment Manufacturing |
| 3553 | Woodworking Machinery Manufacturing |
| 3599 | Industrial and Commercial Machinery and Equipment Manufacturing, Not Elsewhere Classified (Largely consisting of machine shops in Washington) |
| 3949 | Sporting and Athletic Goods Manufacturing, Not Elsewhere Classified |
| Firm Size | Total Number of Employees | Expected Cost of Compliance | Cost/ Employee |
| Small | 42 | $200 | $4.76 |
| Small | 4 | $50 | $13.00 |
| Large | 140 | $3,075 | $21.96 |
Response Statistics for Work Area Survey: Of the six hundred and seventy surveys sent to industries identified as likely to have equipment that would make them subject to the work area requirements of the rule seventy-eight responded. Of the respondents, three reported that at least a portion of their operations would fall under the rule; however, all but one was in compliance. That single firm reported an expected one time cost of one hundred thousand dollars. This single firm reported that it employed one hundred individuals and therefore falls into the large business category.
Economic Impact Assessment: This section explains how the survey data was used to determine whether there is a disproportionate impact on small business pursuant to the RFA.
Costs: All costs reported are nonrecurring costs that occur only in the first year of the rule. Any long-term costs of the rule are likely to be maintenance costs (e.g. the cost to replace broken mirrors or safety belts/lifelines) and are likely to be quite small. Because these costs are expected to be minor, they are not estimated. Any capacity expansion for firms using chippers or hog mills are not likely to result in increased cost because all new machinery should come from the manufacturer with "industry standard" safety features in place.
Hog Mills and Chippers: Of the two hundred and forty-eight firms reporting, seven reported that they operated hog mills and all reported that they were currently in compliance. Since the survey results are seen as being representative of the population of hog mill-using firms, it is possible to infer that there are no cost impacts of the rule as it pertains to hog mills.
Of the survey respondents not covered by previously existing regulations, four reported that they operated chippers. One of these firms was already in compliance. Of the three remaining firms, one was large and two were small. The large firm reported an expected cost per affected employee of just about twenty-two dollars (exactly $21.96) while the two smaller firms reported and expected cost per employee of just about five dollars (exactly $4.76) and thirteen dollars. Given the data, it can be inferred that a large firm in an affected industry can expect to pay approximately two to three times more than a small firm in order to comply with the rule. Since the survey results are seen as being representative of the population of chipper-using firms, it is possible to infer that no disproportionate cost impact on small firms will result from the adoption of this rule as it pertains to chippers.
Work Area Requirements: As stated earlier, one firm did report expected costs of one hundred thousand dollars to bring their firm into compliance with the work area requirement. However, since this firm was a large firm and this data is seen as being representative of the population of affected firms, it is possible to infer that no disproportionate cost impact in small firms will result from the adoption of the rule as it pertains to the work area requirement.
Conclusion: Using the survey data and basic statistical inference, the evidence strongly supports the assertion that there will not be any disproportionate impacts on small business as a result of the proposed rule as it pertains to any of the industries surveyed.
1 This amount has been calculated down to the four-digit Standard Industrial Code (SIC) level of detail for a large number of
Washington state industries. These amounts were calculated by estimating 0.1 percent of profits for an average business with fifty
employees in each four-digit SIC (Guide for Facilitating Regulatory Fairness, of 1993). These de minimus amounts can be adjusted
for inflation to be valued current nominal values. Note that the minor amounts start at $50 for some SICs with generally higher
profits.
2 The RFA defines "small business" as any business entity, including a sole proprietorship, corporation, partnership or other legal entity, that is owned and operated independently from all other businesses, and that has fifty or fewer employees. In this analysis, the number of "employees" is calculated by using full-time equivalents, of 2,000 worker hours annually as the best indicator of the number of employees.
3 Note that the measure of the "largest 10% of businesses in an industry" is not defined in the RFA. While this size measure could be calculated by revenue, profits or some other measure, L&I believes that using the number of employees or FTE provides the most meaningful comparison of businesses with fifty or fewer employees. In each sector, however, the largest 10% of businesses may include at least some small businesses; in such cases, the businesses that could have been counted in both groups were included by L&I in the largest 10% and excluded from the small business calculations.
4 All costs reported were costs associated with bringing chippers into compliance; hog mill users reported that they were already in compliance.
A copy of the statement may be obtained by writing to Carmen Moore, Rules Coordinator, Department of Labor and Industries, P.O. Box 44001, Olympia, WA 98504, phone (360) 902-4206, fax (360) 902-4202.
RCW 34.05.328 applies to this rule adoption. Significant rule-making criteria does apply to these rule changes due to the increase in requirements to hog mills, chippers, and stationary machine work areas.
Hearing Location: Department of Labor and Industries, Rooms S117 and S118, 7273 Linderson Way S.W., Tumwater, WA, on March 24, 2004, at 1:30 p.m.; and Red Lion Hotel Yakima Center, 607 East Yakima Avenue, Yakima, WA, on March 31, 2004, at 1:30 p.m.
Assistance for Persons with Disabilities: Contact Sally Elliott by March 8, 2004, TDD (360) 902-5484 or yous235@lni.wa.gov.
Submit Written Comments to: Cindy Ireland, Administrative Regulations Analyst, WISHA Services Division, P.O. Box 44620, Olympia, WA 98507-4620, fax (360) 902-5529, by April 7, 2004.
Date of Intended Adoption: June 1, 2004.
January 20, 2004
Paul Trause
Director
Reviser's note: The material contained in this filing exceeded the page-count limitations of WAC 1-21-040 for appearance in this issue of the Register. It will appear in the 04-05 issue of the Register.