Occupational Injury and Illness Recording and Reporting Requirements, 4728-4741 [2010-2010]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Proposed Rules]
[Pages 4728-4741]
From the Federal Register Online via the Government Printing 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 https://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 Chatmon.veneta@dol.gov.
    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 https://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 https://regulations.gov. All submissions are listed in the https://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 https://www.regulations.gov. This document, as well as news releases 
and other relevant information, is available at OSHA's Web page at 
https://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 https://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 https://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 https://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 
https://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 https://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 https://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 https://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 provid