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NRCA's comments about OSHA's record-keeping rule, September 2001

On Sept. 4, NRCA submitted comments to the Occupational Safety and Health Administration (OSHA) regarding the agency's record-keeping rule. NRCA’s comments follow.

Sept. 4, 2001

OSHA Docket Officer
Docket Number R-02A
Occupational Safety and Health Administration
U.S. Department of Labor, Room N-2625
Washington, D.C. 20210

RE: Occupational injury and illness recording and reporting requirements

Dear Sir/Madam:

The National Roofing Contractors Association (NRCA) submits these comments in response to the July 3, 2001, Federal Register notice published by the Occupational Safety and Health Administration (OSHA) concerning occupational injury and illness recording and reporting requirements, commonly referred to as the record-keeping rule. NRCA is concerned about the negative impact changes to the rule may have on the association's members.

NRCA submitted written comments in response to the Feb. 2, 1996, Federal Register notice published by OSHA on proposed changes to current requirements. In its comments, NRCA explained that the proposed new record-keeping rule would be confusing and create excessive paperwork and legal exposure for employers but would not increase employee safety.

NRCA presented testimony at two congressional hearings on OSHA's proposed record-keeping rule, reiterating its concerns in detail. On Sept. 17, 1997, NRCA member Edward J. "Jude" Laperouse testified before the House Committee on Small Business, and on July 20, 2000, NRCA Risk Management Consultant William Steinmetz, Jr., testified before the House Subcommittee on Workforce Protections, Committee on Education and the Workforce. On both occasions, NRCA requested that the entire rulemaking be reopened and subject to requirements of the Small Business Regulatory Enforcement Fairness Act (SBREFA).

On May 9, 1999, NRCA and 23 other national associations sent a letter to OSHA's assistant secretary, Charles Jeffress, to formally request that the rulemaking be reopened. The letter also asked that it be subject to SBREFA, starting with SBREFA's Small Business Advocacy Review Process. On Aug. 2, 1999, Assistant Secretary Jeffress denied these requests.

U.S. Small Business Administration's Office of Advocacy

Although OSHA formally initiated its record-keeping rulemaking before SBREFA was enacted and, therefore, does not have to follow SBREFA's requirements to gauge the new rule's impact on small business, its reluctance to do so is puzzling. As OSHA knows, the Office of Advocacy of the Small Business Administration was established by Congress to advocate the views of small business to federal agencies drafting rules and regulations. Created by the Regulatory Flexibility Act, which was amended by SBREFA, the Office of Advocacy's mission is to make sure that agencies do not place disproportionate regulatory burdens on small businesses. And SBREFA requires OSHA to take additional steps beyond what most other agencies must do in deference to small businesses when conducting rulemakings. On May 1, 1996, the Office of Advocacy analyzed and explained to OSHA problems in the new record-keeping rule, but it is not clear that OSHA has resolved them. This does not bode well for the small-business community and NRCA.

NRCA is an association of roofing, roof deck and waterproofing contractors. Founded in 1886, it now has 5,000 members and estimates that NRCA contractors perform more than 60 percent of all roofing installations in the United States. More than 90 percent of roofing contracting firms are considered small businesses; many are family-run where family members work side by side to make their companies successful. NRCA contractors are privately held companies, and the average member employs 35 people during peak season with sales of approximately $3.5 million per year.

Sections 1904.10 & 1904.12 of the new record-keeping rule

On Jan. 1, 2002, the new record-keeping rule, Occupational Injury and Illness Recording and Reporting Requirements (66 FR 5916, Jan. 19, 2001), will go into effect. The July 3, 2001, Federal Register notice states:

    Following a careful review conducted pursuant to White House Chief of Staff Andrew Card's memorandum (66 FR 7702), the Agency [OSHA] has determined that all but a few provisions of the final rule should take effect as scheduled.

    OSHA also has determined that it will reconsider the provisions in the final rule for: recording occupational hearing loss based on the occurrence of a Standard Threshold Shift (STS) in hearing acuity (Section 1904.10); and defining "musculoskeletal disorder" (MSD) and checking the column on the OSHA 300 Log identifying a recordable MSD (Section 1904.12). Accordingly, OSHA proposes to delay the effective date of Sections 1904.10 and 1904.12 until Jan. 1, 2003.
Both provisions should be subject to risk assessment and cost-benefit analyses not compromised by the cut-off date of Jan. 1, 2003, and NRCA is particularly concerned with the cut-off date as it pertains to Section 1904.12. Per the July 3, 2001, Federal Register notice:

    Following Congressional disapproval of OSHA's ergonomics standard (Public Law 107.5, Mar. 20, 2001), the Secretary [of Labor, Elaine Chao] announced that she intends to develop a comprehensive plan to address ergonomic hazards and scheduled a series of forums to consider basic issues related to ergonomics (66 FR 31694, 66 FR 33578). One of the key issues to be considered in connection with the Secretary's comprehensive plan is the approach to defining an ergonomic injury.

    Based on these developments, the Secretary believes that it is premature to define an MSD for record-keeping purposes.
On Aug. 3, 2001, NRCA submitted comments in response to OSHA's June 12, 2001, Federal Register notice inviting written comments pursuant to the Secretary's ergonomics forums. As stated in excerpts from NRCA's comments:

    In essence, there is no consensus of the definitions of ergonomics injury or muskuloskeletal disorder (MSD) within the scientific community. For example, so-called ergonomics injuries often can be labeled "repetitive motion injuries," "repetitive stress injuries" or "cumulative trauma disorders."

    Furthermore, subjective symptoms related to the stress and strain of physical labor in the construction industry typically are impossible to detect by objective medical examination. For instance, the Occupational Safety and Health Review Commission recently confirmed that the vast majority of MSD reports "cannot be linked to any detectable tissue or body damage." (Secretary of Labor v. Beverly Enterprises, Inc. 19 OSH Cas. (BNA) 1161, 2000 OSAHRC 121, at *113 (Oct. 27, 2000).)

    For these reasons, NRCA is opposed to S. 598/H.R. 1241 to provide for the reissuance of a rule related to ergonomics. It would be poor public policy to establish a date certain of two years after the enactment of this legislation for an ergonomics standard when there is no reason to believe there will be a consensus on the definition of what an "ergonomics injury" is within that time frame.
There is no reason to believe there will be a consensus on the definition of what an MSD is by Jan. 1, 2003.


NRCA commends OSHA for staying the implementation date of Sections 1904.10 and 1904.12 and reopening the rulemaking to gather more comments on them, but this is only a piecemeal approach to the problems that beset the new record-keeping rule. The fact that more research needs to be completed by OSHA on these two major provisions is indicative that the entire rule needs to be pulled and reviewed. NRCA urges the new record-keeping rule be stayed indefinitely and the rulemaking reopened in its entirety.

In the meantime, the reopened rulemaking for Sections 1904.10 and 1904.12 should be done under the auspices of SBREFA and not limited in duration to Jan. 1, 2003. NRCA looks forward to a continuing dialogue with OSHA on this issue. Should you have any questions or require further information, please do not hesitate to contact me at anytime.


Craig S. Brightup
NRCA vice president of government relations

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