[Federal Register Volume 67, Number 126 (Monday, July 1, 2002)]
[Proposed Rules]
[Pages 44124-44127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16393]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. R-02B]
RIN 1218-AC06


Occupational Injury and Illness Recording and Reporting 
Requirements

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

ACTION: Proposed delay of effective dates; request for comment.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
proposing to delay the effective dates of three provisions of the 
Occupational Injury and Illness Recording and Reporting Requirements 
rule that are presently scheduled to take effect on January 1, 2003 
until January 1, 2004. The first defines ``musculoskeletal disorder 
(MSD)'' and requires employers to check the MSD column on the OSHA Log 
if an employee experiences a recordable musculoskeletal disorder. The 
second provision states that musculoskeleletal disorders (MSDs) are not 
considered ``privacy concern cases.'' The third provision requires 
employers to enter a check mark in the hearing loss column on the 300 
Log for cases involving occupational hearing loss. OSHA is requesting 
comment on these proposed delays.

DATES: Written comments must be received by August 30, 2002.

ADDRESSES: Because of security-related problems in receiving regular 
mail service in a timely manner, OSHA is requiring that comments be 
submitted by one of the following means: (1) Hard copy hand-delivered 
to the Docket Office; (2) hard copy delivered by Express Mail or other 
overnight delivery service; (3) electronic mail through OSHA's website; 
or (4) facsimile (fax) transmission. If you are submitting comments, 
please do not send them by more than one of these media (except as 
noted under ``submitting comments electronically''). The following 
requirements apply to submission of comments on this proposal:
    Submitting comments in hard copy: Written comments are to be 
submitted in triplicate. Comments may be hand-delivered, or sent by 
U.S. Postal Service Express Mail or other overnight delivery service, 
to: Docket Officer, Docket No. R-02B, 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).
    Submitting comments electronically: Comments may be sent 
electronically from the OSHA website at http://ecomments.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.
    Submitting comments by fax: Comments of 10 pages or less may be 
faxed to the OSHA Docket Office at (202) 693-1648.

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:

I. The MSD Provisions

    In January, 2001 OSHA published revisions to its rule on recording 
and reporting occupational injuries and illnesses (66 FR 5916-6135) to 
take effect on January 1, 2002. On July 3, 2001, OSHA proposed to delay 
the effective date of 29 CFR 1904.12 Recording criteria for cases 
involving work-related musculoskeletal disorders until January 1, 2003. 
OSHA explained that it was reconsidering the requirement in 29 CFR 
1904.12 that employers check the MSD column on the OSHA Log for a case 
involving a ``musculoskeletal disorder'' as defined in that section. 
This action was taken in light of the Secretary of Labor'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 ergonomic injuries.
    After considering the views of interested parties, OSHA published a 
final rule on October 12, 2001 delaying the effective date of 29 CFR 
1904.12 until January 1, 2003. OSHA also added a note to 29 CFR 
1904.29(b)(7)(vi) explaining that the second sentence of that section, 
which provides that MSDs are not ``privacy concern cases,'' would not 
become effective until January 1, 2003.
    OSHA concluded that delaying the effective date of the MSD 
definition in Section 1904.12 was appropriate because the Secretary was 
considering a related definitional question in the context of her 
comprehensive ergonomics plan. The Agency found that it would be 
premature to implement Sec. 1904.12 before considering the views of 
business, labor and the public health community on the problem of 
ergonomic hazards. It also found that it would create confusion and 
uncertainty to require employers to implement the new definition of MSD 
contained in Sec. 1904.12 while the Secretary was considering how to 
define an ergonomic injury under the comprehensive plan.
    On April 5, 2002, OSHA announced a comprehensive plan to address 
ergonomic injuries through a combination of industry-targeted 
guidelines, enforcement measures, workplace outreach, research, and 
dedicated efforts to protect Hispanic and other immigrant workers. OSHA 
found that no single definition of ``ergonomic injury'' was appropriate 
for all contexts. The Agency stated that it would work closely with 
stakeholders to develop definitions for MSDs as part of its overall 
effort to develop industry-or-task specific guidance materials.

Reasons for Delay

    OSHA must now determine whether a single definition of MSD is 
appropriate and useful for recordkeeping purposes, and if so, whether 
the new definition in Sec. 1904.12 is the appropriate one. OSHA has 
preliminarily concluded that

[[Page 44125]]

delaying the effective date of Sec. 1910.12 until January 1, 2004 will 
give the Agency the time necessary to resolve whether and how MSDs 
should be defined for recordkeeping purposes and will cause the least 
disruption to employers, employees and the Bureau of Labor Statistics 
(BLS)--the federal agency responsible for compiling and publishing 
occupational injury and illness statistics.
    In these circumstances, OSHA believes that delaying the effective 
date of Sec. 1910.12 for an additional year is preferable to allowing 
the section to take effect on January 1, 2003 as scheduled. To 
implement the section beginning in 2003, OSHA would have to issue new 
forms containing the MSD column and definition, and employers would 
have to train their personnel to apply the new requirements. If OSHA 
finally decides to revoke or modify the definition of MSD beginning in 
calendar year 2004, these efforts by employers and others to implement 
the definition during calendar year 2003 would be wasted and employees 
would have to be retrained. MSD statistics produced for 2003 would have 
little value because they would not be comparable to data for prior 
years, or to data for 2004 and subsequent years. OSHA therefore 
believes that the one-year proposed delay in implementation of 
Sec. 1910.12 is appropriate while the Agency continues to consider the 
issue of whether and how to define MSDs for recordkeeping purposes.
    If the effective date of Sec. 1904.12 is finally delayed, and OSHA 
then decides that the definition in that section is the appropriate 
one, the definition will automatically take effect on January 1, 2004 
without the need for further action by the Agency. If, on the other 
hand, OSHA decides that no definition, or a different definition, is 
warranted, the Agency would complete the necessary rulemaking 
procedures to revoke or modify Sec. 1901.12 as of January 1, 2004.

Effect of the Proposed Delay of the Effective Date of Sec. 1904.12 on 
Employers' Recordkeeping Obligations in Calendar Year 2003

    This proposal to delay the effective date of Sec. 1904.12 does not 
affect the employer's obligation to record all injuries and illnesses 
that meet the criteria set out in Secs. 1904.4-1904.7. Employers must 
continue 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 simply means that employers will not have 
to determine which injuries and illnesses should be classified under 
the category of ``MSDs'' or ``ergonomic injuries'' during the calendar 
year 2003.
    During 2003, 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 Secs. 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 continue to check either the ``injury'' or the ``all other 
illness'' column, as appropriate.

The MSD Definition and 300 Form Column

    The definition of MSD was a topic in the forums held in 2001 to 
elicit information about how to deal with ergonomics problems. 
Information received during the forums relative to the definition of an 
ergonomics injury has been included in this rulemaking record (Exhibit 
2) and may be used to develop and support a final rule.
    Some of the forum participants supported the MSD definition 
published in the 2001 rule. These participants contended generally that 
the definition is similar to definitions used by other government 
agencies, consensus standards committees, the National Academy of 
Sciences, and other countries; that the definition has a sound 
scientific basis; and that the definition is easily understood by 
employers, unions, workers and the government.
    Other participants argued that to define MSD, as Sec. 1904.12 does, 
to include all soft-tissue disorders except those resulting from slips 
trips or falls, lumps together a broad range of ill-defined and 
unrelated health conditions. They contended that this approach serves 
no useful purpose and could be counter-productive. Some holding this 
view pointed out that the Sec. 1904.12 definition includes at least two 
distinct categories of disorders which should be addressed separately. 
One class of disorders are those caused by a single event, such as a 
heavy lift, a particularly awkward motion, or some other one-time 
event. The other class includes disorders caused by repetitive or 
cumulative events, such as repetitive lifting, typing, or assembly line 
work. Some types of disorders may be caused by either type of event.
    By narrowing the definition of MSD in Sec. 1904.12 to focus on a 
group of similar or related health conditions, some forum participants 
maintained, OSHA would produce more useful statistics. For example, it 
was argued that data on disorders caused by repetitive or cumulative 
activity would be more relevant for purposes of developing ergonomics 
programs than would data that included disorders caused by one-time 
events. Alternatively, more relevant data might be produced if the MSD 
definition were limited in its application to employment conditions 
involving regular or routine exposure to the activity that resulted in 
the injury.
    On the other hand, some forum participants urged that the 
Sec. 1904.12 definition is widely recognized as appropriate for 
scientific and statistical purposes, and that limiting the definition 
might lead to a loss of useful data. Some holding this view argued that 
the existing definition is also the most relevant one for purposes of 
developing ergonomics programs because, among other things, it is often 
difficult to determine if an MSD was caused by a single event or if a 
single event was merely the last in a series of events that led to the 
injury. Some even argued that the existing definition should be 
expanded to include additional disorders.
    In 2002, OSHA announced a comprehensive four-part strategy for 
dealing with the ergonomics issue. The strategy did not include a 
single definition of MSD, recognizing that MSD is a term of art in 
scientific literature that refers collectively to a group of injuries 
and illnesses that affect the musculoskeletal system and that there is 
no single diagnosis for MSDs. The frequently asked questions (FAQs) 
issued with the comprehensive approach noted that, as OSHA develops 
guidance material for specific industries, the agency may narrow the 
definition as appropriate to address the specific workplace hazards 
covered, and that OSHA will work closely with stakeholders to develop 
definitions for MSDs as part of its overall effort to develop guidance 
materials.
    OSHA believes that additional study is needed to determine whether 
the MSD definition in Section 1904.12 captures an overly diverse group 
of health outcomes. Some evidence submitted during the ergonomics 
forums suggests that the definition would be more useful for 
occupational safety and health purposes if it addressed only soft-
tissue disorders having certain key factors in common. This approach 
argues against

[[Page 44126]]

combining, for example, back pain and tendinitis in a single 
definition, because the causes and treatment of these disorders are 
often very different. At the same time, OSHA recognizes that much needs 
to be learned about soft tissue disorders and that the Sec. 1904.12 
definition, or one similar to it, may be the most appropriate one for 
some purposes.
    At this time there appear to be three approaches to defining MSDs 
for recordkeeping purposes. OSHA could allow the existing definition in 
Sec. 1904.12 to take effect, which, in turn, could result in the 
production of corresponding statistical data by the BLS. OSHA could 
decide that the existing definition is too broad to be useful, and 
delete it from the rule. Finally, OSHA could develop a new definition 
for the recordkeeping rule, which BLS could also adopt for statistical 
purposes. For example, the definition could focus on repetitive or 
cumulative hazards by defining MSDs as ``musculoskeletal disorders 
associated with repetitive motion and/or stress.'' Alternatively, OSHA 
might link the definition to exposure to hazards by defining MSDs to 
include only cases in which there was regular or routine exposure to 
the activity that resulted in the injury.

II. The Hearing Loss Column

    Section 1904.10 of the January 2001 final rule required employers 
to check the ``hearing loss'' column on the 300 Log for each case in 
which an audiogram revealed that a Standard Threshold Shift (STS) had 
occurred. On July 3, 2001, OSHA proposed to delay the effective date of 
Section 1904.10 for one year so that it could reconsider whether the 
occurrence of an STS is the appropriate criteria for recording hearing 
loss cases (66 FR 35114). OSHA asked for comment on the proposed 
decision to delay the effective date and on alternative criteria for 
recording occupational hearing loss (id. at 35115).
    On October 12, 2001, OSHA issued a final rule delaying the 
effective date of Section 1904.10 until January 1, 2003 and 
establishing criteria for recording hearing loss cases to be used in 
calendar year 2002 (66 FR 52031-52034). The October 12 final rule also 
stated that new OSHA 300 Log forms would be issued for use in 2002 that 
did not contain the MSD or hearing loss columns (id. at 52034).
    After considering the comments submitted pursuant to the July 2001 
notice, OSHA decided to revise the criteria for recording occupational 
hearing loss. The amended hearing loss criteria, now designated 29 CFR 
1904.10(a) and 1904.10(b)(1)-(7), are contained in a separate Federal 
Register document published today. The amended rule revises in part the 
criterion for determining which shifts in hearing are recordable, 
eliminates the presumption of work-relationship, and retains other 
elements of the January 2001 rule. Section 1904.10(b)(7) contains the 
requirement stated in the January 2001 rule to check the hearing loss 
column on the Log for cases that meet the criteria for recording 
occupational hearing loss.

Reasons for Delay

    OSHA stated that it included a separate hearing loss column in the 
January 2001 rule to improve the national statistics on the subject of 
occupational hearing loss. OSHA noted in the preamble that the Bureau 
of Labor Statistics (BLS) collects only the relatively small fraction 
of recorded hearing loss cases that result in days away from work (66 
FR 6004, 6005). Adding a hearing loss column to the 300 Log would 
improve the national statistics, OSHA concluded, ``[b]ecause BLS will 
collect hearing loss data in future years both for cases with and 
without days away from work, which will allow for more reliable 
published statistics concerning this widespread occupational disorder'' 
(66 FR 6005).
    OSHA believes that this rationale for requiring a hearing loss 
column on the Log should be reconsidered, and that public comment on 
the advantages and disadvantages of the column should be weighed, 
before the requirement becomes effective. OSHA did not include a 
hearing loss column in the 1996 proposed recordkeeping rule, and did 
not ask for comment on whether a column should be required in the final 
rule. The July 3, 2001 proposal to reconsider the Sec. 1904.10 criteria 
for recording hearing loss cases also did not give clear notice that 
the column requirement was under review. Therefore, OSHA's decision to 
require a hearing loss column in the January 2001 final rule, and 
subsequently to include the column requirement in the amendment to 
Sec. 1904.10, was made without considering the views of all interested 
parties. OSHA believes that it should have the benefit of all 
viewpoints, including those of employers who would be subject to the 
requirement, and those of scientists, statisticians and others who 
would gather and interpret the data, before finally resolving this 
matter.
    In addition, the agency itself has concerns about whether requiring 
a hearing loss column is necessary, or is the best way, to produce more 
reliable national statistics on occupational hearing loss. OSHA is 
working with the BLS, the agency primarily responsible for producing 
national occupational injury and illness statistics, to investigate 
alternative survey methods that could be used to produce more reliable 
hearing loss statistics without the need for a column. Both government 
and employer resources could be conserved by delaying implementation of 
Sec. 1904.10(b)(7) for a year while alternative approaches for 
improving hearing loss statistics are explored.
    Finally, OSHA notes that it is reconsidering the need for an MSD 
column, and that resolution of that question may require a change in 
the OSHA 300 Log form beginning in 2004. If 29 CFR 1904.10(b)(7) is to 
take effect on January 1, 2003, as scheduled, OSHA will have to issue 
revised forms for 2003 containing a hearing loss column. It would be 
beneficial to delay making changes in the forms until the MSD column 
issue is decided, so that only one further round of revisions will be 
required. It would be confusing and burdensome for the regulated 
community if OSHA were to issue revised forms for 2003 containing a 
hearing loss column, and then to issue further revised forms for 2004 
reflecting a final decision on the MSD column. For these reasons, OSHA 
is proposing to delay the effective date of 29 CFR 1904.10(b)(7) for 
one year while the agency reconsiders the need for a separate hearing 
loss column on the 300 Log.

III. Issues for Public Comment

    OSHA invites comment on the following issues:

Hearing Loss Column

    Issue 1. OSHA requests comment on the proposed delay of the 
effective date of 29 CFR 1904.10(b)(7) until January 1, 2004, including 
any reasons for supporting or opposing the delayed effective date.
    Issue 2. Is a hearing loss column needed on the OSHA 300 Log? Would 
the statistics generated by an additional column be superior to the 
statistics now generated by the BLS? For what purposes would the 
statistics be used? Are there other ways to produce occupational 
hearing loss statistics that do not require revision of the forms? 
Would there be additional costs or burdens associated with adding a 
hearing loss column to the 300 Log? Additional benefits?

MSD

    Issue 1. OSHA requests comment on the proposed delay of the Section

[[Page 44127]]

1904.12 effective dates until January 1, 2004, including any reasons 
for supporting or opposing the delayed effective dates.
    Issue 2. Is an MSD column needed on the OSHA 300 Log? Should the 
column be reinstated in Sec. 1904.12 or should Sec. 1904.12 be deleted? 
Would the statistics generated by an additional column be superior to 
the statistics now generated by the BLS? Are there other ways to 
produce statistics on MSDs that do not require revision of the forms? 
If the column is retained, should it include both injuries and 
illnesses, or should it be limited to MSD illnesses? Are there other 
problems associated with an MSD column on the 300 Log? Are there other 
advantages to the column?
    Issue 3. If OSHA decides to include a separate column for MSD 
injuries and illnesses, what definition of MSD should be used? Should 
the definition include a broad class of disorders, or be limited by the 
type of injury (such as by excluding back cases)? Should the definition 
exclude injuries caused by one-time events? Should the definition 
exclude disorders caused by infrequently performed activities? In 
particular, what are the relative merits of the current Sec. 1904.12 
definition and an MSD definition that would focus on disorders 
associated with work-related repetitive motion and/or stress.

State Plans

    26 States and territories operate their own OSHA-approved 
occupational safety and health plans. These states and territories are: 
Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, 
Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto 
Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin 
Islands, Washington, and Wyoming. Connecticut, New Jersey, and New York 
have OSHA approved State Plans that apply to state and local government 
employees only. For requirements that determine which occupational 
injuries and illnesses are recorded and how they are recorded, the 
States must have the same requirements as Federal OSHA to ensure the 
uniformity of the collected information (See Sec. 1904.37 and 
Sec. 1952.4). Therefore, these States and territories will be required 
to adopt a regulation that is substantially identical to any final 
federal regulation issued pursuant to this proposal. A final regulation 
could include a delay of effective dates for specific provisions of 
Secs. 1904.10 and 1904.12, the adoption of substantive requirements 
within Secs. 1904.10 and 1904.12, or both.

Paperwork Reduction Act

    The proposed rule will continue OSHA's current policies regarding 
the recording of soft tissue disorders and will not impose any new 
paperwork requirements.

Regulatory Flexibility Certification

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the 
Assistant Secretary certifies that the proposed rule will not have a 
significant adverse impact on a substantial number of small entities. 
The rule does not add any new requirements, but merely delays the 
effective date of Section 1904.12. 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 L. Henshaw, 
Assistant Secretary for Occupational Safety and Health, U.S. Department 
of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is 
issued pursuant to section 8 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 657).

    Signed at Washington, DC, this 25th day of June, 2002.
John L. Henshaw,
Assistant Secretary of Labor.

    For the reasons stated in the preamble, OSHA proposes to amend 29 
CFR part 1904 as set forth below:

PART 1904--[AMENDED]

    1. The authority citation for part 1904 continues 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. Revise Sec. 1904.10(b)(7) to read as follows:


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

* * * * *
    (b) * * *
    (7) How do I complete the 300 Log for a hearing loss case? When you 
enter a recordable hearing loss case on the OSHA 300 Log, you must 
check the 300 Log column for hearing loss.

    Note: Sec. 1904.10(b)(7) is effective beginning January 1, 2004.

    3. Revise the note to Sec. 1904.12 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, 2004. From January 1, 2002 
until December 31, 2003, 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 Secs. 1904.5, 1904.6, 1904.7, 
and 1904.29. For entry (M) on the OSHA 300 Log, you must check either 
the entry for ``injury'' or ``all other illnesses.''

    4. Revise Sec. 1904.29(b)(7)(vi) to read as follows:


Sec. 1904.29  Forms.

* * * * *
    (b) * * *
    (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, 2004.

* * * * *

[FR Doc. 02-16393 Filed 6-28-02; 8:45 am]
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