03-9697. Standards Improvement Project-Phase II

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Proposed rule; notice of hearing.

SUMMARY:

On October 31, 2002, OSHA published a proposed rule entitled “Standards Improvement Project—Phase II”. OSHA will convene an informal public hearing to receive testimony and documentary evidence relevant to the issues raised in the proposal. This action is in response to the interested parties who have requested the convening of a hearing.

DATES:

Informal public hearing. The Agency will hold an informal public hearing beginning in Washington, DC, on July 8 to July 9, 2003. The hearing will commence at 10 a.m. on the first day, and at 9 a.m. on the second day and subsequent days if they prove necessary; however, the exact daily schedule is at the discretion of the presiding administrative law judge.

Notice of intention to appear to provide testimony at the informal public hearing. Interested parties who intend to present testimony at the informal public hearing must notify OSHA of their intention to do so no later than June 5, 2003.

Hearing testimony and documentary evidence. Interested parties who will be 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 5, 2003. Parties who provided this material in response to the notice of proposed rulemaking do not have to resubmit their comments and documentary evidence submitted with their comments, but should refer to them in their notice of intention to appear.

ADDRESSES:

Informal public hearing. The informal public hearing to be held in Washington, DC will be located 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 to the Docket Office, Docket No. S-778-A, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Notices may also be faxed to the Docket Office at 202-693-1648 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. Interested parties who will be requesting more than 10 minutes to present their testimony, or who will be submitting documentary evidence at the informal public hearing must mail three copies of the testimony and the documentary evidence to the Docket Office at the above address. Testimony may also be faxed to the Docket Office at 202-693-1647. Additional information for submitting testimony and evidence is found under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION:

For general information and press inquiries, contact Ms. Bonnie Friedman, Director, OSHA Office of Public Affairs, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: [phone]). For technical inquiries, contact Mr. Robert Manware, Office of Physical Hazards, Room N-3718, (telephone [phone]; fax: [phone]) and for hearing information contact Ms. Veneta Chatmon, Office of Information (telephone [phone]) at the above address. 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 Home page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

In 1995, the Agency identified a number of provisions in its regulations and standards that were inconsistent, duplicative, outdated, or in need of being rewritten in plain language. In 1998, as part of the process of correcting such provisions, OSHA made several substantive revisions to its health and safety standards that reduced the regulatory obligations of employers while maintaining the safety and health protection afforded to employees (63 FR 33450, June 18, 1998). During and after this rulemaking, the Agency identified several other regulatory provisions in its safety and health standards involving notification of use, frequency of exposure monitoring and medical surveillance, and similar provisions that it believed could be modified to improve the efficiency of compliance and consistency among standards while maintaining health protection for employees. OSHA proposed to make substantive revisions to a number of the health standard provisions identified in this process on October 31, 2002 (67 FR 66494). The period for filing public comment on the proposal was to end on December 30, 2002. Interested parties requested an extension of the deadline for submitting comments based on the need for additional time to provide a thorough review and response to the substantive provisions proposed for revision in the notice. In response to these requests, OSHA extended the period for submitting comments until January 30, 2003 (see 68 FR 1023, January 8, 2003). In addition, a number of commenters (Exs. 3-2, 3-16) requested that an informal public hearing be convened on the issues raised in the proposal. OSHA has granted that request and has scheduled an informal public hearing commencing July 8, 2003.

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 that the Agency will convene. In this regard, the Agency invites interested parties having knowledge or experience with respect to the issues raised in the proposal to participate in this process, and welcomes any pertinent data that will provide it with the best available evidence on which to develop the final regulatory requirements.

This section describes the procedures the public must use to schedule an opportunity to deliver oral testimony and provide documentary evidence at the informal public hearing. Notices of intention to appear, hearing testimony and documentary evidence will be available for inspection and copying at the OSHA Docket Office.

Pursuant to section 6(b)(3) of the Act, members of the public will have an opportunity at an informal public hearing to provide oral testimony concerning the issues raised in this proposal. The hearings will commence at 10 a.m. on the first day. At that time, the presiding administrative law judge (ALJ) will resolve any procedural matters relating to the proceeding. The hearings will reconvene on subsequent days at 9 a.m., if necessary.

The legislative history of section 6 of the OSHA Act, as well as OSHA's regulation governing public hearings (29 CFR 1911.15), establish the purpose and procedures of informal public hearings. Although the presiding officer of such hearing is an ALJ, and questions by interested parties is allowed on crucial issues, the proceeding 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 or rigid procedures that could impede or protract the rulemaking process. In addition, the hearing is an informal administrative proceeding, rather than adjudicative one in which the technical rules of evidence would apply, because its primary purpose is to gather and clarify information. The regulations that govern public hearings, and the pre-hearing guidelines issued for this hearing, will ensure participants fairness and due process, and also 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 generally will favor development of the record.

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.” The regulation at 29 CFR 1911.4 “Additional or Alternative Procedural Requirements,” specifies that the Assistant Secretary may, on reasonable notice, issue alternative procedures to expedite proceedings or for other good causes. Although the ALJs who preside over these hearings make no decision or recommendation on the merits of OSHA's proposal, they do have 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 as specified by 29 CFR part 1911, the ALJ has the authority and power to: Regulate the course of the proceedings; dispose of procedural requests, objections, and comparable 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 ALJ 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, while 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. Interested parties who intend to provide oral testimony at the informal public hearings must file a notice of intention to appear by using the procedures specified above in the sections titled Dates and Addresses. This notice must provide the: Name, address, and telephone number of each individual who will provide testimony; capacity (e.g., name of the establishment/organization the individual is representing; the individual's occupational title and position) in which each individual will testify; approximate amount of time required for each individual's testimony; specific issues each individual will address, including a brief statement 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 the hearings are open to the public, and that interested parties are welcome to attend. However, only a party who files a proper notice of intention to appear may ask questions and participate fully in the proceedings. While a party who did not file a notice of intention to appear may be allowed to testify at the hearing if time permits, this determination is at the discretion of the presiding ALJ.

Hearing Testimony and Documentary Evidence. Any party requesting more than 10 minutes to testify at the informal public hearing, or who intends to submit documentary evidence at the hearing, must, unless already having done so, provide the complete text of the testimony and the documentary evidence as specified above in the sections titled Date and Addresses. The Agency will review each submission and determine if the information it contains warrants the amount of time requested. If OSHA believes the requested time is excessive, it will allocate an appropriate amount of time to the presentation, and will notify the participant of this action, and the reasons for the action, prior to the hearing. The Agency may limit to 10 minutes the presentation of any participant who fails to comply substantially with these procedural requirements; in such instances, OSHA may request the participant to return for questions at a later time.

Please note that you may not attach materials such as studies or journal articles to testimony or documentary evidence faxes if they are more than 10 pages long. If you wish to include such materials, you must submit three copies to the OSHA Docket Office at the address listed above. When submitting such materials to the OSHA Docket Office, you must clearly identify your comments by name, date, Docket Number, and subject so that we can attach the materials to your faxed or mailed comments.

Certification of the Record and Final Determination After the Informal Public Hearing. Following the close of the hearing and post-hearing comment period, the presiding ALJ will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health; the record will consist of all of the written comments, oral testimony, and documentary evidence received during the proceeding. However, the ALJ does not make or recommend any decisions as to the content of the final standard. 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 section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Secretary of Labor's Order No. 5-2002 (67 FR 65008) and 29 CFR part 1911.

Signed in Washington, DC on April 16, 2003.

John L. Henshaw,

Assistant Secretary of Labor.