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• Publication Date: 05/17/2011
• Publication Type: Proposed Rules
• Fed Register #: 76: 28383-28386
• Standard Number: 1904
• Title: Occupational Injury and Illness Recording and Reporting Requirements

[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Proposed Rules]
[Pages 28383-28386]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11965]


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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: Notice of limited reopening of rulemaking record.

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SUMMARY: OSHA is reopening the rulemaking record to allow interested
persons, particularly small businesses, to comment on the information
gathered and on issues raised during the small business teleconferences
that the Agency and the Small Business Administration's Office of
Advocacy (SBA Office of Advocacy) co-sponsored on April 11-12, 2011.
The purpose of the teleconferences was to gather information from small
businesses about their experiences recording work-related
musculoskeletal disorders (MSDs) and how they believe they would be
impacted by OSHA's proposed rule to revise its Recordkeeping
regulations to restore a column on the OSHA 300 Log that employers
would have to check if a case they already are required to record is an
MSD. The record will remain open for 30 days for comment on these
limited issues.

DATES: Comments must be submitted (postmarked, sent, received) by June
16, 2011.

ADDRESSES: You may submit comments using one of the following methods:
    Electronically: You may submit comments and attachments
electronically at http://www.regulations.gov,
which is the Federal eRulemaking Portal. Follow the on-line instructions
for submitting comments electronically;
    Fax: If your comments, including attachments, do not exceed 10
pages, you may fax them to the OSHA Docket Office at (202) 693-1648; or
    Mail, hand delivery, express mail, messenger or courier: You may
submit your comments 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-
2525 (TTY number (887) 889-5627). Deliveries (hand, express mail,
messenger, courier) 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.
    Instructions: All submissions must include the docket number
(Docket No. OSHA-2009-0044) or RIN number (RIN No. 1218-AC45) for this
rulemaking. Because of security-related procedures, submitting comments
by regular mail may result in significant delay. Please contact the
OSHA Docket Office for information about security procedures for
submitting comments by hand delivery, express delivery, messenger or
courier service.
    OSHA places all comments, including any personal information you
provide, in the public docket without change and the comments may be
made available online at http://www.regulations.gov. Therefore, OSHA
cautions you about submitting personal information such as social
security numbers and birthdates. For further information on submitting
comments, see the "Public Participation" heading in the SUPPLEMENTARY
INFORMATION section of this notice.

FOR FURTHER INFORMATION CONTACT:
    For press inquiries: Diana Petterson, Office of Public Affairs,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210; telephone (202) 693-1898; e-mail petterson.diana@dol.gov.
    For general and technical information: Dorothy Dougherty, 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.

SUPPLEMENTARY INFORMATION:

References and Exhibits

    This notice references documents in the public docket of this
rulemaking (Docket No. OSHA-2009-0044) http://www.regulations.gov,
the Federal eRulemaking Portal. The referenced documents are identified 
as "Ex." followed by the document number. The document number is 
the last sequence of numbers in the Document ID Number on http://www.regulations.gov. 
For example, the proposed rule, which is Document ID Number OSHA-2009-0044-0001 at
http://www.regulations.gov, is Ex. 1.

Background

    On January 29, 2010, OSHA proposed to revise its Occupational
Injury and Illness Recording and Reporting (Recordkeeping) regulation
to restore a column to the OSHA 300 Log that employers would have to
check if a case they already are required to record under the existing
Recordkeeping rule is an MSD (Ex. 1; 75 FR 4728 (1/29/2010)). The
proposed rule would not change the existing Recordkeeping requirements
about when and under what circumstances employers must record work-
related injuries and illnesses. Under the existing Recordkeeping rule
(66 FR 5916 (1/19/2001)) employers already must determine whether a
case is recordable; that is, whether the case meets the definition of
"injury or illness," is a new case, is work-related, and meets at
least one of the recording criteria (e.g., involves days away from
work, restricted work, or medical treatment beyond first aid). The only
additional requirement the proposed rule would impose is for employers
to mark the MSD column box on the OSHA 300 Log if a case they have
already recorded meets the definition of an MSD. The proposed rule
would define an MSD, for recordkeeping purposes only, as a disorder of
the of the muscles, nerves, tendons, ligaments, joints, cartilage or
spinal discs that was not caused by a slip, trip, fall, motor vehicle
accident or similar accident (Proposed Sec.  1904.12(b)(1); Ex. 1; 75
FR 4740).
    OSHA's revised 2001 Recordkeeping rule included an MSD column, but
that provision never became effective and was deleted in 2003 (68 FR
38601 (6/30/2003)). In proposing to restore the MSD column, OSHA
explained:

    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 (75 FR 4731).

    In the proposed rule, OSHA estimated that 1.505 million recordable
MSDs were expected to occur annually among the 1.542 million affected
establishments. Therefore, the economic impact of the proposed rule on
any affected establishment would be quite small (75 FR 4737). OSHA
estimated the annualized costs of the proposed rule would be $1.379
million per year for all affected establishments combined ($4 per
establishment the first year and 67 cents in future years). The costs
represent the time that establishments would need to become familiar
with the rule (5 minutes per establishment the first year) and to
determine if the recordable case meets the MSD definition and check the
MSD column (1 minute per MSD annually).
    OSHA provided 60 days for stakeholders to submit comments on the
proposed rule (75 FR 10738 (3/9/2010)), consistent with Executive
Orders 12866 and 13563 (58 FR 51735; 76 FR 3821). OSHA also held a
public meeting on March 9, 2010, to allow stakeholders to make oral
presentations and question the Agency about the proposed rule. The
transcript of the public meeting is in the public docket of this
rulemaking (Ex. 56).
    See the notice of proposed rulemaking (OSHA-2009-0044-0001) for
additional information on the events leading to this rulemaking and the
history of the 2001 Recordkeeping rulemaking as well as a detailed
explanation of the proposedMSD column provision, OSHA's reasons for
proposing to restore the MSD column and the estimated economic
impacts (Ex. 1; 75 FR 4728).

Small Business Teleconferences

    On January 25, 2011, OSHA announced that the Agency had decided to
seek additional input from small businesses on the impact of the
proposal through outreach in partnership with the SBA Office of
Advocacy and, therefore, was temporarily withdrawing the proposed rule
from review by the Office of Management and Budget. On March 23, 2011,
OSHA announced that, together with the SBA Office of Advocacy, the
Agency would hold three teleconferences on April 11-12, 2011 to reach
out to small businesses. The purpose of the teleconferences was to
gather information from small businesses about their current
recordkeeping practices, including their experiences recording work-
related MSDs, and the impact they believe the proposal would have on
them. OSHA also provided the following information about the
teleconferences:
     OSHA and the SBA Office of Advocacy would select the small
business participants for the teleconferences;
     The public would be invited to listen to the
teleconferences, but only selected small businesses could participate;
     In advance of the teleconferences, OSHA would provide
participants with background information on the proposed rule and a
list of questions and issues for discussion;
     The teleconferences would not be electronically recorded
or transcribed;
     OSHA staff would take notes during the teleconferences and
prepare a summary report that would not identify the source of specific
comments;
     Small business participants also could send written
comments following the teleconferences; and
     After the teleconferences, OSHA would reopen the
rulemaking record for the limited purpose of allowing interested
persons, particularly small business, to comment on the teleconferences
and the issues raised by the participants (Summary of Comments from the
Small Business Teleconferences on OSHA's Proposed Rule on MSD
Recordkeeping Requirements, Ex. 0139).
    Sixteen small businesses, with employment ranging from about 10 to
more than 400 employees, participated in the three teleconferences
(Summary of Comments from the Small Business Teleconferences on OSHA's
Proposed Rule on MSD Recordkeeping Requirements, Appendix A, Ex. 0139).
In addition, dozens of interested persons listened to the
teleconferences in person or by telephone.
    OSHA has prepared a summary of the participants' comments during
the teleconferences and has placed the summary in the public docket for
this rulemaking (Summary of Comments from the Small Business
Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping
Requirements, Ex. 0139). The document summarizes the topics the
participants discussed, including their current recordkeeping
practices, how they determine the work-relatedness of MSDs, how the
participants believe the proposed rule would change their recordkeeping
practices, benefits of the proposed rule, and other issues the
participants raised. The summary document also includes the list of
teleconference participants (Summary of Comments from the Small
Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping
Requirements Appendix A, Ex. 0139) and the background materials and
list of discussion issues that OSHA provided to the small business
participants (Summary of Comments from the Small Business
Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping
Requirements, Appendix B, Ex. 0139). The background materials contain
information on the proposed and existing recordkeeping requirements,
the need for the proposed rule, updated cost estimates of the proposed
rule and economic impacts on small businesses, and OSHA's existing
recordkeeping forms. Interested persons may read and download the
summary and appendices at Docket Number OSHA-2009-0044 at http://www.regulations.gov.
The summary and appendices also are available on OSHA's Web page at http://www.osha.gov.

Public Participation

    OSHA invites comment, particularly from small businesses, on the
small business teleconferences by the participants. Interested persons
must submit comments by June 16, 2011.
    You may submit comments and attachments by one of the following
methods: (1) Electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal; (2) by fax; or (3) by hard copy. All
submissions must identify the Agency name and the OSHA docket number
(Docket No. OSHA-2009-0044) or RIN number (RIN No. 1218-AC45) for this
rulemaking. You may supplement electronic comments by uploading
attachments electronically. If, instead, you wish to submit a hard copy
of the attachments, you must submit those materials to the OSHA Docket
Office (see ADDRESSES section). The additional materials must clearly
identify your electronic comments by name, date, and docket number, so
OSHA can attach them to your submission.
    Because of security-related procedures, the use of regular mail may
cause a significant delay in the receipt of submissions. For
information about security procedures concerning the delivery of
materials by hand, express delivery, messenger or courier service,
please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-
5627).

Access to Docket

    Comments in response to this Federal Register notice are posted
without change at http://www.regulations.gov. Therefore, OSHA cautions
individuals about submitting personal information such as social
security numbers and birthdates. Exhibits referenced in this Federal
Register notice also are posted at http://www.regulations.gov. Although
all rulemaking documents are listed in the http://www.regulations.gov
index, some information (e.g., copyrighted material) is not publicly
available to read or download through that Web page. All comments and
exhibits, including copyrighted material, are available for inspection
and copying at the OSHA Docket Office. Information about using http://www.regulations.gov
to submit comments and access the rulemaking docket
is available on that Web page. Contact the OSHA Docket Office for
information about materials not available through that Web page and for
assistance in using the Internet to locate docket documents in the
rulemaking docket.
    Electronic copies of this Federal Register notice and the proposed
rule are available at http://www.regulations.gov. This notice, the
summary of the small business teleconferences, the proposed rule, news
releases and other relevant information also are available at OSHA's
Web page at http://www.osha.gov. For specific information about OSHA's
Recordkeeping rule, go the Recordkeeping page on OSHA's Web page.
    OSHA will carefully review and evaluate the comments, information,
and data received in during this limited reopening as well as all other
information in the rulemaking record, to determine how to proceed.

Authority and Signature

    This document was prepared under the direction of David Michaels,
PhD, MPH, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under Sections 8 and 24 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 657, 673), the Administrative
Procedures Act (5 U.S.C. 553), and Secretary of Labor's Order No. 4-
2010 (75 FR 55355 (9/10/2010)).

    Signed at Washington, DC, on May 11, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2011-11965 Filed 5-16-11; 8:45 am]
BILLING CODE 4510-26-P

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