[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.

[[Page 28384]]


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). They are available on the 
Internet at 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 proposed

[[Page 28385]]

MSD 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.

[[Page 28386]]

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]
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