[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Proposed Rules]
[Pages 64036-64038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28357]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 64037]]

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

[[Page 64038]]

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