04-8301. Longshoring and Marine Terminals; Vertical Tandem Lifts

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Proposed rule; notice of hearing.

SUMMARY:

OSHA is convening an informal public hearing to receive testimony and documentary evidence on Vertical Tandem Lifts.

DATES:

Informal public hearing. The Agency will hold the informal public hearing in Washington, DC beginning July 29, 2004. The hearing will commence at 10 a.m. on the first day, and at 9 a.m. on the second and subsequent days, which will be scheduled, if necessary.

Notice of Intention to Appear to provide testimony at the informal public hearing. Parties who intend to present testimony at the informal public hearing must notify OSHA in writing of their intention to do so no later than May 13, 2004.

Hearing testimony and documentary evidence. Parties who are requesting more than 10 minutes to present their testimony, or who will be submitting documentary evidence at the hearing, must provide the Agency with copies of their full testimony and all documentary evidence they plan to present by June 14, 2004.

ADDRESSES:

Informal public hearing. The informal public hearing will be held in the Auditorium on the plaza level of the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC.

Notice of Intention to Appear at the hearing. Notices of Intention to Appear at the informal public hearing should be submitted in triplicate (3 copies) to the Docket Office, Docket No. S-025A, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. These notices also may be faxed to the Docket Office at [phone], or submitted electronically at http://ecomments.osha.gov. OSHA Docket Office and Department of Labor hours of operation are 8:15 a.m. to 4:45 p.m.

Hearing testimony and documentary evidence. Testimony and documentary evidence must be submitted in triplicate (3 copies) to the Docket Office at the above address. Testimony and documentary evidence totaling 10 or fewer pages may be faxed to the Docket Office at [phone]. Materials such as studies or journal articles may not be attached to faxed testimony or documentary evidence; instead, three copies of this material must be mailed to the Docket Office at the above address. Such material must identify clearly the name of the individual who is testifying, date, docket number, and subject so that OSHA can attach it to the appropriate faxed documents.

FOR FURTHER INFORMATION CONTACT:

For general information and press inquiries, contact Ms. Layne Lathram, Office of Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: [phone]). For technical inquiries, contact Mr. Paul Rossi, Office of Maritime, Room N-3609, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: [phone]; fax: [phone]). For hearing information, contact Ms. Veneta Chatmon, Office of Communications, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: [phone]). For additional copies of this Federal Register notice, contact the Office of Publications, Room N-3103, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: [phone]). Electronic copies of this Federal Register notice, as well as news releases and other relevant documents, are available at OSHA's homepage at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

OSHA published a proposed standard for Longshoring and Marine Terminals; Vertical Tandem Lifts, in the Federal Register on September 16, 2003 (68 FR 54297). On December 10, 2003 (68 FR 68804), OSHA published a notice providing an additional sixty (60) days for the submission of comments and hearing requests, extending the comment period to February 13, 2004. During the comment period, OSHA received two requests for a public hearing (Exs. 40-13 and 43-1). OSHA is granting these requests. The Agency is placing the Notices of Intention to Appear, hearing testimony, and documentary evidence in the rulemaking docket, which will be available for inspection and copying at the OSHA Docket Office.

Public Participation—Comments and Hearings

OSHA encourages members of the public to participate in this rulemaking by providing oral testimony and documentary evidence at the informal public hearing. Accordingly, the Agency invites interested parties having knowledge of, or experience with, the issues raised in the Notice of Proposed Rulemaking (NPRM) to participate in this process, and welcomes any pertinent data that will provide the Agency with the best available evidence to use in developing the final rule. This section describes the procedures the public must use to schedule an opportunity to deliver oral testimony and to provide documentary evidence at the informal public hearing.

Hearing arrangements. Pursuant to section 6(b)(3) of the Occupational Safety and Health Act (“the Act''; 29 U.S.C. 655), members of the public must have an opportunity at the informal public hearing to provide oral testimony concerning the issues raised in the NPRM. An administrative law judge will preside over the hearing, and will resolve any procedural matters relating to the hearing on the first day.

Purpose of the hearing. The legislative history of Section 6 of the Act, as well as the Agency's regulation governing public hearings (29 CFR 1911.15), establish the purpose and procedures of informal public hearings. Although the presiding officer of the hearing is a judge and questions by interested parties are allowed on pertinent issues, the hearing is informal and legislative in purpose. Therefore, the hearing provides interested parties with an opportunity to make effective and expeditious oral presentations in the absence of procedural restraints that could impede or protract the rulemaking process. The hearing is not an adjudicative proceeding subject to the technical rules of evidence; instead, it is an informal administrative proceeding convened for the purpose of gathering and clarifying information. The regulations that govern the hearing, and the pre-hearing guidelines issued for the hearing, will ensure that participants are treated fairly and have due process; this approach will facilitate the development of a clear, accurate, and complete record. Accordingly, application of these rules and guidelines will be such that questions of relevance, procedures, and participation will be decided in favor of developing a complete record.

Conduct of the hearing. Conduct of the hearing will conform to the provisions of 29 CFR part 1911 (“Rules of Procedure for Promulgating, Modifying, or Revoking Occupational Safety and Health Standards”). Although the judge who presides over the hearing makes no decision or recommendation on the merits of the NPRM or the final rule, the judge has the responsibility and authority to ensure that the hearing progresses at a reasonable pace and in an orderly manner. To ensure that interested parties receive a full and fair informal hearing, the judge has the authority and power to: Regulate the course of the proceedings; dispose of procedural requests, objections, and similar matters; confine the presentations to matters pertinent to the issues raised; use appropriate means to regulate the conduct of the parties who are present at the hearing; question witnesses, and permit others to question witnesses; and limit the time for such questions. At the close of the hearing, the judge will establish a post-hearing comment period for parties who participated in the hearing. During the first part of this period, the participants may submit additional data and information to OSHA, and during the second part of this period, they may submit briefs, arguments, and summations.

Notice of Intention to Appear to provide testimony at the informal public hearings. Hearing participants must file a Notice of Intention to Appear that provides the following information: The name, address, and telephone number of each individual who will provide testimony; the capacity (e.g., name of the establishment/organization the individual is representing; the individual's occupational title and position) in which the individual will testify; approximate amount of time requested for the individual's testimony; specific issues the individual will address, including a brief description of the position that the individual will take with respect to each of these issues; and any documentary evidence the individual will present, including a brief summary of the evidence.

OSHA emphasizes that, while the hearing is open to the public and interested parties are welcome to attend, only a party who files a proper Notice of Intention to Appear may ask questions and participate fully in the hearing. A party who did not file a Notice of Intention to Appear may be allowed to testify at the hearing if time permits, but this determination is at the discretion of the presiding judge.

Hearing testimony and documentary evidence. The Agency will review each submission and determine if the information it contains warrants the amount of time requested. OSHA then will allocate an appropriate amount of time to each presentation, and will notify the participants of the time allotted to their presentations. Prior to the hearing, the Agency will notify the participant if the allotted time is less than the requested time, and will provide the reasons for this action. OSHA may limit to 10 minutes the presentation of any participant who fails to comply substantially with these procedural requirements. The Agency may also request a participant to return for questions at a later time.

Certification of the record and final determination after the informal public hearing. Following the close of the hearing and post-hearing comment period, the judge will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health. This record will consist of all of the written comments, oral testimony, documentary evidence, and other material received during the hearing. Following certification of the record, OSHA will review the proposed provisions in light of all the evidence received as part of the record, and then will issue the final determinations based on the entire record.

Authority

John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, directed the preparation of this document. It is issued under sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), Section 41 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 941), Secretary's Order 5-2002 (67 FR 65008), and 29 CFR part 1911.

Signed at Washington, DC on April 6, 2004.

John L. Henshaw,

Assistant Secretary of Labor.