Respiratory Protection; Proposed Rule

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, and 1926

[Docket No. H-049]

RIN 1218-0099

Respiratory Protection; Proposed Rule

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

ACTION: Extension of Comment Period and Rescheduling of Public Hearing.

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SUMMARY: By this document the Occupational Safety and Health

Administration (OSHA) is extending the comment period and dates for

submitting notices of intention to appear, as well as hearing testimony

and evidence, and is postponing the public hearing on the proposed rule

on respiratory protection which was published on November 15, 1994 (59

FR 58884). The comment period was to end on February 13, 1995; public

hearings were scheduled to begin on March 7, 1995. Following

publication of the proposal, four written requests to extend the

comment period were received. In response to these requests, OSHA is

extending the comment period to April 14, 1995. Public hearings will

begin on June 6, 1995.

DATES: Comments must be postmarked on or before April 14, 1995. Notices

of intention to appear at the public hearing must be postmarked on or

before March 31, 1995. Testimony and evidence to be submitted at the

hearings must be postmarked by April 14, 1995. The hearing will begin

at 9:30 a.m., Tuesday, June 6, 1995 in Washington, DC.

ADDRESSES: Written comments should be submitted in quadruplicate or 1

original (hardcopy) and 1 disk (5 1/4 or 3 1/2) in WordPerfect 5.0,

5.1, 6.0 or ASCII to: Docket Office, Docket H-049, U.S. Department of

Labor, Occupational Safety and Health Administration, Room N2625, 200

Constitution Avenue, N.W. Washington, D.C. 20210; (202) 219-7894. Any

information not contained on disk, e.g., studies, articles, etc., must

be submitted in quadruplicate.

Notices of intention to appear at the informal rulemaking hearing,

testimony, and documentary evidence are to be submitted in

quadruplicate to: Mr. Thomas Hall, OSHA Division of Consumer Affairs,

Occupational Safety and Health Administration, 200 Constitution Avenue,

N.W., Room N3649, Washington, D.C. 20210; (202) 219-8615. Written

comments received, notices of intention to appear, and all other

material in the public record will be available for inspection and

copying in the Docket Office, Room N2439, at the above address.

The hearing will be held in the auditorium of the U.S. Department

of Labor, 200 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Proposal: Ms. Anne Cyr, Office of

Information and Consumer Affairs, Occupational Safety and Health

Administration, 200 Constitution Avenue, N.W., Room N3647, Washington,

D.C. 20210; (202) 219-8151.

Hearings: Mr. Thomas Hall, Division of Consumer Affairs,

Occupational Safety and Health Administration, 200 Constitution Avenue,

N.W., Room N3649, Washington, D.C. 20210; (202) 219-8615.

SUPPLEMENTARY INFORMATION:

Background

On November 15, 1994, OSHA published a notice of proposed

rulemaking on it's respiratory protection standard (59 FR 58884 et

seq.). The proposal is intended to update the current respirator

standard to reflect changes in methodology, technology, and approach

related to respiratory protection that have occurred since the existing

respiratory protection standard was adopted in 1971.

Extension of the Comment Period and Re-scheduling of the Public

Hearings

OSHA has received four written requests to extend the comment

period for an additional 60 days from: Organization Resources

Counselors, Inc. (Ex. 54-13); the American Petroleum Institute (Ex. 54-

4); the Dow Chemical Company (Ex. 54-12); and TSI Incorporated (Ex. 54-

15). The requesters state that because of the holidays and the press of

other year-end business, the opportunity for interested persons to

submit extensive comments, and for trade associations to coordinate

among their members requires an extension of the time for comment.

Based on these requests, the Agency has agreed to extend the comment

period. It also has re-scheduled the public hearings.

OSHA's procedures for participating in its rulemaking were printed

in the proposal notice (59 FR 58935). All persons interested in

participating are requested to review these procedures in their

entirety. For convenience these procedures are summarized below.

[[Page 4133]]

Notice of Intention to Appear at the Informal Hearing

Pursuant to section 6(b)(3) of the OSH Act, an opportunity to

submit oral testimony concerning all issues raised by the proposed

standard will be provided at an informal public hearing to be held in

Washington, DC from June 6, 1995 and continuing until Friday, June 23.

The hearing will commence at 9:30 a.m. on June 6, 1995, in the

auditorium of the Frances Perkins Building, U.S. Department of Labor,

3rd Street and Constitution Avenue N.W., Washington, DC 20210.

All persons desiring to participate at the hearing must file in

quadruplicate a notice of intention to appear, postmarked on or before

March 31, 1995. The notice of intention to appear, which will be

available for inspection and copying at the OSHA Technical Data Center

Docket Office (Room N2625), telephone (202) 219-7894, must contain the

following information:

1. The name, address, and telephone number of each person to

appear;

2. The capacity in which the person will appear;

3. The approximate amount of time required for the presentation;

4. The issues that will be addressed;

5. A brief statement of the position that will be taken with

respect to each issue; and

6. Whether the party intends to submit documentary evidence and, if

so, a brief summary of it.

The notice of intention to appear shall be mailed to Mr. Thomas

Hall, OSHA Division of Consumer Affairs, Docket H-049, Room N3649, U.S.

Department of Labor, 200 Constitution Avenue N.W., Washington, DC

20210; telephone (202) 219-8617.

A notice of intention to appear also may be transmitted by

facsimile to (202) 219-5986, by the same date, provided the original

and 3 copies are sent to the same address and postmarked no more than 3

days later.

Any party who has not filed a notice of intention to appear may be

allowed to testify for no more than 10 minutes as time permits, at the

discretion of the Administrative Law Judge, but will not be allowed to

question witnesses.

Filing of Testimony and Evidence Before the Hearing

In addition to a notice of intention to appear, any party

requesting more than ten (10) minutes for a presentation, or who will

submit documentary evidence, must provide in quadruplicate the complete

text of the testimony, including any documentary evidence to be

presented. One copy shall not be stapled or bound and be suitable for

copying. These materials must be provided to Mr. Thomas Hall, OSHA

Division of Consumer Affairs at the address above and be postmarked no

later than April 14, 1995.

Each such submission will be reviewed in light of the amount of

time requested. In those instances where the information submitted does

not justify the amount of time requested, a more appropriate amount of

time will be allocated and the participant will be notified of that

fact prior to the hearing.

Any party who has not substantially complied with this requirement

may be limited to a ten-minute presentation, and may be requested to

return for questioning at a later time during the hearing.

Notices of intention to appear, testimony and evidence will be

available for inspection and copying at the Docket Office at the

address above.

Conduct and Nature of Hearing

The hearing will commence at 9:30 a.m. on the first day. At that

time, any procedural matters relating to the proceeding will be

resolved.

The nature of an informal rulemaking hearing is established in the

legislative history of section 6 of the OSH Act and is reflected by

OSHA's rules of procedure for hearings (29 CFR 1911.15(a)). Although

the presiding officer is an Administrative Law Judge and limited

questioning by persons who have filed notices of intention to appear is

allowed on crucial issues, the proceeding is informal and legislative

in type. The Agency's intent, in essence, is to provide interested

persons with an opportunity to make effective oral presentations which

can proceed expeditiously.

Since the hearing is primarily for information gathering and

clarification, it is an informal administrative proceeding rather than

an adjudicative one. The technical rules of evidence, for example, do

not apply. The regulations that govern hearings and the pre-hearing

guidelines to be issued for this hearing will ensure fairness and due

process and also facilitate the development of a clear, accurate and

complete record. Those rules and guidelines will be interpreted in a

manner that furthers that development.

The hearing will be conducted in accordance with 29 CFR Part 1911.

It should be noted that Sec. 1911.4 specifies the Assistant Secretary

may upon reasonable notice issue alternative procedures to expedite

proceedings or for other good cause.

The hearing will be presided over by an Administrative Law Judge

who makes no decision or recommendation on the merits of OSHA's

proposal. The responsibility of the Administrative Law Judge is to

ensure that the hearing proceeds at a reasonable pace and in an orderly

manner. The Administrative Law Judge, therefore, will have all the

powers necessary and appropriate to conduct a full and fair informal

hearing as provided in 29 CFR Part 1911 including the powers:

1. To regulate the course of the proceedings;

2. To dispose of procedural requests, objections and comparable

matters;

3. To confine the presentations to the matters pertinent to the

issues raised;

4. To regulate the conduct of those present at the hearing by

appropriate means;

5. In the Judge's discretion, to question and permit the

questioning of any witness and to limit the time for questioning; and

6. In the Judge's discretion, to keep the record open for a

reasonable, stated time (known as the post-hearing comment period) to

receive written information and additional data, views and arguments

from any person who has participated in the oral proceedings.

OSHA recognizes that there may be interested persons or

organizations who, through their knowledge of the subject matter or

their experience in the field, would wish to endorse or support the

whole proposal or certain provisions of the proposal. OSHA welcomes

such supportive comments, including any pertinent data and cost

information which may be available, in order that the record of this

rulemaking will present a balanced picture of the public response on

the issues involved.

Authority and Signature

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health, U.S.

Department of Labor, 200 Constitution Avenue, NW., Washington, DC

20210. It is issued pursuant to section 6(b) of the Occupational Safety

and Health Act of 1970 (84 Stat. 1593, 29 U.S.C. 655).

Signed at Washington, DC., this 17th day of January, 1995.

Joseph A. Dear,

Assistant Secretary of Labor.

[FR Doc. 95-1518 Filed 1-19-95; 8:45 am]

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