[Federal Register Volume 66, Number 128 (Tuesday, July 3, 2001)]
[Proposed Rules]
[Pages 35113-35115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16669]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. R-02A]
RIN 1218-AC00


Occupational Injury and Illness Recording and Reporting 
Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), U.S. 
Department of Labor.

ACTION: Proposed delay of effective date; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) 
issued a final rule on Occupational Injury and Illness Recording and 
Reporting Requirements (66 FR 5916, January 19, 2001), which is 
scheduled to become effective on January 1, 2002. Following a careful 
review conducted pursuant to White House Chief of Staff Andrew Card's 
memorandum (66 FR 7702), the Agency has determined that all but a few 
of the provisions of the final rule should take effect as scheduled.
    OSHA has also determined that it will reconsider the provisions in 
the final rule for: recording occupational hearing loss based on the 
occurrence of a Standard Threshold Shift (STS) in hearing acuity 
(Section 1904.10); and defining ``musculoskeletal disorder'' (MSD) and 
checking the column on the OSHA 300 Log identifying a recordable MSD 
(Section 1904.12). Accordingly, OSHA proposes to delay the effective 
date of Sections 1904.10 and 1904.12 until January 1, 2003. Employers 
should read carefully Section II. of this document, Effect of Proposal 
Delay on Employer Recordkeeping Obligations in Calendar Year 2002, to 
understand what their recordkeeping obligations would be during the 
period January 1, 2002 through January 1, 2003 if the proposed delay 
takes effect. OSHA is also asking for comment on the appropriate 
criteria for recording hearing loss cases. See Section III.

DATES: Written comments must be postmarked by September 4, 2001.

ADDRESSES: Comments are to be submitted in writing in triplicate. All 
comments shall be submitted to: Docket Officer, Docket No. R-02A, 
Occupational Safety and Health Administration, Room N-2625, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). 
Comments of 10 pages or less may be faxed to (202) 693-1648. You may 
also submit your comments electronically through OSHA's home page at 
www.osha.gov. Please note that you may not attach materials such as 
studies or journal articles to your electronic statement. If you wish 
to include such materials, you must submit three copies to the OSHA 
Docket Office at the address listed above. When submitting such 
materials to the OSHA Docket Office, you must clearly identify your 
electronic statement by name, date, and subject, so that we can attach 
the materials to your electronically submitted statement.

FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and 
Health Administration, U.S. Department of Labor, Directorate of Safety 
Standards Programs, Room N-3609, 200 Constitution Avenue, NW., 
Washington, DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION: Because OSHA's final recordkeeping rule was 
published on January 19, 2001, with an effective date of January 1, 
2002, it was subject to the regulatory review required by the Andrew 
Card memorandum. The Agency has carefully considered the rulemaking 
record and the submissions of interested parties, and has had several 
meetings with business and labor representatives. As a result of this 
process, the Secretary has determined that the final recordkeeping rule 
should be implemented in large part, on January 1, 2002, as scheduled. 
The final rule is the result of an effort begun in the 1980s, involving 
businesses, labor organizations, health professionals and others, to 
improve the quality of the injury and illness records maintained under 
the Occupational Safety and Health Act. The new rule simplifies the 
recordkeeping process by making the record requirements more logical 
and coherent, by explaining the requirements in plain language, by 
consolidating the interpretations and guidance previously found in a 
host of secondary sources, and by providing new recordkeeping forms 
that are easier to understand and complete. However, the Agency's 
review has identified grounds for reconsidering two elements of the 
final rule, and for delaying the effective date of the requirements 
related to these elements, as explained below.

I. Why OSHA Is Proposing To Delay the Effective Date of the Final 
Rule Requirements on Hearing Loss and the MSD Definition and Column

    A. Recording occupational hearing loss cases: Section 1904.10 of 
the final rule requires employers to record, by

[[Page 35114]]

checking the ``hearing loss'' column on the OSHA 300 Log (Log), a case 
in which an employee's hearing test (audiogram) reveals that a Standard 
Threshold Shift (STS) in hearing acuity has occurred. An STS is defined 
as ``a change in hearing threshold, relative to the most recent 
audiogram for that employee, of an average of 10 decibels (dB) or more 
at 2000, 3000 and 4000 hertz in one or both ears.'' Section 
1904.10(b)(1). The final rule itself does not require testing of 
employees' hearing. However, OSHA's occupational noise standard (29 
C.F.R. 1910.95) requires employers in general industry to conduct 
periodic audiometric testing of employees when employees' noise 
exposures are equal to, or more than, an 8-hour time-weighted average 
85dB. If such testing reveals that an employee has sustained hearing 
loss equal to an STS, the employer must take protective measures, 
including requiring the use of hearing protectors, to prevent further 
hearing loss.
    The current recordkeeping rule, which remains in effect until 
January 1, 2002, contained no specific threshold for recording hearing 
loss cases. In 1991, OSHA issued an enforcement policy on the criteria 
for recording occupational hearing loss, to remain in effect until new 
criteria were established by rulemaking. The 1991 policy stated that 
OSHA would cite employers for failing to record work related shifts in 
hearing of an average of 25dB or more at 2000, 3000, and 4000 Hertz in 
either ear.
    One of the major issues in the recordkeeping rulemaking was to 
quantify the level of hearing loss that should be recorded as a 
``significant'' health condition. This was critical because OSHA 
determined that minor or insignificant health conditions should no 
longer be recordable. See, e.g., 66 FR 5931. OSHA proposed a 
requirement to record hearing loss averaging 15dB at 2000, 3000 and 
4000 Hertz in one or both ears. The agency asked for comment on several 
alternative criteria, including, 10, 20 and 25dB. The final rule used 
the STS criterion of 10dB instead of the proposed 15dB level.
    In selecting an STS as the appropriate criterion for recording 
hearing loss, OSHA relied heavily on evidence submitted by the 
Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing that 
a 10dB loss in hearing acuity represents a serious health problem. 
``OSHA [was] particularly persuaded by the Coalition's argument that 
`An age-corrected STS is a large hearing change that can affect 
communicative competence' because an age-corrected STS represents a 
significant amount of cumulative hearing change from baseline hearing 
levels.'' 66 FR 6008. Based on this and other evidence, OSHA found that 
an STS ``represents a non-minor injury or illness of the type Congress 
identified as appropriate for recordkeeping purposes.'' 66 FR 6009.
    Following publication of the final rule in January 2001, OSHA 
received submissions from interested parties criticizing the finding 
that an STS represents a significant health condition. Exhibits 1-2, 1-
3, 1-4, 1-5, 1-6, 1-7. These parties argue that an STS is not 
necessarily considered a serious health problem by the medical 
community, by State workers compensation systems, or by the 
occupational noise standard (29 CFR 1910.95). The American Iron and 
Steel Institute noted that, ``According to the AMA, a person has 
suffered material impairment when testing reveals a 25dB average 
hearing loss from audiometric zero at 500, 1000, 2000, and 3000 
hertz.'' AISI and other commenters assert that an STS is merely a 
precursor event indicating the need for follow-up actions, not a 
material health impairment standing alone.
    OSHA has reviewed the record and agrees that reconsideration of the 
criteria for recording hearing loss is warranted. There is evidence in 
the record suggesting that an STS can constitute a serious health 
problem for individuals with pre-existing hearing loss. See 66 FR 6008 
(``For an individual with pre-existing high frequency hearing loss on 
the baseline, STS usually involves substantial progression into the 
critical speech frequencies.'') There is also evidence that an STS is 
not necessarily a serious condition, and some commenters have 
questioned whether it is even a reliable criterion under real-world 
testing conditions. See, e.g., Exhibit 1-2. Finally, NIOSH notes in its 
Criteria for a Recommended Standard--Noise Exposure, ``the incipient 
permanent threshold shift may manifest itself with the same order of 
magnitude as typical audiometric measurement variability; about a 10-dB 
change in hearing thresholds.'' In view of this uncertainty, OSHA 
believes that the record should be reopened to permit consideration of 
additional medical and other relevant evidence, and to explore 
alternative approaches. For example, Organization Resources Counselors, 
Inc. (ORC) in its post-promulgation submissions urged the Agency to 
consider a sliding scale which would take account of an individual's 
existing level of impairment in determining whether further 
occupational hearing loss warrants recording. (Exhibits 1-6, 1-7). 
ORC's suggested approach, which was not addressed in the rulemaking, 
also deserves careful consideration.
    In light of the decision to reconsider the 10dB criterion, OSHA is 
proposing to delay the effective date of Section 1904.10 until January 
1, 2003, and to remove the ``Hearing loss'' column from the version of 
the Log to be used during calendar year 2002. OSHA believes that this 
proposed action is appropriate for several reasons. If OSHA decides to 
change the hearing loss criterion beginning in 2003, records of hearing 
loss cases based on the 10dB level for 2002 will be of little value 
since they could not be compared to records maintained either under the 
former rule's 25dB level or any new level effective in 2003. On the 
other hand, continuing the 25dB recording requirement for 2002 will 
yield data comparable to that for earlier years even if OSHA implements 
a new requirement for 2003. Furthermore, the proposed delay of the 
effective date would avoid the confusion and additional paperwork 
burden that would result if employers were required to implement the 
10dB requirement for 2002, only to change over to a new requirement in 
2003. These factors appear to outweigh any potential benefit to be 
gained by permitting Section 1904.10 to become effective while OSHA is 
reconsidering the 10dB criterion. If implementation of Section 1904.10 
is delayed as proposed in this document, OSHA will provide new forms to 
be used for calendar year 2002 that do not contain a ``Hearing loss'' 
column.
    B. Defining an MSD and checking the MSD column: Section 1904.12 of 
the final rule states that if an employee experiences a recordable 
musculoskeletal disorder (MSD), the employer must record it on the OSHA 
Log and must check the MSD column. For recordkeeping purposes, the rule 
defines MSDs as disorders of the muscles, nerves, tendons, ligaments, 
joints, cartilage and spinal discs that are not caused by slips, trips, 
falls, motor vehicle accidents or other similar accidents (see Section 
1904.12(b)(1)). The Section also explains that in determining whether 
an MSD is recordable, the employer must use the same criteria that 
apply to other injuries or illnesses. To be recordable, the disorder 
must be work-related, must be a new case, and must meet one or more of 
the general recording criteria. Section 1904.12(b)(2) states that 
``[t]here are no special criteria for determining which musculoskeletal 
disorders to record,'' and refers the reader to other sections of the 
rule in which the basic recording criteria are found.

[[Page 35115]]

    OSHA's purpose in including an MSD column on the Log was to gather 
data on ``musculoskeletal disorders'' as that term is defined in 
Section 1904.12. Following Congressional disapproval of OSHA's 
ergonomics standard (PL 107.5, Mar. 20, 2001), the Secretary announced 
that she intends to develop a comprehensive plan to address ergonomic 
hazards and scheduled a series of forums to consider basic issues 
related to ergonomics (66 FR 31694, 66 FR 33578). One of the key issues 
to be considered in connection with the Secretary's comprehensive plan 
is the approach to defining an ergonomic injury.
    Based on these developments, the Secretary believes that it is 
premature to define an MSD for recordkeeping purposes. Any definition 
of ``musculoskeletal disorder'' or other term for soft tissue injuries 
in the recordkeeping rule should be informed by the views of business, 
labor and the public health community on the problem of ergonomic 
hazards in the workplace, which the Secretary's forums are intended to 
elicit. Furthermore, to require employers to implement a new definition 
of MSD while the Agency is considering the issue in connection with the 
comprehensive ergonomics plan could create unnecessary confusion and 
uncertainty. Therefore, OSHA is proposing to delay the effective date 
of Sec. 1904.12. Accordingly, the Log to be used for calendar year 2002 
would not contain a definition for MSD or an MSD column. When the 
Department has progressed further in developing its comprehensive 
approach to ergonomic hazards, it will be in a better position to 
consider how employers will be required to report work-related 
ergonomics injuries.
    This proposed action does not affect the employer's obligation to 
record all injuries and illnesses that meet the criteria set out in 
Sections 1904.4-1904.7, regardless of whether a particular injury or 
illness meets the definition of MSD found in Section 1904.12. Employers 
will be required to record soft-tissue disorders, including those 
involving subjective symptoms such as pain, as injuries or illnesses if 
they meet the general recording criteria that apply to all injuries and 
illnesses. The proposed delay of the effective date of Section 1904.12 
does not affect this basic requirement. It simply means that employers 
will not have to determine which injuries should be classified under 
the category of ``MSDs'' or ``ergonomic injuries'' during the calendar 
year 2002.

II. Effect of the Proposed Delay of the Effective Date on 
Employer's Recordkeeping Obligations in Calendar Year 2002

    A one-year delay of the effective date of the specified 
recordkeeping provisions would have the following effect on an 
employer's recordkeeping obligations during the 2002 calendar year:
    Hearing loss cases: Employers would continue to record work-related 
shifts of an average of 25 dB or more at 2000, 3000, and 4000 hertz 
(Hz) in either ear on the OSHA 300 Log. When a recordable hearing loss 
occurs, the audiogram indicating the hearing loss would become the new 
baseline for determining whether future additional hearing loss by the 
individual must be recorded. Employers would check either the 
``injury'' or the ``all other illness''column, as appropriate.
    Soft-tissue disorder: Employers would record disorders affecting 
the muscles, nerves, tendons, ligaments and other soft tissue areas of 
the body in accordance with the general criteria in Sections 1904.4-
1904.7 applicable to any injury or illness. Employers would also treat 
the symptoms of soft-tissue disorders the same as symptoms of any other 
injury or illness. Soft-tissue cases would be recordable only if they 
are work-related (Sec. 1904.5), are a new case (Sec. 1904.6), and meet 
one or more of the general recording criteria (Sec. 1904.7). Employers 
would check either the ``injury'' or the ``all other illness'' column, 
as appropriate.

III. Issues for Public Comment

    OSHA particularly invites comment on the following issues. Issue 1. 
What is the appropriate criterion for recording cases of occupational 
hearing loss? OSHA is particularly interested in comments on the 
advantages and disadvantages of various hearing loss levels, including 
10, 15, 20 and 25 dB, on alternative approaches such as the use of a 
sliding scale in which smaller incremental shifts would be recordable 
for employees with significant pre-existing hearing loss, and on the 
frequency of ``false positive'' results or other errors in audiometric 
measurements associated with each of these levels and approaches. Issue 
2. What is the variability of audiometric testing equipment and how 
should this variability be taken into account, if at all, in the 
recordkeeping rule? Issue 3. What is the appropriate benchmark against 
which to measure hearing loss, e.g., the employee's baseline audiogram, 
audiometric zero, or some other measure? Issue 4. Should the 
recordkeeping rule treat subsequent hearing losses in the same employee 
as a new case for recording purposes?

Paperwork Reduction Act

    On January 22, 2001, the Office of Management and Budget (OMB) 
received OSHA's request under the Paperwork Reduction Act of 1995 for 
approval of the information collection requirements in the final 
recordkeeping rule. This request for approval was withdrawn by the 
Agency on March 26, 2001, before OMB acted on it. OSHA will resubmit a 
request for OMB approval of the information collection requirements in 
the final rule, including appropriate changes in such requirements 
resulting from this proposal.

Regulatory Flexibility Certification

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the 
Acting Assistant Secretary certifies that the proposed rule will not 
have a significant adverse impact on a substantial number of small 
entities.

Executive Order

    This document has been deemed significant under Executive Order 
12866 and has been reviewed by OMB.

Authority

    This document was prepared under the direction of R. Davis Layne, 
Acting Assistant Secretary for Occupational Safety and Health. It is 
issued under Section 8 of the Occupational Safety and Health Act (29 
U.S.C. 657), and 5 U.S.C. 553.

    Issued at Washington, DC this 28th day of June, 2001.
R. Davis Layne,
Acting Assistant Secretary of Labor.
[FR Doc. 01-16669 Filed 6-29-01; 9:53 am]
BILLING CODE 4510-26-M