[Federal Register Volume 66, Number 198 (Friday, October 12, 2001)]
[Rules and Regulations]
[Pages 52031-52034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25552]


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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: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
delaying the effective date of three provisions of the Occupational 
Injury and Illness Recording and Reporting Requirements rule published 
January 19, 2001 (66 FR 5916-6135) and is establishing interim criteria 
for recording cases of work-related hearing loss. The provisions being 
delayed are Secs. 1904.10(a) and (b), which specify recording criteria 
for cases involving occupational hearing loss, Sec. 1904.12, which 
defines ``musculoskeletal disorder (MSD)'' and requires employers to 
check the MSD column on the OSHA Log if an employee experiences a work-
related musculoskeletal disorder, and Sec. 1904.29(b)(7)(vi), which 
states that MSDs are not considered privacy concern cases. The 
effective date of these provisions is delayed from January 1, 2002 
until January 1, 2003. OSHA will continue to evaluate Secs. 1904.10 and 
1904.12 over the next year.
    OSHA is also adding a new paragraph (c) to Sec. 1904.10, 
establishing criteria for recording cases of work-related hearing loss 
during calendar year 2002. Section 1904.10(c) codifies the enforcement 
policy in effect since 1991, under which employers must record work 
related shifts in hearing of an average of 25dB or more at 2000, 3000 
and 4000 hertz in either ear.

DATES: The amendments in this rule will become effective on January 1, 
2002.

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, N.W., 
Washington, DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION:

I. Background

    In January, 2001 (66 FR 5916-6135), OSHA published revisions to its 
rule on recording and reporting occupational injuries and illnesses (29 
CFR parts 1904 and 1952) to take effect on January 1, 2002. On July 3, 
2001, the agency proposed to delay the effective date of Sections 
1904.10 Recording criteria for cases involving occupational hearing 
loss, and 1904.12 Recording criteria for cases involving work-related 
musculoskeletal disorders, until January 1, 2003 (66 FR 35113-35115). 
In that notice, OSHA explained that, as a result of the regulatory 
review required by the Andrew Card memorandum (66 FR 7702), it was 
reconsidering the requirement in Section 1904.10 to record a case 
involving an occupational hearing loss averaging 10dB, or more. OSHA 
found that there were reasons to question the appropriateness of 10dB 
as the recording criterion, and asked for comment on other approaches 
and criteria, including recording losses averaging 15, 20 or 25dB. In 
view of the uncertainty concerning the appropriate criteria, OSHA 
preliminarily concluded that it should delay implementing the 10dB 
requirement for a year while it reconsidered the question. The proposal 
stated that if implementation of Section

[[Page 52032]]

1904.10 were delayed for a year, employers would continue to record 
hearing loss cases during that year using the 25dB criterion 
articulated in OSHA's 1991 enforcement policy (See 66 FR 35114-35115).
    OSHA also stated that it was reconsidering the requirement in 
Section 1904.12 that employers check the MSD column on the OSHA Log for 
a case involving a ``musculoskelal disorder'' as defined in that 
Section. This action was taken in light of a the Secretary's decision 
to develop a comprehensive plan to address ergonomic hazards, and to 
schedule a series of forums to consider key issues relating to the 
plan, including the approach to defining an ergonomic injury. OSHA 
preliminarily found that it would be premature to define a 
musculoskeletal disorder for recordkeeping purposes before further 
progress has been made in developing the comprehensive ergonomics plan, 
and that a delay in the effective date of Section 1904.12 was therefore 
appropriate. 66 FR 35115. The Agency noted that the proposed delay 
would not affect the employer's obligation to record all injuries and 
illnesses, including musculoskeletal injuries and illnesses, that meet 
the criteria in Sections 1904.4-1904.7, regardless of whether a 
particular injury or illness would meet the definition of MSD found in 
Section 1904.12. Id.
    The period for submission of comments on the proposed rule closed 
on September 4, 2001. After considering the views of interested 
parties, OSHA has determined that the effective date of Sections 
1904.10(a) and 1904.12(a) and (b) should be delayed until January 1, 
2003, and that a new paragraph (c) should be added to Section 1904.10 
re-establishing a 25dB recording criterion for hearing loss cases for 
calendar year 2002.

II. Summary and Explanation of Final Rule

A. Recording Occupational Hearing Loss Cases

    Section 1904.10 of the final recordkeeping rule requires employers 
to record, by checking the ``hearing loss'' column on the OSHA 300 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.'' The 
recordkeeping rule itself does not require the employer to test 
employee's hearing. However, OSHA's occupational noise standard (29 CFR 
1910.95), requires employers in general industry to conduct periodic 
audiometric testing of employees when employees' noise exposures are 
equal to, or exceed, an 8-hour time-weighted average of 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 old recordkeeping rule, which remains in effect until January 
1, 2001, contained no specific threshold for recording hearing loss 
cases. In 1991, OSHA issued an enforcement policy on the criteria for 
recording hearing loss cases, 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. 
Subsequently, OSHA released interpretations stating that the employer 
could adjust the audiogram for aging using the tables in Appendix F of 
the Noise Standard, and that the employer was to use the employee's 
pre-employment audiogram as the baseline reference audiogram for 
determining a recordable hearing loss.
    One of the major issues in the recordkeeping rulemaking was to 
determine the level of occupational hearing loss that constitutes a 
health condition serious enough to warrant recording. This was 
necessary because the final rule no longer requires recording of minor 
or insignificant health conditions. 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. OSHA adopted the lower 10dB 
threshold in the final rule based in large part upon comments submitted 
by the Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing, asserting that ``[a]n age-corrected STS is a large hearing 
change that can affect communicative competence.'' 66 FR 6008.
    In its July 3 proposal to delay implementation of Section 1904.10, 
OSHA expressed reservations about whether 10dB is the appropriate 
threshold for recording hearing loss. The agency acknowledged that 
there is evidence that an STS may not be a serious health problem, 
particularly for employees who have not previously sustained hearing 
loss, and that a 10dB shift may not be a reliable criterion for 
recording purposes because of normal variations in audiometric 
measurement (66 FR 35114). For these and other reasons, OSHA reopened 
the record to permit consideration of additional evidence and to 
explore alternative approaches (Id.).
    Most commenters supported the proposed delay in implementation of 
Section 1940.10 (see, e.g., Exs. 3-1, 3-6, 3-14, 3-22, 3-25, 3-26, 3-
29, 3-34, 3-49, 3-50, 3-54). The view expressed by Organization 
Resources Counselors, Inc. is representative. ORC (Ex. 3-49, p. 3) 
argued:

    [T]he finding of a Standard Threshold Shift (STS) [is][ a `flag' 
for the implementation of a series of actions required by the OSHA 
standard on exposure to occupational noise. It was not intended, by 
itself, to be an indicator of illness, or impairment, but, rather, a 
sentinel event that triggers a series of actions that will prevent 
illness or impairment from occurring. As such a tool, it has been an 
effective protector of employee hearing, but does not, by itself, 
rise to the level of recordability. See also, e.g., Ex. 3-54 
(American Iron and Steel Institute), Ex. 3-50 (National Association 
of Manufacturers and Can Manufacturers Institute).

    Several commenters opposed the delay, with most citing the 
protective purposes served by recordkeeping requirements (see, e.g., 
Exs. 3-3, 3-4, 3-8, 3-9, 3-10, 3-11, 3-12, 3-17, 3-31). In a 
representative comment, the AFL-CIO argued that the requirement to 
record a 10dB hearing loss on the Log would aid in the early detection 
and prevention of occupational hearing loss. It stated (Ex. 3-24-1, 
p.3) that,

[r]ecording a 10 dB STS on Form 300 is a practical and reasonable 
means to assist in the early detection of a loss in hearing so that 
workplace intervention measures can be implemented to protect 
workers from the hazards of noise. Having employers continue to 
record shifts in hearing of an average of 25 dB * * * is too high a 
threshold of loss in hearing acuity to be sufficiently proactive in 
preventing worker hearing loss.

    OSHA is not persuaded by this argument. As the AFL-CIO concedes 
(Ex. 3-24-1, p.6), Congress intended the recordkeeping system to 
capture non-minor injuries and illnesses. OSHA is reconsidering the 
finding that a 10dB shift in hearing acuity represents such a health 
condition, and intends to resolve this issue based on all the available 
evidence. In the meantime, there is sufficient question concerning the 
appropriateness of 10dB as a recording threshold to justify a limited 
delay in implementing Section 1904.10(a) and (b).
    Delaying implementation of the 10dB threshold for a year while OSHA 
reconsiders the criteria for recording hearing loss cases will not 
deprive employers and employees of

[[Page 52033]]

information about noise hazards. The occupational noise exposure 
standard requires that employees in general industry be tested for 
hearing loss when noise exposure exceeds an 8-hour time-weighted 
average of 85dB, and that employees be informed, in writing, if a 10dB 
shift has occurred. The audiometric test records must be retained for 
the duration of the affected employee's employment. See 29 CFR 1910.95 
(g), (m). The noise standard also specifies the protective measures to 
be taken to prevent further hearing loss for employees who have 
experience a 10dB shift, including the use of hearing protectors and 
referral for audiological evaluation where appropriate. See 29 CFR 
1910.95 (g)(8). These requirements, which apply without regard to the 
recording criteria in the recordkeeping rule, will protect workers 
against the hazards of noise. The one-year delay in implementing 
Section 1904.10(a) and (b) will therefore not deprive employers and 
workers of the means to detect and prevent hearing loss.
    Several commenters supported a requirement to record a hearing loss 
averaging 25 dB or more while OSHA reconsidered the 10dB criterion 
(see, e.g., Exs. 3-49, 3-54), The American Iron and Steel Institute 
(AISI) argued that the 25dB criterion should be included in the 
regulatory text to avoid any confusion about employers' compliance 
responsibilities during calendar year 2002. OSHA agrees with AISI on 
this point, and has added a new paragraph (c) to Section 1904.10 
specifying the criteria to be used for the 2002 recording year. The 
AISI also recommended that OSHA continue its policy of allowing 
employers to correct employee's audiograms for aging (presbycusis) 
using the age correction tables in the occupational noise standard (Ex. 
3-54). Since this was OSHA's policy in the past, the Agency has also 
included language to this effect in the new paragraph, 1904.10(c).
    A few commenters urged OSHA to make sure that the State Plan States 
have the same recording criteria as federal OSHA (see, e.g., Exs. 3-22, 
3-49). When OSHA issues a final determination for the recording of 
occupational hearing loss for calendar years 2003 and beyond, the 
states will be required to have identical criteria. However, the 
purpose of this notice is to maintain the status quo regarding the 
recording of occupational hearing loss for the year 2002, while OSHA 
reconsiders what the appropriate recording criteria should be. 
Therefore, the State Plan States will be allowed to maintain their 
policies for the recording of hearing loss during 2002.

B. Defining an MSD and Checking the MSD Column

    Section 1904.12 provides 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 and 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 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.
    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. Two months after publication of the new recordkeeping 
rule, Congress disapproved OSHA's ergonomics standard under the 
Congressional Review Act (Pub. L. 107.5 Mar. 20, 2001). Following 
Congressional disapproval of the ergonomics standard, the Secretary 
announced that she intends to develop a comprehensive plan to address 
ergonomics 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.
    In the July proposal, OSHA preliminarily found that it would be 
premature to implement the new definition of MSD in Section 1904.12 
before considering the views of business, labor and the public health 
community on the problem of ergonomic hazards. It also preliminarily 
found that it would create confusion and uncertainty to require 
employers to implement the new MSD definition while the Secretary was 
considering how to define an ergonomic injury under the comprehensive 
plan. 66 FR 35115. Many commenters supported the delay, citing reasons 
similar to those in the July 3 proposal (see, e.g., Exs. 3-1, 3-6, 3-
14, 3-19, 3-20, 3-25, 3-26, 3-27, 3-29, 3-32, 3-35, 3-37, 3-38, 3-43, 
3-44, 3-49, 3-50, 3-54, 3-59, 3-61). OSHA continues to believe a delay 
is justified for these reasons.
    Several commenters opposed a delay in implementing the 
recordkeeping rule's definition of MSD and the requirement to check the 
MSD column (see, e.g., Exs. 3-3, 3-8, 3-9, 3-10, 3-11, 3-12, 3-17, 3-
21, 3-24, 3-28, 3-31, 3-36, 3-40, 3-42, 3-52). In a representative 
comment, the AFL-CIO argued that delayed implementation of Section 
1904.12 will make it more difficult for employers, workers and OSHA to 
address workplace ergonomic hazards, and will seriously undermine 
OSHA's ability to enforce the general duty clause for ergonomic hazards 
(see Ex. 3-24-1, pp. 15-22).
    OSHA does not agree with this assessment. Employers are required to 
record all injuries and illnesses meeting the criteria established in 
Sections 1904.4 through 1904.7 of the recordkeeping rule regardless of 
whether a particular injury or illness meets the definition of MSD in 
Section 1904.12. Thus, the delay in implementing Section 1904.12 will 
not reduce the number of cases recorded or affect the narrative 
description of the injury or illness that must be provided for each 
case. Employers who use the Log and injury reports to discover 
ergonomic hazards will be able to continue to do so, relying on the 
description-of-injury information and other data to identify soft-
tissued disorders in their workplaces (Ex. 3-24-1, p. 15). Employees 
will continue to have access to the information provided in the Log 
and, under the new rule, to the information in the part of the Incident 
Report explaining how the incident occurred. Employers and employees 
will be able to categorize this injury and illness information in any 
manner they find useful.
    The delay need not lead to the elimination of useful statistical 
data on MSDs, as the AFL-CIO suggests (Ex. 3-24-1, p. 16). The 
definition of MSD in Section 1904.12 is a new one. The Secretary is 
currently considering approaches to defining ergonomic injuries in 
connection with her comprehensive plan, and it is premature to say, at 
this point, what definition would be appropriate to produce useful 
data. 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 which 
would not, in OSHA's view, be balanced by improvements in the national 
statistics.

[[Page 52034]]

    Finally, OSHA notes that the delay in the implementation of Section 
1904.12 will have no effect on the Department's enforcement of the 
general duty clause. The definition of MSD in that section has never 
been in effect, and has not been a factor in enforcement of the clause. 
The sole effect of the delay is that employers need not use the 
definition to categorize cases on the OSHA Recordkeeping Log for 
calendar year 2002. This recordkeeping issue does not affect an 
employer's obligation under the general duty clause. The employer 
remains obligated to free its workplace from recognized hazards that 
are likely to cause serious physical harm.
    OSHA is adding a note following the introduction to Section 1904.12 
to inform employers of the policy that will be in effect during 2002. 
The note also informs the employer that, instead of checking the column 
on the 300 Log for musculoskeletal disorders (since this column is 
being removed from the log), the employer is to check the column for 
``injury'' or ``all other illness,'' depending on the circumstances of 
the case.
    In a related matter, paragraph 1904.29(b)(7)(vi) of the rule states 
that employers must consider an illness case to be a privacy concern 
case, and withhold the employee's name from the forms, if the employee 
independently and voluntarily requests that his or her name not be 
entered on the Log. The second sentence of the paragraph states that 
``[m]usculoskeletal disorders (MSDs) are not considered privacy concern 
cases.'' OSHA will be unable to enforce this requirement during the 
period of time that the definition of MSD in the rule is delayed. 
Accordingly, OSHA is adding a note to section 1904.29(b)(7)(vi) stating 
that the first sentence of that section takes effect on January 1, 
2002, and the second sentence takes effect on January 1, 2003.

C. The 1904 Forms

    Consistent with the above decisions, OSHA will issue new 
recordkeeping forms that have been modified to remove the MSD and 
hearing loss columns from the OSHA 300 Log of Work-Related Injuries and 
Illnesses and the OSHA 300A Summary of Work-Related Injuries and 
Illnesses. The instructions accompanying the forms have also been 
modified to reflect the decisions for the 1904 requirements that will 
be in effect during calendar year 2002.
    Employers may obtain copies of the forms from OSHA's Internet 
homepage at www.osha.gov, or by contacting the OSHA publications office 
at (202) 693-1888.

Paperwork Reduction Act

    OSHA has submitted to OMB a request for approval of the information 
collection requirements of the final recordkeeping rule, including the 
effect on the rule's paperwork burden of the delay in implementation of 
Sections 1904.10 and 1904.12 until January 1, 2003, and the adoption of 
an interim 25dB recording criterion for hearing loss cases for calendar 
year 2002. OSHA will publish a subsequent Federal Register document 
when OMB takes further action on the information collection 
requirements in the recordkeeping rule.

Regulatory Flexibility Certification

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the 
Assistant Secretary certifies that the final rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule does not add any new requirements, but merely delays the 
effective date of two sections of the rule. The delay will not impose 
any additional costs on the regulated public.

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 John Henshaw, 
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.

John Henshaw,
Assistant Secretary of Labor.

    29 CFR part 1904 is hereby amended as set forth below:

PART 1904--[AMENDED]

    1. The authority citation for 29 CFR part 1904 is revised to read 
as follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.


    2. Section 1904.10 of 29 CFR is amended by adding a note to the 
section, and by adding a new paragraph (c), to read as follows:


Sec. 1904.10  Recording criteria for cases involving occupational 
hearing loss.

* * * * *
    (c) Recording criteria for calendar year 2002. From January 1, 2002 
until December 31, 2002, you are required to record a work-related 
hearing loss averaging 25dB or more at 2000, 3000, and 4000 hertz in 
either ear on the OSHA 300 Log. You must use the employee's original 
baseline audiogram for comparison. You may make a correction for 
presbycusis (aging) by using the tables in Appendix F of 29 CFR 
1910.95. The requirement of Sec. 1904.37(b)(1) that States with OSHA-
approved state plans must have the same requirements for determining 
which injuries and illnesses are recordable and how they are recorded 
shall not preclude the states from retaining their existing criteria 
with regard to this section during calendar year 2002.

    Note to Sec. 1904.10: Paragraphs (a) and (b) of this section are 
effective on January 1, 2003. Paragraph (c) of this section applies 
from January 1, 2002 until December 31, 2002.


    3. Section 1904.12 is amended by adding a note to the section, to 
read as follows:


Sec. 1904.12  Recording criteria for cases involving work-related 
musculoskeletal disorders.

* * * * *

    Note to Sec. 1904.12: This section is effective January 1, 2003. 
From January 1, 2002 until December 31, 2002, you are required to 
record work-related injuries and illnesses involving muscles, 
nerves, tendons, ligaments, joints, cartilage and spinal discs in 
accordance with the requirements applicable to any injury or illness 
under Sec. 1904.5, Sec. 1904.6, Sec. 1904.7, and Sec. 1904.29. For 
entry (M) on the OSHA 300 Log, you must check either the entry for 
``injury'' or ``all other illneses.''


    4. Section 1904.29(b)(7)(vi) is revised to read as follows:


Sec. 1904.29  Forms.

* * * * *
    (6) * * *
    (7) * * *
    (vi) Other illnesses, if the employee independently and voluntarily 
requests that his or her name not be entered on the log. 
Musculoskeletal disorders (MSDs) are not considered privacy concern 
cases. (Note: The first sentence of this Sec. 1904.29(b)(7)(vi) is 
effective on January 1, 2002. The second sentence is effective 
beginning on January 1, 2003.)

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[FR Doc. 01-25552 Filed 10-10-01; 8:45 am]
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