DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1926, and 1928

[Docket No. H-122]

RIN 1218-AB37

Indoor Air Quality

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

ACTION: Notice of Proposed Rulemaking; Change of hearing location, extension of hearing dates, and clarification of hearing issues.

SUMMARY: OSHA is changing the location of the hearing (the starting date of the hearing remains unchanged) and extending the length of the hearing to accommodate the large number of parties who wish to participate. In order to help hearing participants focus their testimony on relevant issues, OSHA is also clarifying certain aspects of its proposal.

DATES: The hearing will take place from September 20, 1994 through October 14, 1994 as scheduled, but will also reconvene for additional sessions from October 24 through November 22, 1994 and November 29 through December 5, 1994. The starting time is 10:00 a.m. on the first day and 9:30 a.m. on the subsequent days.

ADDRESSES: The first two days of the hearing, Tuesday, September 20 and Wednesday September 21, will be at the Andrew W. Mellon Auditorium, between 12th and 13th Streets on Constitution Avenue, N.W., Washington, D.C. The third and fourth days of the hearing, Thursday, September 22 and Friday, September 23, will be at the Department of Interior Auditorium, 1849 "C" Street, N.W., Washington, D.C. The location of the hearings on subsequent days will be announced, and may be obtained by calling the OSHA Office of Information and Consumer Affairs at (202) 219-8618.

FOR FURTHER INFORMATION CONTACT: Tom Hall, Office of Information and Consumer Affairs, OSHA, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210; telephone: (202) 219-8618.

SUPPLEMENTARY INFORMATION: On April 5, 1994, OSHA issued a notice of proposed rulemaking addressing indoor air quality issues, including environmental tobacco smoke in the workplace. 59 FR 15968. On June 14, 1994 OSHA issued a supplemental notice giving parties until August 13, 1994 to submit comments; until August 5, 1994 to file notices of intention to appear; and until August 13, 1994 to submit testimony and evidence. The hearing was scheduled to start September 20, 1994. 59 FR 30560. These dates have not been changed.

A large number of persons have asked to testify at this hearing. Consequently, OSHA has extended the length of the hearing as specified above. OSHA has also scheduled the first four days of the hearing at a larger auditorium as specified above. The location of subsequent days will be announced. Persons who filed notices of intention to appear have already been notified of the initial change by mail.

Clarifications

Some of the persons who filed notices of intention to appear and have been scheduled to testify have indicated uncertainty about OSHA's intentions with respect to parts of the proposal. In order to permit hearing participants to focus their testimony on the relevant issues, OSHA is clarifying certain aspects of the proposed rule and directing participants to the relevant preamble discussion on other points.

OSHA wishes to clarify that it is not proposing to regulate smoking or indoor air quality in private homes, and does not intend to do so. The scope provisions in the proposal cover only "work environments" and "indoor or enclosed workplaces." However, some of the comments indicate uncertainty on this matter. OSHA intends to develop even clearer language on this point for use in a final regulation.

OSHA's intention on this issue is consistent with its longstanding practice. For example, a statement of policy set forth at 29 CFR 1975.6 provides that domestic service employment in a private home is not subject to the requirements of the OSH Act.

Similarly, OSHA does not intend its proposal to apply to private vehicles. OSHA has no authority to regulate smoking in cars and trucks used privately or for commuting. The objective of this proposed rule is to protect nonsmoking employees from the effects of passive smoke. Therefore, OSHA also does not intend to limit smoking in any type of work vehicle where the only employee(s) present are smokers. OSHA does not intend to regulate taxis and limousines, which are pervasively regulated by state and local governments. Also, such regulation could pose serious feasibility problems if the proposal were applicable. However, OSHA expects comment on whether the standard should regulate smoking in other kinds of employer-owned work vehicles when nonsmoking employees are present. Similar scope issues arise as to other forms of transportation such as ships, trailers, and busses used as offices, etc. Witnesses may wish to discuss this matter so that OSHA's consideration of the issue will include additional relevant evidence.

Some participants have expressed uncertainty as to the extent to which a final standard would preempt state and local regulation of smoking and other indoor air quality issues. It is OSHA's intent that state and local laws consistent with this standard shall remain in effect to the full extent permissible. As OSHA pointed out at 59 FR 16033, Section 18 of the OSH Act expresses Congress' intent to preempt state rules that establish occupational safety and health standards with respect to issues covered by OSHA standards, unless the state rules are part of an approved state plan. But Section 18 does not preempt state or local laws of general applicability that do not conflict with OSHA standards and that regulate the conduct of workers and non-workers alike. See Gade v. National Solid Wastes Management Association, 112 S. Ct. 2374 (1992). Such laws regulate workers simply as members of the general public. OSHA recognizes that many state and local governments have enacted provisions designed to protect the health of their residents by addressing indoor air quality issues, including exposure to ETS.

Finally, OSHA notes that it proposed that the final standard not take effect until 14 months after its publication. Specifically paragraph (i) stated that the effective date would be 60 days after the date of the publication of a final rule in the Federal Register and that all provisions would be implemented by one year after that date. 59 FR 16038. OSHA requested comment and testimony on whether those dates, or longer or shorter dates were appropriate or whether the start-up dates should vary by provision. 59 FR 16033. Hearing participants may also wish to address whether the start-up dates should vary by type of establishment.

Participants have also raised the issue whether the start-up dates for the ventilation provisions of the standard should take account of the contract provisions of leases and the ventilation provisions' impact on lessors and lessees. It has been suggested, for example, that it might be appropriate to relate the dates at which employers must comply with the ventilation provisions to the renewal dates of their commercial leases so that the lessor and lessee may negotiate the financial impact of these provisions. Witnesses may wish to testify further on this issue, including its health implications.

OSHA noted in the summary to the proposal that it might be appropriate to publish subsequent Federal Register notices after considering the views presented by the public. 59 FR 15968. OSHA has now received in excess of 100,000 comments and will be receiving extensive testimony at the hearing. In light of the intense interest in the rule, the large volume of evidence presented, and the complexity of the issues, OSHA will carefully consider whether it is appropriate to issue a further proposal in the Federal Register discussing the issues and evidence and giving the public a further opportunity to comment.

Signed at Washington, D.C., this 14th day of September 1994.

Joseph A. Dear
Assistant Secretary for Occupational Safety and Health.

[FR Doc. 94-23134 Filed 9-15-94; 8:45 am]