DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, and 1926

[Docket No. H049C]

RIN 1218-AA05

Assigned Protection Factors

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 Assigned Protection Factors.

DATES: Informal public hearing. The Agency will hold the informal public hearing in Washington, DC beginning January 28, 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 December 12, 2003. (Parties who submitted a Notice of Intention to Appear in response to the Notice of Proposed Rulemaking (NPRM) need not submit another notice.)

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 January 12, 2004. (Parties who provided their full testimony and documentary evidence in response to the NPRM do not have to resubmit these materials.)

ADDRESSES: Informal public hearing. The informal public hearing will be held in Washington, DC, 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. H049C, 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 (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. 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 202-693-1647. 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: (202) 693-1999). For technical inquiries, contact Mr. John Steelnack, Office of Biological Hazards, Room N-3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: (202) 693-2289; fax: (202) 693-1678). For hearing information, contact Ms. Veneta Chatmon, Office of Communications, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 (telephone: (202) 693-1999). 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: (202) 693-1888). 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 the final, revised Respiratory Protection Standard, 29 CFR 1910.134, on January 8, 1998 (63 FR 1152). However, in the final standard, the Agency reserved the sections related to assigned protection factors (APFs) and maximum use concentrations (MUCs) pending further rulemaking (see 63 FR 1182 and 1203). On June 6, 2003, OSHA published an NPRM to revise its existing Respiratory Protection Standard to add definitions and specific requirements for APFs and MUCs (68 FR 34036). The proposed revisions also would supersede the respirator-selection provisions of existing substance-specific standards with the new APFs (except the APFs for the 1,3-Butadiene Standard).

During the comment period on the NPRM, which OSHA extended to October 2, 2003 (68 FR 53311), a number of commenters (Exs. 12-2, 12-4, 12-8, 12-10, 12-11, 12-12,13-1, 13-2, 13-3, 13-4, 13-5) requested an informal public hearing. OSHA is granting this request.

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 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 (ALJ) 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 an ALJ, 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 ALJ who presides over the hearing makes no decision or recommendation on the merits of the NPRM or the final rule, 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 parties receive a full and fair informal hearing, the ALJ 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 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, 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 ALJ.

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 ALJ 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 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 at Washington, DC on November 6, 2003.

John L. Henshaw,
Assistant Secretary of Labor.

[FR Doc. 03-28357 Filed 11-10-03; 8:45 am]

BILLING CODE 4510-26-P