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
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
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
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
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
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