[Federal Register Volume 67, Number 136 (Tuesday, July 16, 2002)]
[Proposed Rules]
[Pages 46612-46616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17768]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. S-030]
RIN No. 1218-AC01


Safety Standards for Cranes and Derricks

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Notice of intent to establish Negotiated Rulemaking Committee; 
request for nominees and comments.

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SUMMARY: The Occupational Safety and Health Administration is 
announcing its intent to establish a Cranes and Derricks Negotiated 
Rulemaking Advisory Committee (C-DAC) under the Negotiated Rulemaking 
Act (NRA) and the Federal Advisory Committee Act (FACA). The Committee 
will negotiate issues associated with the development of a proposed 
revision of the existing construction safety standards for the cranes 
and derricks portion (``1926.550) of 29 CFR part 1926 Subpart N-Cranes, 
Derricks, Hoists, Elevators, and Conveyors. The Committee will include 
representatives of parties who would be significantly affected by the 
final rule. OSHA solicits comments on the initiative and requests 
interested parties to nominate representatives for membership on C-DAC.

DATES: Written comments and requests for membership must be submitted 
by September 16, 2002. Comments and requests for membership submitted 
by mail must be postmarked not later than September 16, 2002. E-mailed 
or faxed comments or requests for nomination must be received by 
September 16, 2002.

ADDRESSES: Written comments, including nominations for membership, may 
be submitted in any of three ways: by mail, by fax, or by e-mail. 
Please include ``Docket No. S-030'' on all submissions.
    By mail, the address is: OSHA Docket Office, Docket No. S-030, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-2625, 
Washington, DC 20210, telephone (202) 693-2350. Note that receipt of 
comments submitted by mail may be delayed by several weeks.
    By fax, written comments and nominations for membership that are 10 
pages or fewer, may be transmitted to the OSHA Docket Office at 
telephone number (202) 693-1648.
    By email, comments and nominations may be submitted through OSHA's 
Homepage at ecomments.osha.gov. Please note that you may not attach 
materials such as studies or journal articles to your electronic 
comments. 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, clearly identify 
your electronic comments by name, date, subject, and Docket Number, so 
that we can attach the materials to your electronic comments.

FOR FURTHER INFORMATION CONTACT: Nancy Ford, Office of Construction 
Standards and Compliance Assistance, Occupational Safety and Health 
Administration, U.S. Department of Labor, Room NB3468, 200 Constitution 
Avenue, NW., Washington, DC 20210; Telephone: (202) 693-2345.

SUPPLEMENTARY INFORMATION:

I. Background

    The existing rule for cranes and derricks in construction, codified 
in volume 29 of the Code of Federal Regulations (CFR), Sec. 1926.550, 
which dates back to 1971, is based in part on industry consensus 
standards from 1967 to 1969. Since 1971, that section of subpart N has 
undergone only two amendments:
    (1) In 1988, Sec. 1926.550 was amended by adding a new paragraph 
(g) to establish clearly the conditions under which employees on 
personnel platforms may be hoisted by cranes or

[[Page 46613]]

derricks (see volume 53 of the Federal Register, pages 29116 to 29141).
    (2) In 1993, Sec. 1926.550 was amended by adding a new (a)(19), 
which states that all employees shall be kept clear of loads about to 
be lifted and of suspended loads (58 FR 35183).
    There have been considerable technological changes since the 
consensus standards upon which the 1971 OSHA standard is based were 
developed. For example, hydraulic cranes were rare at that time but are 
now prevalent. The existing OSHA standard does not specifically address 
hydraulic cranes. In contrast, industry consensus standards for 
derricks were updated in 1995 and crawler, truck and locomotive cranes 
were updated as recently as 2000.
    A cross-section of industry stakeholders has asked the Agency to 
update Subpart N's crane and derrick requirements. They have indicated 
that over the past 30 years, the considerable changes in both work 
processes and crane technology have made much of Subpart N obsolete.
    For the past two years, a number of industry representatives have 
been working with a cranes workgroup of the Advisory Committee for 
Construction Safety and Health (ACCSH). That workgroup has been 
developing recommended changes to Subpart N with respect to the 
requirements for cranes.
    Based on the Agency's review of the issues, the progress made by 
the ACCSH cranes workgroup, and the continued interest in using 
negotiated rulemaking for this standard, OSHA proposes to use the 
negotiated rulemaking process to develop a proposed revision of the 
requirements in Subpart N for cranes and derricks.
    The negotiated rulemaking effort described in this notice will be 
conducted in accordance with the Negotiated Rulemaking Act, 5 U.S.C. 
561 et seq., and the Department of Labor's policy on negotiated 
rulemaking. Further detail on the Department's negotiated rulemaking 
policy is in the ``Notice of Policy on Use of Negotiated Rulemaking 
Procedures by Agencies of the Department of Labor'' (57 FR 61860).

A. The Concept of Negotiated Rulemaking

    Usually, OSHA develops a proposed rule using staff and consultant 
resources. The concerns of affected parties are often identified 
through stakeholder meetings and an advance notice of proposed 
rulemaking (ANPR) published in the Federal Register. This is followed 
by formal consultation with ACCSH (under the Construction Safety Act, 
OSHA is required to consult with ACCSH on all proposed construction 
standards). Affected parties do not generally have an opportunity to 
submit arguments and data supporting their positions until the proposed 
rule is published. In contrast, in a negotiated rulemaking, there is 
greater opportunity for face-to-face, back-and-forth communications 
during the process among parties representing different interests and 
with agency officials.
    Many times, effective regulations have resulted from traditional 
rulemaking. However, as Congress noted in the Negotiated Rulemaking Act 
(5 U.S.C. 561), current rulemaking procedures Amay discourage the 
affected parties from meeting and communicating with each other, and 
may cause parties with different interests to assume conflicting and 
antagonistic positions * * *'' (Sec. 2(2)). Congress also stated that 
``adversarial rulemaking deprives the affected parties and the public 
of the benefits of face-to-face negotiations and cooperation in 
developing and reaching agreement on a rule. It deprives them of the 
benefits of shared information, knowledge, expertise, and technical 
abilities possessed by the affected parties.'' (Sec. 2(3)).
    In negotiated rulemaking, a proposed rule is developed by a 
committee composed of representatives of government and the interests 
that will be significantly affected by the rule. Decisions are made by 
consensus. As defined in 5 U.S.C. 562 (2)(a)(b),

`consensus' means unanimous concurrence among the interests 
represented on a negotiated rulemaking committee established under 
this subchapter, unless such committee agrees to define such term to 
mean a general but not unanimous concurrence or agrees upon another 
specified definition.

    The process is started by the Agency's careful identification of 
all interests potentially affected by the rulemaking under 
consideration. To help in this identification process, the Agency 
publishes a document such as this one in the Federal Register, which 
identifies a preliminary list of interests and requests public comment 
on that list.
    Following receipt of the comments, the Agency establishes an 
advisory committee representing these various interests to negotiate a 
consensus on the provisions of a proposed rule. Representation on the 
committee may be direct, that is each member represents a specific 
interest, or indirect, through coalitions of parties formed to 
represent a specific sphere of interest. The Agency is a member of the 
committee representing the Federal government's statutory mission.
    The negotiated rulemaking advisory committee is chaired by a 
trained facilitator, who applies proven consensus building techniques 
to help the advisory committee work towards a consensus. The many 
functions that he or she will perform are discussed below.
    Once the committee reaches consensus on the provisions of a 
proposed rule, the Agency, consistent with its legal obligations, uses 
that consensus as the basis for its proposed rule, to be published in 
the Federal Register. This provides the required public notice and 
allows for a public comment period. Members, other participants and 
other interested parties retain their rights under section 6(b) of the 
OSH Act to submit written comments and participate in an informal 
hearing (if requested). OSHA will then publish a final rule based on 
the record as a whole--the information that was received in the course 
of developing the proposed rule, together with the comments and 
information submitted after the proposal is published. OSHA anticipates 
that the pre-proposal consensus agreed upon by this Committee will 
effectively narrow the issues in the subsequent rulemaking and reduce 
the likelihood of litigation.

B. Selecting Part of Subpart N as a Candidate for Negotiated Rulemaking

    The Agency may establish a negotiated rulemaking committee if it 
has determined that the use of the negotiated rulemaking procedure is 
in the public interest. As discussed above, OSHA has made that 
determination in this case.
    The Agency bases this determination on prior experience with the 
negotiated rulemaking process. Even before the NRA was enacted, OSHA 
conducted negotiated rulemaking for its complex health standards for 
Methylenedianiline (MDA). This committee met seven times over a 10-
month period (24 meeting days) and successfully negotiated standards 
for both general industry and construction. The final standards were 
ultimately based on the recommended proposed standards, and no 
litigation followed the standards' promulgation.
    Also, the new Steel Erection Standard (29 CFR part 1926 subpart R) 
was based on a proposal that was developed by the Steel Erection 
Negotiated Rulemaking Advisory Committee (SENRAC). The new final rule 
was published on January 18, 2001, and became effective January 18, 
2002. The standard addresses the hazards that have been identified as 
the major causes of injuries and fatalities in the steel erection 
industry.

[[Page 46614]]

    OSHA believes that the cranes and derricks portion of subpart N is 
an appropriate subject for negotiated rulemaking. In 1998, the Advisory 
Committee on Construction Safety and Health (ACCSH) formed a workgroup 
to review subpart N. In December 1999, ACCSH passed a motion submitted 
by the workgroup, recommending that OSHA consider negotiated rulemaking 
as the mechanism to revise/update subpart N. The workgroup has made 
considerable progress in identifying and prioritizing areas in the 
current standard that should be updated to reflect modern safety 
procedures.
    The Agency believes that the selection criteria listed in the NRA 
(5 U.S.C. 563(a)) have been met. Interests that will be affected by a 
revised subpart N are known, are limited in number, and to a 
significant degree are already organized in interest-based coalitions. 
There appears to be a good possibility of reaching consensus on a 
proposed rule. In addition, OSHA expects that persons likely to be 
significantly affected by such a rule will negotiate in good faith. The 
need for updating provisions is acknowledged by all known interests. As 
progress has already been made through the efforts of the ACCSH 
workgroup, OSHA believes that the negotiated rulemaking process will 
not unreasonably delay the proposal or issuance of a final rule.

C. Agency Commitment

    In initiating this negotiated rulemaking process, OSHA is making a 
commitment on behalf of the Department of Labor that OSHA and all other 
participants within the Department will provide resources to ensure 
timely and successful completion of the process. This commitment 
includes making the negotiations a priority activity for all officials 
of the Department who need to be involved.
    OSHA will take steps to ensure that the negotiated rulemaking 
committee has sufficient resources to complete its work in a timely 
fashion. These include the provision or procurement of such support 
services as: adequate and properly equipped space; logistical support 
and timely payment of participant travel and expenses where necessary 
as provided for under the NRA; word processing, communications and 
other information handling services required by the committee; the 
services of a facilitator; and such additional statistical, economic, 
safety, legal, or other technical assistance as may be necessary.
    OSHA, to the maximum extent possible consistent with its statutory 
mission and the legal obligations of the agency, will use the consensus 
of the committee as the basis for the rule proposed by the Agency for 
public notice and comment. The Agency believes that by updating the 
existing standard, it can limit or reduce the number of deaths and 
injuries to employees associated with cranes and derricks used in 
construction. The Agency, therefore, is committed to publishing a 
consensus proposal that is consistent with OSHA's legal mandates.

D. Negotiating Consensus

    An important benefit of negotiated rulemaking is that it 
necessarily involves a mutual education of the parties on the practical 
concerns about the effect of different approaches to various issues. 
This stems from the fact that in negotiated rulemaking, agreement is by 
consensus of the interests. As noted above, the NRA defines consensus 
as the ``unanimous concurrence among interests represented on a 
negotiated rulemaking committee * * * unless such committee agrees to 
(a different definition).'' In addition, experience has demonstrated 
that using a trained facilitator to work with the Committee will assist 
all parties, including OSHA, to identify their real interests in the 
rule, and will enable them to reevaluate previously stated positions on 
issues involved in this rulemaking effort.

E. Some Key Issues for Negotiation

    OSHA expects that the key issues to be addressed as part of these 
negotiations will include:
    1. The identification/description of what constitutes ``cranes and 
derricks'' for purposes of determining the equipment that will be 
covered by the proposed rule.
    2. Qualifications of individuals who operate, maintain, repair, 
assemble, and disassemble cranes and derricks.
    3. Work zone control.
    4. Crane operations near electric power lines.
    5. Qualifications of signal-persons and communication systems and 
requirements.
    6. Load capacity and control procedures.
    7. Wire rope criteria.
    8. Crane inspection/certification records.
    9. Rigging procedures.
    10. Requirements for fail-safe, warning, and other safety-related 
devices/technologies.
    11. Verification criteria for the structural adequacy of crane 
components.
    12. Stability testing requirements.
    13. Blind pick procedures.

II. Proposed Negotiation Procedures

    OSHA is proposing to use the following procedures and guidelines 
for this negotiated rulemaking. The Agency may modify them in response 
to comments received on this document or during the negotiation 
process.

A. Committee Formation

    This Committee will be formed and operated in full compliance with 
the requirements of the Federal Advisory Committee Act (FACA) and the 
NRA, in a manner consistent with the standards-setting requirements of 
the OSH Act.

B. Interests Involved

    The Agency intends to ensure full and adequate representation of 
those interests that are expected to be significantly affected by the 
proposed rule. Section 562 of the NRA defines the term ``interest'' as 
follows:

    (5) ``interest'' means, with respect to an issue or matter, 
multiple parties which have a similar point of view or which are 
likely to be affected in a similar manner.

    The following interests have been tentatively identified as 
``significantly affected'' by this rulemaking:

-- Crane and derrick manufacturers, suppliers, and distributors
-- Companies that repair and maintain cranes and derricks
-- Crane and derrick leasing companies
-- Owners of cranes and derricks
-- Construction companies that use leased cranes and derricks
-- General contractors
-- Labor organizations representing construction employees who operate 
cranes and derricks and who work in conjunction with cranes and 
derricks
-- Owners of electric power distribution lines
-- Civil, structural and architectural engineering firms and 
engineering consultants involved with the use of cranes and derricks in 
construction
-- Training organizations
-- Crane and derrick operator testing organizations
-- Insurance and safety organizations, and public interest groups
-- Trade associations
-- Government entities involved with construction safety and with 
construction operations involving cranes and derricks.

    This list of potential interests is not presented as a complete or 
exclusive list from which committee members will be selected. The list 
merely indicates interests that OSHA has tentatively identified as 
being significantly affected by the outcome of the Subpart N

[[Page 46615]]

negotiated rulemaking process. One purpose of this document is to 
obtain public comment about whether an updated crane standard would 
significantly affect interests that are not listed above. OSHA invites 
comment and suggestions on this list of ``significantly affected'' 
interests.

C. Members

    The negotiating group should not exceed 25 members, and 15 would be 
preferable. The Agency believes that the more members there are over 
15, the more difficult it is to conduct effective negotiations.
    OSHA is aware that there may be more interests, whether they are 
listed here or not, than membership slots on the Committee. In order to 
have a successful negotiation, it is important for interested parties 
to identify and form coalitions that adequately represent significantly 
affected interests. To provide adequate representation, these 
coalitions must agree to support, both financially and technically, a 
member on the Committee whom they will choose to represent their 
interest.
    It is important to recognize that interested parties who are not 
selected to membership on the Committee can make valuable contributions 
to a negotiated rulemaking in any of several ways:

 Asking to be placed on the Committee mailing list and making 
written comments;
 Attending the Committee meetings, which are open to the 
public, caucusing with his or her interest's member on the Committee, 
or even addressing the Committee (often allowed at the end of an 
issue's discussion or the end of the session, as time permits); and/or
     Assisting in the work of a Committee workgroup.

    Informal workgroups are usually established by an advisory 
committee to help it address technical issues or other particular 
matters. They might also help analyze costs and compliance data, help 
draft regulatory text, or initially address novel issues that arise 
during negotiations. Workgroup members usually have expertise or a 
particular interest in the technical matter(s) being studied. Because 
of the importance of this work on technical details, OSHA will also 
provide appropriate technical expertise for such workgroups, as needed.

D. Request for Nominations

    OSHA solicits requests for appointment to membership on the 
Committee. Members can be individuals or representatives of 
organizations. However, an organization that requests membership should 
identify the individual who will be its representative. If the 
negotiation is to be successful, members must be able to fully and 
adequately represent the viewpoints of their respective interests. 
Those individuals or representatives of organizations who wish to be 
appointed as members of the Committee should submit a request to OSHA, 
in accordance with the ``Public Participation'' part of this document.
    This document gives notice of the selection process to all 
potential participants and affords them an opportunity to request 
representation in the negotiations. The procedure for requesting such 
representation is set out under the Public Participation part of this 
document, below.

E. Good Faith Negotiation

    Committee members need to have authorization to negotiate on behalf 
of their interests and be willing to negotiate in good faith. First, 
each member needs to have good communications with his or her 
constituencies. An ``intra-interest'' network of communication should 
be established to channel information between the member and his/her 
organization and interest coalition. Second, in nominating a member to 
represent it, each organization or coalition should designate a person 
with credibility and authority to insure that information is shared and 
decisions are made in a timely manner. Negotiated rulemaking efforts 
can require a very significant contribution of time by the appointed 
members, which must be sustained for a year or more.
    Certain considerations are central to negotiating in good faith. 
One is the willingness to bring all issues to the table in an attempt 
to reach a consensus, instead of keeping key issues in reserve. The 
second is a willingness to keep the issues at the table and not take 
them to other forums. Finally, good faith includes a willingness to 
move away from the type of adversarial positions often taken in 
rulemaking proceedings, and instead to explore openly with other 
parties all relevant and productive ideas that may emerge from the 
discussions of the committee.

F. Facilitator

    The facilitator will not be a party to the substantive development 
of the standard. Rather, the facilitator's role will generally include:
    (1) Chairing the meeting of the committee in an impartial manner;
    (2) Impartially assisting the members of the committee in 
conducting discussions and negotiations, and
    (3) Supervising the taking of minutes and keeping of records and 
other relevant responsibilities.

G. OSHA Representative

    The OSHA representative, as a full member of the Committee, will 
participate fully with the other members in the negotiations. The OSHA 
representative will meet regularly with various senior OSHA officials, 
briefing them on the negotiations and receiving their suggestions and 
advice, in order to effectively represent the Agency's views regarding 
the issues before the Committee. OSHA's representative will also inform 
the Office of Management and Budget of the status of the negotiations. 
OSHA's representative will also communicate with ACCSH on a regular 
basis, informing it of the status and content of the negotiations.
    In addition, the OSHA representative will present the negotiators 
with the available evidence that the Agency has gathered on an issue-
by-issue basis for their consideration. The Committee may also consult 
OSHA's representative to obtain technical information, and to discuss 
issues associated with setting and administering standards (such as 
jurisdiction, scope, enforceability, costs and feasibility concerns, 
and paperwork burden issues). The OSHA representative, together with 
the Facilitator, will also be responsible for coordinating the 
administrative and committee support functions to be performed by 
OSHA's support team.

H. Plain Language

    OSHA intends to write its standards in plain language. This means 
that the provisions must be clear, logically organized, and written 
with a minimum of industry jargon. It is important to avoid the use of 
ambiguous regulatory language. It often takes significant effort to 
express complex and technical concepts in language that can be 
understood by non-experts. Agency staff will assist the Committee in 
its drafting efforts.

I. Additional Members

    During the course of the Committee's negotiations, an unanticipated 
issue significantly affecting one or more unanticipated, unrepresented 
interests may arise. The Committee may decide that it is necessary for 
that issue to be addressed in the proposed rule. If so, the Agency will 
publish in the Federal Register a request for additional nominations to 
represent such interests. The Secretary may then select one or

[[Page 46616]]

more additional representatives, who will be added as Committee 
members.
    The additional members will not be entitled to revisit any issue 
that has already been negotiated, unless the Committee agrees by 
consensus to do so.

J. Replacement Members

    In the event an appointed member becomes unavailable or otherwise 
unable to serve, the Secretary will select a replacement member to 
represent the interest the original member had represented.

K. Tentative Schedule

    When OSHA publishes a notice establishing the Committee and 
appointing its members, the Agency will include a proposed schedule of 
committee meetings. The first meeting will focus largely on procedural 
matters, including the proposed ground rules. The Committee will agree 
on dates, times, and locations of future meetings, and will identify 
and determine how best to address principal issues for resolution.
    To prevent delays that might postpone timely issuance of the 
proposal, OSHA intends to terminate the Committee's activities if it 
does not reach consensus on a proposed rule within 18 months of the 
first meeting. The process may end earlier if the Facilitator or the 
committee itself so recommends.

L. Record of Meetings

    In accordance with FACA's requirements, the Facilitator will 
supervise the keeping of minutes and a record of all committee 
meetings. These materials will be placed in the public docket No. S-
030. Committee meetings will be announced in the Federal Register and 
will be open to the public.

M. Agency Action

    As set forth in the NRA, ``the Agency, to the maximum extent 
possible consistent with the legal obligations of the agency, will use 
the consensus of the committee with respect to the proposed rule as the 
basis for the rule proposed by the agency for notice and comment.''

N. Committee Procedures

    Under the general guidance and direction of the Facilitator, and 
subject to any applicable legal requirements, appropriate detailed 
procedures for committee meetings will be established.

III. Public Participation

    In a negotiated rulemaking, there are many opportunities for an 
individual who is interested in the outcome of the rule to participate. 
As a first step in response to this notice of intent to negotiate, OSHA 
recommends that potential participants take a close look at the list of 
significantly affected interests. They should analyze the list for 
completeness or over-or under-inclusiveness, and for the purpose of 
coalition-building. Parties should try to identify others who share a 
similar viewpoint and who would be affected in a similar way by the 
rule. They should then communicate with these parties of similar 
interest and begin organizing coalitions to support their shared 
interests. Once the coalitions are formed, the parties can discuss 
which individuals should represent their interests and in what 
capacities.
    As indicated above, not every interested party will be able to 
serve as a member of the Committee. However, an interested party may 
participate in a variety of other ways. These include working within 
the interest coalitions (promoting communication, providing expert 
support in a workgroup or otherwise helping to develop internal ranges 
of acceptable alternatives, etc.), attending committee meetings in 
order to caucus with the interest's member, or submitting written 
comments or materials to the Committee or workgroups.
    Persons who will be significantly affected by the revision in the 
crane and derricks portion of Subpart N, whether or not their interest 
is listed above in this document, may apply for or nominate another 
person for membership on the committee to represent such interests. 
Such requests must be received by the Docket Office (see instructions 
under ADDRESSES near the beginning of this Notice), no later than 
September 16, 2002. In general, under the NRA, members of the 
negotiated rulemaking committee shall be responsible for their own 
expenses, except in certain limited circumstances (see 5 U.S.C. section 
588).
    Each application or nomination must include:
    (1) The name of the applicant or nominee and a description of the 
interest(s) such person will represent; (2) evidence that the applicant 
or nominee is authorized to represent those interests that the person 
proposes to represent, and (3) a description of the person's 
qualifications and expertise regarding those interests. Each applicant 
must submit a written commitment to actively participate in good faith 
in the development of the rule.
    All written comments, including comments on the appropriateness of 
using negotiated rulemaking to develop a proposed cranes and derricks 
standard, and the topics to be covered regarding cranes and derricks, 
should be directed to Docket No. S-030, and sent to the OSHA Docket 
Office (see instructions under ADDRESSES near the beginning of this 
Notice).

IV. Authority

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210, 
pursuant to section 3 of the Negotiated Rulemaking Act of 1990, (5 
U.S.C. 561 et seq.), FACA (5 U.S.C. Appendix 2), the Occupational 
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.), and Secretary of 
Labor's Order No. 3-2000 (65 FR 50017, Aug. 16, 2000).

    Signed at Washington, DC, this 10th day of July, 2002.
John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 02-17768 Filed 7-15-02; 8:45 am]
BILLING CODE 4510-26-P