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U.S. Department of Labor

Assistant Secretary for
Occupational Safety and Health
Washington, D.C. 20210

DOL Logo

March 4, 2014

MEMORANDUM FOR:

 

FROM:

 

SUBJECT:

SILICA HEARING PARTICIPANTS

 

DAVID MICHAELS, PhD, MPH

 

Hearing and Post-Hearing Procedures for OSHA's Proposed Standard on Occupational Exposure to Respirable Crystalline Silica

The Occupational Safety and Health Administration (OSHA or the Agency) is setting hearing and post-hearing procedures for its Notice of Proposed Rulemaking (NPRM) on Occupational Exposure to Respirable Crystalline Silica published in the Federal Register on September 12, 2013 (78 FR 56274; Docket No. OSHA-2010-0034).  These procedures address:  the hearing schedule, the nature of the hearing, availability of hearing testimony, the conduct of the rulemaking hearing, and post hearing-submissions.  OSHA is issuing these procedures to ensure that the hearing proceeds in a fair, orderly, and timely manner.

I. General Information

1. Hearing Dates.  The hearing will begin on Tuesday, March 18, 2014, in the auditorium of the U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210.  Directions are available at: http://www.dol.gov/dol/aboutdol/visit.htm.  The hearing will begin at 9:30 a.m. on March 18 and on each subsequent day.  The hearing will ordinarily conclude by 5:30 p.m. each day; however, the exact daily schedule may be amended at the discretion of the presiding Administrative Law Judge (ALJ).  All questioning of participants scheduled to testify on a given day will be completed that day. 

2. Authority and Nature of the Hearing.  OSHA rulemaking hearings are conducted in accord with Section 6(b)(3) of the OSH Act, 29 U.S.C. 655(b)(3), and the Secretary of Labor's procedural regulations in 29 CFR Part 1911.  As noted in the silica proposal, § 1911.4 allows the Assistant Secretary, upon reasonable notice, to specify additional or alternative procedures for good cause (78 FR 56441).  This memorandum provides notice that the Assistant Secretary is exercising that authority in this case.  In light of the large number of parties who have filed notices of intent to appear at the hearing, the Assistant Secretary finds that good cause exists to establish additional procedures in advance to assure that the hearing proceeds in a fair, orderly, and timely manner.  This memo, along with the hearing schedule, will also enable hearing participants to plan their travel and hearing participation in advance.

This OSHA rulemaking hearing is a legislative-type hearing, not an adjudicative one.  It is an informal administrative proceeding, intended for information gathering and clarification.  This informal hearing is an adjunct to the written comment period, and is intended to provide interested persons with an additional opportunity to address the Agency and provide testimony and evidence for the rulemaking record.  These procedural rules governing the hearing are intended to facilitate the development of a clear, accurate and complete record, while assuring fairness and due process.  The rules of evidence and other procedural rules governing adjudications do not apply.  Participants who have filed notices of intent to appear may testify and question witnesses in accordance with these procedures (see Section II), but may not issue subpoenas or call to testify any person other than the persons who have agreed to testify for them.  Motions to strike evidence will not be considered.  The intent is to provide an opportunity for effective oral presentation by interested persons, and to avoid procedures that could unduly impede or protract the rulemaking process (29 CFR 1911.15(a)(3)).

3. Availability of Hearing Testimony and Comments.  Testimony, comments, and other materials submitted to the rulemaking docket are or will be listed online at http://www.regulations.gov; however, some information (e.g., copyrighted material) is not publicly available to read or download through that website.  All submissions to the docket, including copyrighted material, are available for inspection and, where permissible, copying at the OSHA Docket Office, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue NW, Washington, DC 20210.

II. Conduct of the Rulemaking Hearing

1. Schedule for Testimony.  The Assistant Secretary has established a schedule showing the date each participant will testify and be available for questions.  A copy of the schedule will be provided to all participants who have filed a notice of intent to appear and is posted on OSHA's website (www.osha.gov/silica).  Each witness should plan to be present at the start of the day he or she is scheduled to testify.  The schedule prescribes the amount of time for each participant to testify, and also allows time for other participants and OSHA representatives to question the witness.  The ALJ shall assure that the hearing proceeds in a fair and orderly manner so as to facilitate development of the record.  Consistent adherence to the schedule will also allow advance planning by participants, many of whom are traveling from a considerable distance to testify.

2. OSHA and National Institute for Occupational Safety and Health (NIOSH) Witnesses.  The first witnesses at the hearing on Tuesday, March 18 will be a panel of OSHA representatives.  Following a brief presentation by the panel, participants who have filed notices of intent to appear and who wish to question the panel will be given the opportunity to do so. The ALJ may allocate time among questioners if necessary.  The OSHA panel will only be available for questioning during the time period indicated in the schedule.  After the period for questioning the OSHA panel is completed, a panel of witnesses from NIOSH will testify and be questioned.

Dr. Kyle Steenland will be testifying as an OSHA expert witness on Monday, March 24, 2014.  Following his brief presentation, participants who have filed notices of intent to appear and who wish to question him will be given the opportunity to do so.

During questioning of the OSHA and NIOSH representatives, the Administrative Law Judge shall not permit duplicative, argumentative, or irrelevant questions.  Questioners will not be permitted to use the question period as a forum for debate or legal argument, or to present their own testimony and views on issues.

3. Public Witnesses.  Participants who have filed timely notices of intent to appear are scheduled to make their presentations and be questioned beginning March 19, 2014.  Peer reviewers of OSHA's Health Effects Literature Review and Preliminary Quantitative Risk Assessment will be present to hear testimony on the second and third days of the hearing, March 19 and 20, 2014.

4. General.  Written hearing testimony that was submitted before the hearing is already part of the rulemaking record, and participants who have submitted written testimony in advance are encouraged to use their oral presentation to summarize and clarify their written submissions.  Participants may provide additional copies of their testimony for the convenience of other hearing participants. Those participants who wish to use the projection system in the auditorium for their presentations (e.g., for PowerPoint slides) – should notify OSHA 3 days in advance of their presentation and should submit the files they wish to use the day before their presentation to OSHA by email (silica.hearings@dol.gov) with the subject line "Presentation for Silica Hearing."

Participants who have filed notices of intent to appear but failed to submit their comments or testimony in writing will be allowed a maximum time of 10 minutes for their presentations at the hearing.  All participants who testify, or who participate in a panel of testifying witnesses, will be expected to respond to questions following their presentations.  If time permits, the ALJ may allow persons who have not filed notices of intent to appear an opportunity to testify at the close of the day.

5. Questioning of Public WitnessesParticipants who have filed notices of intent to appear, even those who do not intend to testify, may ask questions on relevant issues following a presentation.  Representatives of OSHA may also question witnesses.  In addition, peer reviewers of OSHA's Health Effects Literature Review and Preliminary Quantitative Risk Assessment may question witnesses on March 19 and 20, 2014.  The peer reviewers will not be taking questions from participants. 

The ALJ shall allocate the time allowed in the schedule among questioners, including OSHA.  The judge may adjust this time so long as the testimony and questioning of all witnesses scheduled for each day is completed that day.  OSHA representatives will be allowed sufficient time during the questioning period to ensure that the Agency can develop a clear, accurate, and complete rulemaking record.

Questions must be as brief as possible and should be designed to clarify a presentation or elicit information that is within the competence or expertise of the witness.  Participants may not ask questions that are outside the scope of the matters addressed by this rulemaking.

The ALJ shall not permit duplicative, argumentative, or irrelevant questions.  Questioners will not be permitted to use the question periods as a forum for debate or legal argument, or to present their own testimony and views on issues.

Participants having similar interests are encouraged to designate one representative who can conduct the questioning on their behalf.  When an organization is represented by more than one person, only one person from the organization may question each witness or panel.

After all questioners have had an opportunity to question a witness or panel, if a questioner still has important relevant questions that have not been asked, the questioner may request permission from the ALJ to ask additional questions.  Permission may be granted based on the time available and the witness schedule.

III. Post-Hearing Procedures

At the close of the hearing, those participants who have filed notices of intent to appear will have the opportunity to file additional evidence and data relevant to the proceeding, and to file final written briefs.  Additional information and data relevant to the proceeding must be submitted within 45 days of the close of the hearing; final briefs, arguments, and summations must be submitted 90 days after the close of the hearing.  No reply briefs are to be filed.

After the hearing concludes, a transcript of the hearing will be made available in the docket.  At the close of the post-hearing comment period, the hearing record will be closed and certified by the ALJ to the Assistant Secretary of Labor for Occupational Safety and Health.

IV.  Contact Information

For general information, press inquires, and hearing inquiries, contact Frank Meilinger, Director, Office of Communications, Room N-3647, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-1999; email meilinger.francis2@dol.gov.

For technical inquiries, contact William Perry or David O'Connor, Directorate of Standards and Guidance, Room N-3718, OSHA, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210; telephone (202) 693-1950 or fax (202) 693-1678.

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