[Federal Register Volume 67, Number 242 (Tuesday, December 17, 2002)]
[Rules and Regulations]
[Pages 77165-77170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31619]



[[Page 77165]]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. R-02B]
RIN 1218-AC06


Occupational Injury and Illness Recording and Reporting 
Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
delaying the effective date of three provisions of the Occupational 
Injury and Illness Recording and Reporting Requirements rule published 
January 19, 2001 (66 FR 5916-6135). The provisions being delayed define 
``musculoskeletal disorder (MSD)'' and require employers to check the 
MSD column on the OSHA Log if an employee experiences a work-related 
musculoskeletal disorder, state that MSDs are not considered privacy 
concern cases, and require employers to enter a check in the hearing 
loss column of the OSHA 300 Log for cases involving occupational 
hearing loss. The effective date of these provisions is delayed from 
January 1, 2003 until January 1, 2004. OSHA will implement the hearing 
loss column requirements on January 1, 2004, and will continue to 
evaluate the MSD provisions over the next year. See SUPPLEMENTARY 
INFORMATION for the specific regulatory sections and paragraphs.

DATES: The amendments in this rule will become effective on January 1, 
2003. Section 1904.10(b)(7) added on July 1, 2002 (67 FR 44037) and 
effective on January 1, 2003, is further delayed until January 1, 2004. 
Section 1904.12, revised on January 19, 2001 (66 FR 5916), effective on 
January 1, 2002, and delayed on October 12, 2001 (66 FR 52031), is 
further delayed until January 1, 2004. The second sentence of 
1904.29(b)(7)(vi), revised on January 19, 2001, effective on January 1, 
2002, and delayed on October 12, 2001 (66 FR 52031), is further delayed 
until January 1, 2004.

FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and 
Health Administration, U.S. Department of Labor, Directorate of 
Standards and Guidance, Room N-3609, 200 Constitution Avenue, NW., 
Washington, DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION:

I. The MSD Provisions

    In January, 2001 OSHA published revisions to its rule on recording 
and reporting occupational injuries and illnesses (66 FR 5916-6135) to 
take effect on January 1, 2002. A more complete discussion of the MSD 
definition issue is contained in the preamble to the January 19, 2001 
rule. On July 3, 2001, OSHA proposed to delay the effective date until 
January 1, 2003, of 29 CFR 1904.12, recording criteria for cases 
involving work-related musculoskeletal disorders. OSHA explained that 
it was reconsidering the requirement in 29 CFR 1904.12 that employers 
check the MSD column on the OSHA Log for a case involving a 
``musculoskeletal disorder'' as defined in that section. This action 
was taken in light of the Secretary of Labor's decision to develop a 
comprehensive plan to address ergonomic hazards, and to schedule a 
series of forums to consider key issues relating to the plan, including 
the approach to defining ergonomic injuries (66 FR 35113-35115).
    After considering the views of interested parties, OSHA published a 
final rule on October 12, 2001 delaying the effective date of 29 CFR 
1904.12 until January 1, 2003. OSHA also added a note to 29 CFR 
1904.29(b)(7)(vi) explaining that the second sentence of that section, 
which provides that MSDs are not ``privacy concern cases,'' would not 
become effective until January 1, 2003.
    OSHA concluded that delaying the effective date of the MSD 
definition in Section 1904.12 was appropriate because the Secretary was 
considering a related definitional question in the context of her 
comprehensive ergonomics plan. The Agency found that it would be 
premature to implement Sec.  1904.12 before considering the views of 
business, labor and the public health community on the problem of 
ergonomic hazards. It also found that it would create confusion and 
uncertainty to require employers to implement the new definition of MSD 
contained in Sec.  1904.12 while the Secretary was considering how to 
define an ergonomic injury under the comprehensive plan (66 FR 52031-
52034).
    On April 5, 2002, OSHA announced a comprehensive plan to address 
ergonomic injuries through a combination of industry-targeted 
guidelines, enforcement measures, workplace outreach, research, and 
dedicated efforts to protect Hispanic and other immigrant workers. In 
that announcement, OSHA found that no single definition of ``ergonomic 
injury'' was appropriate for all contexts, stating that, as OSHA 
develops guidance material for specific industries, the Agency may 
narrow the definition as appropriate to address the specific workplace 
hazards covered. (OSHA Press Release USDL 02-201 and associated 
Frequently Asked Questions).
    On July 1, 2002, OSHA proposed to delay the effective date of 
Section 1904.12 for an additional year until January 1, 2004 to give 
the agency the time needed to resolve whether and how MSDs should be 
defined for recordkeeping purposes. This proposed delay had no effect 
on the employer's obligation to record all workplace injuries and 
illnesses that meet the criteria established in Sections 1904.4 through 
1904.7, including those related to ergonomic stressors. The July 1, 
2002 Federal Register document also requested public comment on various 
issues related to the MSD definition and column requirement. These 
issues included the following: ``Is an MSD column needed on the OSHA 
300 Log? Should the column be reinstated in Sec.  1904.12 or should 
Sec.  1904.12 be deleted? Would the statistics generated by an 
additional column be superior to the statistics now generated by the 
BLS?`` (67 FR 44127)
    The period for submission of comments on the proposed rule closed 
on August 30, 2002. After considering the views of interested parties, 
OSHA has determined that the effective date of Sections 1904.12 and 
1904.29(b)(7)(vi) should be delayed until January 1, 2004. This Federal 
Register document addresses only the delayed effective date of these 
provisions. OSHA is still considering the need for an MSD column and 
other substantive issues related to Sec.  1904.12 on which comment has 
been requested. OSHA will announce its decision on these issues in a 
subsequent Federal Register document.

A. Comments on MSD Delay

    Many commenters supported the delay, citing reasons similar to 
those in the July 1, 2002 proposal, or urged OSHA to rescind Section 
1904.12 altogether (Exs. 2-2, 2-3, 2-5, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 
2-14, 2-15,
    2-16, 2-21, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-33, 2-35, 
3-3, 3-4, 3-5, 3-12, 3-13, 3-14, 3-16, 3-17). In a representative 
comment, the American Dental Association stated that:

    The proposal demonstrates the Agency's understanding of the 
complexity of defining MSDs and the potential consequences of 
adopting a hastily developed standardized definition. It is likely 
that once a MSD

[[Page 77166]]

definition is adopted by OSHA it would be difficult to alter or 
change it in future rulemakings, so it is important that the Agency 
not act precipitously (Ex. 2-15)

    Commenters suggested that additional delay was appropriate to allow 
for consideration of relevant comment (See, e.g., Exs. 2-2, 2-5, 3-14), 
to avoid confusion (See, e.g., Exs. 2-2, 2-3, 2-5, 2-16, 2-33), to 
avoid unnecessary training and computer programming costs (See, e.g., 
Exs. 2-7, 2-12, 2-21). Two commenters argued that delay was not harmful 
because there is no effect on the recording of MSD cases (See, e.g., 
Exs. 2-3, 2-30) and one stated that the delays would not affect safety 
because MSD cases would be recorded even when the MSD column was not 
checked (See, e.g., Ex. 3-13). Several commenters suggested that OSHA 
should delay the MSD definition for recordkeeping purposes until a 
common definition is adopted for ergonomic purposes (See, e.g., Exs. 2-
13, 2-16, 2-30).
    Other commenters recommended deletion of the Sec.  1904.12 
requirements, including the MSD column and the MSD definition (See, 
e.g., Exs. 2-2, 2-3, 2-5, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 2-14, 2-16, 
2-21, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-35, 3-5, 3-12, 3-13, 
3-14, 3-16, 3-17), arguing that it is an unnecessary paperwork burden 
(See, e.g., Exs. 2-2, 2-5, 2-9, 2-12, 2-21, 2-23), that a column is not 
needed (See, e.g., Exs. 2-7, 2-9, 2-14, 2-21, 2-23, 2-27, 2-30, 3-5, 3-
12, 3-16), that OSHA's comprehensive ergonomics plan found that no 
single definition is appropriate (See, e.g., Exs. 2-3, 2-12, 2-13, 2-
16, 2-28, 2-29, 2-32, 2-35), that the Sec.  1904.12 MSD definition was 
inappropriate (See, e.g., Exs. 2-3, 2-6, 2-7, 2-8, 2-9, 2-12, 2-13, 2-
16, 2-23, 2-27, 2-28, 2-29, 2-30, 2-31, 2-32, 2-35, 3-3, 3-14, 3-16), 
and that controversy and lack of consensus in the scientific and 
medical communities on the MSD issue makes it premature for OSHA to 
include a regulatory definition (See, e.g., Exs. 2-8, 2-12, 2-13, 2-14, 
2-31, 2-32, 2-35, 3-17).
    Several commenters opposed a delay in implementing the 
recordkeeping rule's definition of MSD and the requirement to check the 
MSD column (See, e.g., Exs. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24, 
2-25, 2-26, 2-34, 2-35, 2-36, 2-37, 2-39, 3-2, 3-7, 3-9, 3-15). The 
United Food & Commercial Workers International Union (UFCW) stated:

    The UFCW believes strongly that OSHA should utilize the broadest 
definition for recording musculoskeletal disorders on the OSHA Form 
300. As well, columns for recording MSDs and hearing loss are 
absolutely necessary for accurate surveillance as well as 
utilization of the logs for prevention purposes of these two 
significant safety and health problems facing UFCW members (Ex. 2-
39)

    Commenters argued against further delay because delay will make it 
difficult to collect information on these disorders and make it 
difficult to take future action (See, e.g., Exs. 2-10, 2-22, 2-24, 2-
35, 3-9), delay will make it more difficult to track MSD (See, e.g., 
Exs. 2-19, 2-20, 2-24, 2-35, 2-36, 2-39, 3-7, 3-9, 3-15), an MSD column 
can be used to identify injuries and develop prevention strategies 
(See, e.g., Exs. 2-10, 2-11, 2-18, 2-19, 2-20, 2-22, 2-24, 2-25, 2-34, 
2-35, 2-36, 2-39, 3-9, 3-15), an MSD column is needed to develop more 
complete and consistent statistics by BLS (See, e.g., Exs. 2-11, 2-18, 
2-20, 2-24, 2-25, 2-26, 2-35, 2-36, 3-7), an MSD column helps OSHA and 
NIOSH during workplace interventions (See, e.g., Exs. 2-20, 2-24, 2-25, 
2-26), and lack of an MSD column may lead to under-recording of MSD 
injuries (See, e.g., Ex. 2-25).
    Many commenters supported the broad definition of MSD in Sec.  
1904.12 to promote a complete capture of MSD cases regardless of risk 
factor, to produce more complete statistics on MSD, to protect workers 
from MSD injury by identifying ergonomic problems, and because it is 
difficult to ascertain one-time versus ongoing exposure (See, e.g., 
Exs. 2-4, 2-10, 2-11, 2-18, 2-20, 2-22, 2-24, 2-26, 2-34, 2-35, 2-36, 
2-39, 3-6). Commenters also expressed their support of the MSD 
definition in the Section 1904.12 regulation, noting its similarity to 
definitions used in many other contexts, such as industrial hygiene 
practice, OSHA's guidelines for meatpacking plants, the National 
Academy of Sciences reports on ergonomics, NIOSH, employers with 
effective ergonomics programs, OSHA's settlement agreements, the former 
recordkeeping system, other government agencies, and other countries 
(See, e.g., Exs. 2-10, 2-11, 2-19, 2-20, 2-22, 2-24, 2-25, 2-26, 2-35, 
2-36, 2-39, 3-9, 3-15). Several commenters observed that the definition 
is the same as the MSD definition used by the Bureau of Labor 
Statistics for the last three years (See, e.g., Exs. 2-10, 2-11, 2-19, 
2-20, 2-22, 2-24, 2-35, 2-36, 2-39, 3-15).
    The AFL-CIO (Ex. 2-24-1) supported these comments, and also argued 
that, without an MSD definition it would be difficult for DOL to take 
enforcement actions on ergonomics hazards under the general duty 
clause. The AFL-CIO also argued that the January 2001 revised OSHA 
recordkeeping rule included provisions that would assist employers, 
unions, workers and the government in identifying and addressing MSDs. 
The AFL-CIO recommended that the Department of Labor maintain the 
provisions of the 2001 recordkeeping rule and move immediately to 
implement the rule in its entirety.

B. OSHA's Decision on MSD Delay

    OSHA does not believe that a MSD definition should be implemented 
now, for the same reasons outlined in the July 1, 2002 proposal to 
delay Sec.  1904.12. While the Agency has not yet decided on the 
correct approach for dealing with the Part 1904 MSD definition, OSHA 
plans to publish a final rule in 2003 to resolve the MSD definition 
issue for the year 2004 and beyond.
    OSHA does not agree that delayed implementation of Section 1904.12 
will make it more difficult for employers, workers and OSHA to address 
workplace ergonomic hazards, or undermine OSHA's ability to enforce the 
general duty clause for ergonomic hazards. Employers are required to 
record all injuries and illnesses meeting the criteria established in 
Sections 1904.4 through 1904.7 of the recordkeeping rule regardless of 
whether a particular injury or illness meets the definition of MSD in 
Section 1904.12. Thus, the delay in implementing Section 1904.12 will 
not reduce the number of cases recorded or affect the narrative 
description of the injury or illness that must be provided for each 
case. Employers who use the Log and injury reports to discover 
ergonomic hazards will be able to continue to do so, relying on the 
description-of-injury information and other data to identify MSDs in 
their workplaces. Employees will continue to have access to the 
information provided in the Log and, under the new rule, to the 
information in the part of the Incident Report explaining how the 
incident occurred. Employers and employees will be able to categorize 
this injury and illness information in any manner they find useful.
    The delay will not affect the quality or availability of useful 
statistical data on MSDs. At the facility level, employers, employees 
and government workers will continue to estimate MSD incidents by 
analyzing individual injury and illness entries, just as they have done 
in the past.
    Finally, OSHA notes that the delay in the implementation of Section 
1904.12 will have no effect on the Department's enforcement of the 
general duty clause. The definition of MSD in that section has never 
been in effect, and has not

[[Page 77167]]

been a factor in enforcement of the clause. The sole effect of the 
delay is that employers need not use the definition to categorize cases 
on the OSHA Recordkeeping Log for calendar year 2003. This 
recordkeeping issue does not affect an employer's obligation under the 
general duty clause. The employer remains obligated to free its 
workplace from recognized hazards that are likely to cause serious 
physical harm.
    OSHA is modifying the note following the introduction to Section 
1904.12 to inform employers of the policy that will be in effect during 
2003. The note also informs the employer that, instead of checking the 
column on the 300 Log for musculoskeletal disorders (since this column 
has been removed from the log), the employer is to check the column for 
``injury'' or ``all other illness,'' depending on the circumstances of 
the case.
    In a related matter, the privacy provisions of Part 1904 use the 
MSD definition from Sec.  1904.12. Specifically, paragraph 
1904.29(b)(7)(vi) of the rule states that employers must consider an 
illness case to be a privacy concern case, and withhold the employee's 
name from the forms, if the employee independently and voluntarily 
requests that his or her name not be entered on the Log. The second 
sentence of the paragraph states ``[m]usculoskeletal disorders (MSDs) 
are not considered privacy concern cases.'' Because the effective date 
of the Sec.  1904.12 MSD definition is being delayed, OSHA will be 
unable to implement the Sec.  1904.29(b)(7)(vi) requirement during 
2003. Accordingly, OSHA is modifying the note to Section 
1904.29(b)(7)(vi) stating that the second sentence takes effect on 
January 1, 2004.

II. The Hearing Loss Column Provisions

    In January, 2001 OSHA published revisions to its rule on recording 
and reporting occupational injuries and illnesses (66 FR 5916-6135) to 
take effect on January 1, 2002, including provisions for recording 
occupational hearing loss when an employee experienced a standard 
threshold shift (STS). An STS is defined in OSHA's Sec.  1910.95 noise 
standard as a change in hearing threshold, relative to the baseline 
audiogram for that employee, of an average of 10 decibels (dB) or more 
at 2000, 3000, and 4000 hertz (Hz) in one or both ears. On July 3, 
2001, OSHA proposed to delay the effective date of 29 CFR 1904.10 
Recording criteria for cases involving occupational hearing loss until 
January 1, 2003. OSHA explained that it was reconsidering the 
requirement in 29 CFR Sec.  1904.10 due to ongoing concerns about the 
level of hearing loss that should be considered a significant health 
condition, asked for comment on whether or not to delay the provisions 
while reconsidering the issue, and asked the public to submit 
substantive comments on the hearing loss recording issue (66 FR 35113-
35115).
    After considering the views of interested parties, OSHA published a 
final rule on October 12, 2001 delaying the effective date of 29 CFR 
1904.10 until January 1, 2003, and setting forth interim hearing loss 
recording criteria for 2002 (66 FR 52031-52034). The Agency then issued 
a final rule on July 1, 2002 establishing new recording criteria for 
occupational hearing loss that captured STS cases when the employee's 
overall hearing level exceeded 25 dB from audiometric zero. (67 FR 
44037-44048). In a separate proposed rule published that same date, 
OSHA proposed to delay the requirement to check a hearing loss column 
on the OSHA 300 Log, and asked for substantive comment on the utility 
of the column, the usefulness of the data that would be produced, and 
any costs or burdens associated with implementing a hearing loss column 
(67 FR 44124-44127).
    The period for submission of comments on the proposed rule closed 
on August 30, 2002. After considering the views of interested parties, 
OSHA has determined that the effective date of Section 1904.10(b)(7) 
should be delayed until January 1, 2004. OSHA will implement the 
provisions at that time, and does not see any need for further delay on 
the hearing loss column issue.

A. Comments on the Need for and Whether To Delay the Hearing Loss 
Column

    A number of commenters either supported OSHA's proposed one-year 
delay of Sec.  1904.10(b)(7), or recommended deleting the requirement 
to identify hearing loss cases in a separate column of the OSHA 300 Log 
(See, e.g., Exs. 2-3, 2-6, 2-7, 2-14, 2-28, 2-29, 2-30, 2-33, 2-35, 3-
1, 3-3, 3-4, 3-5, 3-12, 3-13, 3-14, 3-17). Commenters argued that delay 
will reduce the cost and burden associated with revising and reissuing 
the form (See, e.g., Exs. 2-3, 2-7, 2-28, 2-29, 3-13), will provide 
time to update and distribute the forms (See, e.g., Exs. 2-28, 2-29, 3-
13), will allow employers enough time to update computer software used 
to comply with Part 1904 (See, e.g., Exs. 2-28, 2-29), provide time for 
employee training (See, e.g., Ex. 3-13), minimize confusion due to the 
inflated number of hearing loss cases recorded in the first year (See, 
e.g., Exs. 2-28, 2-29), and allow OSHA to work with BLS to work out an 
alternative methods for collecting statistics (See, e.g., Ex. 2-35).
    Commenters also supported a delay until the MSD column issue is 
resolved (See, e.g., Exs. 2-3, 2-26, 3-13) so the forms would only be 
revised once. For example, NIOSH stated that it ``[r]ecognizes that 
multiple year revisions in the OSHA 300 form may cause confusion among 
employers and can jeopardize the accuracy of survey data based on a 
sample of 300 Logs. Therefore, NIOSH believes that OSHA should make 
every effort to consolidate any revisions to the OSHA 300 Log decides 
to make at one point in time'' (Ex. 2-26).
    A number of commenters recommended OSHA delete the hearing loss 
column altogether (See, e.g., Exs. 2-6, 2-7, 2-14, 2-30, 2-35, 3-3, 3-
5, 3-12, 3-14, 3-17). Commenters objected to the column with statements 
that a separate column for hearing loss is not needed (See, e.g., Exs. 
2-6, 2-7, 2-14, 2-30, 2-35, 3-5), because it is unclear how the column 
would be used to improve the effectiveness of an employer's hearing 
conservation program, given the follow-up actions required by 1910.95 
(See, e.g., Exs. 2-7, 2-35), because the data will not shed light on 
causes or provide value in determining prevention strategies (See, 
e.g., Ex. 2-30), because work relatedness determinations are subject to 
error and a column is subject to more error than a survey that accounts 
for non-occupational hearing loss (See, e.g., Ex. 2-35), because 
statistics can be generated from the descriptions on the 300 Log (See, 
e.g., Ex. 2-6), and that it would be better to conduct a BLS survey 
with real life examples, questions and practical definitions with input 
from industry, medical professions, and statisticians (See, e.g., Ex. 
3-14). The National Grain and Feed Association argued that the column 
would have no protective value, stating that:

    It is unclear how a separate hearing loss column on the 300 Log 
could be used to further improve the effectiveness of an employer's 
hearing conservation program. For example OSHA's Occupational Noise 
Exposure Standard (29 CFR 1910.95) already requires employers to 
monitor employees' exposure to noise and take certain actions if 
workplace noise exceeds specific levels, including implementing a 
hearing conservation program, employee audiograms, administrative 
and engineering controls and employee training (Ex. 3-14).

    Other commenters opposed further delay of the hearing loss column 
and urged OSHA to implement the

[[Page 77168]]

Sec.  1904.10(b)(7) requirements in 2003 (See, e.g., Exs. 2-4, 2-10, 2-
11, 2-17, 2-18, 2-19, 2-22, 2-24, 2-25, 2-26, 2-34, 2-36, 2-37, 2-39, 
3-9, 3-15). These commenters argued that a hearing loss column is 
needed to provide a basis for prevention efforts (See, e.g., Exs. 2-11, 
2-17, 2-19, 2-20, 2-24, 2-36, 2-37, 3-7, 3-15), that there is little or 
no burden to adding a hearing loss column (See, e.g., Exs. 2-4, 2-11, 
2-24, 2-34, 2-37, 2-39), and that waiting for resolution of the MSD 
column issue is unnecessary and inappropriate and causes unnecessary 
delay with collection and analysis of the data, (See, e.g., Exs. 2-4, 
2-24, 2-34). The International Chemical Workers Union Council stated 
that delay will condemn more workers and even supervisors to 
unnecessary hearing loss, and that a column would provide information 
to employees because ``There are no requirements for employers to post 
or even develop a summary of hearing loss by workplace, department, or 
job type. As such, the only way that workers and their representatives 
can learn what areas of the plant and how many workers are experiencing 
significant hearing loss is by these being posted on the 300 Log, by 
word of mouth, or by convincing the employer to develop a summary of 
hearing loss on a yearly basis'' (Ex. 2-34).
    Commenters also cited statistical reasons for a hearing loss 
column, stating that a column will improve the BLS data as current BLS 
data on hearing loss is limited and includes only cases resulting in 
days away from work (See, e.g., Exs. 2-10, 2-11, 2-17, 2-18, 2-19, 2-
20, 2-24, 2-26, 2-34, 2-36, 2-37, 2-39), that there are no other 
credible sources of national statistics on hearing loss (See, e.g., Ex. 
2-20), that no alternative data collection methods are as effective 
(See, e.g., Ex. 2-10), and that there is no other cost effective method 
for collecting occupational hearing loss statistics (See, e.g., Exs. 2-
24, 2-26). The Coalition to Protect Workers' Hearing (Ex. 2-4), which 
includes the American Academy of Audiology, the American Association of 
Occupational Health Nurses, the American Industrial Hygiene 
Association, the American Speech-Language-Hearing Association, the 
Council for Accreditation in Occupational Hearing Conservation, the 
Institute of Noise Control Engineering, The National Hearing 
Conservation Association, and Self Help for Hard of Hearing People, 
Inc., argued that:

    The inability to quantify with reasonable accuracy rather than 
estimate the effects of noise on the U.S. workforce has significant 
ramifications. While we understand the effects of noise on hearing 
reasonably well, we are unable to address such issues as the 
efficacy of hearing protection devices, strengths or deficiencies in 
hearing conservation programs, and benchmarking standards for 
comparable employers and industries without comprehensive data on 
prevalence of noise induced hearing loss.

B. OSHA's Reasons for Retaining the Hearing Loss Column

    OSHA has decided to retain the hearing loss column. Doing so will 
improve the Nation's statistical information on occupational hearing 
loss, facilitate analysis of hearing loss data at individual 
workplaces, and improve the Agency's ability to assess this common 
occupational disorder. One of the major functions of the Part 1904 
regulation is to produce national statistics for occupational injury 
and illness (29 U.S.C. 657.(c)(1)). The data will clearly improve the 
Nation's statistics on occupational hearing loss. The current data 
published by the Bureau of Labor Statistics for injuries and illnesses 
occurring in year 2000 reveal that the category entitled ``Disorders of 
the ear, mastoid process, hearing'' provided estimates of 316 cases, 
and the subcategory of ``deafness, hearing loss'' provided estimates of 
146 cases (http://www.bls.gov/iif/oshwc/osh/case/ostb1047.txt.
    Because the BLS statistics on case characteristics only reflect 
injuries and illnesses that result in days away from work, and workers 
commonly suffer hearing loss and never require a day away from work, 
the BLS estimates represent only a minor fraction of the total hearing 
loss experienced by U.S. workers and do not reflect the incidence of 
occupational hearing loss. A discussion of the BLS data systems and how 
they function may be found at http://www.bls.gov/bls/safety.htm. By 
providing a separate 300 Log column for this disorder, the data for 
hearing loss will be summarized by the employer at the end of the year, 
and will be captured by the BLS when sampled employers submit their 
summary injury and illness information. Thus, national statistics will 
be available, for the first time, that include cases that result in 
days away from work and those that do not. Since OSHA recently 
published new criteria for recording occupational hearing loss that 
will result in consistent data capture of significant hearing loss 
cases (67 FR 44037-44048), the column can be used by BLS to generate 
useful, consistent, and accurate statistics for the Nation.
    The resulting statistics will be of value to several groups. The 
data will have value on their own as a public information resource that 
can be accessed by students, hearing loss professionals, researchers, 
and others. The data can be used by policy makers to prioritize hearing 
loss prevention efforts and measure the performance of those efforts, 
whether they are enforcement, guidance, outreach or consultation. OSHA 
believes that the greatest value of the data will be realized by 
employers and employees at individual workplaces. These individuals 
have always had the ability to determine the incidence of hearing loss 
cases in their workplace via analysis of the individual case 
descriptions on the OSHA 300 Logs; the hearing loss column will only 
make this task easier. The greater value of the column lies in the new 
ability to benchmark the hearing loss statistics of an individual 
workplace to the hearing loss statistics for industry as a whole, or to 
hearing loss statistics for a comparable industry classification. This 
will allow employers and employees to compare their hearing loss 
prevention performance to the performance of their peers and know 
whether or not their efforts are succeeding. This is a function that is 
not required under the Sec.  1910.95 noise standard, and is a useful 
purpose of the Part 1904 records.
    OSHA disagrees with the arguments against a hearing loss column. In 
response to the criticism that the data will not shed light on causes 
or provide value in determining preventive strategies (See, e.g., Ex. 
2-30), a mere entry on the Log does not, by itself, show an employer or 
employee how to prevent hearing loss. That is the function of further 
analysis of the hearing loss cases, the workplace, and the employer's 
hearing conservation program. In this matter, hearing loss is no 
different than any other type of injury or illness. The Log provides 
descriptive data about occupational injuries and illnesses and some of 
the circumstances surrounding them. It does not replace the need for 
causal analysis of occupational injuries and illnesses. One commenter 
also raised the error rate for determining the work relatedness of 
hearing loss cases (Ex. 2-35). OSHA notes that the data only reflect 
work-related hearing loss cases. Part 1904 requires the employer to 
consider the case to be work-related only when exposure at work either 
causes or contributes to a hearing loss, or significantly aggravates a 
pre-existing hearing loss (Sec.  1904.5). Section 1904.10(b)(6) allows 
the employer to consider the case non work-related if a physician or 
other licensed health care professional determines the hearing loss is 
not work related.

[[Page 77169]]

    Finally, the column is not burdensome. Although the rule does not 
require employers to use computer software to track injuries and 
illnesses, many employers do so voluntarily, and these employers will 
have some minimal initial costs to revise their software. Employers 
will also experience a small training cost to familiarize the employees 
who maintain the records with the new column. However, once these tasks 
are completed, it is no more burdensome to check a hearing loss column 
than one of the other columns on the form.

C. OSHA's Reasons for Delaying the Hearing Loss Column

    OSHA has decided to delay the Sec.  1904.10(b)(7) requirements 
until January 1, 2004. While the Agency has now received comment on the 
hearing loss column and has collected adequate information to evaluate 
the issue, there is not enough time to implement the requirement for 
use in 2003. As the American Petroleum Institute remarked, the one year 
delay would ``[p]rovide adequate time for OSHA to update and distribute 
the form 300 and 300S; provide adequate time for employers to update 
their recordkeeping software and retrain those responsible for 
recordkeeping; provide OSHA with valuable input from stakeholders; 
minimize confusion, including the inflated number of hearing loss cases 
that would be expected during the first (changeover) year of the new 
criteria for hearing loss; and make more efficient use of resources'' 
(Ex. 2-29).
    OSHA agrees with the API. In order to implement the hearing loss 
column in 2003, the Agency would need to redesign the forms, print them 
in sufficient quantity, and distribute them for employers use. The 
states with OSHA Approved State Plans would need to modify their 
regulations and any state-specific forms they use to obtain equivalent 
data. Employers would need to implement the new forms, change any 
software they might be using to keep their records, and make any other 
changes they deem necessary. While none of these tasks are particularly 
difficult or burdensome, there is clearly insufficient time available 
to accomplish these tasks before January 1 of 2003. Waiting until 
January 2004 will provide all affected parties with more than adequate 
time to implement the new forms in a methodical, planned fashion.

D. Other Hearing Loss Issues

    OSHA would like to clarify three matters in relation to recording 
occupational hearing loss in conjunction with the Section 1904.10 final 
rule issued July 1, 2002. First, the preamble to the final rule stated 
that employers in the shipbuilding industries are not covered by OSHA's 
noise standard Sec.  1910.95 and are therefore not required to perform 
audiometric tests. (67 FR 44038, 44040). This statement was an error. 
OSHA Directive STD 0.2 Identification of General Industry Safety and 
Health Standards (29 CFR 1910) Applicable to Shipyard Work specifically 
states that employers in the shipbuilding industry that are covered by 
the 29 CFR part 1915 Standards are required to comply with a number of 
29 CFR Part 1910 standards, including the Sec.  1910.95 requirements 
for occupational noise.
    The second issue involves the computation of a Standard Threshold 
Shift (STS), which is one part of the two-part recording criteria 
recently published (67 FR 44037-44048). (The case must also reflect a 
25 dB hearing level compared to audiometric zero.) The STS computation 
is to be made in accordance with the Occupational Noise Exposure 
Standard 1910.95. As OSHA stated in the preamble to the July 1, 2002 
rulemaking, the Section 1904.10 regulation ``[u]ses existing 
measurements employers are already using to comply with the OSHA noise 
standard, resulting in less paperwork burden for employers covered by 
both rules'' (67 FR 44040). Under 1910.95, the employee's current 
audiogram is compared to the employee's baseline audiogram, which may 
be the original audiogram taken when the employee was first placed in a 
hearing conservation program, or the revised baseline audiogram allowed 
by the Occupational Noise Exposure standard. Paragraph 1910.95(g)(9) of 
the noise rule states:
    (9) Revised baseline. An annual audiogram may be substituted for 
the baseline audiogram when, in the judgment of the audiologist, 
otolaryngologist, or physician who is evaluating the audiogram:
    (i) The standard threshold shift revealed by the audiogram is 
persistent, or
    (ii) The hearing threshold shown in the annual audiogram indicates 
significant improvement over the baseline audiogram.
    OSHA's former recording criteria required the employer to track 
separate baselines for recording and hearing conservation purposes. 
However, the new Part 1904 hearing loss recording system relies on the 
existing 1910.95 calculations, and separate baselines will no longer be 
required. In short, under the new Part 1904, a recordable hearing loss 
case occurs when an employee experiences an STS (as defined in 29 CFR 
1910.95), the STS is work-related, and the employee's aggregate hearing 
loss exceeds 25dB from audio metric zero.
    Third, OSHA has noted concern among employers because the 
application of the new two-part test in the new Sec.  1904.10 recording 
criteria will result in an increase in recorded hearing loss cases. As 
noted in the July 1, 2002 rulemaking, the new criteria will capture 
more hearing loss cases. Employers will experience an increase in 
recorded hearing loss cases in 2003 and future years. Caution must be 
used when comparing the 2003 and future data to prior years, when the 
25 dB criteria for recordkeeping was used. OSHA recognizes this 
increase, and will take the changes in the recordkeeping rule into 
account when evaluating an employer's injury and illness experience.

Agency Determination of Good Cause for an Accelerated Effective Date

    The Administrative Procedure Act generally requires a thirty-day 
period between the publication date and the effective date of a final 
substantive rule. 5 U.S.C. 553(d) provides, in relevant part, as 
follows:
    The required publication or service of a substantive rule shall be 
made not less than thirty days before its effective date, except--
    (1) a substantive rule which grants or recognizes an exemption or 
relieves a restriction; [or]
    * * *
    (3) as otherwise provided by the agency for good cause found and 
published with the rule.
    There will not be thirty days between the publication of this final 
rule and its effective date of January 1, 2003. However, the exemptions 
from the thirty-day requirement recognized in 5 U.S.C. 553(d)(1) and 
(3) apply here. First, this final rule grants an exemption by delaying 
certain regulatory requirements that would otherwise take effect for 
the year 2003. The requirements to check the MSD column and the hearing 
loss column are effective on January 1, 2003 as a matter of law unless 
this rule takes effect before that date. Therefore, the rule grants an 
exemption to a legal requirement, and is excepted from the thirty-day 
effective date requirement.
    Moreover, OSHA also finds that there is good cause to make the rule 
effective on January 1, 2003, even if that date is less than thirty 
days from publication. The effective date for the requirements to check 
the MSD and hearing loss

[[Page 77170]]

columns was delayed during 2002 while OSHA considered comment on issues 
related to these requirements. This rule merely continues the status 
quo during 2003; it does not require any change in recordkeeping 
procedures.
    If this rule cannot be made effective until thirty days from 
publication, employers will be required to comply with the new MSD and 
hearing loss column requirements for a brief time during 2003, only to 
revert back to the existing requirements. This would impose burdensome 
requirements on employers to quickly train their employees and modify 
their recordkeeping software in time to accommodate the new 
requirements on January 1. These extraordinary efforts would be wasted 
since the columns would be in effect for only a short time, and would 
produce no worthwhile data. Moreover, there would be a substantial 
degree of confusion about compliance responsibilities since the current 
recordkeeping forms do not contain the columns or the MSD definition, 
and OSHA could not produce and distribute new forms in time. For these 
reasons, OSHA believes that this final rule must take effect on January 
1, 2003.

Paperwork Reduction Act

    The final rule will continue OSHA's current policies regarding the 
recording of hearing loss and musculoskeletal tissue disorders during 
2003 and will not impose any new paperwork requirements during that 
year. The addition of a new hearing loss column in 2004 will result in 
minor paperwork burdens associated with the addition of a new column, 
involving training of recordkeeping staff, obtaining new forms, and 
conversion of non-mandatory computer programs. The forms will be made 
available free of charge in 2003, before they are required for use in 
2004. These burdens are already taken into account in the paperwork 
estimates for this rule.

Regulatory Flexibility Certification

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the 
Assistant Secretary certifies that the final rule will not have a 
significant economic impact on a substantial number of small entities. 
The rule does not add any new requirements, merely delaying the 
effective date of two sections of the rule, and allowing a previously 
delayed section to go into effect in 2004.

State Plans

    The 26 States and territories with their own OSHA-approved 
occupational safety and health plans must adopt a comparable regulation 
within six months of the publication date of this final regulation. 
These states and territories are: Alaska, Arizona, California, Hawaii, 
Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New 
Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, 
Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming. 
Connecticut, New Jersey, and New York have OSHA approved State Plans 
that apply to state and local government employees only.
    Due to the short amount of time remaining in 2002, some of the 
states may not complete their rulemaking actions by January 1, 2003. 
However, the states will complete rulemaking to delay the effective 
dates of their equivalent regulations shortly thereafter. In the 
meantime, employers in these states will use the same forms used in 
federal jurisdiction states (which as noted above do not currently 
contain the columns or MSD definition) to ensure the uniformity of 
national data per Section 1904.37.

Executive Order

    This document has been deemed significant under Executive Order 
12866 and has been reviewed by OMB.

Authority

    This document was prepared under the direction of John Henshaw, 
Assistant Secretary for Occupational Safety and Health. It is issued 
under Section 8 of the Occupational Safety and Health Act (29 U.S.C. 
657) and 5 U.S.C. 553.

    Signed at Washington, DC this 11th day of December, 2002.
John Henshaw,
Assistant Secretary of Labor.

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

PART 1904--[AMENDED]

    1. The authority citation for part 1904 continues to read as 
follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.


    2. Revise Sec.  1904.10(b)(7) to read as follows:


Sec.  1904.10  Recording criteria for cases involving occupational 
hearing loss.

* * * * *
    (b) * * *
    (7) How do I complete the 300 Log for a hearing loss case?
    When you enter a recordable hearing loss case on the OSHA 300 Log, 
you must check the 300 Log column for hearing loss. (Note: Sec.  
1904.10(b)(7) is effective beginning January 1, 2004.)
* * * * *

    3. Revise the note to Sec.  1904.12 to read as follows:


Sec.  1904.12  Recording criteria for cases involving work-related 
musculoskeletal disorders.

* * * * *

    Note to Sec. Sec.  1904.12: This section is effective January 1, 
2004. From January 1, 2002 until December 31, 2003, you are required 
to record work-related injuries and illnesses involving muscles, 
nerves, tendons, ligaments, joints, cartilage and spinal discs in 
accordance with the requirements applicable to any injury or illness 
under Sec. Sec.  1904.5, Sec. Sec.  1904.6, Sec. Sec.  1904.7, and 
Sec. Sec.  1904.29. For entry (M) on the OSHA 300 Log, you must 
check either the entry for ``injury'' or ``all other illnesses.''


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


Sec.  1904.29  Forms.

* * * * *
    (b) * * *
    (7) * * *
    (vi) Other illnesses, if the employee independently and voluntarily 
requests that his or her name not be entered on the log. 
Musculoskeletal disorders (MSDs) are not considered privacy concern 
cases. (Note: The first sentence of this Sec. Sec.  1904.29(b)(7)(vi) 
is effective on January 1, 2002. The second sentence is effective 
beginning on January 1, 2004.)
* * * * *
[FR Doc. 02-31619 Filed 12-16-02; 8:45 am]
BILLING CODE 4510-26-P