Exit Routes (Means of Egress)

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-052]

RIN 1218-AB55

Exit Routes (Means of Egress)

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

ACTION: Informal public hearing; reopening of written comment period.

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SUMMARY: This notice schedules an informal public hearing regarding the

notice of proposed rulemaking which OSHA issued on September 10, 1996

(61 FR 47712), concerning a proposed revision of the Agency's General

Industry standards for Means of Egress (Subpart E of Part 1910). This

notice also reopens the comment period for written responses to the

proposed rule.

DATES: Notices of intention to appear at the informal public hearing

must be postmarked by April 1, 1997. Hearing participants requesting

more than 10 minutes for their presentations, and participants who will

submit documentary evidence at the hearing, must submit the full text

of their testimony and all documentary evidence to the Docket Office,

postmarked no later than April 14, 1997. Written comments on the

proposed standard must also be postmarked by April 14, 1997. The

hearing will be held in Washington, D.C. and is scheduled to begin on

April 29, 1997.

ADDRESSES: Comments, notices of intention to appear at the informal

public hearing, testimony, and documentary evidence are to be submitted

in quadruplicate to: Docket Office, Docket S-052; Room N2625; U.S.

Department of Labor, Occupational Safety and Health Administration, 200

Constitution Ave., NW., Washington, DC. 20210 (Telephone: 202-219-

7894).

Written comments, notices of intention to appear, testimony, and

all other material related to the development of this proposed standard

will be available for inspection and copying in the Docket Office, Room

N2625, at the above address.

The hearing will be held in C5521, Seminar Room #4, of the U.S.

Department of Labor (Frances Perkins Building), 200 Constitution Avenue

NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Bonnie Friedman, Office of Information

and Consumer Affairs, U.S. Department of Labor, Occupational Safety and

Health Administration, Room N3647; 200 Constitution Avenue NW.,

Washington, DC 20210 (202-219-8148, FAX 202-219-5986).

SUPPLEMENTARY INFORMATION:

I. Background

On September 10, 1996, OSHA published a notice in the Federal

Register (61 FR 47712) that proposed to revise Subpart E of Part 1910,

Means of Egress. The purpose of the proposed revision was to rewrite

the existing requirements of Subpart E in plain English so they would

be more understandable to employers, employees, and others who use

them. The proposal did not intend to change the regulatory obligations

of employers or the safety and health protections provided to

employees.

Although OSHA recognized that some portions of Subpart E may

warrant updating, the Agency did not propose to update the requirements

of Subpart E at this time. Instead, the proposal focused on rewriting

the existing requirements in order to be easier to read, understand,

and use. Toward this goal, the proposal used performance-oriented

requirements where possible, reorganized the text to keep subject

matter consistent, removed internal inconsistencies, and eliminated

duplicate requirements. Additionally, OSHA proposed to change the name

of Subpart E from ``Means of Egress'' to ``Exit Routes.''

OSHA also proposed two alternative plain English versions of the

revision to Subpart E. The first version was organized in the

traditional OSHA regulatory format. The second version used a question

and answer format. OSHA invited interested parties to comment on the

content and effectiveness of the proposed changes and on the plain

English version of Subpart E that they preferred. The Agency

established a comment period of 60 days for interested parties to

submit written comments and to request a hearing on the proposed

revision to Subpart E.

II. Response to Proposed Revision of Subpart E

The Agency received a total of 59 written comments in response to

the proposed revision of Subpart E. A vast majority of the commenters

supported the concept of rewriting the existing requirements of Subpart

E in ``plain English,'' even though many of these commenters suggested

various means of improving the revision to Subpart E. A large majority

of commenters also preferred the ``traditional'' format rather

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than the ``question and answer'' format. These commenters believe that

the ``question and answer'' format may be appropriate for an appendix,

but that the ``traditional'' format is clearer, makes it easier to

locate answers to specific questions, and is easier to follow and

understand.

Two of the commenters, the National Fire Protection Association

(Ex. 5: 18) and Hallmark Cards (Ex.5: 51), requested a hearing in order

to allow for a dialogue among life safety professionals; to have

greater public involvement in the rulemaking process; and, to

facilitate a full discussion of certain important issues.

Accordingly, OSHA has decided to schedule an informal public

hearing in order to facilitate a full discussion of the proposed

revision, and to address certain important issues resulting from the

comments.

OSHA is scheduling a hearing only in Washington, DC. The hearing

will commence on Tuesday, April 29, 1997. The Agency is also reopening

the rulemaking record for Subpart E until April 1, 1997, to receive

additional written comments on the proposed revision.

III. Hearing Issues

1. Most of the commenters suggested that OSHA either adopt, in

total, the latest edition of the National Fire Protection Association

(NFPA) Life Safety Code (NFPA-101); reference NFPA-101 for specific

ways of meeting the performance requirements of the proposed standard;

or, state in the regulatory text of the standard, or in the appendix to

the standard, that compliance with NFPA-101 meets the requirements of

the OSHA Subpart E standard. Should OSHA utilize one of these

approaches? If so, how should the Agency implement the approach,

especially with respect to periodic future revisions of NFPA-101? For

example, if OSHA adopted a specific edition of NFPA-101, such as the

1994 edition, then the Subpart E provisions would not keep pace with

future editions of NFPA-101. On the other hand, OSHA cannot actually

adopt NFPA-101 as an OSHA standard without specifying a particular

edition because of delegation restraints. OSHA is required to conduct

rulemaking to update its standards, and this requirement would apply to

any future changes to NFPA-101 if it were to be adopted as an OSHA

standard.

2. One commenter strongly asserted that OSHA should base its

standard on the model building codes, such as the Building Officials

and Code Administrators International (BOCA) Code or the International

Conference of Building Officials (ICBO) Code, rather than the NFPA Life

Safety Code.

Many of the same issues apply here as those discussed above with

regard to adopting NFPA-101. OSHA would like to receive information and

testimony regarding the role of model building codes in the revision to

Subpart E, including how, and if, the Agency should utilize these codes

in the final rule.

3. Several commenters expressed concern that the performance-

oriented nature of the proposed requirements may result in compliance

problems. OSHA is interested in receiving comments as to whether some

of the proposed requirements are so performance-oriented that they

would not be easily enforced. Also, could some of the proposed

provisions be interpreted in ways that would be inconsistent with

previous interpretations relied on by OSHA or other authorities?

4. There were differing views regarding OSHA's proposed provisions

dealing with exit capacity and the number of exits considered to be

adequate for a workplace building. Some commenters supported the

Agency's performance-oriented approach because they believe that OSHA

standards should contain only general criteria for exit routes and that

the more specific criteria pertaining to the number of exits and the

capacity of exits are more appropriately enforced through local

building and fire codes.

Other commenters opposed OSHA's approach because they believe that

some of the proposed provisions are too general. These commenters

suggested that OSHA reinstate more definitive criteria with respect to

the number of exits and exit capacity for different types of

workplaces.

OSHA requests information, comments, and testimony concerning the

most appropriate and effective means of addressing exit capacity and

the number of exits that need to be available in the broad array of

workplaces covered by the OSHA standard, whether the workplace is a

tower, single story building, or multistory building.

5. Several commenters disagreed with OSHA's proposed requirements

for exit signs because the proposed version does not specify minimum

physical characteristics for exit signs. These commenters contend that

the requirements are too general and would create compliance problems

for employers. Should OSHA retain specific criteria for exit signs? If

so, what criteria should OSHA use?

6. Similarly, some commenters believe that the revised requirements

for exit illumination are also too general and would result in

compliance problems for employers. Should OSHA include specific

criteria for the illumination of exits and exit signs?

7. Although OSHA has attempted to rewrite Subpart E in order to

clarify and simplify requirements, are there provisions or terms that

are still too technical or difficult to understand? If so, please

identify the provision or term and suggest a recommended action.

8. OSHA did not intend the proposed revision of Subpart E to impose

any compliance obligations on employers beyond those imposed by

existing Subpart E. Did OSHA achieve that goal, or would employers

following the proposed revision be required to change their current

practices in any way? If so, which proposed requirements would impose

new obligations and how would they do so?

9. Do any of the proposed requirements provide greater safety and

health protections for employees? If yes, which requirements do so and

how would they provide additional protection to employees?

10. Do any of the proposed requirements present technological

feasibility problems for affected employers? If yes, which requirements

do so and what problems do they present?

OSHA invites comments and testimony on these issues and any other

issues pertaining to the proposed revision of Subpart E.

Public Participation

Interested persons are requested to submit written data, views, and

arguments concerning the proposal of September 10, 1996, and the

additional issues raised in this document. These comments must be

postmarked by April 14, 1997, and submitted in quadruplicate to the

Docket Office, Docket No. S-052 Room N2625, U.S. Department of Labor,

Occupational Safety and Health Administration, 200 Constitution Avenue

NW., Washington, DC. 20210.

All written comments received within the specified comment period

will be made a part of the record and will be available for public

inspection and copying at the above Docket Office address.

Notice of Intention To Appear at the Informal Hearing

Pursuant to section 6(b)(3) of the Occupational Safety and Health

Act, an opportunity to submit oral testimony concerning the issues

raised by the

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proposed standard will be provided at an informal public hearing to be

held in Washington, DC. on April 29, 1997, and extending through May 1,

1997, depending on the number of persons intending to participate in

the hearing.

The hearing will commence at 9:30 a.m. on April 29, 1997, in C5521,

Seminar Room #4, of the Frances Perkins Building, U.S. Department of

Labor, 200 Constitution Avenue NW., Washington, DC. 20210.

All persons desiring to participate in the hearing must file in

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

April 1, 1997. The notice of intention to appear, which will be

available for inspection and copying at the OSHA 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: Docket

Office, Docket S-052, U.S. Department of Labor, 200 Constitution Avenue

NW., Washington, DC. 20210; telephone (202) 219-7894.

A notice of intention to appear also may be transmitted by

facsimile to (202) 219-5046 (Attention: Docket S-052), by the same

date, provided the original and 3 copies are sent to the same address

and postmarked no more than 3 days later.

Filing of Testimony and Evidence Before the Hearing

Any party requesting more than 10 minutes for a presentation at the

hearing, or who will submit documentary evidence, must provide in

quadruplicate, the complete text of the testimony, including any

documentary evidence to be presented at the hearing. One copy shall not

be stapled or bound and be suitable for copying. These materials must

be provided to the Docket Office at the address above and be postmarked

no later than April 14, 1997.

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

time requested in the notice of intention to appear. In those instances

when the information contained in the submission 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 informal public hearing.

Any party who has not substantially complied with this requirement

may be limited to a 10 minute presentation, and may be requested to

return for questioning at a later time.

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.

Notice of intention to appear, testimony, and evidence will be

available for copying at the Docket Office at the address above.

Conduct and Nature of the Hearing

The hearing will commence at 9:30 a.m. on April 29, 1997. At that

time, any procedural matters pertaining to the proceeding will be

resolved.

The nature of an informal rulemaking hearing is established in the

legislative history of section 6 of the Occupational Safety and Health

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 that can proceed expeditiously in the absence of

procedural restraints that impede or protract the rulemaking process.

Additionally, since the hearing is primarily for information

gathering and clarification, it is an informal administrative

proceeding rather than one of an adjudicative nature.

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. Thus, questions of relevance, procedure, and

participation generally will be decided so as to favor development of

the record.

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

It should be noted that Sec. 1911.4 specifies that 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 of the

powers necessary and appropriate to conduct a full and fair informal

hearing as provided in 29 CFR 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. At the Judge's discretion, to question and permit the

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

6. At 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 who, through

their knowledge of safety or their experience in the subject matter of

this proceeding, would wish to endorse or support certain provisions in

the proposed standard. OSHA welcomes such supportive comments in order

that the record of this rulemaking will present a balanced picture of

the public response on the issues involved.

Signed at Washington, DC. this 26th day of February 1997.

Gregory R. Watchman,

Acting Assistant Secretary of Labor.

[FR Doc. 97-5176 Filed 2-28-97; 8:45 am]

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