[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77165-77170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31619]
[[Page 77165]]
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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: 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). The provisions being delayed define
``musculoskeletal disorder (MSD)'' and require employers to check the
MSD column on the OSHA Log if an employee experiences a work-related
musculoskeletal disorder, state that MSDs are not considered privacy
concern cases, and require employers to enter a check in the hearing
loss column of the OSHA 300 Log for cases involving occupational
hearing loss. The effective date of these provisions is delayed from
January 1, 2003 until January 1, 2004. OSHA will implement the hearing
loss column requirements on January 1, 2004, and will continue to
evaluate the MSD provisions over the next year. See SUPPLEMENTARY
INFORMATION for the specific regulatory sections and paragraphs.
DATES: The amendments in this rule will become effective on January 1,
2003. Section 1904.10(b)(7) added on July 1, 2002 (67 FR 44037) and
effective on January 1, 2003, is further delayed until January 1, 2004.
Section 1904.12, revised on January 19, 2001 (66 FR 5916), effective on
January 1, 2002, and delayed on October 12, 2001 (66 FR 52031), is
further delayed until January 1, 2004. The second sentence of
1904.29(b)(7)(vi), revised on January 19, 2001, effective on January 1,
2002, and delayed on October 12, 2001 (66 FR 52031), is further delayed
until January 1, 2004.
FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and
Health Administration, U.S. Department of Labor, Directorate of
Standards and Guidance, 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. A more complete discussion of the MSD
definition issue is contained in the preamble to the January 19, 2001
rule. On July 3, 2001, OSHA proposed to delay the effective date until
January 1, 2003, of 29 CFR 1904.12, recording criteria for cases
involving work-related musculoskeletal disorders. 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 (66 FR 35113-35115).
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 (66 FR 52031-
52034).
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. In
that announcement, OSHA found that no single definition of ``ergonomic
injury'' was appropriate for all contexts, stating that, as OSHA
develops guidance material for specific industries, the Agency may
narrow the definition as appropriate to address the specific workplace
hazards covered. (OSHA Press Release USDL 02-201 and associated
Frequently Asked Questions).
On July 1, 2002, OSHA proposed to delay the effective date of
Section 1904.12 for an additional year until January 1, 2004 to give
the agency the time needed to resolve whether and how MSDs should be
defined for recordkeeping purposes. This proposed delay had no effect
on the employer's obligation to record all workplace injuries and
illnesses that meet the criteria established in Sections 1904.4 through
1904.7, including those related to ergonomic stressors. The July 1,
2002 Federal Register document also requested public comment on various
issues related to the MSD definition and column requirement. These
issues included the following: ``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?`` (67 FR 44127)
The period for submission of comments on the proposed rule closed
on August 30, 2002. After considering the views of interested parties,
OSHA has determined that the effective date of Sections 1904.12 and
1904.29(b)(7)(vi) should be delayed until January 1, 2004. This Federal
Register document addresses only the delayed effective date of these
provisions. OSHA is still considering the need for an MSD column and
other substantive issues related to Sec. 1904.12 on which comment has
been requested. OSHA will announce its decision on these issues in a
subsequent Federal Register document.
A. Comments on MSD Delay
Many commenters supported the delay, citing reasons similar to
those in the July 1, 2002 proposal, or urged OSHA to rescind Section
1904.12 altogether (Exs. 2-2, 2-3, 2-5, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13,
2-14, 2-15,
2-16, 2-21, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-33, 2-35,
3-3, 3-4, 3-5, 3-12, 3-13, 3-14, 3-16, 3-17). In a representative
comment, the American Dental Association stated that:
The proposal demonstrates the Agency's understanding of the
complexity of defining MSDs and the potential consequences of
adopting a hastily developed standardized definition. It is likely
that once a MSD
[[Page 77166]]
definition is adopted by OSHA it would be difficult to alter or
change it in future rulemakings, so it is important that the Agency
not act precipitously (Ex. 2-15)
Commenters suggested that additional delay was appropriate to allow
for consideration of relevant comment (See, e.g., Exs. 2-2, 2-5, 3-14),
to avoid confusion (See, e.g., Exs. 2-2, 2-3, 2-5, 2-16, 2-33), to
avoid unnecessary training and computer programming costs (See, e.g.,
Exs. 2-7, 2-12, 2-21). Two commenters argued that delay was not harmful
because there is no effect on the recording of MSD cases (See, e.g.,
Exs. 2-3, 2-30) and one stated that the delays would not affect safety
because MSD cases would be recorded even when the MSD column was not
checked (See, e.g., Ex. 3-13). Several commenters suggested that OSHA
should delay the MSD definition for recordkeeping purposes until a
common definition is adopted for ergonomic purposes (See, e.g., Exs. 2-
13, 2-16, 2-30).
Other commenters recommended deletion of the Sec. 1904.12
requirements, including the MSD column and the MSD definition (See,
e.g., Exs. 2-2, 2-3, 2-5, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 2-14, 2-16,
2-21, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-35, 3-5, 3-12, 3-13,
3-14, 3-16, 3-17), arguing that it is an unnecessary paperwork burden
(See, e.g., Exs. 2-2, 2-5, 2-9, 2-12, 2-21, 2-23), that a column is not
needed (See, e.g., Exs. 2-7, 2-9, 2-14, 2-21, 2-23, 2-27, 2-30, 3-5, 3-
12, 3-16), that OSHA's comprehensive ergonomics plan found that no
single definition is appropriate (See, e.g., Exs. 2-3, 2-12, 2-13, 2-
16, 2-28, 2-29, 2-32, 2-35), that the Sec. 1904.12 MSD definition was
inappropriate (See, e.g., Exs. 2-3, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 2-
16, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-35, 3-3, 3-14, 3-16),
and that controversy and lack of consensus in the scientific and
medical communities on the MSD issue makes it premature for OSHA to
include a regulatory definition (See, e.g., Exs. 2-8, 2-12, 2-13, 2-14,
2-31, 2-32, 2-35, 3-17).
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. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24,
2-25, 2-26, 2-34, 2-35, 2-36, 2-37, 2-39, 3-2, 3-7, 3-9, 3-15). The
United Food & Commercial Workers International Union (UFCW) stated:
The UFCW believes strongly that OSHA should utilize the broadest
definition for recording musculoskeletal disorders on the OSHA Form
300. As well, columns for recording MSDs and hearing loss are
absolutely necessary for accurate surveillance as well as
utilization of the logs for prevention purposes of these two
significant safety and health problems facing UFCW members (Ex. 2-
39)
Commenters argued against further delay because delay will make it
difficult to collect information on these disorders and make it
difficult to take future action (See, e.g., Exs. 2-10, 2-22, 2-24, 2-
35, 3-9), delay will make it more difficult to track MSD (See, e.g.,
Exs. 2-19, 2-20, 2-24, 2-35, 2-36, 2-39, 3-7, 3-9, 3-15), an MSD column
can be used to identify injuries and develop prevention strategies
(See, e.g., Exs. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24, 2-25, 2-34,
2-35, 2-36, 2-39, 3-9, 3-15), an MSD column is needed to develop more
complete and consistent statistics by BLS (See, e.g., Exs. 2-11, 2-18,
2-20, 2-24, 2-25, 2-26, 2-35, 2-36, 3-7), an MSD column helps OSHA and
NIOSH during workplace interventions (See, e.g., Exs. 2-20, 2-24, 2-25,
2-26), and lack of an MSD column may lead to under-recording of MSD
injuries (See, e.g., Ex. 2-25).
Many commenters supported the broad definition of MSD in Sec.
1904.12 to promote a complete capture of MSD cases regardless of risk
factor, to produce more complete statistics on MSD, to protect workers
from MSD injury by identifying ergonomic problems, and because it is
difficult to ascertain one-time versus ongoing exposure (See, e.g.,
Exs. 2-4, 2-10, 2-11, 2-18, 2-20, 2-22, 2-24, 2-26, 2-34, 2-35, 2-36,
2-39, 3-6). Commenters also expressed their support of the MSD
definition in the Section 1904.12 regulation, noting its similarity to
definitions used in many other contexts, such as industrial hygiene
practice, OSHA's guidelines for meatpacking plants, the National
Academy of Sciences reports on ergonomics, NIOSH, employers with
effective ergonomics programs, OSHA's settlement agreements, the former
recordkeeping system, other government agencies, and other countries
(See, e.g., Exs. 2-10, 2-11, 2-19, 2-20, 2-22, 2-24, 2-25, 2-26, 2-35,
2-36, 2-39, 3-9, 3-15). Several commenters observed that the definition
is the same as the MSD definition used by the Bureau of Labor
Statistics for the last three years (See, e.g., Exs. 2-10, 2-11, 2-19,
2-20, 2-22, 2-24, 2-35, 2-36, 2-39, 3-15).
The AFL-CIO (Ex. 2-24-1) supported these comments, and also argued
that, without an MSD definition it would be difficult for DOL to take
enforcement actions on ergonomics hazards under the general duty
clause. The AFL-CIO also argued that the January 2001 revised OSHA
recordkeeping rule included provisions that would assist employers,
unions, workers and the government in identifying and addressing MSDs.
The AFL-CIO recommended that the Department of Labor maintain the
provisions of the 2001 recordkeeping rule and move immediately to
implement the rule in its entirety.
B. OSHA's Decision on MSD Delay
OSHA does not believe that a MSD definition should be implemented
now, for the same reasons outlined in the July 1, 2002 proposal to
delay Sec. 1904.12. While the Agency has not yet decided on the
correct approach for dealing with the Part 1904 MSD definition, OSHA
plans to publish a final rule in 2003 to resolve the MSD definition
issue for the year 2004 and beyond.
OSHA does not agree that delayed implementation of Section 1904.12
will make it more difficult for employers, workers and OSHA to address
workplace ergonomic hazards, or undermine OSHA's ability to enforce the
general duty clause for ergonomic hazards. 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 MSDs in
their workplaces. 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 will not affect the quality or availability of useful
statistical data on MSDs. At the facility level, employers, employees
and government workers will continue to estimate MSD incidents by
analyzing individual injury and illness entries, just as they have done
in the past.
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
[[Page 77167]]
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 2003. 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 modifying the note following the introduction to Section
1904.12 to inform employers of the policy that will be in effect during
2003. The note also informs the employer that, instead of checking the
column on the 300 Log for musculoskeletal disorders (since this column
has been 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, the privacy provisions of Part 1904 use the
MSD definition from Sec. 1904.12. Specifically, 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 ``[m]usculoskeletal disorders (MSDs)
are not considered privacy concern cases.'' Because the effective date
of the Sec. 1904.12 MSD definition is being delayed, OSHA will be
unable to implement the Sec. 1904.29(b)(7)(vi) requirement during
2003. Accordingly, OSHA is modifying the note to Section
1904.29(b)(7)(vi) stating that the second sentence takes effect on
January 1, 2004.
II. The Hearing Loss Column 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, including provisions for recording
occupational hearing loss when an employee experienced a standard
threshold shift (STS). An STS is defined in OSHA's Sec. 1910.95 noise
standard as a change in hearing threshold, relative to the baseline
audiogram for that employee, of an average of 10 decibels (dB) or more
at 2000, 3000, and 4000 hertz (Hz) in one or both ears. On July 3,
2001, OSHA proposed to delay the effective date of 29 CFR 1904.10
Recording criteria for cases involving occupational hearing loss until
January 1, 2003. OSHA explained that it was reconsidering the
requirement in 29 CFR Sec. 1904.10 due to ongoing concerns about the
level of hearing loss that should be considered a significant health
condition, asked for comment on whether or not to delay the provisions
while reconsidering the issue, and asked the public to submit
substantive comments on the hearing loss recording issue (66 FR 35113-
35115).
After considering the views of interested parties, OSHA published a
final rule on October 12, 2001 delaying the effective date of 29 CFR
1904.10 until January 1, 2003, and setting forth interim hearing loss
recording criteria for 2002 (66 FR 52031-52034). The Agency then issued
a final rule on July 1, 2002 establishing new recording criteria for
occupational hearing loss that captured STS cases when the employee's
overall hearing level exceeded 25 dB from audiometric zero. (67 FR
44037-44048). In a separate proposed rule published that same date,
OSHA proposed to delay the requirement to check a hearing loss column
on the OSHA 300 Log, and asked for substantive comment on the utility
of the column, the usefulness of the data that would be produced, and
any costs or burdens associated with implementing a hearing loss column
(67 FR 44124-44127).
The period for submission of comments on the proposed rule closed
on August 30, 2002. After considering the views of interested parties,
OSHA has determined that the effective date of Section 1904.10(b)(7)
should be delayed until January 1, 2004. OSHA will implement the
provisions at that time, and does not see any need for further delay on
the hearing loss column issue.
A. Comments on the Need for and Whether To Delay the Hearing Loss
Column
A number of commenters either supported OSHA's proposed one-year
delay of Sec. 1904.10(b)(7), or recommended deleting the requirement
to identify hearing loss cases in a separate column of the OSHA 300 Log
(See, e.g., Exs. 2-3, 2-6, 2-7, 2-14, 2-28, 2-29, 2-30, 2-33, 2-35, 3-
1, 3-3, 3-4, 3-5, 3-12, 3-13, 3-14, 3-17). Commenters argued that delay
will reduce the cost and burden associated with revising and reissuing
the form (See, e.g., Exs. 2-3, 2-7, 2-28, 2-29, 3-13), will provide
time to update and distribute the forms (See, e.g., Exs. 2-28, 2-29, 3-
13), will allow employers enough time to update computer software used
to comply with Part 1904 (See, e.g., Exs. 2-28, 2-29), provide time for
employee training (See, e.g., Ex. 3-13), minimize confusion due to the
inflated number of hearing loss cases recorded in the first year (See,
e.g., Exs. 2-28, 2-29), and allow OSHA to work with BLS to work out an
alternative methods for collecting statistics (See, e.g., Ex. 2-35).
Commenters also supported a delay until the MSD column issue is
resolved (See, e.g., Exs. 2-3, 2-26, 3-13) so the forms would only be
revised once. For example, NIOSH stated that it ``[r]ecognizes that
multiple year revisions in the OSHA 300 form may cause confusion among
employers and can jeopardize the accuracy of survey data based on a
sample of 300 Logs. Therefore, NIOSH believes that OSHA should make
every effort to consolidate any revisions to the OSHA 300 Log decides
to make at one point in time'' (Ex. 2-26).
A number of commenters recommended OSHA delete the hearing loss
column altogether (See, e.g., Exs. 2-6, 2-7, 2-14, 2-30, 2-35, 3-3, 3-
5, 3-12, 3-14, 3-17). Commenters objected to the column with statements
that a separate column for hearing loss is not needed (See, e.g., Exs.
2-6, 2-7, 2-14, 2-30, 2-35, 3-5), because it is unclear how the column
would be used to improve the effectiveness of an employer's hearing
conservation program, given the follow-up actions required by 1910.95
(See, e.g., Exs. 2-7, 2-35), because the data will not shed light on
causes or provide value in determining prevention strategies (See,
e.g., Ex. 2-30), because work relatedness determinations are subject to
error and a column is subject to more error than a survey that accounts
for non-occupational hearing loss (See, e.g., Ex. 2-35), because
statistics can be generated from the descriptions on the 300 Log (See,
e.g., Ex. 2-6), and that it would be better to conduct a BLS survey
with real life examples, questions and practical definitions with input
from industry, medical professions, and statisticians (See, e.g., Ex.
3-14). The National Grain and Feed Association argued that the column
would have no protective value, stating that:
It is unclear how a separate hearing loss column on the 300 Log
could be used to further improve the effectiveness of an employer's
hearing conservation program. For example OSHA's Occupational Noise
Exposure Standard (29 CFR 1910.95) already requires employers to
monitor employees' exposure to noise and take certain actions if
workplace noise exceeds specific levels, including implementing a
hearing conservation program, employee audiograms, administrative
and engineering controls and employee training (Ex. 3-14).
Other commenters opposed further delay of the hearing loss column
and urged OSHA to implement the
[[Page 77168]]
Sec. 1904.10(b)(7) requirements in 2003 (See, e.g., Exs. 2-4, 2-10, 2-
11, 2-17, 2-18, 2-19, 2-22, 2-24, 2-25, 2-26, 2-34, 2-36, 2-37, 2-39,
3-9, 3-15). These commenters argued that a hearing loss column is
needed to provide a basis for prevention efforts (See, e.g., Exs. 2-11,
2-17, 2-19, 2-20, 2-24, 2-36, 2-37, 3-7, 3-15), that there is little or
no burden to adding a hearing loss column (See, e.g., Exs. 2-4, 2-11,
2-24, 2-34, 2-37, 2-39), and that waiting for resolution of the MSD
column issue is unnecessary and inappropriate and causes unnecessary
delay with collection and analysis of the data, (See, e.g., Exs. 2-4,
2-24, 2-34). The International Chemical Workers Union Council stated
that delay will condemn more workers and even supervisors to
unnecessary hearing loss, and that a column would provide information
to employees because ``There are no requirements for employers to post
or even develop a summary of hearing loss by workplace, department, or
job type. As such, the only way that workers and their representatives
can learn what areas of the plant and how many workers are experiencing
significant hearing loss is by these being posted on the 300 Log, by
word of mouth, or by convincing the employer to develop a summary of
hearing loss on a yearly basis'' (Ex. 2-34).
Commenters also cited statistical reasons for a hearing loss
column, stating that a column will improve the BLS data as current BLS
data on hearing loss is limited and includes only cases resulting in
days away from work (See, e.g., Exs. 2-10, 2-11, 2-17, 2-18, 2-19, 2-
20, 2-24, 2-26, 2-34, 2-36, 2-37, 2-39), that there are no other
credible sources of national statistics on hearing loss (See, e.g., Ex.
2-20), that no alternative data collection methods are as effective
(See, e.g., Ex. 2-10), and that there is no other cost effective method
for collecting occupational hearing loss statistics (See, e.g., Exs. 2-
24, 2-26). The Coalition to Protect Workers' Hearing (Ex. 2-4), which
includes the American Academy of Audiology, the American Association of
Occupational Health Nurses, the American Industrial Hygiene
Association, the American Speech-Language-Hearing Association, the
Council for Accreditation in Occupational Hearing Conservation, the
Institute of Noise Control Engineering, The National Hearing
Conservation Association, and Self Help for Hard of Hearing People,
Inc., argued that:
The inability to quantify with reasonable accuracy rather than
estimate the effects of noise on the U.S. workforce has significant
ramifications. While we understand the effects of noise on hearing
reasonably well, we are unable to address such issues as the
efficacy of hearing protection devices, strengths or deficiencies in
hearing conservation programs, and benchmarking standards for
comparable employers and industries without comprehensive data on
prevalence of noise induced hearing loss.
B. OSHA's Reasons for Retaining the Hearing Loss Column
OSHA has decided to retain the hearing loss column. Doing so will
improve the Nation's statistical information on occupational hearing
loss, facilitate analysis of hearing loss data at individual
workplaces, and improve the Agency's ability to assess this common
occupational disorder. One of the major functions of the Part 1904
regulation is to produce national statistics for occupational injury
and illness (29 U.S.C. 657.(c)(1)). The data will clearly improve the
Nation's statistics on occupational hearing loss. The current data
published by the Bureau of Labor Statistics for injuries and illnesses
occurring in year 2000 reveal that the category entitled ``Disorders of
the ear, mastoid process, hearing'' provided estimates of 316 cases,
and the subcategory of ``deafness, hearing loss'' provided estimates of
146 cases (http://www.bls.gov/iif/oshwc/osh/case/ostb1047.txt.
Because the BLS statistics on case characteristics only reflect
injuries and illnesses that result in days away from work, and workers
commonly suffer hearing loss and never require a day away from work,
the BLS estimates represent only a minor fraction of the total hearing
loss experienced by U.S. workers and do not reflect the incidence of
occupational hearing loss. A discussion of the BLS data systems and how
they function may be found at http://www.bls.gov/bls/safety.htm. By
providing a separate 300 Log column for this disorder, the data for
hearing loss will be summarized by the employer at the end of the year,
and will be captured by the BLS when sampled employers submit their
summary injury and illness information. Thus, national statistics will
be available, for the first time, that include cases that result in
days away from work and those that do not. Since OSHA recently
published new criteria for recording occupational hearing loss that
will result in consistent data capture of significant hearing loss
cases (67 FR 44037-44048), the column can be used by BLS to generate
useful, consistent, and accurate statistics for the Nation.
The resulting statistics will be of value to several groups. The
data will have value on their own as a public information resource that
can be accessed by students, hearing loss professionals, researchers,
and others. The data can be used by policy makers to prioritize hearing
loss prevention efforts and measure the performance of those efforts,
whether they are enforcement, guidance, outreach or consultation. OSHA
believes that the greatest value of the data will be realized by
employers and employees at individual workplaces. These individuals
have always had the ability to determine the incidence of hearing loss
cases in their workplace via analysis of the individual case
descriptions on the OSHA 300 Logs; the hearing loss column will only
make this task easier. The greater value of the column lies in the new
ability to benchmark the hearing loss statistics of an individual
workplace to the hearing loss statistics for industry as a whole, or to
hearing loss statistics for a comparable industry classification. This
will allow employers and employees to compare their hearing loss
prevention performance to the performance of their peers and know
whether or not their efforts are succeeding. This is a function that is
not required under the Sec. 1910.95 noise standard, and is a useful
purpose of the Part 1904 records.
OSHA disagrees with the arguments against a hearing loss column. In
response to the criticism that the data will not shed light on causes
or provide value in determining preventive strategies (See, e.g., Ex.
2-30), a mere entry on the Log does not, by itself, show an employer or
employee how to prevent hearing loss. That is the function of further
analysis of the hearing loss cases, the workplace, and the employer's
hearing conservation program. In this matter, hearing loss is no
different than any other type of injury or illness. The Log provides
descriptive data about occupational injuries and illnesses and some of
the circumstances surrounding them. It does not replace the need for
causal analysis of occupational injuries and illnesses. One commenter
also raised the error rate for determining the work relatedness of
hearing loss cases (Ex. 2-35). OSHA notes that the data only reflect
work-related hearing loss cases. Part 1904 requires the employer to
consider the case to be work-related only when exposure at work either
causes or contributes to a hearing loss, or significantly aggravates a
pre-existing hearing loss (Sec. 1904.5). Section 1904.10(b)(6) allows
the employer to consider the case non work-related if a physician or
other licensed health care professional determines the hearing loss is
not work related.
[[Page 77169]]
Finally, the column is not burdensome. Although the rule does not
require employers to use computer software to track injuries and
illnesses, many employers do so voluntarily, and these employers will
have some minimal initial costs to revise their software. Employers
will also experience a small training cost to familiarize the employees
who maintain the records with the new column. However, once these tasks
are completed, it is no more burdensome to check a hearing loss column
than one of the other columns on the form.
C. OSHA's Reasons for Delaying the Hearing Loss Column
OSHA has decided to delay the Sec. 1904.10(b)(7) requirements
until January 1, 2004. While the Agency has now received comment on the
hearing loss column and has collected adequate information to evaluate
the issue, there is not enough time to implement the requirement for
use in 2003. As the American Petroleum Institute remarked, the one year
delay would ``[p]rovide adequate time for OSHA to update and distribute
the form 300 and 300S; provide adequate time for employers to update
their recordkeeping software and retrain those responsible for
recordkeeping; provide OSHA with valuable input from stakeholders;
minimize confusion, including the inflated number of hearing loss cases
that would be expected during the first (changeover) year of the new
criteria for hearing loss; and make more efficient use of resources''
(Ex. 2-29).
OSHA agrees with the API. In order to implement the hearing loss
column in 2003, the Agency would need to redesign the forms, print them
in sufficient quantity, and distribute them for employers use. The
states with OSHA Approved State Plans would need to modify their
regulations and any state-specific forms they use to obtain equivalent
data. Employers would need to implement the new forms, change any
software they might be using to keep their records, and make any other
changes they deem necessary. While none of these tasks are particularly
difficult or burdensome, there is clearly insufficient time available
to accomplish these tasks before January 1 of 2003. Waiting until
January 2004 will provide all affected parties with more than adequate
time to implement the new forms in a methodical, planned fashion.
D. Other Hearing Loss Issues
OSHA would like to clarify three matters in relation to recording
occupational hearing loss in conjunction with the Section 1904.10 final
rule issued July 1, 2002. First, the preamble to the final rule stated
that employers in the shipbuilding industries are not covered by OSHA's
noise standard Sec. 1910.95 and are therefore not required to perform
audiometric tests. (67 FR 44038, 44040). This statement was an error.
OSHA Directive STD 0.2 Identification of General Industry Safety and
Health Standards (29 CFR 1910) Applicable to Shipyard Work specifically
states that employers in the shipbuilding industry that are covered by
the 29 CFR part 1915 Standards are required to comply with a number of
29 CFR Part 1910 standards, including the Sec. 1910.95 requirements
for occupational noise.
The second issue involves the computation of a Standard Threshold
Shift (STS), which is one part of the two-part recording criteria
recently published (67 FR 44037-44048). (The case must also reflect a
25 dB hearing level compared to audiometric zero.) The STS computation
is to be made in accordance with the Occupational Noise Exposure
Standard 1910.95. As OSHA stated in the preamble to the July 1, 2002
rulemaking, the Section 1904.10 regulation ``[u]ses existing
measurements employers are already using to comply with the OSHA noise
standard, resulting in less paperwork burden for employers covered by
both rules'' (67 FR 44040). Under 1910.95, the employee's current
audiogram is compared to the employee's baseline audiogram, which may
be the original audiogram taken when the employee was first placed in a
hearing conservation program, or the revised baseline audiogram allowed
by the Occupational Noise Exposure standard. Paragraph 1910.95(g)(9) of
the noise rule states:
(9) Revised baseline. An annual audiogram may be substituted for
the baseline audiogram when, in the judgment of the audiologist,
otolaryngologist, or physician who is evaluating the audiogram:
(i) The standard threshold shift revealed by the audiogram is
persistent, or
(ii) The hearing threshold shown in the annual audiogram indicates
significant improvement over the baseline audiogram.
OSHA's former recording criteria required the employer to track
separate baselines for recording and hearing conservation purposes.
However, the new Part 1904 hearing loss recording system relies on the
existing 1910.95 calculations, and separate baselines will no longer be
required. In short, under the new Part 1904, a recordable hearing loss
case occurs when an employee experiences an STS (as defined in 29 CFR
1910.95), the STS is work-related, and the employee's aggregate hearing
loss exceeds 25dB from audio metric zero.
Third, OSHA has noted concern among employers because the
application of the new two-part test in the new Sec. 1904.10 recording
criteria will result in an increase in recorded hearing loss cases. As
noted in the July 1, 2002 rulemaking, the new criteria will capture
more hearing loss cases. Employers will experience an increase in
recorded hearing loss cases in 2003 and future years. Caution must be
used when comparing the 2003 and future data to prior years, when the
25 dB criteria for recordkeeping was used. OSHA recognizes this
increase, and will take the changes in the recordkeeping rule into
account when evaluating an employer's injury and illness experience.
Agency Determination of Good Cause for an Accelerated Effective Date
The Administrative Procedure Act generally requires a thirty-day
period between the publication date and the effective date of a final
substantive rule. 5 U.S.C. 553(d) provides, in relevant part, as
follows:
The required publication or service of a substantive rule shall be
made not less than thirty days before its effective date, except--
(1) a substantive rule which grants or recognizes an exemption or
relieves a restriction; [or]
* * *
(3) as otherwise provided by the agency for good cause found and
published with the rule.
There will not be thirty days between the publication of this final
rule and its effective date of January 1, 2003. However, the exemptions
from the thirty-day requirement recognized in 5 U.S.C. 553(d)(1) and
(3) apply here. First, this final rule grants an exemption by delaying
certain regulatory requirements that would otherwise take effect for
the year 2003. The requirements to check the MSD column and the hearing
loss column are effective on January 1, 2003 as a matter of law unless
this rule takes effect before that date. Therefore, the rule grants an
exemption to a legal requirement, and is excepted from the thirty-day
effective date requirement.
Moreover, OSHA also finds that there is good cause to make the rule
effective on January 1, 2003, even if that date is less than thirty
days from publication. The effective date for the requirements to check
the MSD and hearing loss
[[Page 77170]]
columns was delayed during 2002 while OSHA considered comment on issues
related to these requirements. This rule merely continues the status
quo during 2003; it does not require any change in recordkeeping
procedures.
If this rule cannot be made effective until thirty days from
publication, employers will be required to comply with the new MSD and
hearing loss column requirements for a brief time during 2003, only to
revert back to the existing requirements. This would impose burdensome
requirements on employers to quickly train their employees and modify
their recordkeeping software in time to accommodate the new
requirements on January 1. These extraordinary efforts would be wasted
since the columns would be in effect for only a short time, and would
produce no worthwhile data. Moreover, there would be a substantial
degree of confusion about compliance responsibilities since the current
recordkeeping forms do not contain the columns or the MSD definition,
and OSHA could not produce and distribute new forms in time. For these
reasons, OSHA believes that this final rule must take effect on January
1, 2003.
Paperwork Reduction Act
The final rule will continue OSHA's current policies regarding the
recording of hearing loss and musculoskeletal tissue disorders during
2003 and will not impose any new paperwork requirements during that
year. The addition of a new hearing loss column in 2004 will result in
minor paperwork burdens associated with the addition of a new column,
involving training of recordkeeping staff, obtaining new forms, and
conversion of non-mandatory computer programs. The forms will be made
available free of charge in 2003, before they are required for use in
2004. These burdens are already taken into account in the paperwork
estimates for this 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, merely delaying the
effective date of two sections of the rule, and allowing a previously
delayed section to go into effect in 2004.
State Plans
The 26 States and territories with their own OSHA-approved
occupational safety and health plans must adopt a comparable regulation
within six months of the publication date of this final regulation.
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.
Due to the short amount of time remaining in 2002, some of the
states may not complete their rulemaking actions by January 1, 2003.
However, the states will complete rulemaking to delay the effective
dates of their equivalent regulations shortly thereafter. In the
meantime, employers in these states will use the same forms used in
federal jurisdiction states (which as noted above do not currently
contain the columns or MSD definition) to ensure the uniformity of
national data per Section 1904.37.
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.
Signed at Washington, DC this 11th day of December, 2002.
John Henshaw,
Assistant Secretary of Labor.
For the reasons stated in the preamble, OSHA hereby amends 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. 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 Sec. Sec. 1904.5, Sec. Sec. 1904.6, Sec. Sec. 1904.7, and
Sec. Sec. 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. Sec. 1904.29(b)(7)(vi)
is effective on January 1, 2002. The second sentence is effective
beginning on January 1, 2004.)
* * * * *
[FR Doc. 02-31619 Filed 12-16-02; 8:45 am]
BILLING CODE 4510-26-P