2010-28544. Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems)

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Proposed rule; notice of informal public hearings.

SUMMARY:

OSHA is convening an informal public hearing to receive testimony and documentary evidence on the Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) proposed rule (29 CFR part 1910, subparts D and I), published on May 24, 2010 (73 FR 28862).

DATES:

Informal public hearings: OSHA will hold an informal public hearing in Washington, DC, beginning at 9:30 a.m., January 18, 2011. If necessary, the hearing will continue on subsequent days at the same time and location.

Notice of intention to appear to provide testimony at the informal public hearing: Parties who intend to present testimony or question witnesses at the informal public hearing must notify OSHA in writing of their intention to do so by November 30, 2010.

Hearing testimony and documentary evidence: Parties requesting more than 10 minutes to present their testimony, or who will be submitting documentary evidence at the hearing must submit the full text of their testimony and all documentary evidence to OSHA by December 21, 2010.

ADDRESSES:

Informal public hearing: The hearing will be held in the auditorium of the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC.

Notices of intention to appear, hearing testimony, and documentary evidence: Submit notices of intention to appear, hearing testimony, and documentary evidence, identified by the docket number (OSHA-2007-0072) or the regulation identifier number (RIN 1218-AB80) using any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions online for electronically submitting materials, including attachments,
• Fax: Send written submissions not exceeding 10 pages in length, including attachments, to the OSHA Docket Office at [phone]. Hard copies of these documents are not required. Instead of transmitting facsimile copies of attachments that supplement these documents (e.g., studies, journal articles), submit these attachments in hard copy to the OSHA Docket Office, Technical Data Center, Room N-2625, OSHA, U.S. Department of Labor, 200 Constitution Ave., NW., Washington, DC 20210. These attachments must clearly identify the sender's name, date, subject, and docket number (i.e., OSHA-2007-0072) so that OSHA can attach them to the appropriate document.
• Regular mail, express delivery, hand delivery, and messenger and courier service: Send materials to the OSHA Docket Office, Docket No. OSHA-2007-0072, Technical Data Center, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone] (TTY number [phone]). Note that security-related problems may result in significant delays in receiving submissions by regular mail. Please contact the OSHA Docket Office for information about security procedures concerning delivery of materials by express delivery, hand delivery, or courier service. Deliveries (express mail, hand delivery, and messenger and courier service) are accepted during the Department of Labor's and OSHA Docket Office's normal hours of operation, 8:15 a.m. to 4:45 p.m., e.t.

Instructions: All submissions must include the Agency name and docket number (OSHA-2007-0072). All submissions, including any personal information, are placed in the public docket without change, and will be available online at http://www.regulations.gov. Therefore, OSHA cautions members of the public against submitting information and statements that should remain private, including comments that contain personal information (either about themselves or others) such as Social Security numbers, birthdates, and medical information. For additional information on submitting notices of intention to appear, hearing testimony, or documentary evidence, see the SUPPLEMENTARY INFORMATION section of this notice below.

Docket: To read or download comments and other material in the docket, go to Docket No. OSHA-2007-0072 at http://www.regulations.gov or to the OSHA Docket Office at the address above. While all submissions to the docket are listed in the http://www.regulations.gov,, some information (e.g., copyrighted material) is not publicly available to read or download through this Web site. However, all submissions, including copyrighted material, are available for inspection and copying in the OSHA Docket Office. Contact the OSHA Docket Office for assistance in locating docket submissions, including notices of intention to appear, the text of testimony, and documentary evidence. The hours of operation for the OSHA Docket Office are 8:15 a.m. to 4:45 p.m., e.t.

FOR FURTHER INFORMATION CONTACT:

Press inquiries: MaryAnn Garrahan, Office of Communications, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-3647, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone].

Technical inquiries and inquiries about the hearing: Virginia Fitzner, Office of Safety Systems, Directorate of Standards and Guidance, U.S. Department of Labor, Occupational Safety and Health Administration, Room N-3609, 200 Constitution Avenue, NW., Washington, DC 20210; telephone [phone].

Copies of this Federal Register notice: Electronic copies of this Federal Register notice are available at http://www.regulations.gov. This notice, as well as news releases and other relevant information regarding the hearing, also are available at OSHA's Web page at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Background. On May 24, 2010, OSHA published a proposed rule to update, revise, and reorganize the standards on walking-working surfaces and to add personal fall protection systems to the Personal Protective Equipment standard (73 FR 28862). OSHA invited written comments and requests for hearings on the proposed rule. The deadline for submitting comments and hearing requests was August 23, 2010. During this period, a number of commenters submitted requests for an informal public hearing (see, e.g., Ex. OSHA-2007-0072-0150.1). Accordingly, OSHA will hold an informal public hearing on the proposed rule on Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in general industry on January 18, 2011, at the Department of Labor's Frances Perkins Building, Washington, DC. If necessary, the hearing will continue on subsequent days at the same time and location. This notice describes the procedures the public must use to participate in the hearings.

Public participation—comments and hearings. OSHA invites members of the public to participate in this rulemaking by providing oral testimony and documentary evidence at the informal public hearings. In particular, OSHA invites interested parties who have knowledge of, or experience with, walking-working surfaces and the issues raised in the proposed rule to participate in the hearings. OSHA also welcomes data and documentary evidence that will provide the Agency with the best available evidence to use in developing the final rule.

Hearing arrangements. Pursuant to section 6(b)(3) of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 655), members of the public have an opportunity at the informal public hearing to provide oral testimony and documentary evidence concerning the issues raised in the proposal. An administrative law judge (ALJ) presides over the hearing and will resolve procedural matters relating to the hearing on the first day.

Purpose of the hearing. The legislative history of Section 6 of the OSH Act, as well as OSHA's rules governing public hearings (29 CFR 1911.15), establish the purpose and procedures of informal public hearings. Although the presiding officer of the hearing is an ALJ, and questioning of witnesses is allowed on pertinent issues, the proceeding is largely 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. The hearing is not an adjudicative proceeding subject to the technical rules of evidence. Instead, it is an informal administrative proceeding convened to gather information and clarify the record. OSHA's regulations governing public hearings and the pre-hearing guidelines that the ALJ issues for the hearings will ensure fairness and due process for participants, as well as facilitate the development of a clear, accurate, and complete record. Accordingly, application of these rules and guidelines will be such that questions regarding relevance, procedures, and participation generally will be resolved 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 ALJ who presides over the hearings makes no decisions or recommendations on the merits of the proposed or final rules, the ALJ has the responsibility and authority to ensure that the hearing progresses at a reasonable pace and in an orderly manner. To ensure that interested persons receive a full and fair hearing, the ALJ has the authority to: Regulate the course of the proceedings; dispose of procedural requests, objections, and similar matters; confine presentations to matters pertinent to the issues raised in the proposed rule; use appropriate means to regulate the conduct of the parties who are present at the hearing; question witnesses, and permit others to do so; and limit the time for such questioning.

At the close of the hearing, the ALJ will establish a post-hearing comment period for parties who filed a timely notice of intention to appear at the hearing. During the first part of this post-hearing period, these parties 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 hearing. Hearing participants must file a written notice of intention to appear prior to the hearing that provides the following information:

• Name, address, and telephone number of each individual who will give oral testimony;
• Name of the establishment or organization each individual represents, if any;
• Occupational title and position of each individual testifying;
• Approximate amount of time required for each individual's testimony;
• A brief statement of the position each individual will take with respect to the issues identified in the proposed rule; and
• A brief summary of documentary evidence each individual intends to present.

OSHA emphasizes that, while the hearings are open to the public and interested parties are welcome to attend, only a party that files a notice of intention to appear may question witnesses and participate fully at the hearing. If time permits, and at the discretion of the ALJ, a party that did not file a notice of intention to appear may be allowed to testify at the hearing, but for no more than 10 minutes.

Hearing testimony and documentary evidence. Parties who request more than 10 minutes to present oral testimony at the hearing, or will submit documentary evidence at the hearing, must submit the full text of their testimony and all documentary evidence no later than December 21, 2010. The Agency will review each submission and determine if the information it contains warrants the amount of time the party requested for the presentation. If OSHA determines that the requested time is excessive, the Agency will allocate an appropriate amount of time for the presentation; OSHA then will notify the participants of the time allotted for their presentations, and will provide the reasons for this determination. The Agency also may limit to 10 minutes the presentation of any participant who fails to comply substantially with these procedural requirements. During the hearing, OSHA may request that a participant return for questioning at a later time. Before the hearing, OSHA will provide the pre-hearing guidelines and hearing schedule to each hearing participant.

Certification of the record and final determination after the informal public hearing. Following the close of the hearing and the post-hearing comment periods, the 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 hearing. The ALJ, however, will not make or recommend any decisions as to the content of the final standard. Following certification of the record, OSHA will review all the evidence received as part of the record, and then will issue the final rule based on the record as a whole.

Authority and Signature

David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice under the authority granted by Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Secretary of Labor's Order 4-2010 (75 FR 55355), and 29 CFR part 1911.

Signed at Washington, DC, on November 8, 2010.

David Michaels,

Assistant Secretary of Labor for Occupational Safety and Health.