OSHA Reopens Comment Period for Musculoskeletal Disorder Recordkeeping Rule

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The Occupational Safety and Health Administration will reopen the public comment period on its musculoskeletal disorder reporting rule, another sign that the agency intends to move forward with the rule, according to a notice published in the May 17 Federal Register (76 Fed. Reg. 28, 383).

The new June 16 deadline gives the public a month to comment on issues raised during three April teleconferences, cosponsored by OSHA and the Small Business Administration's Office of Advocacy, that addressed the effects the proposed rule would have on small businesses (41 OSHR 323, 4/14/11).

Under the proposal, a column for musculoskeletal disorders would be added to the 300 Log employers use to track worker injuries and illnesses. An MSD column was included in the recordkeeping standard made final in 2001, but was dropped in 2003 and never took effect (33 OSHR 629, 7/3/03).

In January, OSHA temporarily withdrew the proposal, saying it needed “greater input from small businesses.”

During the teleconferences, small business representatives said employees responsible for keeping records lack the medical training to determine whether an injury is a musculoskeletal disorder, that they would have difficulty determining whether an injury is work-related, and that tracking these types of injuries would be time-consuming. OSHA has made transcripts from the teleconferences available to the public.

Ergononics Rule Off the Table, OSHA Says.

Business representatives have said they fear the rulemaking signals an attempt by OSHA to launch a new ergonomics regulation. OSHA officials have repeatedly said, however, that no such plans are pending.

“OSHA is eager to hear from the public on this, and every, proposed rule,” David Michaels, assistant secretary of labor for occupational safety and health, said in a May 16 statement. “The more feedback the agency receives from small businesses on this topic, the better informed we will be in crafting a proposed regulation that protects workers without overburdening employers.”

Celeste Monforton, a researcher at George Washington University's School of Public Health and Health Services, told BNA in a May 16 interview that the announcement reaffirms OSHA's commitment to proceed with the MSD rule.

She also said the small business teleconferences, coupled with the reopening of the comment period, constitute “more of a political decision, to appease the small business community, rather than anything substantive.”

The additional steps have delayed the rulemaking process by roughly six months, said Monforton, a former OSHA policy analyst.

“It hardly seems worth it,” Monforton said. “But they have to show that they're listening, even though they're listening to comments that we've heard before.”

The potential downside to reopening the record, according to Monforton, is that it could delay the rule for so long that its passage will become increasingly difficult before President Obama's first term expires.

The Center for Progressive Reform think tank issued a report earlier in the month saying that the longer into 2012 agencies take to finalize their rules, the less Obama will be willing to support them, for fear that doing so would give his Republican opponents ammunition in the debate over government regulation (41 OSHR 400, 5/5/11).

By Stephen Lee

A summary of comments made during OSHA's April teleconferences on the proposed musculoskeletal disorder recordkeeping rule is available at http://op.bna.com/env.nsf/r?Open=sbra-8gwqmb.

The Federal Register notice announcing the reopening of the comment period is at http://www.gpo.gov/fdsys/pkg/FR-2011-05-17/pdf/2011-11965.pdf