January 12, 1999

To: ASSE Board of Directors
ASSE Chapter Presidents
ASSE Chapter Governmental Affairs Chairs:

From: Timothy R. Fisher, CSP, ARM
           Manager, Professional Affairs and Standards

RE: OSHA ERGONOMIC DRAFT STANDARD UPDATE

This is an informational update for you on what is currently taking place with ASSE and the Society comment to OSHA on the draft ergonomic standard. It is requested that you circulate this information to your chapter members or other safety professionals who may have interest in this issue. The Governmental Affairs Committee (GAC) is currently working on a draft comment to OSHA which will follow-up on the statement and alternative proposal we submitted to OSHA during 6/99. When the follow-up comment is approved, it will go out to all of the chapters and be placed on the website.

Our review of the draft standard indicates that even though significant changes have been made, the philosophy, contents, and intent are, for the most part, still consistent with the original OSHA working draft. The ASSE 6/99 comments are still more than relevant to the revised draft. These comments are located on the ASSE website (http://www.asse.org) in the governmental affairs section in the folder titled: "ASSE Statements, Testimony, and Correspondence". Our suggestion is that if you are preparing comments for your associates, clients, employer, or yourself, you may wish to use these materials as guidance when preparing such a statement. The comments are:

***ASSE 6/99 Correspondence on the OSHA Working Draft
***ASSE 6/99 Counter Proposal to the OSHA Ergonomics Working Draft Standard

On 12/17/99 ASSE sent a formal letter OSHA requesting that the comment period for the draft OSHA Ergonomics Program Standard be extended until 4/3/2000. The position of ASSE is that due to the significant size of the draft standard, member interest, and the need to conduct a more detailed analysis, a comment due date of 2/1/2000 is too short. The Society pointed out that an additional sixty (60) days should be adequate enough time for ASSE and other stakeholders to complete a review and prepare comments. While we have not yet received a formal response to our request, we have been told informally there will not be any extensions to the comment period.

Also, attached to this notice is the information off of the OSHA website addressing the upcoming hearings. ASSE will testify as a national organization in Chicago during the final phase of the public hearings. Society leadership chose Chicago for a variety of reasons, and our hope is that the statement will receive attention from OSHA, the ASSE membership, the general public, and the press.

Of importance is that if you, your associates, clients, or employer intends to testify the final date to file a notice to appear is 1/24/2000. It is important that you realize that there is a difference between filing comments and making a presentation at the hearing. Written comments can be filed up to 2/1/2000, but if you intend to testify you must file an intent to appear by 1/24/2000.

Thank you for your attention to this matter, and if you should have any questions or concerns please feel free to contact the Society.

Regards - Tim Fisher at ASSE… (OSHA Information Follows Below)

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Public Participation -- Notice of Hearing

Key Dates:
January 24, 2000 - Filing deadline for the "Notice of intent to appear"
February 1, 2000 - Postmark or fax deadline for written comments, e-comments and written testimony
February 22- March 17, 2000 - Hearing in Washington DC
March 21-31, 2000 - Portland, Oregon
April 11-21, 2000 - Chicago, Illinois

A. Written Comments
Interested persons are invited to submit written data, views and arguments concerning the proposed standard. Responses to the questions and issues raised by OSHA at various places in the proposal are particularly encouraged. These comments, including materials such as studies or journal articles, must be postmarked by February 1, 2000.

Written submissions must clearly identify:
The provisions of the proposal that are being addressed,
The position taken with respect to each issue, and
The basis for that position.

Mail: Comments must be submitted in duplicate to:
OSHA Docket Office, Docket No. S-777
U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-2625
Washington, D.C. 20210
(202) 693-2350.

Facsimile: Comments limited to 10 pages or less may be transmitted by facsimile to (202)-693-1648 by February 1, 2000.

Electronic: Written comments may also be submitted electronically through the OSHA Homepage at www.osha.gov. Electronic comments must be transmitted by February 1, 2000. Please note that you may not attach materials such as studies or journal articles. If you wish to include such materials, you must submit them separately in duplicate to the OSHA Docket Office at the address above. When submitting such materials to the OSHA Docket Office, you must clearly identify your electronic comments by name, date, and subject, so that we can attach them to your electronic comments.

All written comments, along with supporting data and references, 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. All timely written submissions will be made a part of the record of the proceeding.

B. Notice of Informal Public Hearing
Pursuant to section 6(b)(3) of the Act, an opportunity to submit oral testimony concerning the issues raised by the proposed standard, including economic and environmental impacts, will be provided at the informal public hearing scheduled to begin at 9:30 a.m., February 22, 2000, in the auditorium of the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Regional hearings will also be held March 21-31, 2000, in Portland, OR, and April 11-21, 2000, in Chicago, IL. Actual times and addresses for the location of the regional hearings will be announced in a later Federal Register notice.

C. Notice of Intention to Appear at the Hearing
Persons desiring to participate at the informal public hearing must file a notice of intention to appear at the hearing by January 24, 2000. The notice of intention to appear must contain the following information:

The name, address, and telephone number of each person to appear;
The capacity in which each person will appear;
The approximate amount of time required for the presentation;
The specific issues that will be addressed;
A brief statement of the position that will be taken with respect to each issue;
Whether the party intends to submit documentary evidence and, if so, a brief summary of that evidence; and
The hearing at which the party wishes to testify.

Mail: The notice of intention to appear may be sent to:
Ms. Veneta Chatmon
OSHA Office of Public Affairs, Docket No. S-777
U.S. Department of Labor, 200 Constitution Avenue, N.W., Room N-3649
Washington, D.C. 20210
(202) 693-2119.

Facsimile: A notice of intention to appear also may be transmitted by facsimile to (202) 693-1634, by January 24, 2000.

Electronic: A notice of intention to appear may be submitted electronically through the OSHA Homepage at www.osha.gov by January 24, 2000. Notices of intention to appear will be available for inspection and copying at the OSHA Docket Office at the address above.

D. Filing of Hearing Testimony and Documentary Evidence Before the Hearing
Any party requesting more than 10 minutes for presentation at the informal public hearing, or who intends to submit documentary evidence at the hearing, must provide the complete text of the testimony, and documentary evidence to Ms. Veneta Chatmon, at the address above. These materials must be postmarked by February 1, 2000. Testimony and documentary evidence must be submitted either in quadruplicate, or 1 original (hardcopy) and 1 disk (31/2) in WP 5.1, 6.1, 8.0 or ASCII. Any information not contained on disk, e.g., studies, articles, etc., must be submitted in quadruplicate to Ms. Veneta Chatmon. One copy of the testimony and supporting documentary evidence must be suitable for copying and must not be stapled. Notices of intention to appear, hearing testimony and documentary evidence will be available for inspection and copying at the OSHA Docket Office.

Each submission will be reviewed in light of the amount of time requested in the notice of intention to appear. In instances where 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 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, as time permits, at the discretion of the Administrative Law Judge.

OSHA emphasizes that the hearing is open to the public, and that interested persons are welcome to attend. However, only persons who have filed proper Notices of Intention to Appear at the hearings will be entitled to ask questions and otherwise participate fully in the proceedings.

E. Conduct and Nature of the Hearings
The hearings 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 hearings will reconvene on subsequent days at 8:30 a.m.

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 questioning by interested persons 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 be carried out expeditiously in the absence of procedural restraints or rigid procedures that might unduly 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 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. 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 §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 the powers necessary and appropriate to conduct a full and fair informal hearing as provided in 29 CFR Part 1911, including the powers:

To regulate the course of the proceedings;
To dispose of procedural requests, objections and comparable matters;
To confine the presentations to the matters pertinent to the issues raised;
To regulate the conduct of those present at the hearing by appropriate means;
In the Judge's discretion, to question and permit the questioning of any witnesses and to limit the time for questioning; and

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 public response on the issues involved.

At the close of the hearings, the Administrative Law Judge will set a post-hearing comment period for those persons participating in the hearings. The first part of that period will be for the submission of additional data and information to OSHA. The second part will be for the submission of briefs, arguments and summations. Only those persons who have submitted a proper Notice of Intention to Appear at the hearings will be entitled to participate in the posthearing comment period.

F. Certification of Record and Final Determination After the Informal Public Hearings
Following the close of the hearings and post-hearing comment period, the presiding Administrative Law Judge will certify the record to the Assistant Secretary of Labor for Occupational Safety and Health. The Administrative Law Judge does not make or recommend any decisions as to the content of the final standard.

The proposed standard will be reviewed in light of all oral and written submissions received as part of the record, and a permanent Ergonomics Program Standard will be issued, based upon the entire record in the proceeding, including the written comments and data received from the public.

     

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