[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Proposed Rules]
[Pages 4728-4741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2010]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. OSHA-2009-0044]
RIN 1218-AC45
Occupational Injury and Illness Recording and Reporting
Requirements
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; announcement of public meeting.
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SUMMARY: OSHA is proposing to revise its Occupational Injury and
Illness Recording and Reporting (Recordkeeping) regulation to restore a
column to the OSHA 300 Log that employers would use to record work-
related musculoskeletal disorders (MSD). The 2001 Recordkeeping final
regulation included an MSD column, but the requirement was deleted
before the regulation became effective. This proposed rule would
require employers to place a check mark in the MSD column, instead of
the column they currently mark, if a case is an MSD that meets the
Recordkeeping regulation's general recording requirements.
DATES: Written comments: Comments must be submitted (postmarked, sent,
or received) by March 15, 2010.
Public meeting: OSHA will hold a public meeting on the proposed
rule from 9 a.m. to 5 p.m. on March 9, 2010. If necessary, the meeting
may be extended to subsequent days.
Requests to speak at the public meeting and requests for special
accommodation at the meeting: You must submit requests to speak at the
public meeting and requests for special accommodations to attend the
meeting by February 16, 2010.
ADDRESSES: Written comments and requests to speak at the public
meeting: You may submit comments and requests to speak, identified by
docket number OSHA-2009-0044, or regulatory information number (RIN)
1218-AC45, by any of the following methods:
Electronically: You may submit comments, requests to speak, and
attachments electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the instructions on-line for making
electronic submissions;
Fax: If your submission, including attachments, does not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648; or
[[Page 4729]]
Mail, hand delivery, express mail, messenger or courier service:
You must submit your comments, requests to speak, and attachments to
the OSHA Docket Office, Docket Number OSHA-2009-0044, U.S. Department
of Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627).
Deliveries (hand, express mail, messenger and courier service) are
accepted during the Department of Labor's and Docket Office's normal
business hours, 8:15 a.m.-4:45 p.m., e.t.
Public meeting: The public meeting will be held in C 5320, Room 6,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
Requests for special accommodation: Submit requests for special
accommodations to attend the public meeting to Veneta Chatmon, OSHA,
Office of Communications, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1999; e-mail [email protected].
Instructions for submitting comments, requests to speak, and
requests for special accommodation: All submissions must include the
docket number (Docket No. OSHA-2009-0044) or the RIN number (RIN 1218-
AC45) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA Docket Office for information about security
procedures for making submissions by hand delivery, express delivery,
and messenger or courier service.
All comments and requests to speak, including any personal
information you provide, are placed in the public docket without change
and may be made available online at http://www.regulations.gov.
Therefore, OSHA cautions you about submitting personal information such
as social security numbers and birthdates. For further information on
submitting comments and requests to speak, plus additional information
on the rulemaking process, see the ``Public Participation'' heading in
the SUPPLEMENTARY INFORMATION section of this notice.
Docket: To read or download submissions in response to this Federal
Register notice, go to docket number OSHA-2009-0044, at http://regulations.gov. All submissions are listed in the http://regulations.gov index, however, some information (e.g., copyrighted
material) is not publicly available to read or download through that
Web page. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, is available at OSHA's Web page at
http://www.osha.gov.
FOR FURTHER INFORMATION CONTACT: For press inquiries: Jennifer Ashley,
OSHA, Office of Communications, Room N-3647, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202)
693-1999.
For general and technical information on the proposed rule: Jim
Maddux, Acting Deputy Director, OSHA Directorate of Standards and
Guidance, Room N-3718, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-1950.
For the public meeting: Veneta Chatmon, OSHA, Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210; telephone (202) 693-1999.
SUPPLEMENTARY INFORMATION: OSHA is proposing to revise its
Recordkeeping regulation (29 CFR part 1904) to restore a column to the
OSHA 300 Log that employers would use to record work-related
musculoskeletal disorders (MSD). The 2001 Recordkeeping final
regulation included an MSD column, but the requirement was deleted
before it became effective (66 FR 5916, 6129 (1/19/2001)). The proposed
rule would require employers to place a check mark in the MSD column,
instead of the column they mark now, if the case is an MSD and meets
the general recording requirements of the Recordkeeping rule. The rule
also proposes, for this recordkeeping purpose only, a definition of MSD
that is identical to the one contained in the 2001 final Recordkeeping
rule. In addition, OSHA proposes an entry for the total number of MSDs
on the OSHA 300A form, the form that employers use to annually
summarize their work-related injuries and illnesses (see 29 CFR
1904.32).
In 2003 OSHA deleted the MSD provisions (column and definition)
from the 2001 Recordkeeping rule (68 FR 38601). However, after further
consideration and analysis, the Agency believes that information
generated from the MSD column will improve the accuracy and
completeness of national occupational injury and illness statistics;
will provide valuable and industry specific information to assist OSHA
in effectively targeting its inspection, outreach, guidance and
enforcement efforts to address workplace MSDs; and will provide useful
establishment-level information that will help both employers and
employees readily identify the incidence of MSDs.
OSHA stresses that the purpose of this rulemaking is solely to
improve data gathering regarding work-related MSDs. The proposed rule
does not require employers to take any action other than to check the
MSD column on the OSHA 300 log if a work-related MSD case occurs that
meets the general recording requirements of the Recordkeeping
regulation. Unlike OSHA standards, the proposed rule does not require
employers to implement controls to prevent and control employee
exposure to an identified occupational hazard.
I. Background
Regulatory History
On January 19, 2001, OSHA published the revised Recordkeeping rule,
which took effect on January 1, 2002 (66 FR 5916). The rule contained a
section, which never became effective (Section 1904.12), that would
have required that any MSD meeting the regulation's general recording
criteria be recorded on the OSHA 300 Log by checking the MSD column.
Section 1904.12(b)(1) of the Recordkeeping rule defined MSDs as
``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'' (66 FR 6129).
Section 1904.12(b)(2) clarified that an MSD, like any other injury or
illness, was recordable if it ``is work-related, and is a new case, and
meets one or more of the general recording criteria'' in Sec. Sec.
1904.5, 1904.6 and 1904.7 (66 FR 6129-6130).
Prior to revision of the Recordkeeping regulation in 2001, OSHA's
injury and illness recording form (the OSHA 200 Log) did not contain an
MSD column. Instead, the OSHA 200 Log had a column for ``repeated
trauma'' cases. Repeated trauma included some, but not all, MSDs (e.g.,
it excluded back MSDs) and included some non-MSD cases, such as
occupational hearing loss. In the preamble to the 2001 Recordkeeping
rule, the Agency concluded, after extensive consultation with the
Bureau of Labor Statistics (BLS) and the National Institute for
Occupational Safety and Health (NIOSH), that adding an MSD column to
the new OSHA 300 Log was ``essential to obtain an accurate picture of
the MSD problem in the United States'' (66 FR 6030). OSHA also noted
that, in the past, determining the
[[Page 4730]]
number of MSD cases had been complicated. It required close cooperation
between OSHA and BLS, since MSDs were not recorded in a single column.
It also required special computer analyses to calculate MSD numbers.
OSHA said that adding an MSD column to the 300 Log not only would
permit ``more complete and accurate reporting of these disorders'' in
the national statistics, but also ``provide a useful analytical tool at
the establishment level'' (66 FR 6030). In addition, OSHA said that
capturing all recordable MSDs in a ``single entry'' would ``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).
On October 12, 2001, after providing notice and seeking comment (66
FR 35113 (7/3/2001)), OSHA delayed the effective date of Sec. 1904.12
of the Recordkeeping rule (66 FR 52031). At that time, the Agency was
reconsidering the MSD column requirement and MSD definition in light of
the Secretary of Labor's decision to develop a comprehensive plan to
address ergonomic hazards (66 FR 52032). On April 5, 2002, OSHA
announced the plan, which included a combination of industry-targeted
guidelines, enforcement measures, workplace outreach, and a National
Advisory Committee on Ergonomics (see OSHA's Web page at http://www.osha.gov; 68 FR 38601, 38602). On December 17, 2002, following
notice and comment (67 FR 44121 (7/1/2002)), OSHA again delayed the
effective date of Sec. 1904.12, explaining that the Agency had not yet
decided on the correct approach for dealing with the MSD definition in
the Recordkeeping regulation (67 FR 77165, 77166).
On June 30, 2003, OSHA deleted Sec. 1904.12 from the Recordkeeping
rule, after determining that the MSD column was not necessary or
supported by the record (68 FR 38601, 38605). OSHA explained that it
was not persuaded that the MSD column would provide the type of
detailed information that would make it a useful tool for addressing
MSDs at the establishment level; materially improve national statistics
on MSDs; or help to ensure effective enforcement of section 5(a)(1)
(the General Duty Clause) of the Occupational Safety and Health Act of
1970 (OSH Act) (29 U.S.C. 651, 656). The Agency said that the existing
MSD data published by BLS were adequate to provide information for OSHA
and the public. The Agency did note, however, that the addition of
columns might be warranted if a type of injury or illness was
misrepresented in the BLS data for cases resulting in days away from
work (68 FR at 38605). Based on this, OSHA concluded there was a need
to create a separate column for occupational hearing loss. OSHA
reasoned that, since many hearing loss cases do not result in days away
from work, the BLS statistics on those cases ``represented only a minor
fraction'' of the total occupational hearing loss that workers
experienced (68 FR at 38605). The column for hearing loss was added to
the log in 2003 (67 FR at 44037).
Consultation With ACCSH and HHS
As required by the Contract Work Hours and Safety Standards Act
(Construction Safety Act) (40 U.S.C. 3704) and OSHA regulations (29 CFR
1911.10(a) and 1912.3(a)), OSHA has consulted with the Advisory
Committee on Construction Safety and Health (ACCSH) about this
proposal. OSHA provided ACCSH with the materials necessary to
deliberate about the proposed rule and, in December 2009, OSHA met with
ACCSH to discuss the rulemaking, answer their questions, and receive
the committee's comments and recommendations.
On December 11, 2009, ACCSH unanimously recommended that OSHA add
an MSD column to the OSHA 300 and 300A recordkeeping forms. The
committee also unanimously recommended that OSHA: highlight the ``do
not include'' language in the proposed MSD definition that is intended
to make clear that MSDs do not include disorders caused by slips,
trips, falls, motor vehicle accidents, or other similar accidents; and,
to the extent possible, include additional common examples of MSDs.
OSHA is requesting comment on the definition of MSD in this rulemaking,
including identification of any additional examples of common MSDs that
would make clear the MSDs that are to be recorded. OSHA has modified
the proposed regulatory text to highlight the ``DO NOT include''
language by using all capital letters. Other highlighting techniques,
such as italics, bold, or underline are reserved by the Federal
Register for other purposes, and cannot be used for emphasis. OSHA asks
for comments on alternative methods the Agency could use to make clear
that MSDs do not include disorders caused by slips, trips, falls, motor
vehicle accidents, or other similar accidents.
OSHA has also consulted with the Department of Health and Human
Services (HHS), as required by Section 8(c) of the OSH Act (29 U.S.C.
657).
BLS Statistical Program
BLS is the Federal agency responsible for producing national
occupational injury and illness statistics. BLS produces information on
two basic categories of non-fatal occupational injuries and illnesses:
(1) all injuries and illnesses combined, and (2) injuries and illnesses
that result in days away from work.
For all occupational injuries and illnesses combined, BLS publishes
aggregate and industry totals for the number and rates of injuries and
illnesses. BLS breaks down the aggregate and industry injury and
illness totals into cases that result in lost-work days and those that
do not result in lost-workdays. For occupational illnesses (skin
diseases or disorders, respiratory conditions, poisonings, hearing
loss, and all other illnesses), BLS also publishes the totals from the
illness columns on the OSHA 300 Log (BLS, ``Workplace Injuries and
Illnesses in 2007,'' available on the BLS Web page at http://www.bls.gov). BLS makes the detailed and aggregate results available
for both research and for public information.
BLS only publishes detailed information about injuries and
illnesses that result in days away from work. The detailed information
on injuries and illnesses resulting in days away from work, called case
characteristics, is derived from a survey BLS conducts to elicit
information from employers about the specific characteristics of these
cases. Case characteristics include the employee's age, sex,
occupation, and length of service; the employer's industry
classification; the part of the body affected; the source of injury
(e.g., bodily motion or position, machinery, fire); and the causal
event or exposure (e.g., overexertion, repetitive motion, fall).
To produce information on MSDs that resulted in days away from
work, BLS uses information from its survey about the nature of the
injury or illness and the event or exposure leading to the injury or
illness. Cases that BLS reports as MSDs 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 (BLS, ``Lost-Worktime Injuries and Illnesses:
Characteristics and Resulting Time Away From Work, 2007,'' available on
the BLS Web page at http://www.bls.gov).
[[Page 4731]]
II. Legal Authority
The OSH Act authorizes the Secretary to issue two types of
occupational safety and health rules: standards and regulations. The
OSH Act defines ``occupational safety and health standard,'' which is
authorized by section 6 of the OSH Act (29 U.S.C. 655), as a rule that
``requires conditions, or the adoption or use of one or more practices,
means, methods, operations, or processes, reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment'' (29 U.S.C. 652(8)). Standards specify remedial measures to
be taken to prevent and control employee exposure to identified
occupational hazards (Louisiana Chemical Ass'n v. Bingham, 657 F.2d
777, 781 (5th Cit. 1981); United Steelworkers of America v. Reich, 763
F.2d 728, 735 (3d Cir. 1985) (court held Hazard Communication rule was
a standard because it aimed to ameliorate the significant risk of
inadequate communication about hazardous chemicals)).
Regulations, by contrast, are the means to effectuate other
statutory purposes, including the collection and dissemination of
records of occupational injuries and illnesses. Courts of appeals have
held that OSHA recordkeeping rules are regulations and not standards
(Louisiana Chemical Ass'n, 657 F.2d at 782-785 (Access to Employee
Exposure and Medical Records); Workplace Health & Safety Council v.
Reich, 56 F.3d 1465, 1467-1469 (D.C. Cir. 1995) (Reporting of Fatality
or Multiple Hospitalization Incidents)). These courts applied a
functional test to differentiate between standards and regulations:
standards aim toward correction of identified hazards, while
regulations serve general enforcement and detection purposes (Workplace
Health & Safety Council, 56 F.3d at 1468).
OSHA is issuing this proposed revision of the Recordkeeping
regulation pursuant to authority expressly granted by sections 8 and 24
of the OSH Act (29 U.S.C. 657, 673). Section 8(c)(1) requires each
employer to ``make, keep and preserve, and make available to the
Secretary [of Labor] or the Secretary of Health and Human Services,
such records regarding his activities relating to this Act as the
Secretary, in cooperation with the Secretary of Health and Human
Services, may prescribe by regulation as necessary or appropriate for
the enforcement of this Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses.''
Section 8(c)(2) directs the Secretary to prescribe regulations
``requiring employers to maintain accurate records of, and to make
periodic reports on, work-related deaths, injuries and illnesses other
than minor injuries requiring only first aid treatment and which do not
involve medical treatment, loss of consciousness, restriction of work
or motion, or transfer to another job'' (29 U.S.C. 657(c)(2). Section
8(g)(2) of the OSH Act broadly empowers the Secretary to ``prescribe
such rules and regulations as [s]he may deem necessary to carry out
[her] responsibilities under the Act'' (29 U.S.C. 657(g)(2)).
Section 24 of the OSH Act contains a similar grant of authority. It
requires the Secretary to ``develop and maintain an effective program
of collection, compilation, and analysis of occupational safety and
health statistics'' and ``compile accurate statistics on work injuries
and illnesses which shall include all disabling, serious, or
significant injuries and illnesses, whether or not involving loss of
time from work, other than minor injuries requiring only first aid
treatment and which do not involve medical treatment, loss of
consciousness, restriction of work or motion, or transfer to another
job'' (29 U.S.C. 673(a)). Section 24 also requires employers to ``file
such reports [of work injuries and illnesses] with the Secretary'' as
she may prescribe by regulation (29 U.S.C. 673(e)).
In addition, the Secretary's responsibilities under the OSH Act are
defined largely by its enumerated purposes, which include ``[p]roviding
appropriate reporting procedures that will help achieve the objectives
of this Act and accurately describe the nature of the occupational
safety and health problem'' (29 U.S.C. 651(b)(12)).
Where an agency is authorized to prescribe regulations necessary to
implement a statutory provision or purpose, a regulation promulgated
under such authority is valid ``so long as it is reasonably related to
the enabling legislation.'' Mourning v. Family Publications Service,
Inc., 411 U.S. 356, 369 (1973). See also Louisiana Chemical Assn. v.
Bingham, 550 F. Supp. 1136, 1138-1140 (W.D. La. 1982), aff'd, 731 F.2d
280 (5th Cir. 1984) (records access rule is directly related to the
goals stated in the OSH Act and supported by the language of section
8). The proposed MSD requirements are reasonably related to the
purposes of the OSH Act and serve administrative functions necessary to
carry out the purposes of sections 8 and 24 of the OSH Act. As
discussed below, the proposed rule will improve the completeness and
quality of national occupational injuries and illnesses statistics. It
will ensure that OSHA has more complete information to help the agency
effectively target its inspection, guidance, outreach, and enforcement
efforts to address MSDs. Finally, the proposal will provide easily
identifiable information at the establishment level that will be useful
for both employers and employees.
III. Summary and Explanation of Proposed Rule
MSD Column
OSHA proposes to restore on the OSHA 300 Log the MSD column that
the Agency included in the 2001 final Recordkeeping rule. After further
consideration and analysis, OSHA believes that the MSD column would
provide valuable information for maintaining complete and accurate
national occupational injury and illness statistics; assist OSHA in
targeting its inspection, outreach, guidance, and enforcement efforts
to address MSDs; and provide easily identifiable information at the
establishment level that will be useful for both employers and
employees.
Having data from the MSD column would improve national statistics
on MSDs in several ways. It would allow BLS to collect and annually
report the total number and rate of MSDs, both nationally and in
specific industries, not just the figures for cases that result in days
away from work (as is currently reported). Currently, this basic
information is unavailable. Having the total number of MSDs would
provide BLS with more complete data for analyzing the magnitude of the
MSD problem and trends over time in the country as a whole, as well as
in specific industries. Having more complete MSD data would assist
OSHA, and other safety and health policy makers, in understanding MSDs
and making informed decisions on policies concerning workplace MSDs.
Prior to the 2001 Recordkeeping rule, the OSHA 200 Log did not
contain an MSD column, but it did have a ``repeated trauma'' column.
However, the column did not include all MSDs (i.e., it excluded back
MSDs) and included some non-MSDs (i.e., occupational hearing loss). As
a result, the column did not provide accurate information on MSDs. The
MSD column that OSHA proposes would correct that problem. The proposed
MSD definition, which is identical to the definition in the 2001 final
Recordkeeping rule, covers all MSDs, including back cases. The proposed
definition does not cover hearing loss cases, which already have a
separate column on the OSHA 300
[[Page 4732]]
Log. OSHA believes that information from the MSD column would help to
ensure that national statistics more accurately reflect the full extent
of MSD problems in U.S. workplaces.
In its 2003 notice rescinding the MSD column, the agency stated
that information from the column would be of little statistical value
because it would be general for all MSDs and would lack the detailed
breakdown of case characteristics that is available for days away from
work cases (68 FR 38605). After careful reconsideration, OSHA believes
that this conclusion substantially understated the usefulness of the
MSD column information. As noted above, the column would enable the
agency and the public to learn, for the first time, the total number of
MSDs both nationally and by industry sector. Moreover, the MSD category
is no broader than the other illness categories that are included as
columns on the OSHA 300 Log, and the information from those columns has
proved useful. Like MSDs, each of these columns combines a class or
range of illnesses or disorders into a single category. For example,
respiratory illness includes a broad range of illnesses differing in
etiology and severity. OSHA believes that information from the MSD
column would be at least as useful as the valuable data generated from
the other illness columns already present on the Log (i.e., skin
disorders, respiratory conditions, poisonings, and hearing loss).
Furthermore, OSHA believes that, compared to MSDs, each of these
other categories individually account for a smaller fraction of the
total number of occupational illnesses. In 2007, for instance, skin
disorders, the category with the highest number of cases (35,000),
accounted for 17% of all illnesses while poisonings, the category with
the fewest cases (3,400), accounted for less than 2% (BLS, ``Workplace
Injuries and Illnesses in 2007''). The hearing loss column, which OSHA
added in 2001, accounted for 11% of all illnesses. The number of skin
disorders, respiratory conditions, poisonings and hearing loss cases
combined was 78,400 in 2007, which was only 38% of all occupational
illnesses and less than 2% of the total number of occupational injuries
and illnesses (4,002,700) that year.
MSDs, on the other hand, accounted for significantly more
occupational illnesses than the combined total for the specific
illnesses currently listed on the OSHA 300 Log. Looking only at MSDs
that resulted in days away from work, BLS reported 335,390 MSDs, which
accounted for 29% of the 1,158,870 injuries and illnesses with days
away from work (BLS, ``Lost-Worktime Injuries and Illnesses:
Characteristics and Resulting Time Away From Work, 2007'') and 8.4% of
all occupational injuries and illnesses combined. Clearly the total of
all MSDs (i.e., cases with and without days away from work) would
account for a significantly greater portion of all occupational
injuries and illnesses. OSHA believes it is reasonable and appropriate
to have a column on the log for the type of case that accounts for such
a significant portion of all occupational illnesses.
Further, OSHA believes that having both types of data, the overall
number and rate of MSDs by industry, combined with the existing
detailed demographic and case characteristic data on cases with days
away from work, will provide a strong statistical tool for researchers.
Having both types of data available may allow researchers to make new
inferences about MSDs that have previously not been possible.
OSHA also believes that restoring the MSD column on the 300 Log
would help to eliminate some of the uncertainties in existing national
occupational illness statistics. In 2007, the ``all other illnesses''
column on the OSHA 300 Log accounted for 62% of all occupational
illnesses (BLS, ``Workplace Injuries and Illnesses in 2007''). OSHA
believes that MSDs account for a large portion of ``all other
illnesses.'' In 2000, the last year the OSHA 200 Log contained a
repeated trauma column, repeated trauma was the dominant illness
reported, accounting for 67% of all illnesses (BLS, ``Workplace
Injuries and Illnesses in 2000,'' available on the BLS Webpage at
http://www.bls.gov). Even if hearing loss cases were removed, repeated
trauma still would have accounted for the majority of all occupational
illnesses reported that year. OSHA believes that having the MSD column
not only would help to eliminate some of the uncertainties concerning
occupational illnesses in the national statistics, but would also
provide better information on the nature of the large proportion of
illnesses currently reported in the ``all other illnesses'' column.
In addition to its statistical value, the MSD column would provide
valuable information to assist OSHA's inspection, outreach, guidance,
and enforcement efforts. Each year, OSHA collects summary data from
OSHA 300 Logs from approximately 80,000 establishments and uses them to
schedule targeted inspections in high hazard industries. The summary
data are comprised of the totals for each column on the OSHA 300 Log.
These data include totals for the number of injuries and illnesses,
cases with days away from work, cases involving restricted work or job
transfer, and cases of each specific illness listed on the log.
However, the summary data do not include any data specifically on MSDs.
Restoring the MSD column on the OSHA 300 Log would provide the Agency
with such data.
Data from the MSD column would also allow OSHA to better target its
future outreach and guidance efforts and to more accurately measure the
effectiveness of its ongoing efforts. OSHA currently uses information
about MSDs that resulted in days away from work to estimate whether its
programs have been effective in reducing the severity of MSDs. Data
from an MSD column, however, would allow the agency to better measure
whether those programs have been effective in reducing MSDs, including
those that did not result in days away from work. For example, if the
MSD column had been on the OSHA 300 Log when OSHA issued guidelines for
nursing homes, poultry processing, grocery stores, and shipyards, the
information from that column would have provided baseline and post-
intervention data to allow OSHA to more effectively measure the success
of those guidelines in reducing MSDs. Such data could also be used in
developing inspection programs aimed at identifying and reducing MSD
hazards.
Data from the column also would be useful at the establishment
level. Having an MSD column would provide information that both
employers and employees could quickly and easily identify at a glance.
Although OSHA noted in 2003 that employers can identify MSDs without
the aid of a specific column (68 FR 38604), OSHA believes that having
readily available MSD information in a single column will save
employers and employees time in identifying and tracking the incidence
of MSDs at the establishment. In the absence of the column, a person
interested in MSD incidence must study every entry on the log to
determine which cases are MSDs. Having the person responsible for the
log identify a case as an MSD up front, at the time it is recorded,
will be far easier and faster than studying every entry to identify
which ones are MSDs. Employers would be able to use MSD column data in
connection with their efforts to determine whether their workplace
programs are effective in reducing MSDs. Having the column would also
make it easier for employees to remain informed about MSD hazards
associated with their jobs. Being able to easily access data on MSDs in
the workplace
[[Page 4733]]
will give employees the type of information that will help them to
actively participate in their own protection.
OSHA is also reconsidering restoring the MSD column in light of
recent information that indicates employers are recording fewer and
fewer cases as days away from work cases. This increases the importance
of understanding what is happening with the other kinds of cases, which
are not reflected in the BLS detailed case characteristics analyses.
Recently, concerns have been raised about accuracy of workplace injury
and illness records. In 2008, the U.S. House of Representatives
Committee on Education and Labor held a hearing to examine the extent
of this problem and its causes. In June 2008, the Committee Staff
Majority published a report titled ``Hidden Tragedy: Underreporting of
Workplace Injuries and Illnesses'' (Ex.A). The report identified
ergonomics injuries as one type of case that has been ``significantly
underreported'' (Ex. A, p. 10). The report discussed a series of
articles in the Charlotte Observer about MSDs at poultry plants in
North and South Carolina (Ex. B, Hall, Alexander & Ordonez, ``The
Cruelest Cuts: The Human Cost of Bringing Poultry to Your Table,
Charlotte Observer, February 10, 2008). The Charlotte Observer reported
that one South Carolina plant had not reported any MSDs during a four-
year period, even though 12 employees who worked at the plant during
that time said they suffered pain brought on by MSDs, and two said they
had carpal tunnel surgery paid for by the company. The Charlotte
Observer reported that the plant avoided having to record these
injuries as days away from work cases by bringing injured employees
back to the factory within hours of surgery. Similarly, OSHA has
received information about MSD cases in which employers have scheduled
employees for surgery on Friday afternoons and brought them back on
Monday using restricted work. Those cases would not be recorded as
resulting in days away from work, so they would not be included in the
BLS detailed case characteristics analysis.
OSHA believes that these types of changes in employer practices for
medically managing MSDs may be resulting in underrepresentation in BLS
statistics for cases with days away from work. OSHA is concerned that
employers are increasingly using restricted work, job transfers and
medical treatment or surgeries without lost work time to bring
employees back to work more quickly and to avoid recording MSDs as
cases with days away from work. Employer use of restricted work and job
transfer has grown significantly during the past decade. In 1997, for
instance, occupational injuries and illnesses involving restricted work
or job transfer accounted for 36% of all cases (BLS, ``Lost-Worktime
Injuries and Illnesses: Characteristics and Resulting Time Away From
Work, 1997,'' available on the BLS Web page at http://www.bls.gov). In
2007, they accounted for 43% of all injuries and illnesses (BLS,
``Lost-Worktime Injuries and Illnesses: Characteristics and Resulting
Time Away From Work, 2007'').
OSHA believes that MSD data may be particularly affected by these
changes in employer practices, since many MSDs may not fully
incapacitate workers and may still enable them to perform alternative
work duties during the recovery period. As the number of MSD cases
being shifted from days away from work to restricted work continues to
grow, there will be fewer and fewer MSDs represented in BLS detailed
statistics on cases with days away from work. The MSD column would
ensure that serious MSDs are included in the BLS statistics, regardless
of employer practices.
The House Committee on Education and Labor Majority Staff Report
also found that OSHA's withdrawal of the MSD column provision may have
contributed to the underreporting of these incidents (Ex. A, p. 13).
When OSHA removed the MSD column provision in 2003, some employers were
confused about whether they were required to record MSD cases. Since
2003, OSHA has received numerous calls from employers asking whether
MSDs are considered recordable injuries and illnesses. Although the
Agency has been clear in all of its communications and outreach
activities that, even without an MSD column, MSDs must be recorded on
the OSHA 300 Log just as any other injury or illness, some confusion
remains. Including a specific reference in the regulation making it
clear that employers are required to record MSDs, combined with the
specific MSD column, should provide clarity and help to finally resolve
this confusion.
OSHA requests comment on the proposal to put back the MSD column on
the OSHA 300 Log, including comment on the following:
What are current employer practices regarding recording,
tracking, and analysis of MSDs in workplaces?
How do employers, employees, researchers and others use
MSD data that are recorded on the OSHA 300 Log?
Should OSHA put the MSD column back on the OSHA 300 Log?
Please explain.
Will the MSD column make it easier to analyze MSDs? Please
explain.
If OSHA restores the MSD column, how will your industry
and establishment use the additional information?
To what extent are employers using restricted work and job
transfer instead of time away from work for managing MSDs? How are
these changes affecting the reporting of MSDs?
Will the MSD column result in additional costs to
employers? If so, what are the costs? Will easier analysis of MSDs
offset some of these costs? Please explain.
MSD Definition
Proposed section 1904.12(b)(1) defines MSDs as ``disorders of the
muscles, nerves, tendons, ligaments, joints, cartilage and spinal
discs.'' The proposal clarifies that MSDs ``do not include disorders
caused by slips, trips, falls, motor vehicle accidents, or other
similar accidents.'' In addition, it gives examples of MSDs, including
``Carpal tunnel syndrome, Rotator cuff syndrome, De Quervain's disease,
Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis,
Tendinitis, Raynaud's phenomenon, Carpet layers knee, Herniated spinal
disc, and Low back pain.'' The proposed definition is identical to the
one OSHA included in the 2001 final Recordkeeping rule, which never
became effective.
MSDs have been studied for many years. During that time different
terms have been used to describe these disorders, including cumulative
trauma disorders, repetitive motion injuries, repetitive strain
injuries, occupational overuse syndrome, occupational cervicobrachial
disease, occupational overexertion syndrome, and ergonomic injuries. In
recent years, MSD has become one of the most frequently used terms.
Different definitions for MSDs have been used for different
purposes and by different organizations (Exs. C). Despite the
differences, these definitions all share a common goal: to aggregate
into one category a class of injuries and illnesses that have certain
connections or commonalities. These definitions also have some common
approaches. Like OSHA's proposed definition, most definitions use a
general description, usually of the parts of the body MSDs generally
affect. For instance, NIOSH has defined an MSD as a condition or
``disorder that involves the muscles, nerves, tendons, ligaments,
joints, cartilage, or spinal discs'' (NIOSH,
[[Page 4734]]
``Proceedings of a Meeting to Explore the use of Ergonomics
Interventions for the Mechanical and Electrical Trades,'' 2002; NIOSH
``Elements of Ergonomics Programs: A Primer Based on Evaluations of
Musculoskeletal Disorders,'' 1997 DHHS (NIOSH) Publication No. 97-117.
Both documents are available on the NIOSH Web page at http://www.cdc.gov).
Many definitions using a general description also contain examples
of specific types of MSDs to help illustrate the types of disorders the
definition is intended to cover. OSHA's proposed definition uses this
approach, as does the American National Standard A10.40, 2007,
Reduction of Musculoskeletal Problems in Construction, which defines
``musculoskeletal problems'' as:
[I]njuries to the muscle, tendon, sheath, nerve, bursa, blood
vessel, bone, joint, or ligament and musculoskeletal pain or
swelling, and also where there may not be any obvious evidence of
injury, and where occupational exposure is clearly identified. The
injuries include, but are not limited to:
--Muscular
--Carpal Tunnel Syndrome
--Throracic Outlet
--Tenosynovitis
--Myalgia
--Double Crush Syndrome
--Connective Tissue
--Bursitis
--Spasms
--Sciatica
--Disc Damage
--Neurological
--Vascular
--Tendonitis
--Back
A number of MSD definitions include causal risk factors, events or
sources of exposure to clarify the types of disorders the definition
covers. For example, the U.S. Navy definition of MSDs includes risk
factors such as force, repetition, awkward or static postures,
vibration, and contact stress (resulting from occasional, repeated or
continuous contact between sensitive body tissues and a hard or sharp
object) (Ex. C, OPNAVINST 5100.23G, December 30, 2005).
To clarify the scope, some definitions exclude disorders that may
result from other causes, exposures, or events. The MSD definition in
``NIOSH Elements of Ergonomics Programs'' excludes disorders that are
``the result of any instantaneous or acute event (such as a slip, trip,
or fall).'' The Occupational Ergonomics Handbook also used this
approach (Waldemar Karwowski & William S. Marras, eds., The
Occupational Ergonomics Handbook: Fundamentals and Assessment Tools for
Occupational Ergonomics, Second Edition, 1999).
The BLS detailed definition of MSDs, which has been used for over
10 years, utilizes a combination of all these approaches:
Musculoskeletal Disorders (MSDs) include cases where the nature
of the injury is sprains; strains; tears; back pain; hurt back;
soreness; pain; hurt; except the back; carpal tunnel syndrome;
hernia; or musculoskeletal system and connective tissue diseases and
disorders, when the event or exposure leading to the injury or
illness is bodily reaction/bending, climbing, crawling, reaching,
twisting, overexertion, or repetition. Cases of Raynaud's
phenomenon, tarsal tunnel syndrome, and herniated spinal discs are
not included, although they may be considered MSDs, the survey
classifies these injuries and illnesses in categories that also
include non-MSD cases (See the BLS Webpage at http://www.bls.gov/iif/oshdef.htm).
Because there currently is not an MSD column on the OSHA 300 Log,
BLS must obtain statistics on the number of MSDs resulting in days away
from work by aggregating cases that fall under certain nature of
injury/illness and event or exposure codes used to classify cases. As
the BLS definition notes, having to aggregate cases and classification
codes to obtain the number of MSDs with days away from work has the
unavoidable result of omitting some disorders (e.g., Raynaud's
phenomenon, tarsal tunnel syndrome, herniated spinal discs) that could
otherwise be classified as MSDs.
Like BLS, the proposed MSD definition incorporates a combination of
approaches. The proposed definition is essentially identical to the
summary description of MSDs that BLS uses in its news releases
reporting annual case characteristics data (see e.g., BLS, ``Lost-
Worktime Injuries and Illnesses: Characteristics and Resulting Time
Away From Work, 2007''), except that the proposed definition also
includes a list of examples of disorders, and the proposed list
includes Raynaud's phenomenon, tarsal tunnel syndrome, and herniated
spinal discs. OSHA believes that the proposed definition provides
clarity without imposing too much complexity. OSHA notes that the
Agency is proposing this MSD definition for recordkeeping purposes
only, and that there may be other definitions that are useful for other
purposes.
OSHA requests comment on the proposed definition of MSD, including
comment on the following:
What MSD definitions are employers using currently and for
what purposes?
Should the definition include examples of MSDs? Should the
examples be expanded to include hand arm vibration syndrome, Guyon's
canal syndrome, radial tunnel syndrome, or hypothenar hammer syndrome.
Should the definition include other examples?
Are there any MSDs that the proposed definition should
exclude? If so, which ones and why?
Should the MSD definition include language on exposure or
causal risk factors? Please explain.
Are there other definitions of MSD that would be more
effective for recordkeeping purposes? If so, please provide them and
explain why.
MSD Recording Criteria
Proposed section 1904.12(b)(2) identifies which injuries and
illnesses must be identified as MSDs on the OSHA 300 Log. MSDs that
meet the general criteria for recordability (i.e., a work-related new
case resulting in medical treatment, job transfer or restriction, or
days away from work) are already required to be recorded on the log.
The proposed section, like the 2001 Recordkeeping rule, specifies that
``there are no special criteria'' for determining which MSDs to record.
Employers would continue to use the same process to decide whether an
MSD must be recorded, as they are required to do for any other injury
or illness under the Recordkeeping regulation. Under the proposal,
employers would simply be required to identify which of those injuries
and illnesses are MSDs by checking the MSD column on the log instead of
the column they currently mark.
The proposed section also guides employers to the appropriate
sections of the Recordkeeping regulation that discuss how to determine
whether an MSD is work-related, is a new case and not a recurrence, and
meets the general recording criteria (i.e., days away from work,
restricted work or transfer to another job, or medical treatment beyond
first aid). The proposed section is identical to the section OSHA
included in the 2001 final Recordkeeping rule.
OSHA request comments on the proposed section.
Subjective Symptoms
Section 1904.12(b)(3) of the proposed rule specifies that the
symptoms of an MSD are to be treated in exactly the same manner as
symptoms for any other injury or illness. That is, an employer must
record a case as an MSD if (1) The employee experiences ``pain,
tingling, burning, numbness or any other subjective symptom of an
MSD;'' (2) the
[[Page 4735]]
symptoms are work-related; (3) new; and (4) meet the general recording
criteria in the Recordkeeping regulation (e.g., restricted work, job
transfer, days away from work, medical treatment beyond first aid). As
with any injury or illness, an MSD case would be recordable only if it
meets all of these requirements. OSHA included this provision in
section 1904.12 of the 2001 Recordkeeping rule (66 FR 6130), but, as
discussed, that section was deleted in 2003. OSHA is including the
proposed provision to eliminate any potential for confusion about when
and what MSDs are recordable and to carry out the basic principle that,
for recordkeeping purposes, MSDs should not be treated differently from
other occupational injuries and illnesses.
The Recordkeeping regulation in section 1904.46 defines ``injury or
illness'' as ``an abnormal condition or disorder.'' As explained in the
preamble to the rule, this definition includes pain and other
subjective symptoms. ``Pain and other symptoms that are wholly
subjective are also considered an abnormal condition or disorder. There
is no need for the abnormal condition to include objective signs to be
considered an injury or illness.'' (66 FR 6080). Although the
definition is broad, and is intentionally so, it captures ``only those
changes that reflect an adverse change in the employee's condition that
is of some significance, i.e., that reach the level of abnormal
condition or disorder'' (66 FR 6080). OSHA pointed out that including
pain and other symptoms in the definition of injury or illness is
appropriate because their occurrence is only the starting point of the
inquiry into whether the case is a recordable injury or illness. Unless
the pain or other symptoms are also work-related, new, and reach the
level of seriousness in the Recordkeeping regulation's general
recording criteria, the employer does not have to record it (66 FR
6080). This definition applies to all injuries and illnesses,
regardless of whether they are MSDs or any other kind of condition.
In its 2001 preamble discussion of section 1904.12, the agency
elaborated on the reasons for including pain and similar symptoms
within the definition of an ``injury or illness.'' First, OSHA
explained that ``symptoms such as pain are one of the primary ways that
injuries and illnesses manifest themselves,'' regardless of the type of
injury or illness (66 FR 6020). Second, symptoms such as pain, burning,
and numbness also ``generally indicat[e] the existence of some
underlying physiological condition'' (e.g., inflammation, spinal disc
damage) that warrants further investigation by the employer to
determine whether there is a work connection (66 FR 6020). Third, OSHA
pointed out that the International Classifications of Diseases,
Clinical Modification (ICM-CM), the official system of assigning codes
to diagnoses to diseases, injuries, and illnesses, lists several MSDs
that consist only of pain (66 FR 6020). When health care professionals
diagnose these disorders, they do so on the basis of employee-reported
pain, evaluating and confirming them by physical examination (66 FR
6020). Therefore, OSHA concluded that pain and other subjective
symptoms, of and by themselves, may indicate an injury or illness (66
FR 6020). The agency stressed that MSDs should not be treated
differently from any other kind of case (66 FR 6021). When the agency
revoked section 1904.12 in 2003, it noted that it was not changing
which injuries and illnesses were required to be recorded, but was only
deleting the requirement to identify cases as MSDs (68 FR 38606). Thus,
this discussion has remained an authoritative guide to the current
rule's definition of injury and illness.
To eliminate any potential for confusion, OSHA also intends to
remove language from the Recordkeeping Compliance Directive that says
that ``minor musculoskeletal discomfort'' is not recordable under Sec.
1904.7(b)(4) as a restricted work case ``if a health care professional
determines that the employee is fully able to perform all of his or her
routine job functions, and the employer assigns a work restriction for
the purpose of preventing a more serious injury'' (CPL 02-00-135,
Chapter 2, Section I(F)). This language was first introduced into
OSHA's initial Recordkeeping Compliance Directive as a result of a
settlement agreement between OSHA and the National Association of
Manufacturers (66 FR 66943 (12/27/2001)). OSHA agreed to include the
language in its initial Compliance Directive but the agreement did not
change the language of the Recordkeeping regulation itself. The
agreement also stipulated that nothing in it affected the Agency's
right to modify or interpret its Recordkeeping regulations in the
future (66 FR 66943-44).
OSHA intends to remove the language in the Compliance Directive
because of concerns that it creates confusion about recording MSDs.
First, OSHA is concerned that employers may misinterpret ``minor
musculoskeletal discomfort'' to include MSD pain and other subjective
symptoms that are truly indicative of injury or illness under the
Recordkeeping regulation's definition of ``injury or illness.'' This
confusion could result in the underreporting of work-related MSDs.
Second, OSHA finds that the language in the Compliance Directive
also creates confusion about recordability of MSDs involving work
restriction or job transfer. OSHA is concerned that employers who
assign job transfers or work restrictions to prevent an injury from
worsening may misinterpret the Compliance Directive language and not
record the case. Again, this could result in the underreporting of
work-related MSDs.
In addition, OSHA believes that the language in the Compliance
Directive is not necessary because Sec. 1904.4 of the Recordkeeping
regulation clearly and fully specifies when cases involving work
restrictions and transfers must be recorded. The decision tree
accompanying that provision clearly delineates the decisionmaking
process the employer must use to determine whether the case is
recordable. The decision tree specifies that the first decision the
employer must make is whether the case is an injury or illness within
the meaning of the Recordkeeping regulation. If it is not, the case
does not meet the very first requirement for recording, therefore, any
work restriction or job transfer the employer assigns or voluntarily
implements at this point (i.e., before the employee has an injury or
illness) does not turn the case into a recordable one. On the other
hand, if the employer determines that the employee's injury or illness,
including an MSD, meets the definition of ``injury or illness'' and the
next two inquiries indicate that the case is work-related and new, then
the job transfer or work restriction that results from the injury or
illness MSD is recordable regardless of its purpose (i.e., to prevent
the injury or illness from getting worse or to allow the employee to
recover from the injury or illness or both). OSHA believes that by
following the decision tree in Sec. 1904.4, employers will be able to
accurately determine whether an injury or illness, including an MSD,
must be recorded.
The agency underscored this point in the preamble discussion of job
transfer in the 2001 rule. The agency rejected suggestions to add an
exception to recordability for voluntary or preventive job transfers.
The agency explained that this concept is not relevant to the
recordkeeping rule:
Transfers or restrictions taken before the employee has
experienced an injury or illness do not meet the first recording
requirement of the recordkeeping rule, i.e.
[[Page 4736]]
that a work-related injury or illness must have occurred for
recording to be considered at all. * * * However, transfers or
restrictions whose purpose is to allow an employee to recover from
an injury or illness as well as to keep the injury or illness from
becoming worse are recordable because they involve restriction or
work transfer caused by injury or illness. All restricted work cases
and job transfer cases that result from an injury or illness that is
work-related are recordable on the employer's Log'' (66 FR 5981).
OSHA requests comment on proposed section 1904.12(b)(3).
Startup Date
Proposed Sec. 1904.12(b)(4) explains that employers would be
required to start using the MSD column of the OSHA 300 Log on January
1, 2011. Changes in recording procedures are implemented on January 1
of each year to ensure that occupational injury and illness data for
that year reflect the same process and criteria. The January 1
effective date also reflects the annual summary requirements of section
1904.32. Choosing any other date would complicate the annual summary,
result in errors, and affect the statistics and programs that rely on
the records. The 2001 Recordkeeping rule also became effective on
January 1. In the preamble to the 2001 Recordkeeping rule, OSHA agreed
with commenters that beginning a new requirement on any other date but
January 1 would create ``an insurmountable number of problems'' (66 FR
6071). For example, if the startup date occurred during the middle of a
year, it would necessitate that employers go back through their OSHA
300 Log and update it to reflect the change in the columns on the log.
Former Privacy Provisions
In Sec. 1904.29 of the 2001 Recordkeeping rule, OSHA clarified
that certain sensitive occupational injuries and illnesses were to be
considered privacy concern cases (Sec. 1904.29(b)(7)), and set forth
specific requirements for protecting the identity of injured or ill
workers (Sec. 1904.29(b)(9) and (10)). The MSD provisions in the 2001
rule clarified that MSDs were not to be considered privacy concern
cases (Sec. 1904.29(b)(7)(vi)).
At this time OSHA is not proposing to add a provision specifying
that MSDs are not considered privacy concern cases. The privacy concern
provisions have been in place since 2002, and the Agency is not aware
of any difficulty with MSD cases being entered as privacy concern
cases. However, if comments on the proposed rule support including
language concerning MSDs and privacy concern cases, the Agency will
consider adding such language to the final rule. OSHA requests comment
on the issue of privacy concern cases, including comment on the
following:
Currently, are employers having any difficulty determining
whether an MSD is a privacy concern case? If so, how should OSHA
clarify this issue in the final rule?
Should OSHA include language in the final rule clarifying
that MSDs are not to be considered privacy concern cases? If so, please
explain why.
IV. Preliminary Economic Analysis and Regulatory Flexibility Act
Certification
This proposed rule is not a ``significant regulatory action''
within the context of Executive Order 12866 \1\ or the Unfunded
Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)), or a ``major rule''
under the Congressional Review Act (5 U.S.C. 801 et seq.).\2\ The
rulemaking imposes far less than $100 million in annual costs on the
economy, and does not meet any of the other criteria specified for a
significant regulatory action or major rule in the Executive Order,
UMRA and the Congressional Review Act.
---------------------------------------------------------------------------
\1\ ``Significant regulatory action'' means any regulatory
action that is likely to result in a regulation that may:
(1) Have an annual effect on the economy of $100 or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order (E.O. 12866 Section 3(f)).
\2\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs of the Office of
Management and Budget finds has resulted in or is likely to result
in:
(A) An annual effect on the economy of $100 million or more;
(B) A major increase in costs or prices for consumers,
individual industries, Federal, State or local government agencies,
or geographic regions; or
(C) Significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises or compete with foreign-based enterprises
in domestic and export markets (5 U.S.C. 804(2)).
---------------------------------------------------------------------------
This section addresses the potential costs of the proposed rule.
OSHA notes that this proposal would merely restore the Recordkeeping
rule as issued in 2001 (i.e., before the deletion of the MSD column).
All findings related to the economic impact of the 2001 rule, such as
the determinations that the regulation (including the MSD column
requirement) was economically feasible and had no significant impact on
small entities, were established at that time and need not be revisited
here. Therefore, the potential costs associated with this proposal are
limited to the time for affected employers to familiarize themselves
with the MSD column reporting procedures and the time to mark MSDs on
the OSHA 300 Log. As noted in the Summary and Explanation, this rule
involves no change in when and under what circumstances MSDs are
recordable injuries or illnesses. Since employers will use the general
recording criteria in the existing Recordkeeping rule for recording
MSDs, there are no costs to either employees or employers with respect
to becoming familiar with recordability criteria.
Familiarization With Reporting Procedures
The Agency expects the largest time required to comply with the
proposed rule will be related to familiarization with the MSD column
reporting procedure. At the time of the 2001 recordkeeping rulemaking,
the Agency estimated that it would take 20 minutes for the average
affected employer to familiarize themselves with all of the new
recordkeeping requirements and procedures (66 FR 6092).\3\ That
estimate included time for learning the procedures for recording MSDs.
When the Agency subsequently removed the MSD-column requirement in
2003, the Agency did not provide a quantitative estimate of time or
cost savings (68 FR 38606). OSHA believes that the proposed MSD
reporting requirement would require a fraction of the time that the
Agency estimated for employers to familiarize themselves with all of
the provisions in the 2001 Recordkeeping rule, including the MSD
column. As such, OSHA preliminarily estimates that it would take
affected employers five minutes to familiarize themselves with the
proposed MSD reporting procedures.
---------------------------------------------------------------------------
\3\ The 20-minute estimate for familiarization was for employers
who were already required to keep OSHA injury and illness records.
OSHA estimated that familiarization would take longer for employers
who were required to keep injury and illness records for the first
time. Since 2001, all affected employers have been keeping OSHA 300
Logs and OSHA assumes they are familiar with the recordkeeping
procedures.
---------------------------------------------------------------------------
The proposed rule affects all firms within OSHA jurisdiction that
have 10 or more employees at some time in the year, except for those
low hazard industries that are not required to routinely prepare an
OSHA Form 300 and 301. In 2008, OSHA put out an Information Collection
Request (ICR),
[[Page 4737]]
which calculated that the Recordkeeping rule affects 1,542,000
establishments (Recordkeeping ICR Supplemental Statement (SS) 1218-1706
(1-17-08)). Multiplying the estimate of the total number of affected
facilities by the estimated time (five minutes) to familiarize the
record keeper with the proposed MSD recording requirement, the proposed
regulation would require 129,000 hours in the first year it takes
effect.
OSHA believes the occupational category most likely to prepare OSHA
injury and illness records is a Human Resource, Training, and Labor
Relations Specialist, not elsewhere classified (Human Resources
Specialist). The BLS Occupational Employment Survey (OES) indicated
that in May 2008, Human Resources Specialists earned a mean hourly wage
of $28 (BLS OES, 2009). In June 2009, the BLS National Compensation
Survey indicated a mean fringe benefit factor of 1.43 for civilian
workers in general. This would indicate an hourly compensation of
$40.04 for Human Resources Specialists. Using this estimate of the cost
of labor, the cost of initial familiarization with the proposed MSD
recording requirement annualized over 10 years at a discount rate of 7
percent would be $735,000 per year for all affected establishments
combined.
Recording MSDs
The Agency believes that there will be some small incremental cost
above what firms currently incur for recordkeeping to decide whether
specific cases are MSDs and mark them on the MSD column. Given the
recordkeeping guidance OSHA provides, as well as information already
recorded on the OSHA Form 301 and workers' compensation reports, the
Agency believes that the incremental time to decide and record cases in
the MSD column will be minimal. The Agency also believes that, in the
large majority of cases, it will be obvious whether a case is an MSD.
Therefore, the Agency estimates it will take employers approximately
one minute per case to record it in the MSD column.
The Agency is aware that some establishments use computer software
to track worker injuries, although the Agency does not have information
on employer patterns of use. Currently, commercially available
recordkeeping software comes in various forms. While the software would
presumably reduce the amount of time required for recordkeeping,
employers may incur some costs to slightly modify the software to
provide an extra column on the OSHA Form 300. More sophisticated
software, such as software that uses questions and decision logic to
aid the employer in filling out the OSHA Form 300, may necessitate
slightly more modification.
OSHA is considering developing software for free public
distribution to assist employers, particularly smaller employers, with
recordkeeping. The Agency requests comment on the use of computer
software for recordkeeping, particularly among small businesses. For
example, OSHA requests comment on whether computer software reduces
employer recordkeeping burdens and, if so, in what ways or by how much.
OSHA also requests comment about whether the proposed change in the
Recordkeeping rule might affect current recordkeeping software and, if
so, in what ways.
BLS reported that in 2007 there were 335,390 MSD cases that
involved days away from work (DAFW). While we do not currently know how
many non-days-away-from-work (non-DAFW) cases are MSDs, in 2007 BLS
estimated there were 4,002,700 total workplace injuries and illnesses,
of which 1,158,870 were days-away-from-work cases. If it is assumed
that the pattern of DAFW MSDs and non-DAFW MSDs mirrors that of DAFW
and non-DAFW injuries and illnesses as a whole, it would suggest the
total number of MSDs would be approximately 3.45 times (4.0 divided by
1.159) the number of DAFW MSDs reported in 2007. The number of non-DAFW
MSDs implied by this calculation would be 2.45 (3.45-1) times greater
than the DAFW MSDs reported in 2007.
As discussed in Section III of this notice, the Agency anticipates
that the number of non-DAFW MSDs, relative to the DAFW MSD count, may
be higher than implied by taking a simple division of the total number
of injuries and illnesses by the number of all DAFW cases. To ensure
that the costs of the proposed rule are not underestimated, the Agency
is estimating that the ratio of non-DAFW MSDs to DAFW MSDs is 50
percent higher than for the ratio for injuries and illnesses as a
whole. This results in a ratio of 3.68 non-DAFW MSDs for each DAFW MSD.
Using this ratio, the total estimated number of non-DAWF MSDs is
estimated to be 1.233 million. Combined with the 335,390 DAFW MSDs
reported in 2007, OSHA estimates that a total of 1.568 million
recordable MSDs are occurring annually.
While the Agency estimates that 1.568 million MSDs occur annually,
not all of these cases would occur in establishments that are required
to maintain OSHA 300 Logs. Some cases occur in establishments with
fewer than 10 employees, and others occur in low hazard, ``partially
exempt'' industries in the trade and service industries. Based on the
pattern of injuries and illnesses generally, only approximately 80
percent of the cases annually are actually recorded (2008 ICR, SS 1218-
1706 (1-17-08)).\4\ Therefore, the Agency estimates approximately 1.254
million MSDs (80% of 1.568 million MSDs) would be recorded annually. At
the same time, the Agency also recognizes that there will be some
cases, perhaps 20 percent more than the total, that might require
consideration as possible MSDs, but which employers would ultimately
determine not to be MSDs, leaving 1.505 million MSDs (1.254 times 1.2)
that employers would be required to record. At one minute of recording
time per case, and using the hourly rate of $40.04, the actual data
entry would cost $1.004 million annually for all affected
establishments combined. This cost estimate assumes that no
establishments are currently making any determinations as to whether a
case is an MSD for other reasons. The addition of the MSD entry on the
OSHA 300A summary form is expected to impose no new costs, as the
summary totals will simply be tallied in the MSD column instead of the
injury and all other illness columns. The annualized cost of both
initial familiarization and annual MSD recording costs combined would
be $1.739 million per year for all affected establishments combined.
---------------------------------------------------------------------------
\4\ The estimate of 80% of cases was based on an estimate of
3.365 million recorded cases out of a total of 4.214 million cases
in 2005.
---------------------------------------------------------------------------
OSHA welcomes comment on all aspects of these cost estimates.
Economic Impacts
The economic impact on any affected establishment would obviously
be quite small. As mentioned, 1.505 million recordable MSD cases are
expected to occur annually among the 1.542 million affected
establishments, which averages to approximately one case per
establishment per year. This suggests that the average establishment
would require an extra 6 minutes (5 minutes to familiarize and 1 minute
to record an MSD) in the first year and 1 minute to record MSDs in
subsequent years. The resulting costs for the typical affected
establishment would be $4.00 in the first year, and 67 cents in future
years. In smaller establishments with fewer injuries, the cost would be
even lower. Costs on this order should not pose an economic difficulty
for any firm.
OSHA's guideline for determining whether a regulation has a
significant
[[Page 4738]]
impact on a substantial number of small firms is whether the costs of
the regulation exceed one percent of revenues or 5 percent of profits.
Costs of $4.00 in the first year and lower thereafter will never
represent more than 1 percent of revenues or 5 percent of profits for a
substantial number of small firms. Even if considerably more MSDs
occurred in an establishment in a given year, it still would be very
unlikely that the costs would pose any economic difficulty.
Accordingly, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605), OSHA certifies that the proposed rule will not have a
significant impact on a substantial number of small entities.
V. Environmental Impact Assessment
In accordance with the requirements of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4231 et seq.), Council on Environmental
Quality NEPA regulations (40 CFR part 1500 et seq.), and the Department
of Labor NEPA regulations (29 CFR Part 11), the Assistant Secretary has
determined that this proposed rule will not have a significant impact
on the external environment.
VI. OMB Review Under the Paperwork Reduction Act of 1995
The proposed regulation contains revised collections of information
requirements (paperwork) that are subject to review by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
(``PRA-95''), 44 U.S.C. 3501 et seq., and OMB's regulations at 5 CFR
part 1320. The PRA-95 defines a ``collection of information'' as
``obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public of facts or opinions by or
for an agency regardless of form or format'' (44 U.S.C. 3502(3)(A)).
OSHA's existing Recordkeeping forms are promulgated under 29 CFR part
1904, and consist of the OSHA Form 300, the Log of Work-Related
Injuries and Illnesses; the OSHA Form 300A, Summary of Work-Related
Injuries and Illnesses; and the OSHA Form 301, and the Injury and
Illness Incident Report. These forms are contained in the Information
Collection Request (ICR) (paperwork package) titled, 29 CFR Part 1904
Recordkeeping and Reporting Occupational Injuries and Illnesses
(``Recordkeeping''), and are approved by OMB under OMB control number
1218-0176, (expiration date 03/31/2011). OSHA is proposing to revise
its Occupational Injury and Illness Recording and Reporting
(Recordkeeping) regulation to add a musculoskeletal disorder (MSD)
column to the OSHA 300 Log that employers use to record work-related
injuries and illnesses. This proposed rule would require employers to
place a check in the MSD column if a case is an MSD and meets the
Recordkeeping regulation's general recording requirements.
OSHA has submitted a revised Recordkeeping ICR to OMB for review
(44 U.S.C. 3507(d)). OSHA solicits comments on the collection of
information requirements and the estimated burden hours associated with
these collections, including comments on the following:
Whether the proposed collection of information
requirements are necessary for the proper performance of the Agency's
functions, including whether the information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the information collection requirements, including the
validity of the methodology and assumptions used;
Ways to enhance the quality, utility, and clarity of the
information collected; and
Ways to minimize the burden on employers who must comply,
for example, by using automated or other technological techniques for
collecting and transmitting information.
The title of the ICR, summary of the paperwork requirements,
description of the need, respondent description, estimated
recordkeeping burden, and the proposed frequency of the information
collection requirements are described below.
Title: 29 CFR Part 1904 Recordkeeping and Reporting Occupational
Injuries and Illnesses.
OMB Control Number: 1218-0176.
Summary: Proposed section 1904.12(b)(2) identifies which injuries
and illnesses must be identified as MSDs on the OSHA 300 Log. MSDs that
meet the general criteria for recordability (i.e., a work-related new
case resulting in medical treatment, job transfer or restriction, or
days away from work) are already required to be recorded on the log.
The proposed section explains that employers would continue to use the
same process to decide whether an MSD must be recorded as they are
required to do for any other injury or illness under the Recordkeeping
regulation. Under the proposal, however, employers would be required to
identify which of those injuries and illnesses are MSDs by checking the
MSD column on the log. Section 1904.12(b)(3) of the proposed rule
specifies that an employer must record a case as an MSD if (1) The
employee experiences ``pain, tingling, burning, numbness or any other
subjective symptom of an MSD;'' (2) the symptoms are work-related; (3)
new; and (4) meet the general recording criteria in the Recordkeeping
regulation (e.g., restricted work, job transfer, days away from work,
medical treatment beyond first aid). A case would be recordable only if
it meets all of these requirements.
Description of Need: OSHA believes that an MSD column would provide
valuable information for maintaining complete and accurate national
occupational injury and illness statistics; assist OSHA in targeting
its inspection, outreach, guidance, and enforcement efforts to address
MSDs; and provide easily identifiable information at the establishment
level that will be useful for both employers and employees.
Adding an MSD column to the OSHA 300 Log would improve national
statistics on MSDs in several ways. It would allow BLS to collect and
annually report the total number and rates of MSDs, both nationally and
in specific industries, not just the figures for cases that result in
days away from work. Currently, this basic information is unavailable.
Having the total number of MSDs would provide BLS with more complete
data for analyzing the magnitude of the MSD problem and trends over
time in the country as a whole as well as in specific industries.
Having more complete MSD data would assist OSHA, and other safety and
health policy makers in understanding MSDs and making informed
decisions on policies concerning workplace MSDs.
Affected Public: Business or other for-profit. The proposed rule
affects all firms within OSHA jurisdiction that have 10 or more
employees at some time in the year, except for those low hazard
industries that are not required to routinely prepare an OSHA Form 300
and 301.
Number of Respondents: 1,541,900 employers.
Frequency: On occasion.
Average Time per Response: Five minutes for employers to
familiarize themselves with the proposed MSD reporting procedure; and.
approximately one minute per MSD to record it in the MSD column. The
addition of the MSD entry on the OSHA 300A summary form is expected to
impose no new paperwork burden, as the summary totals will simply be
tallied in the MSD column instead of the injury and all other illness
columns.
Estimated Total Burden Hours: 127,978 hours for employers to become
familiar with the MSD reporting procedure; and, 25,585 hours for
[[Page 4739]]
employers to mark 1,505,000 MSDs in the MSD column.
Estimated Costs (Capital Operation and Maintenance): $0.
Submitting comments. Members of the public who wish to comment on
the paperwork requirements in this proposal may send their written
comments to the Office of Information and Regulatory Affairs, Attn:
OSHA Desk Officer (RIN 1218-AC45), Office of Management and Budget,
Room 10235, 725 17th Street, NW., Washington, DC 20503. The Agency
encourages commenters to also submit their comments on these paperwork
requirements to the rulemaking docket (Docket Number OSHA-2009-0044),
along with their comments on other parts of the proposed rule. For
instructions on submitting these comments to the rulemaking docket, see
the sections of this Federal Register notice titled DATES and
ADDRESSES. Comments submitted in response to this notice are public
records; therefore, OSHA cautions commenters about submitting personal
information such as Social Security numbers and date of birth.
Docket and inquiries. To access the docket to read or download
comments and other materials related to this paperwork determination,
including the complete ICR (containing the Supporting Statement with
attachments describing the paperwork determinations in detail), use the
procedures described under the section of this notice titled ADDRESSES.
You also may obtain an electronic copy of the complete ICR by visiting
the Web page at http://www.reginfo.gov/public/do/PRAMain, scroll under
``Currently Under Review'' to ``Department of Labor (DOL)'' to view all
of the DOL's ICRs, including those ICRs submitted for proposed
rulemakings. To make inquiries, or to request other information,
contact Mr. Todd Owen, Directorate of Standards and Guidance, OSHA,
Room N-3609, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone (202) 693-2222.
The Department notes that a Federal agency cannot conduct or
sponsor a collection of information unless it is approved by OMB under
the PRA and displays a currently valid OMB control number, and the
public is not required to respond to a collection of information unless
it displays a currently valid OMB control number. Also, not
withstanding any other provisions of law, no person shall be subject to
penalty for failing to comply with a collection of information if the
collection of information does not display a currently valid OMB
control number.
VII. Unfunded Mandates
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1501 et seq.), as well as Executive Order 12875, this proposed rule
does not include any Federal mandate that may result in increased
expenditures by State, local, and tribal governments, or increased
expenditures by the private sector of more than $100 million.
VIII. Federalism
The proposed rule has been reviewed in accordance with Executive
Order 13132 (52 FR 41685), regarding Federalism. Because this
rulemaking involves a ``regulation'' issued under Sections 8 and 24 of
the OSH Act, and is not an ``occupational safety and health standard''
issued under Section 6 of the OSH Act, the rule will not preempt State
law (29 U.S.C. 667(a)). The effect of the proposed rule on States is
discussed in section IX. State Plan States.
IX. State Plan States
If the proposed rule is issued in final form, the 27 States and
territories with their own OSHA-approved occupational safety and health
plans must adopt an identical regulation within six months of the
publication date. 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, Illinois, New Jersey, and New
York have OSHA approved State Plans that apply to state and local
government employees only.
Consistent with Section 18 of the OSH Act (29 U.S.C. 667) and the
requirements of 29 CFR 1904.41 and 1952.4, State-Plan States must
promulgate occupational injury and illness recording and reporting
requirements that are the same as the Federal requirements for
determining which injuries and illnesses will be entered into the
records and how they are entered. All other injury and illness
recording and reporting requirements that are promulgated by State-Plan
States may be more stringent than, or supplemental to, the Federal
requirements, but, because of the unique nature of the national
recordkeeping program, States must consult with OSHA and obtain
approval of such additional or more stringent reporting and recording
requirements to ensure that they will not interfere with uniform
reporting objectives.
Because this proposed rule determines how MSD injuries and
illnesses are entered onto the OSHA 300 Log, the State-Plan State
requirements must be the same as the Federal OSHA requirements to
ensure the consistency of the occupational injury and illness
information across the States.
X. Public Participation
This rulemaking is governed by the notice and comments requirements
in the Administrative Procedures Act (APA) (5 U.S.C. 553) rather than
section 6 of the OSH Act (29 U.S.C. 655) and 29 CFR part 1911, which
only apply to ``promulgating, modifying or revoking occupational safety
and health standards'' (29 CFR part 1911). For example, section 6(b)(3)
of the OSH Act and 29 CFR 1911.11 state that the requirement to hold an
informal public hearing on a proposed rule only applies to rulemakings
on occupational safety and health standards, not to those dealing with
regulations.
Section 553(b)(1) of the APA requires the agency to specify the
type of rule involved, the time during which the agency will receive
comments on the proposal, and the instructions regarding the procedures
for submitting comments. The APA does not specify a minimum period for
submitting comments. In accordance with the goals of E.O. 12866, OSHA
is providing 60 days for public comment (E.O. 12866 Sec. 6(a)(1)).
Public Submissions
OSHA invites comment on all aspects of the proposed rule.
Interested persons must submit comments by March 15, 2010. The Agency
will carefully review and evaluate all comments, information, and data,
as well as all other information in the rulemaking record, to determine
how to proceed.
You may submit comments in response to this document, requests to
speak at the public meeting, and requests for special accommodation to
attend the meeting (1) electronically at http://www.regulations.gov,
which is the Federal eRulemaking Portal; (2) by facsimile (FAX); or (3)
by hard copy. All submissions must identify the Agency name and the
OSHA docket number (Docket No. OSHA-2009-0044) or RIN number (RIN No.
1218-AC45) for this rulemaking. You may supplement electronic
submissions by uploading document files electronically. If, instead,
you wish to mail additional materials in reference to an electronic or
fax submission, you must submit them to the OSHA Docket Office (see
[[Page 4740]]
ADDRESSES section). The additional materials must clearly identify your
electronic comments by name, date, and docket number, so OSHA can
attach them to your comments.
Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of submissions. For
information about security procedures concerning the delivery of
materials by hand, express delivery, messenger or courier service,
please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-
5627).
Access to Docket
Comments in response to this Federal Register notice, requests to
speak, and submissions at the public meeting are posted without change
at http://www.regulations.gov, the Federal eRulemaking portal.
Therefore, OSHA cautions individuals about submitting personal
information such as social security numbers and birthdates. Exhibits
referenced in this Federal Register document are posted at http://www.regulations.gov. Although submissions are listed in the http://www.regulations.gov indexes, some information (e.g., copyrighted
material) is not publicly available to read or download through that
Web page. All comments, requests to speak, materials presented at the
public meeting, and exhibits, including copyrighted material, are
available for inspection and copying at the OSHA Docket Office.
Information on using http://www.regulations.gov to submit comments and
access dockets is available on the Webpage. Contact the OSHA Docket
Office for information about materials not available through the Web
page and for assistance in using the internet to locate docket
submissions.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, also are available at OSHA's Web page
at http://www.osha.gov. For specific information about OSHA's
Recordkeeping rule, go the Recordkeeping page on OSHA's Web page.
Public Meeting
OSHA will hold a two-day public meeting on the proposed rule on
March 9, 2010 at the U.S. Department of Labor in Washington, DC (see
ADDRESSES section). If necessary, the meeting may be extended to
subsequent days.
The purpose of the public meeting is to allow interested persons to
provide oral comments on the proposed rule, which is a limited
rulemaking to revise one provision of the Recordkeeping regulation.
Although OSHA is not required to hold a public meeting on proposed
regulations, the Agency believes that the public meeting will help to
facilitate the development of a clear and complete rulemaking record.
Consistent with this purpose, OSHA has the discretion to limit the time
of speakers whose presentation goes beyond the scope of the proposed
regulation.
Individuals interested in speaking at the public meeting must
submit their request by February 16, 2010. The request must provide the
following information:
Name, address, and telephone number of each individual who
will speak at the public meeting;
Name of organization or establishment each individual
represents, if any;
Occupational title and position of each person speaking at
the meeting;
Date on which each individual wishes to speak at the
meeting;
Approximate amount of time each individual wishes to
speak;
An outline of the statement each individual wishes to make
at the meeting.
OSHA will review each request to speak and determine whether the
information it contains warrants the amount of time the individual
requested to speak. To ensure that each participant has an opportunity
to speak, OSHA will generally limit the time allotted to each speaker
to a maximum of 15 minutes. Therefore, OSHA urges speakers to submit
written comments of their presentation and to summarize and clarify
their written submissions during the meeting. OSHA may also limit the
time to speak of any individual who fails to comply substantially with
the procedures for submitting a request to speak.
At OSHA's discretion and as time permits, individuals who did not
submit a request to speak may be allowed time to make a brief oral
statement not exceeding five minutes at the end of the scheduled
presentations.
OSHA will post the schedule of appearances for the public meeting
as well as additional information about the meeting on the OSHA Web
page at http://www.osha.gov. The meeting will be transcribed. The
transcription and all materials submitted during the public meeting
will be put in the public docket of this rulemaking.
List of Subjects in 29 CFR Part 1904
Health statistics, Occupational safety and health, Recording and
reporting of occupational injuries and illnesses, State plans.
Authority and Signature
This document was prepared under the direction of David Michaels,
PhD, MPH, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under Sections 8 and 24 of the Occupational Safety
and Health Act (29 U.S.C. 657, 673), 5 U.S.C. 553, and Secretary of
Labor's Order No. 5-2007 (72 FR 31160).
Signed at Washington, DC, this 27th day of January 2010.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Proposed Rule
Part 1904 of Title 29 of the Code of Federal Regulations is hereby
proposed to be amended as follows:
PART 1904--[AMENDED]
1. The authority citation for part 1904 is to be 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 5-2007 (72 FR 31160), and
5 U.S.C. 553.
2. A new Sec. 1904.12 is to be added to read as follows:
Sec. 1904.12 Recording criteria for cases involving work-related
musculoskeletal disorders.
(a) Basic requirement. If any of your employees experiences a
recordable work-related musculoskeletal disorder (MSD), you must record
it on the OSHA 300 Log by checking the ``musculoskeletal disorder''
column.
(b) Implementation--(1) What is a ``musculoskeletal disorder'' or
MSD? MSDs are disorders of the muscles, nerves, tendons, ligaments,
joints, cartilage and spinal discs. MSDs DO NOT include disorders
caused by slips, trips, falls, motor vehicle accidents, or other
similar accidents. Examples of MSDs include: Carpal tunnel syndrome,
Rotator cuff syndrome, De Quervain's disease, Trigger finger, Tarsal
tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud's
phenomenon, Carpet layers knee, Herniated spinal disc, and Low back
pain.
(2) How do I decide which MSDs to record? There are no special
criteria for determining which MSDs to record. An MSD case is recorded
using the same process you would use for any other injury or illness.
If an MSD disorder is work-related, is a new case, and meets
[[Page 4741]]
one or more of the general recording criteria, you must record the case
as an MSD in the MSD column. The following table will guide you to the
appropriate section of the rule for guidance on recording MSD cases.
(i) Determining if the MSD is work-related. See Sec. 1904.5.
(ii) Determining if the MSD is a new case. See Sec. 1904.6.
(iii) Determining if the MSD meets one or more of the general
recording criteria:
(A) Days away from work, See Sec. 1904.7(b)(3);
(B) Restricted work or transfer to another job, See Sec.
1904.7(b)(4); or
(C) Medical treatment beyond first aid. See Sec. 1904.7(b)(5).
(3) If a work-related MSD case involves only subjective symptoms
like pain or tingling, do I have to record it as an MSD? The symptoms
of an MSD are treated the same way as symptoms for any other injury or
illness. You must record the case on the OSHA 300 Log as an MSD if:
(i) An employee has pain, tingling, burning, numbness or any other
subjective symptom of an MSD;
(ii) The symptoms are work-related;
(iii) The MSD is a new case; and
(iv) The case meets one or more of the general recording criteria.
(4) When do I have to start recording work-related MSDs on the MSD
column? You must begin recording work-related MSDs on the MSD column as
of January 1, 2011.
[FR Doc. 2010-2010 Filed 1-28-10; 8:45 am]
BILLING CODE 4510-26-P