[Federal Register Volume 73, Number 77 (Monday, April 21, 2008)]
[Proposed Rules]
[Pages 21292-21294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8460]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

[Docket No. OSHA-2007-0026]
RIN 1218-AB47


Confined Spaces in Construction

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

ACTION: Proposed rule; notice of hearing.

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SUMMARY: OSHA is convening an informal public hearing to receive 
testimony and documentary evidence on the proposed rule for Confined 
Spaces in Construction.

DATES: Informal Public Hearing. The Agency will hold the informal 
public hearing in Washington, DC beginning July 22, 2008. The hearing 
will commence at 10 a.m. on the first day. If necessary, a second or 
third day will be scheduled. The hearing will begin at 9 a.m. on 
subsequent days.
    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 May 21, 2008.
    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 June 20, 2008.

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.
    Notices of intention to appear at the hearing, hearing testimony, 
and documentary evidence. Submit notices of intention to appear at the 
informal public hearing, hearing testimony, and documentary evidence, 
identified by the docket number (OSHA 2007-0026) or the regulatory 
information number (RIN; 1218-AB47), using any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting the material.
     Facsimile: Send submissions consisting of 10 or fewer 
pages to the OSHA Docket Office at (202) 693-1648. 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 triplicate 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-2007-0026) so that the agency 
can attach them to the appropriate document.
     Regular mail, express delivery, hand delivery, and courier 
service: Send submissions in triplicate (3 copies) to the OSHA Docket 
Office, Docket No. OSHA-2007-0026, Technical Data Center, Room N-2625, 
OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone (202) 693-2350 (OSHA's TTY number is 
(877) 889-5627). 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. The OSHA Docket Office and Department of 
Labor hours of operation are 8:15 a.m. to 4:45 p.m., ET.
    Instructions. All submissions must include the agency name and the 
OSHA docket number (i.e., OSHA-2007-0026). All submissions, including 
any personal information, are placed in the public docket without 
revision, 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, birth dates, and medical data. 
For additional information on submitting notices of intention to 
appear, the text of testimony, and documentary evidence, see the Public 
Participation--Comments and Hearings section below.
    Docket. To read or download comments or other material in the 
docket, go to http://www.regulations.gov or to the OSHA Docket Office 
at the address above. Documents in the docket are listed in the http://www.regulations.gov index. However, some information (e.g., copyrighted 
material) is not publicly available to read or download through this 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at 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.

FOR FURTHER INFORMATION CONTACT: For general information and press 
inquiries, contact Ms. Jennifer Ashley, Director, 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. Garvin Branch, Directorate 
of Construction, Room N-3468, OSHA,

[[Page 21293]]

U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210; telephone (202) 693-2020 or fax (202) 693-1689. For hearing 
information, contact Ms. Veneta Chatmon, Office of Communications, Room 
N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Washington, DC 20210; telephone: (202) 693-1999. 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 proposed Confined Spaces 
in Construction Standard on November 28, 2007 (72 FR 67351). The period 
for submitting written comments was to expire on January 28, 2008, but 
was extended to February 28, 2008 (73 FR 3893). During this comment 
period, a number of commenters (see, e.g., Exs. OSHA-2007-0026-0024.1, 
-0026, -0030.1, -0032, -0027, -0032, -0057) requested an informal 
public hearing. With this notice, OSHA is granting these requests.
    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 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 1911.5. Although the ALJ presiding 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 in which the individual will testify (e.g., name of the 
establishment/organization the individual is representing; the 
individual's occupational title and position); 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. OSHA 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 
also may 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 and Signature

    This document was prepared under the authority of Edwin G. Foulke, 
Jr., Assistant Secretary of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, pursuant to Sections 6(b) of the Occupational Safety and Health 
Act of 1970 (29 U.S.C. 655), Secretary of Labor's Order 5-2007 (72 FR 
31160), and 29 CFR part 1911.


[[Page 21294]]


    Signed at Washington, DC this 15th day of April 2008.
Edwin G. Foulke, Jr.,
Assistant Secretary of Labor for Occupational Safety and Health.
 [FR Doc. E8-8460 Filed 4-18-08; 8:45 am]
BILLING CODE 4510-26-P