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DEPARTMENT OF LABOR
Occupational Safety
and Health Administration
29 CFR Part 1904
[Docket No. R-02A]
RIN 1218-AC00
Occupational Injury
and Illness Recording and Reporting Requirements
AGENCY: Occupational
Safety and Health Administration (OSHA), U.S. Department of Labor.
ACTION: Final rule.
SUMMARY: The
Occupational Safety and Health Administration (OSHA) is delaying the
effective date of three provisions of the Occupational Injury and
Illness Recording and Reporting Requirements rule published January 19,
2001 (66 FR 5916-6135) and is establishing interim criteria for
recording cases of work-related hearing loss. The provisions being
delayed are §§ 1904.10(a) and (b), which specify recording criteria
for cases involving occupational hearing loss, § 1904.12, which defines
"musculoskeletal disorder (MSD)" and requires employers to
check the MSD column on the OSHA Log if an employee experiences a work-
related musculoskeletal disorder, and § 1904.29(b)(7)(vi), which states
that MSDs are not considered privacy concern cases. The effective date
of these provisions is delayed from January 1, 2002 until January 1,
2003. OSHA will continue to evaluate §§ 1904.10 and 1904.12 over the
next year.
OSHA is also adding a
new paragraph (c) to § 1904.10, establishing criteria for recording
cases of work-related hearing loss during calendar year 2002. Section
1904.10(c) codifies the enforcement policy in effect since 1991, under
which employers must record work related shifts in hearing of an average
of 25dB or more at 2000, 3000 and 4000 hertz in either ear.
DATES:
The amendments in this rule will become effective on
January 1, 2002.
FOR FURTHER
INFORMATION CONTACT: Jim Maddux, Occupational Safety and Health
Administration, U.S. Department of Labor, Directorate of Safety
Standards Programs, Room N-3609, 200 Constitution Avenue, N.W.,
Washington, DC 20210. Telephone (202) 693-2222.
SUPPLEMENTARY
INFORMATION:
I. Background
In January, 2001 (66
FR 5916-6135), OSHA published revisions to its rule on recording and
reporting occupational injuries and illnesses (29 CFR parts 1904 and
1952) to take effect on January 1, 2002. On July 3, 2001, the agency
proposed to delay the effective date of Sections 1904.10 Recording
criteria for cases involving occupational hearing loss, and 1904.12
Recording criteria for cases involving work-related musculoskeletal
disorders, until January 1, 2003 (66 FR 35113-35115). In that notice,
OSHA explained that, as a result of the regulatory review required by
the Andrew Card memorandum (66 FR 7702), it was reconsidering the
requirement in Section 1904.10 to record a case involving an
occupational hearing loss averaging 10dB, or more. OSHA found that there
were reasons to question the appropriateness of 10dB as the recording
criterion, and asked for comment on other approaches and criteria,
including recording losses averaging 15, 20 or 25dB. In view of the
uncertainty concerning the appropriate criteria, OSHA preliminarily
concluded that it should delay implementing the 10dB requirement for a
year while it reconsidered the question. The proposal stated that if
implementation of Section 1904.10 were delayed for a year, employers
would continue to record hearing loss cases during that year using the
25dB criterion articulated in OSHA's 1991 enforcement policy (See 66 FR
35114-35115).
OSHA also stated that
it was reconsidering the requirement in Section 1904.12 that employers
check the MSD column on the OSHA Log for a case involving a "musculoskelal
disorder" as defined in that Section. This action was taken in
light of a the Secretary's decision to develop a comprehensive plan to
address ergonomic hazards, and to schedule a series of forums to
consider key issues relating to the plan, including the approach to
defining an ergonomic injury. OSHA preliminarily found that it would be
premature to define a musculoskeletal disorder for recordkeeping
purposes before further progress has been made in developing the
comprehensive ergonomics plan, and that a delay in the effective date of
Section 1904.12 was therefore appropriate. 66 FR 35115. The Agency noted
that the proposed delay would not affect the employer's obligation to
record all injuries and illnesses, including musculoskeletal injuries
and illnesses, that meet the criteria in Sections 1904.4-1904.7,
regardless of whether a particular injury or illness would meet the
definition of MSD found in Section 1904.12. Id.
The period for
submission of comments on the proposed rule closed on September 4, 2001.
After considering the views of interested parties, OSHA has determined
that the effective date of Sections 1904.10(a) and 1904.12(a) and (b)
should be delayed until January 1, 2003, and that a new paragraph (c)
should be added to Section 1904.10 re-establishing a 25dB recording
criterion for hearing loss cases for calendar year 2002.
II. Summary and
Explanation of Final Rule
A. Recording
Occupational Hearing Loss Cases
Section 1904.10 of the
final recordkeeping rule requires employers to record, by checking the
"hearing loss" column on the OSHA 300 Log, a case in which an
employee's hearing test (audiogram) reveals that a Standard Threshold
Shift (STS) in hearing acuity has occurred. An STS is defined as "a
change in hearing threshold, relative to the most recent audiogram for
that employee, of an average of 10 decibels (dB) or more at 2000, 3000
and 4000 hertz in one or both ears." The recordkeeping rule itself
does not require the employer to test employee's hearing. However,
OSHA's occupational noise standard (29 CFR 1910.95), requires employers
in general industry to conduct periodic audiometric testing of employees
when employees' noise exposures are equal to, or exceed, an 8-hour
time-weighted average of 85dB. If such testing reveals that an employee
has sustained hearing loss equal to an STS, the employer must take
protective measures, including requiring the use of hearing protectors,
to prevent further hearing loss.
The old recordkeeping
rule, which remains in effect until January 1, 2001, contained no
specific threshold for recording hearing loss cases. In 1991, OSHA
issued an enforcement policy on the criteria for recording hearing loss
cases, to remain in effect until new criteria were established by
rulemaking. The 1991 policy stated that OSHA would cite employers for
failing to record work related shifts in hearing of an average of 25dB
or more at 2000, 3000 and 4000 hertz in either ear. Subsequently, OSHA
released interpretations stating that the employer could adjust the
audiogram for aging using the tables in Appendix F of the Noise
Standard, and that the employer was to use the employee's pre-employment
audiogram as the baseline reference audiogram for determining a
recordable hearing loss.
One of the major
issues in the recordkeeping rulemaking was to determine the level of
occupational hearing loss that constitutes a health condition serious
enough to warrant recording. This was necessary because the final rule
no longer requires recording of minor or insignificant health
conditions. See, e.g., 66 FR 5931. OSHA proposed a requirement to record
hearing loss averaging 15dB at 2000, 3000 and 4000 hertz in one or both
ears. OSHA adopted the lower 10dB threshold in the final rule based in
large part upon comments submitted by the Coalition to Preserve OSHA and
NIOSH and Protect Workers' Hearing, asserting that "[a]n
age-corrected STS is a large hearing change that can affect
communicative competence." 66 FR 6008.
In its July 3 proposal
to delay implementation of Section 1904.10, OSHA expressed reservations
about whether 10dB is the appropriate threshold for recording hearing
loss. The agency acknowledged that there is evidence that an STS may not
be a serious health problem, particularly for employees who have not
previously sustained hearing loss, and that a 10dB shift may not be a
reliable criterion for recording purposes because of normal variations
in audiometric measurement (66 FR 35114). For these and other reasons,
OSHA reopened the record to permit consideration of additional evidence
and to explore alternative approaches (Id.).
Most commenters
supported the proposed delay in implementation of Section 1940.10 (see,
e.g., Exs. 3-1, 3-6, 3-14, 3-22, 3-25, 3-26, 3- 29, 3-34, 3-49, 3-50,
3-54). The view expressed by Organization Resources Counselors, Inc. is
representative. ORC (Ex. 3-49, p. 3) argued:
[T]he finding of a
Standard Threshold Shift (STS) [is][ a 'flag' for the implementation of
a series of actions required by the OSHA standard on exposure to
occupational noise. It was not intended, by itself, to be an indicator
of illness, or impairment, but, rather, a sentinel event that triggers a
series of actions that will prevent illness or impairment from
occurring. As such a tool, it has been an effective protector of
employee hearing, but does not, by itself, rise to the level of
recordability. See also, e.g., Ex. 3-54 (American Iron and Steel
Institute), Ex. 3-50 (National Association of Manufacturers and Can
Manufacturers Institute).
Several commenters
opposed the delay, with most citing the protective purposes served by
recordkeeping requirements (see, e.g., Exs. 3-3, 3-4, 3-8, 3-9, 3-10,
3-11, 3-12, 3-17, 3-31). In a representative comment, the AFL-CIO argued
that the requirement to record a 10dB hearing loss on the Log would aid
in the early detection and prevention of occupational hearing loss. It
stated (Ex. 3-24-1, p.3) that,
[r]ecording a 10 dB
STS on Form 300 is a practical and reasonable means to assist in the
early detection of a loss in hearing so that workplace intervention
measures can be implemented to protect workers from the hazards of
noise. Having employers continue to record shifts in hearing of an
average of 25 dB * * * is too high a threshold of loss in hearing acuity
to be sufficiently proactive in preventing worker hearing loss.
OSHA is not persuaded
by this argument. As the AFL-CIO concedes (Ex. 3-24-1, p.6), Congress
intended the recordkeeping system to capture non-minor injuries and
illnesses. OSHA is reconsidering the finding that a 10dB shift in
hearing acuity represents such a health condition, and intends to
resolve this issue based on all the available evidence. In the meantime,
there is sufficient question concerning the appropriateness of 10dB as a
recording threshold to justify a limited delay in implementing Section
1904.10(a) and (b).
Delaying
implementation of the 10dB threshold for a year while OSHA reconsiders
the criteria for recording hearing loss cases will not deprive employers
and employees of information about noise hazards. The occupational noise
exposure standard requires that employees in general industry be tested
for hearing loss when noise exposure exceeds an 8-hour time-weighted
average of 85dB, and that employees be informed, in writing, if a 10dB
shift has occurred. The audiometric test records must be retained for
the duration of the affected employee's employment. See 29 CFR 1910.95
(g), (m). The noise standard also specifies the protective measures to
be taken to prevent further hearing loss for employees who have
experience a 10dB shift, including the use of hearing protectors and
referral for audiological evaluation where appropriate. See 29 CFR
1910.95 (g)(8). These requirements, which apply without regard to the
recording criteria in the recordkeeping rule, will protect workers
against the hazards of noise. The one-year delay in implementing Section
1904.10(a) and (b) will therefore not deprive employers and workers of
the means to detect and prevent hearing loss.
Several commenters
supported a requirement to record a hearing loss averaging 25 dB or more
while OSHA reconsidered the 10dB criterion (see, e.g., Exs. 3-49, 3-54),
The American Iron and Steel Institute (AISI) argued that the 25dB
criterion should be included in the regulatory text to avoid any
confusion about employers' compliance responsibilities during calendar
year 2002. OSHA agrees with AISI on this point, and has added a new
paragraph (c) to Section 1904.10 specifying the criteria to be used for
the 2002 recording year. The AISI also recommended that OSHA continue
its policy of allowing employers to correct employee's audiograms for
aging (presbycusis) using the age correction tables in the occupational
noise standard (Ex. 3-54). Since this was OSHA's policy in the past, the
Agency has also included language to this effect in the new paragraph,
1904.10(c).
A few commenters urged
OSHA to make sure that the State Plan States have the same recording
criteria as federal OSHA (see, e.g., Exs. 3-22, 3-49). When OSHA issues
a final determination for the recording of occupational hearing loss for
calendar years 2003 and beyond, the states will be required to have
identical criteria. However, the purpose of this notice is to maintain
the status quo regarding the recording of occupational hearing loss for
the year 2002, while OSHA reconsiders what the appropriate recording
criteria should be. Therefore, the State Plan States will be allowed to
maintain their policies for the recording of hearing loss during 2002.
B. Defining an MSD and
Checking the MSD Column
Section 1904.12
provides that if an employee experiences a recordable musculoskeletal
disorder (MSD), the employer must record it on the OSHA Log and must
check the MSD column. For recordkeeping purposes, the rule defines MSDs
as disorders of the muscles, nerves, tendons, ligaments, joints,
cartilage and spinal discs that are not caused by slips, trips, falls,
motor vehicle accidents or other similar accidents (see Section
1904.12(b)(1)). The Section also explains that in determining whether an
MSD is recordable, the employer must use the same criteria that apply to
other injuries and illnesses. To be recordable, the disorder must be
work related, must be a new case, and must meet one or more of the
general recording criteria. Section 1904.12 states that "[t]here
are no special criteria for determining which musculoskeletal disorders
to record," and refers the reader to other sections of the rule in
which the basic recording criteria are found.
OSHA's purpose in
including an MSD column on the Log was to gather data on "musculoskeletal
disorders" as that term is defined in Section 1904.12. Two months
after publication of the new recordkeeping rule, Congress disapproved
OSHA's ergonomics standard under the Congressional Review Act (Pub. L.
107.5 Mar. 20, 2001). Following Congressional disapproval of the
ergonomics standard, the Secretary announced that she intends to develop
a comprehensive plan to address ergonomics hazards and scheduled a
series of forums to consider basic issues related to ergonomics (66 FR
31694, 66 FR 33578). One of the key issues to be considered in
connection with the Secretary's comprehensive plan is the approach to
defining an ergonomic injury.
In the July proposal,
OSHA preliminarily found that it would be premature to implement the new
definition of MSD in Section 1904.12 before considering the views of
business, labor and the public health community on the problem of
ergonomic hazards. It also preliminarily found that it would create
confusion and uncertainty to require employers to implement the new MSD
definition while the Secretary was considering how to define an
ergonomic injury under the comprehensive plan. 66 FR 35115. Many
commenters supported the delay, citing reasons similar to those in the
July 3 proposal (see, e.g., Exs. 3-1, 3-6, 3- 14, 3-19, 3-20, 3-25,
3-26, 3-27, 3-29, 3-32, 3-35, 3-37, 3-38, 3-43, 3-44, 3-49, 3-50, 3-54,
3-59, 3-61). OSHA continues to believe a delay is justified for these
reasons.
Several commenters
opposed a delay in implementing the recordkeeping rule's definition of
MSD and the requirement to check the MSD column (see, e.g., Exs. 3-3,
3-8, 3-9, 3-10, 3-11, 3-12, 3-17, 3- 21, 3-24, 3-28, 3-31, 3-36, 3-40,
3-42, 3-52). In a representative comment, the AFL-CIO argued that
delayed implementation of Section 1904.12 will make it more difficult
for employers, workers and OSHA to address workplace ergonomic hazards,
and will seriously undermine OSHA's ability to enforce the general duty
clause for ergonomic hazards (see Ex. 3-24-1, pp. 15-22).
OSHA does not agree
with this assessment. Employers are required to record all injuries and
illnesses meeting the criteria established in Sections 1904.4 through
1904.7 of the recordkeeping rule regardless of whether a particular
injury or illness meets the definition of MSD in Section 1904.12. Thus,
the delay in implementing Section 1904.12 will not reduce the number of
cases recorded or affect the narrative description of the injury or
illness that must be provided for each case. Employers who use the Log
and injury reports to discover ergonomic hazards will be able to
continue to do so, relying on the description-of-injury information and
other data to identify soft- tissued disorders in their workplaces (Ex.
3-24-1, p. 15). Employees will continue to have access to the
information provided in the Log and, under the new rule, to the
information in the part of the Incident Report explaining how the
incident occurred. Employers and employees will be able to categorize
this injury and illness information in any manner they find useful.
The delay need not
lead to the elimination of useful statistical data on MSDs, as the
AFL-CIO suggests (Ex. 3-24-1, p. 16). The definition of MSD in Section
1904.12 is a new one. The Secretary is currently considering approaches
to defining ergonomic injuries in connection with her comprehensive
plan, and it is premature to say, at this point, what definition would
be appropriate to produce useful data. To require employers to implement
a new definition of MSD while the agency is considering the issue in
connection with the comprehensive ergonomics plan could create
unnecessary confusion which would not, in OSHA's view, be balanced by
improvements in the national statistics.
Finally, OSHA notes
that the delay in the implementation of Section 1904.12 will have no
effect on the Department's enforcement of the general duty clause. The
definition of MSD in that section has never been in effect, and has not
been a factor in enforcement of the clause. The sole effect of the delay
is that employers need not use the definition to categorize cases on the
OSHA Recordkeeping Log for calendar year 2002. This recordkeeping issue
does not affect an employer's obligation under the general duty clause.
The employer remains obligated to free its workplace from recognized
hazards that are likely to cause serious physical harm.
OSHA is adding a note
following the introduction to Section 1904.12 to inform employers of the
policy that will be in effect during 2002. The note also informs the
employer that, instead of checking the column on the 300 Log for
musculoskeletal disorders (since this column is being removed from the
log), the employer is to check the column for "injury" or
"all other illness," depending on the circumstances of the
case.
In a related matter,
paragraph 1904.29(b)(7)(vi) of the rule states that employers must
consider an illness case to be a privacy concern case, and withhold the
employee's name from the forms, if the employee independently and
voluntarily requests that his or her name not be entered on the Log. The
second sentence of the paragraph states that "[m]usculoskeletal
disorders (MSDs) are not considered privacy concern cases." OSHA
will be unable to enforce this requirement during the period of time
that the definition of MSD in the rule is delayed. Accordingly, OSHA is
adding a note to section 1904.29(b)(7)(vi) stating that the first
sentence of that section takes effect on January 1, 2002, and the second
sentence takes effect on January 1, 2003.
C. The 1904 Forms
Consistent with the
above decisions, OSHA will issue new recordkeeping forms that have been
modified to remove the MSD and hearing loss columns from the OSHA 300
Log of Work-Related Injuries and Illnesses and the OSHA 300A Summary of
Work-Related Injuries and Illnesses. The instructions accompanying the
forms have also been modified to reflect the decisions for the 1904
requirements that will be in effect during calendar year 2002.
Employers may obtain
copies of the forms from OSHA's Internet homepage at
www.osha.gov, or by contacting the OSHA publications office at (202)
693-1888.
Paperwork Reduction
Act
OSHA has submitted to
OMB a request for approval of the information collection requirements of
the final recordkeeping rule, including the effect on the rule's
paperwork burden of the delay in implementation of Sections 1904.10 and
1904.12 until January 1, 2003, and the adoption of an interim 25dB
recording criterion for hearing loss cases for calendar year 2002. OSHA
will publish a subsequent Federal Register document when OMB takes
further action on the information collection requirements in the
recordkeeping rule.
Regulatory Flexibility
Certification
Pursuant to the
Regulatory Flexibility Act (5 U.S.C. 601), the Assistant Secretary
certifies that the final rule will not have a significant economic
impact on a substantial number of small entities. The rule does not add
any new requirements, but merely delays the effective date of two
sections of the rule. The delay will not impose any additional costs on
the regulated public.
Executive Order
This document has been
deemed significant under Executive Order 12866 and has been reviewed by
OMB.
Authority
This document was
prepared under the direction of John Henshaw, Assistant Secretary for
Occupational Safety and Health. It is issued under Section 8 of the
Occupational Safety and Health Act (29 U.S.C. 657) and 5 U.S.C. 553.
John Henshaw,
Assistant Secretary of Labor.
29 CFR part 1904 is
hereby amended as set forth below:
PART 1904 -- [AMENDED]
1. The authority
citation for 29 CFR part 1904 is revised to read as follows:
Authority: 29 U.S.C.
657, 658, 660, 666, 669, 673, Secretary of Labor's Order No. 3-2000 (65
FR 50017), and 5 U.S.C. 533.
2. Section 1904.10 of
29 CFR is amended by adding a note to the section, and by adding a new
paragraph (c), to read as follows:
§ 1904.10 Recording
criteria for cases involving occupational hearing loss.
* * * * *
(c) Recording criteria
for calendar year 2002. From January 1, 2002 until December 31, 2002,
you are required to record a work-related hearing loss averaging 25dB or
more at 2000, 3000, and 4000 hertz in either ear on the OSHA 300 Log.
You must use the employee's original baseline audiogram for comparison.
You may make a correction for presbycusis (aging) by using the tables in
Appendix F of 29 CFR 1910.95. The requirement of § 1904.37(b)(1) that
States with OSHA- approved state plans must have the same requirements
for determining which injuries and illnesses are recordable and how they
are recorded shall not preclude the states from retaining their existing
criteria with regard to this section during calendar year 2002.
Note to § 1904.10:
Paragraphs (a) and (b) of this section are effective on January 1, 2003.
Paragraph (c) of this section applies from January 1, 2002 until
December 31, 2002.
3. Section 1904.12 is
amended by adding a note to the section, to read as follows:
§ 1904.12 Recording
criteria for cases involving work-related musculoskeletal disorders.
* * * * *
Note to § 1904.12:
This section is effective January 1, 2003. From January 1, 2002 until
December 31, 2002, you are required to record work-related injuries and
illnesses involving muscles, nerves, tendons, ligaments, joints,
cartilage and spinal discs in accordance with the requirements
applicable to any injury or illness under § 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
illneses."
4. Section
1904.29(b)(7)(vi) is revised to read as follows:
§ 1904.29 Forms.
* * * * *
(6) * * *
(7) * * *
(vi) Other illnesses,
if the employee independently and voluntarily requests that his or her
name not be entered on the log. Musculoskeletal disorders (MSDs) are not
considered privacy concern cases. (Note: The first sentence of this §
1904.29(b)(7)(vi) is effective on January 1, 2002. The second sentence
is effective beginning on January 1, 2003.)
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OSHA Reporting