[Federal Register Volume 68, Number 125 (Monday, June 30, 2003)]
[Rules and Regulations]
[Pages 38601-38607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16482]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket Nos. R-02, R-02A, R-02B]
RIN 1218-AC06


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 
deleting two provisions of the Occupational Injury and Illness 
Recording and Reporting Requirements rule published January 19, 2001. 
These provisions required employers to check the MSD column on the OSHA 
300 Log if an employee experienced a work-related musculoskeletal 
disorder (MSD), and stated that MSDs are not considered privacy concern 
cases. The effective date of these provisions has been delayed since 
publication of the Recordkeeping rule in January 2001; consequently, 
the requirements deleted by this final rule have never been in effect.

DATES: The amendments in this rule will become effective on January 1, 
2004.

FOR FURTHER INFORMATION CONTACT: Steven F. Witt, OSHA Directorate of 
Standards and Guidance, Room N-3718, Department of Labor, 200 
Constitution Avenue, NW., Washington, DC 20210, telephone (202) 693-
1950.

SUPPLEMENTARY INFORMATION: 

I. Background

    On January 19, 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. Section 1904.12(a) of 
that rule, which has never become effective, required an employer to 
check the MSD column on the OSHA 300 Log if an employee experienced a 
work-related musculoskeletal disorder (MSD) meeting the MSD definition 
contained in the regulation. The term MSD was defined in Sec.  
1904.12(b) to include disorders of the muscles, nerves, tendons, 
ligaments, joints, cartilage and spinal discs, except those caused by 
slips, trips, falls, motor vehicle accidents or other similar 
accidents.

[[Page 38602]]

    Section 1904.12 did not establish the criteria for determining 
which MSD cases were recordable. Rather, the section made clear that 
MSDs were to be treated like any other injury or illness for purposes 
of applying the recording criteria and entering the necessary 
descriptive information about the case on the Log. Section 
1904.12(b)(2) provided that

    There are no special criteria for determining which 
musculoskeletal disorders to record. An MSD case is recorded using 
the same process you would use for any other injury or illness. If a 
musculoskeletal disorder is work-related, and is a new case, and 
meets one or more of the general recording criteria, you must record 
the musculoskeletal disorder.

(66 FR 6129) A table in Sec.  1904.12(b)(2) referred employers to other 
sections containing the recording criteria: Sec.  1904.5 on work-
relatedness, Sec.  1904.6 on new cases, and Sec.  1904.7 on the general 
recording criteria. Thus, the deletion of Sec.  1904.12 in this final 
rule does not affect the employer's obligation to record all injuries 
and illnesses meeting the requirements of Sec. Sec.  1904.5-1904.7, 
including those meeting the definition of MSD in the rescinded Sec.  
1904.12.
    Prior to the January 2001 final rule, OSHA's injury and illness 
forms did not contain a column specifically for MSD cases. The old 200 
Log contained a column for ``repeated trauma'' cases, which included 
some disorders affecting musculoskeletal tissues, but also included 
other conditions, such as occupational hearing loss. In the preamble to 
the 2001 recordkeeping rule, the Agency concluded that adding a column 
to the new 300 Log for MSDs was ``essential to obtain an accurate 
picture of the MSD problem in the United States.'' (66 FR 6030) The 
preamble noted that determining the number of MSD cases in the past has 
required close cooperation between OSHA and BLS, and the use of special 
computer analyses. Use of an MSD column would, in the Agency's view, 
promote more accurate reporting of MSDs and provide needed information 
on the overall incidence of MSDs in the workplace. (66 FR 6030) OSHA 
also stated that the column would provide a useful analytical tool at 
the establishment level. The preamble states, ``The total count of 
cases in the MSD column will allow employers, employees, authorized 
representatives, and government representatives to determine, at a 
glance, what the incidence of these disorders in the establishment 
is.'' (66 FR 6030 emphasis added).
    On July 3, 2001, OSHA proposed to delay the effective date of Sec.  
1904.12 until January 1, 2003. OSHA explained that it was reconsidering 
the MSD column requirement and definition 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 states 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 Sec.  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. OSHA 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. The 
comprehensive plan did not include a single definition of MSD. In the 
frequently asked questions (FAQs) issued with the plan, OSHA recognized 
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 these 
disorders. The FAQs also indicated that different definitions of MSD 
might be appropriate depending upon the context in which they are to be 
used.
    On July 1, 2002, OSHA published a Federal Register document 
outlining two further regulatory actions regarding Sec.  1904.12. In 
Part I of the document, OSHA proposed to delay the effective date of 
Sec.  1904.12 and the second sentence of Sec.  1904.29(b)(7)(vi) for an 
additional year until January 1, 2004. (67 FR 44124-44126) In Part III 
of the document, OSHA requested comment on issues related to the MSD 
column and definition. (67 FR 44126-44127)
    OSHA noted that a number of participants in the ergonomics forums 
had argued that the Sec.  1904.12 definition of MSD combines too many 
disparate types of disorders to be useful. They pointed out that there 
are at least two distinct categories of disorders covered by the 
definition; disorders caused by a single event, such as a heavy lift, 
and disorders caused by repetitive or cumulative events, such as 
repetitive lifting, typing or assembly line work. To produce more 
relevant statistics, these participants suggested, OSHA should narrow 
the definition to focus on a group of disorders having common 
characteristics. Alternatively, some participants suggested that the 
MSD definition should be limited in its application to employment 
conditions involving regular or routine exposure to the activity that 
resulted in the injury. Other forum participants disagreed, claiming 
that the existing definition is the most relevant 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 lead to the injury. (67 FR 44125)
    The Agency stated that it was considering whether an MSD column was 
necessary to produce better statistics. It asked for comment on a 
number of related issues, including whether ``the statistics generated 
by an additional column [would] be superior to those now generated by 
the BLS.'' (67 FR 44127) The Agency also indicated that it was 
considering a range of options, including deleting Sec.  1904.12 if a 
column requirement was determined to be unnecessary. The request for 
comment stated, in relevant part, as follows:

III. Issues for Public Comment

    OSHA invites comment on the following issues:
    * * *

    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?


[[Page 38603]]


    Issue 3. If OSHA decides to include a separate column for MSD 
injuries and illnesses, what definition of MSD should be used? * * *

(67 FR 44126-44127)

    On December 17, 2002, OSHA issued a final rule delaying until 
January 1, 2004 the effective date of the MSD and hearing loss column 
requirements in Sec. Sec.  1904.12 and 1904.10, and the statement in 
Sec.  1904.29(b)(7)(vi) that MSDs are not considered privacy concern 
cases. (67 FR 77165) OSHA reached no final decision on the need for an 
MSD column in the December 17 rule, and stated that it would issue a 
final rule in 2003 resolving the issue. OSHA has now decided to delete 
the column and associated definition from the Recordkeeping rule.

II. Discussion

A. Public Comments on the Need for an MSD Column on the Log

    Most parties responding to the July 1, 2002 request for comments 
opposed the MSD column on the Log. Several commenters argued that the 
column would not produce useful information. For example, the Society 
of the Plastics Industry (SPI), asserted that:

    As currently used, the term MSD refers to a broad spectrum of 
physical conditions which may affect any tissue of the 
musculoskeletal system. The specific diagnosis which this term 
encompasses can have vastly different characteristics, can be caused 
by significantly different types of exposures, and can require 
substantially different prevention measures and treatments. If all 
cases falling within the multitude of conditions collectively 
referred to as `MSDs' are grouped into a single column, and this 
data is collected through the annual BLS survey, the result is 
likely to be the projection by BLS of a relatively large and 
unreliable set of numbers allegedly representing recordable MSDs. 
The numbers would be meaningless in the sense that they fail to 
provide OSHA or other interested parties with the information needed 
to determine the frequency, incident rate, causation or means of 
preventing any particular condition--e.g., carpal tunnel syndrome, 
epcondylitis (Ex. 2-29 at 6).

    The Synthetic Organic Chemical Manufacturers Association (SOCMA) 
echoed this concern, stating that ``add[ing] a column on the 300 Form 
will not generate true causal information useful for accident 
prevention. Knowing that 20%-35% of accidents have a check in the MSD 
column on the OSHA 300 form is not information useful to companies 
wishing to improve safety.'' Ex. 2-9 at 2.
    Other participants argued that Sec.  1904.12 should be deleted 
because:
    [sbull] An MSD column was unnecessary, e.g., Exs. 2-7, 2-9, 2-14, 
2-21, 2-23, 2-27, 2-30, 3-5, 3-12, 3-16;
    [sbull] OSHA's comprehensive ergonomics plan found that no single 
definition of MSD was appropriate, e.g., Exs. 2-3, 2-12, 2-13, 2-16, 2-
28, 2-29, 2-32, 2-35;
    [sbull] The Sec.  1904.12 MSD definition was inappropriate, 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;
    [sbull] The controversy and lack of consensus in the scientific and 
medical communities on the MSD issue made it premature for OSHA to 
include a regulatory definition, e.g., Exs. 2-8, 2-12, 2-13, 2-14, 2-
31, 2-32, 2-35, 3-17; and
    [sbull] The MSD column imposes an unnecessary paperwork burden, 
e.g., Exs. 2-2, 2-5, 2-9, 2-12, 2-21, 2-23.
    OSHA also received comments supporting the MSD column on the Log, 
(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). These commenters 
argued:
    [sbull] That an MSD column can be used to identify injuries and 
develop prevention strategies, (See, e.g., Ex. 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);
    [sbull] That an MSD column is needed to develop more complete and 
consistent statistics by BLS, (See, e.g., Ex. 2-11, 2-18, 2-20, 2-24, 
2-25, 2-26, 2-35, 2-36, 3-7);
    [sbull] That an MSD column helps OSHA and NIOSH during workplace 
interventions, (See, e.g., Ex. 2-20, 2-24, 2-25, 2-26); and
    [sbull] That the lack of an MSD column may lead to under-recording 
of MSD injuries, (See, e.g., Ex. 2-25).
    According to the AFL-CIO, the MSD column is needed for two reasons; 
to assist employers, workers and OSHA in identifying and addressing 
ergonomic hazards in individual workplaces, and to improve the national 
statistics on MSDs (Ex. 2-24-1). The AFL-CIO argued that the MSD column 
would serve as a useful tool at the establishment level by providing a 
``simple, direct way'' for employers and OSHA inspectors to identify 
MSDs, and potentially hazardous jobs, and calculate MSD rates and 
trends (Ex. 2-24-1, p. 12). The AFL-CIO claimed that the column was 
needed at the national level to correct what it asserted was a 
distorted picture of the MSD problem portrayed by current BLS 
statistics. The AFL-CIO argued that since BLS only collects data on 
individual injuries and illnesses resulting in days away from work, 
BLS's published reports showing a decline in MSD incidence rates since 
1992 understate the seriousness of the problem posed by these disorders 
(Ex. 2-24-1, p. 13).

B. OSHA's Determination That an MSD Column Is Unnecessary

    OSHA has carefully reviewed the determination made in the January 
19, 2001 rule and the record supporting that determination, as well as 
the evidence submitted by the participants in the ergonomics forums and 
the parties responding to the July 2002 request for comment on the need 
for an MSD column. The Agency has determined that this record does not 
support the column requirement. The principal justifications advanced 
for the column are that it would be a useful tool in analyzing and 
addressing ergonomic hazards in individual workplaces and that it would 
yield more accurate national statistics on ergonomic injuries. As 
discussed below, neither of these justifications is persuasive.
    The MSD column would not be a useful tool in addressing MSDs at the 
establishment level for two reasons. First, because the column would 
show only the total number of MSDs that occurred in an establishment 
and nothing about the nature or cause of these disorders, it would be 
of very little practical use in devising abatement methods for 
ergonomic hazards. Second, to the extent that employers and workers 
believe that the total count of MSD cases is relevant in an 
establishment, the number is easily obtainable without the column 
requirement.
    The January 2001 preamble states that the MSD column would be 
useful because it would enable employers and others to determine at a 
glance the total number of these disorders that had occurred. However, 
the total number, standing alone, tells nothing about the specific 
types of disorders that may be involved. The MSD definition in Sec.  
1904.12 encompasses a broad range of health conditions from back 
injuries to carpal tunnel syndrome. Thus, the total MSD count in an 
establishment could include a number of disparate disorders that have 
little in common. More importantly, the total number of cases tells 
nothing about the possible causes and prevention of ergonomic hazards. 
Simply knowing that a certain number of MSD cases have occurred does 
not permit one to determine which jobs or working conditions pose 
ergonomic hazards and how they may be abated.
    To effectively analyze and address ergonomic injuries that are 
occurring in workplaces, employers and others must be able to link 
specific types of injuries

[[Page 38604]]

to specific characteristics of jobs or working conditions. This 
requires evaluation of each individual case to determine the part of 
the body affected, the nature of the job performed by the injured 
employee and other relevant data. Such information is currently 
available in the case-description section of the 300 Log and in the 301 
Incident Report. Evaluation of these case-entry data, particularly the 
job title and the description of the injury and affected body part 
contained in Columns C and F on the 300 Log, will enable employers, 
workers and OSHA to identify specific types of MSDs, to link specific 
MSD injuries to specific ergonomic risk factors, and to identify trends 
in certain jobs or work practices over time.
    The MSD column would not assist with the kind of detailed analysis 
necessary to effectively abate MSDs at the establishment level. 
Conscientious employers, employees and authorized representatives who 
wish to address MSDs in their workplaces will do so, as they have in 
the past, by examining the entire Log, whether or not an MSD column is 
implemented. Some employers and others may wish to use the Sec.  
1904.12 definition of MSD as part of their comprehensive records 
analysis or they may wish to use a different definition more suited to 
their specific working conditions. For example, nursing home employers 
may wish to focus particularly on back cases in analyzing the 
effectiveness of patient lifting and repositioning abatement measures. 
On the other hand, employers and others who do not wish to perform a 
comprehensive analysis would not be able to use an MSD column as a 
substitute for the analysis.
    To the extent that the aggregate total of MSD cases is of some 
relevance, the number can easily be determined without a column. Based 
on the description-of-injury information in column F of the Log, one 
can very quickly identify which cases are MSDs under the Sec.  1904.12 
definition, or an alternative definition such as the one in OSHA's 
meatpacking guidelines. The MSD column is simply not necessary for this 
purpose. For these reasons, OSHA concludes that the MSD column would 
not be a useful tool at the establishment level.
    A related point argued by some is that an MSD column is needed to 
ensure effective enforcement of the general duty clause. However, the 
column has never been in effect and has not been a factor in 
enforcement of the clause. It is difficult to see the utility of simply 
checking an MSD column given the detailed nature of the information 
needed by OSHA to sustain a general duty clause citation. The case 
description data in the 300 and 301 forms is available to assist OSHA 
in its inspection activities. This information permits a more 
comprehensive understanding of MSDs in workplaces than would a single 
aggregate statistic produced by a column. Accordingly, there is no need 
for an MSD column on the Log for enforcement purposes.
    The other justification cited for the MSD column is that it is 
necessary to improve the accuracy and usefulness of the national injury 
and illness statistics. However, OSHA concludes that MSD column would 
not materially improve the national statistics on MSDs. The national 
statistics already include comprehensive information about MSDs that 
result in days away from work, including the total number and incidence 
rate of these disorders. As to other MSDs, the MSD column would allow 
the Bureau of Labor Statistics (BLS) to calculate the total number of 
these cases, but not to analyze their characteristics in any way. OSHA 
does not believe that a new statistic on total MSDs would be useful 
without the ability to assess the specific characteristics of these 
disorders. To obtain additional data necessary to allow BLS to assess 
the characteristics of MSDs that do not require days away from work 
would require significant changes to the BLS survey system not 
contemplated in the proposed recordkeeping rule and not requested by 
any party.
Overview of the BLS Statistical Program
    BLS is responsible for producing the national injury and illness 
statistics. BLS currently publishes two categories of statistics on 
non-fatal injuries and illnesses. One category consists of detailed 
information about injuries and illnesses that require days away from 
work to recuperate; the other category consists of aggregate totals for 
all types of injuries and illnesses combined.
    The first category of statistics, called case characteristics, is 
derived from a survey eliciting information from participating 
employers on a sample of injuries and illnesses resulting in days away 
from work. The survey provides detailed information about the specific 
characteristics of these cases, including the employee's age, sex, 
occupation and length of service; the employer's industry 
classification; the number of days away from work that were required; 
the part of the body affected; the source of injury (e.g., bodily 
motion or position, machinery, fire, toxic substance) and the causal 
event or exposure (e.g., overexertion, repetitive motion, fall, 
explosion ).
    BLS produces information on MSDs from those days away from work 
cases for which characteristics data are collected. BLS categorizes a 
case as an MSD using information on the nature of the injury and 
illness and the event or exposure leading to the injury or illness, as 
reported by the employer. Cases reported as MSDs by BLS include those 
in which the nature of the injury is a sprain, strain, tear, soreness, 
hernia, carpal tunnel syndrome or other similar type of injury to the 
soft tissue structures, and in which the causal event is bodily 
movement, such as bending, climbing, reaching, twisting, overexertion, 
or repetition. See BLS report Lost-worktime Injuries and Illnesses: 
Characteristics and Resulting Time Away From Work 2000, available on 
the BLS Internet site (www.bls.gov).
    The BLS case characteristic data permit detailed analysis of 
different types of MSDs by employee age and sex, occupation, industry 
sector, severity of disorder, type of causal event, type of bodily 
motion and other relevant characteristics. As a result, the BLS data 
can be highly useful in identifying the most serious MSDs and the 
conditions leading to them, and in pinpointing high-risk industries and 
occupations. For example, the BLS Supplemental Tables for calendar year 
2000 contain a detailed breakdown of lost-worktime MSDs by type, 
severity, source of injury, event or exposure, and other 
characteristics. The breakdown also presents the aggregate number of 
lost-worktime MSDs that occurred by major industry sector. See Case and 
Demographic Characteristics for Work -related Injuries and Illnesses 
Involving Days Away From Work, Supplemental Tables for 2000, Table 11. 
Additional Tables for 2000 contain detailed breakdowns of specific 
types of MSDs, such as carpal tunnel syndrome, tendonitis and 
repetitive motion injuries. See Id., Tables 3 and 9.
    The case characteristic data are also helpful in identifying 
significant information on the incidence of specific disorders. For 
example, in 2000, the latest year for which case characteristic data 
are available, the BLS statistics show that carpal tunnel syndrome 
accounted for the highest median number of days away from work of any 
disabling injury or illness, that repetitive motion and typing resulted 
in the longest absences from work among the leading events and 
exposures, and that truck drivers, nursing aides and non-construction 
laborers were the occupations with the greatest numbers of aggregated 
MSDs, accounting for one out of five of these disorders. See the BLS 
report Lost-Worktime Injuries and

[[Page 38605]]

Illnesses: Characteristics and Resulting Time Away From Work, 2000 
(April 10, 2002), available on the BLS Internet site.
    A second category of statistics is concerned with the total number 
and incidence rate of non-fatal cases of all types. Statistics in this 
series indicate, for each sector of private industry, the total number 
of non-fatal injuries and illnesses reported as well as the number of 
these cases with lost-workdays and the number of cases without lost-
workdays. This series also includes the incidence rate of non-fatal 
injuries and illnesses by industry calculated as the number of cases 
per 100 full time employees. See the BLS report Workplace Injuries and 
Illnesses in 2000 (December 18, 2001).\1\ Together these two types of 
statistics--case characteristic data and overall incidence data--
present a wealth of information about occupational injuries and 
illnesses across the nation.
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    \1\ The reports Lost-worktime Injuries and Illnesses: 
Characteristics and Resulting Time Away from Work, 2000 and 
Workplace Injuries and Illnesses in 2000, were two of three reports 
issued by BLS for calendar year 2000. In August 2001, BLS issued a 
report covering work-related fatalities.
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Why the MSD Column Would Not Significantly Improve the BLS Statistics
    If the MSD column were implemented, employers participating in the 
BLS survey would report annually the total number of MSD cases checked 
on the Log. This information would enable BLS to publish the total 
number and incidence rates of MSDs of all types. Thus, the statistical 
tables depicting the total number and incidence rates of non-fatal 
injuries and illnesses by industry would include an additional column 
for total MSD cases. (See, e.g., Workplace Injuries and Illnesses in 
2000, Tables S14 and S16)
    These new statistics would add only marginally to the information 
currently available. As described above, the BLS case characteristic 
data already present a comprehensive picture of the most severe MSDs, 
including separate statistics on the total number and incidence rate of 
these disorders. Accordingly, the MSD column would add minimally to the 
national statistics on MSDs that resulted in days away from work.
    The new data would be relevant primarily for the purpose of 
estimating the number of MSDs that do not result in days away from 
work. The number of these MSDs could be approximated by subtracting the 
number of days away from work MSD cases reported by BLS from the total 
number of MSDs of all types produced by the column. However this 
estimate would have limited utility because the absence of case 
characteristic data for cases that do not result in days away from work 
MSDs precludes analysis of them.
    As noted above, the BLS survey elicits descriptive information only 
on injuries and illnesses, including MSDs, resulting in days away from 
work. The BLS database of case-characteristics has never included 
information on or analyses of cases that do not result in days away 
from work. Accordingly, BLS cannot analyze the characteristics of these 
injuries and illnesses as it can days away from work cases. Adding an 
MSD column to the Log would not change the basic structure of the 
survey, and would not produce any additional descriptive data on the 
less severe cases. Significant changes in the survey itself would be 
required before BLS could collect this type of data.
    Because an MSD column would not enable BLS to collect case 
characteristic data on all MSDs, any new statistic reporting the 
aggregate total number of such cases would be difficult to interpret. 
There would be no way to distinguish among different types of these 
disorders, determine possible causal factors, evaluate demographics, or 
perform the other analyses. OSHA believes that total number of MSDs, 
standing alone, would not be useful without the ability to analyze the 
underlying data.
    Having a column requirement might be warranted if a specific injury 
or illness was substantially misrepresented in the BLS statistics for 
cases with days away from work. For example, OSHA recently found that 
the estimate of days away from work occupational hearing loss cases, 
which totaled only 316 cases in the year 2000, probably represents only 
a tiny fraction of the total hearing loss cases in the Nation because 
workers commonly suffer hearing loss and never require a day away from 
work. (See, e.g., 67 FR 77168 explaining the need for a hearing loss 
column on the Log.) In the 2001 Recordkeeping rule, OSHA stated that it 
believed that many cases of hearing loss, probably numbering in the 
thousands, do not result in days away from work and are therefore not 
represented in the BLS statistics. (66 FR 6005). Because the BLS 
statistics on hearing loss represented only a minor fraction of the 
hearing loss experienced by workers, OSHA believed that a column was 
necessary to obtain useful data on hearing loss cases. In contrast, BLS 
produces a wealth of useful information about MSDs. The BLS statistics 
for the year 2000 included over 577,800 MSDs with days away from work, 
accounting for more than eleven percent of all private sector 
occupational injuries and illnesses. (See Lost-worktime Injuries and 
Illnesses: Characteristics and Resulting Time Away From Work, 2000, 
page 3.) This is a large number of cases, representing those MSDs with 
the most serious outcomes. Moreover, this total figure can be broken 
down and analyzed in many different ways using BLS's case 
characteristics. Thus, there is no need for a column to obtain useful 
data for MSDs, as there was for hearing loss cases.
    OSHA does not believe that altering the definition used to trigger 
the column requirement would produce more useful data. As some, 
including the AFL-CIO, have observed, the Sec.  1904.12 definition is 
similar in some ways to definitions OSHA has used in the past, and that 
BLS and other agencies now use. OSHA believes that this definition can 
be useful for some purposes. Different definitions might also be 
appropriate in some contexts. For example, in evaluating the 
effectiveness of an ergonomics program targeted to certain specific 
risk factors, it might be useful to define MSDs to include injuries 
likely to be caused by exposure to such factors. This is very different 
from using an MSD column to generate a single aggregate statistic. 
Regardless of how MSDs are defined for purposes of the OSHA 
recordkeeping rule, a column requirement would produce only an 
aggregate total of cases that could not be further analyzed for 
significance. No such statistic would be useful without a means of 
understanding and interpreting it.
    Finally OSHA has considered whether the BLS survey should be 
modified to gather case-characteristic data for all recordable MSDs, 
regardless of type or severity. The Agency believes that it is 
reasonable for BLS to collect detailed characteristic data only for 
injuries and illnesses that result in days away from work at this time. 
BLS cannot collect comprehensive data on every aspect of every injury 
or illness. The current survey was designed and implemented with the 
support and assistance of the safety and health community and the 40 
participating States to capture detailed information on the most severe 
cases. (See BLS Handbook of Methods, Ch. 9, Occupational Safety and 
Health Statistics) The statistical system, of which the survey is a 
part, fulfills the statutory requirement to ``compile accurate 
statistics on work injuries and illnesses,'' 29 U.S.C. 673, by 
producing data on the overall number and incidence rate of injuries and 
illnesses, by industry, and by providing detailed statistics on case 
characteristics of

[[Page 38606]]

occupational injuries and illnesses, that result in days away from 
work, including MSDs, to assist in the understanding and prevention of 
these disabling cases. The system is not currently designed to gather 
separate statistics on the incidence rates of specific injuries or 
illnesses.
    Nothing in the record demonstrates that BLS should treat MSDs 
differently from other injuries and illnesses by publishing separate 
statistics on all recordable cases of these disorders. OSHA does not 
believe that MSDs are fundamentally different, for statistical 
purposes, from bruises, cuts, lacerations, burns and other common 
injuries which may or may not result in days away from work depending 
on severity. As discussed above, the national statistics present a 
detailed picture of the MSD problem on a variety of levels. These data 
are both accurate and useful. Accordingly, OSHA concludes that there is 
no justification for the MSD column on the Log.
Consultation With NACE
    While the Agency concludes that the MSD column on the Log would not 
produce significantly more accurate or useful statistics, it is 
committed to exploring other means of improving the information 
available on MSDs and effectively utilizing this information to reduce 
ergonomic-related injuries and illnesses in the workplace. As part of 
the comprehensive approach for addressing MSD hazards, the Department 
has created the National Advisory Committee on Ergonomics (NACE) to 
advise the Assistant Secretary of Labor for Occupational Safety and 
Health on ergonomic guidelines, research, and outreach assistance. The 
Agency has indicated that it will seek advice from NACE in the 
following areas: (1) The development of various industry or task-
specific guidelines; (2) identification of gaps in the existing 
research base related to applying ergonomic principles to the 
workplace; (3) current and projected research needs and efforts, 
including information provided by NIOSH; (4) methods of providing 
outreach and assistance that will communicate the value of ergonomics 
to employers and employees, and (5) ways to increase communication 
among stakeholders on the issue of ergonomics. As part of this effort, 
the Agency intends to seek input from NACE on how to characterize the 
variety of ergonomic-related injuries in the workplace in ways that 
will be most useful in helping employers and others to solve ergonomic 
problems. NACE's expertise will also be useful in advising the Agency 
on ways in which statistics on these injuries can be used effectively 
in developing guidelines and in providing outreach and assistance on 
ergonomics to employers, employees and stakeholders.

C. Deletion of 29 CFR 1904.12 and Related Provisions

    Having concluded that an MSD column on the Log is unnecessary, OSHA 
believes that section 1904.12 should be deleted. The sole purpose of 
that section was to establish the requirement for employers to check 
the MSD column for cases meeting the definition of MSD. In view of this 
determination, it is not necessary to consider whether the definition 
of MSD in Sec.  1904.12 would be appropriate if a column were needed, 
or whether alternative definitions would be appropriate. The deletion 
of Sec.  1904.12 relieves employers from the legal requirement to check 
the column; however, it has no effect on their obligation to record all 
cases meeting the requirements of Sec. Sec.  1904.4-1904.7. In a 
related matter, some of the privacy provisions of Part 1904 relied upon 
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 Sec.  1904.12 is 
being deleted, there is no basis to implement the requirement in Sec.  
1904.29(b)(7)(vi). Moreover, there was no explanation for the special 
privacy treatment accorded MSDs in the preamble to the 2001 rule. 
Accordingly, OSHA is deleting the MSD requirement in section 
1904.29(b)(7)(vi) stating that MSD injuries and illnesses are not to be 
considered privacy concern cases. These cases are covered by the 
general rule on privacy cases. Therefore, when the employer has 
categorized the case as an occupational illness, and the employee 
independently and voluntarily requests that his or her name not be 
entered on the OSHA 300 Log, the case will be considered a privacy 
concern case.

Paperwork Reduction Act

    This final rule deletes requirements contained in OSHA's January 
19, 2001 final recordkeeping rule but never implemented. Therefore, 
this rule continues OSHA's current policies on recording of MSDs, and 
protecting employee privacy, resulting in no change in actual paperwork 
burden compared with current practice. While this final rule results in 
a minor saving in burden that would have been imposed, OSHA has not 
attempted to estimate the saving because the January 2001 rule 
contained no separate estimate of the burden associated with Sec. Sec.  
1904.12 and 1904.29(b)(7)(vi).

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 deletes requirements that have not become effective, and adds 
no new requirements. The rule will impose no costs on the regulated 
public.

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.

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 25 day of June, 2003.
John L. Henshaw,
Assistant Secretary of Labor.

0
For the reasons stated in the preamble, OSHA hereby amends 29 CFR part 
1904 as set forth below:

PART 1904--[AMENDED]

0
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.

[[Page 38607]]

Sec.  1904.12  [Removed]

0
2. Remove Sec.  1904.12.


Sec.  1904.26  [Amended]

0
3. Revise Sec.  1904.29(b)(7)(vi) to read as follows:


Sec.  1904.29  Forms.

* * * * *
    (b) * * *
    (7) * * *
    (vi) Other illnesses, if the employee voluntarily requests that his 
or her name not be entered on the log.
* * * * *
[FR Doc. 03-16482 Filed 6-27-03; 8:45 am]
BILLING CODE 4510-26-P