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68814 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

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68816 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

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68818 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

5. Steps the Agency has taken to achieve the goal of employee protection. that have voluntarily elected to adopt an
minimize the significant economic These revisions will help all employers, OSHA State Plan. Consequently, the
impact on small entities. The final including small employers. final standard does not meet the
standard contains many elements that definition of a ‘‘Federal
Alternatives to the Proposed Standard
will reduce burden on small entities as intergovernmental mandate’’ (Section
compared with the proposal. The scope In the Final Regulatory Flexibility 421(5) of UMRA (2 U.S.C. 658(5)).
of the standard is simplified. All Analysis, OSHA considered alternatives This final rule was proposed under
employers must provide basic with respect to voluntary action, Section 6(b) of the OSH Act. The final
information to employees, and there are alternative scope provisions, alternative ergonomic program standard will
no special obligations for employers trigger provisions, alternative work prevent 4.6 million MSDs over the next
with employees engaged in restriction protection provisions and 10 years. The final ergonomics program
manufacturing or manual handling other approaches to the rule making standard will lead to $558 million per
operations. Employers will need less such as exempting small or low hazard year in costs on state, local or tribal
time and effort to determine how they employers. SBA’s Office of Advocacy governments. OSHA pays 50 percent of
are affected by the scope of the rule. In (Ex. 601–X–1) urged OSHA to consider State plan costs but does not provide
the appendices to the standard, OSHA exempting low hazard industries, and funding for state, local or tribal
has provided material that employers exempting small firms from WRP. governments to comply with its rules.
can use to meet this requirement, OSHA believes that the new two part OSHA does not anticipate any
further reducing the burden of the rule. action trigger is a superior means of disproportionate budgetary effects upon
The Agency has also kept an MSD focusing the rule’s obligation on high any particular region of the nation or
trigger mechanism, and has added a hazard work situations, while particular state, local, or tribal
screen. Employers do not need to do maintaining employee protection. The governments, or urban or rural or other
anything beyond provide information to action trigger serves to assure that types of communities. Chapters V and
employees unless an MSD incident in a employers do not need to try to fix low VI of the economic analysis provide
job that meets the screen. The addition hazard jobs. Further, this approach does detailed analyses of the costs and
of the screen serves both to simplify this in a way that assures that even impacts of the final rule on particular
decisionmaking for small employers and small firms in high hazard industries segments of the private sector. OSHA
to target the rule toward high risk jobs. will not need to fix their low hazard has analyzed the economic impacts of
For employees in jobs meeting the jobs, while workers in the occasional the rule on the affected industries and
action trigger, employers must provide a high hazard job in a low hazard industry found that compliance costs are, on
quick fix or initiate an ergonomics receive the protection they need. average, only 0.05 percent of sales, and
program. In addition, the employer need Exempting small businesses from WRP that few, if any, facility closures or job
not control the job unless MSD hazards would remove needed protections for losses are anticipated in the affected
are found during the job hazard employees in small businesses. The industries. As a result, impacts on the
analysis. Employers may meet their job Agency’s analysis found that those national economy would be too small to
hazard analysis and control obligations alternatives that significantly alleviated be measurable by economic models.
in any one of a variety of ways. The the impact on small businesses more The anticipated benefits and costs of
addition of clearer compliance than OSHA’s final standard did not this final standard are addressed in the
endpoints will reduce employer provide adequate protection to worker Summary of the Final Economic
uncertainty about whether they are in health and safety. Many of the Analysis (Section VIII of this preamble),
compliance with the rule. Finally, an alternatives to specific provisions, such above, and in the Final Economic
employer can cease having a program at as WRP, are also discussed in the Analysis (Ex. 900). In addition, pursuant
any time the risks in the job are lowered Preamble in the sections describing to Section 205 of the UMRA (2 U.S.C.
so that the job no longer meets the these provisions. 1535), having considered a reasonable
screen. number of alternatives as outlined in
IX. Unfunded Mandates this preamble and in the economic
Establishments with fewer than 11
employees do not have to keep records. OSHA reviewed the final ergonomics analysis (Ex. 900), the Agency has
Where a job hazard analysis or job program standard in accordance with concluded that the final standard is the
controls are necessary, employers do not the Unfunded Mandates Reform Act of most cost-effective alternative for
have to hire a professional ergonomic 1995 (UMRA) (2 U.S.C. 1501 et seq.). As implementation of OSHA’s statutory
consultant. The Agency will also supply discussed above in the Summary of the objective of substantially reducing or
compliance guides for small businesses Final Economic Analysis (Section VIII eliminating a significant risk of material
and a Web-based expert system to guide of the preamble), OSHA estimates that impairment. This is discussed at length
employers through the applicability of compliance with the final ergonomics in the economic analysis (Ex. 900) and
the final standard. The Agency has program standard will require the in the Summary and Explanation
provided flexibility in choosing controls expenditure of approximately $4.0 (Section IV of this preamble) for the
to reduce MSD hazards, including billion each year by employers in the various provisions of the final
administrative controls along with private sector. Therefore, the final ergonomics program standard.
engineering and work-practice controls. ergonomics program standard X. Environmental Impact Statement
Finally, the Agency is permitting establishes a federal private sector
existing ergonomic programs to be mandate and is a significant regulatory Pursuant to the National
grandfathered and considered in action, within the meaning of Section Environmental Policy Act, the
compliance with the standard as long as 202 of UMRA (2 U.S.C. 1532). OSHA Department of Labor has issued
the existing program meets the has included this statement to address regulations to determine when an
requirements in paragraph (c). the anticipated effects of the final environmental impact statement is
The principal reasons that the Agency ergonomics program standard pursuant required in a rulemaking proceeding.
has made its revisions for the final to Section 202. Section 29 CFR § 11.10(a)(3) states:
standard are to make the final standard OSHA standards do not apply to state Preparation of an environmental impact
less costly, more cost-effective, and still and local governments, except in states statement will always be required for

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68819

proposals for promulgation, modification or industries, automation and exposure;’’ ‘‘core element;’’ ‘‘no cost to
revocation of health standards which will mechanization are increasing because of employee;’’ ‘‘employer commitment;’’
significantly affect air, water, soil quality, factors that long predate issuance of this ‘‘employee participation;’’ ‘‘ergonomic
plant or animal life, the use of land and other
final rule. Mechanization and hazard;’’ ‘‘persistent MSD symptoms;’’
aspects of the human environment.
automation in those industries are likely ‘‘forceful lifting/lowering;’’ ‘‘problem
In the preamble to the proposed rule, to produce greater efficiencies and job;’’ ‘‘common sense determination;’’
the Agency stated that no environmental lower costs as well as reducing the risks ‘‘ergonomic risk factors;’’ ‘‘OSHA
impact statement would be required for and costs of employee injuries. OSHA recordable MSD;’’ ‘‘reasonably likely to
this rule because it does not meet the disagrees with the commenter’s cause or contribute to the type of MSD
criteria set forth in 29 CFR § 11.10(a)(3), assertion that recycling would be reported;’’ ‘‘cold temperatures;’’
as stated above. OSHA received one abandoned on a large scale as a result ‘‘dynamic motion;’’ ‘‘awkward posture;’’
comment disagreeing with this of OSHA’s standard on ergonomics ‘‘static posture;’’ and ‘‘reduce to the
determination. The commenter (Ex. programs; by necessity or law, most extent feasible.’’ E.g., Ex. 32–368–1 at p.
500–221) suggested that employer local jurisdictions in the U.S. have now 126 & Ex. 500–197 at pp. III–3–18
compliance activities associated with committed themselves to recycling. (NCE); Ex. 32–206–1 at pp. 13–14
the proposed Ergonomics Program OSHA believes the claims of adverse (American Iron & Steel Institute); Ex.
Standard would have the potential to environmental effects asserted by the 32–241–4 at pp. 166–80 (Anheuser-
cause enormous environmental impacts. commenter are highly speculative, and Busch and United Parcel Service).
The commenter also suggested that the fail to make a plausible case that the Some of the same commenters, as
proposed standard would increase the final Ergonomics Program Standard will well as others, object to what they
demand for electricity by encouraging significantly affect the human characterize as the proposal’s ‘‘one size
workplace automation; increase the environment. Moreover, none of the fits all’’ approach. E.g., Ex. 30–3845 at
consumption of natural resources by impacts predicted by the commenter p. 37 (Forum for a Responsible
encouraging employers to use greater takes into account any of the Ergonomics Standard); Ex. 32–368–1 at
numbers of smaller product containers; environmental benefits that might result p. 72 (NCE); Ex. 30–3077 at p. 1
and impair air quality by encouraging from ergonomics-related job (National Tooling and Machining
delivery vehicles to remain at idle while modifications, such as productivity Association); Ex. 30–2993 at p. 2 (Small
employees manually move smaller loads increases and waste reduction. Business Legislative Council). They
per trip. Finally, the commenter Accordingly, OSHA concludes that the believe it is inadvisable for OSHA to
asserted that the proposed standard final rule will not result in significant issue a standard that applies to a wide
would encourage automation of trash environmental impacts and, therefore, variety of different industries because
collection and waste disposal an environmental impact statement is conditions pertinent to ergonomics vary
operations, and would discourage not required. widely among industries.
recycling. The reason OSHA included general
OSHA notes that the final standard XI. Additional Statutory Issues language, such as the phrases the
requires employers to control problem commenters contend are too vague, in
1. Fair Notice
jobs by modifying the conditions under the proposed standard was to avoid the
which the work is performed, including Numerous commenters contend that very ‘‘one size fits all’’ approach to
such changes as workstation various terms used in the proposed which some of the same commenters
modification, redesign of tools, and job standard are unduly vague and fail to and many others object. Because of the
rotation. The final standard also provide fair notice of what the standard numerous variables that can result in
requires employers to develop requires. For example, the American work-related MSDs, OSHA drafted the
ergonomic programs that involve such Iron & Steel Institute asserts that the proposed rule in flexible, performance-
elements as assessment of problem jobs, proposal ‘‘is not written in language that oriented language to enable employers
modification of jobs to reduce MSD can reasonably be understood by those to develop ergonomics programs
hazards, employee training, and MSD who must comply with it.’’ Ex. 32–206– tailored to their workplaces, rather than
management. 1. Morgan, Lewis & Bockius believes attempting to prescribe, for example, the
Ergonomics-related job modifications that several provisions of the proposal specific manner in which employers
typically result in greater production ‘‘are unworkably vague in their current should control an MSD hazard. As a
efficiencies without the need for state.’’ Ex. 30–4467 at p. 6. Organization result, the proposal used a number of
additional natural resources or the Resources Counselors, Inc. (ORC) states general phrases to allow employers the
increased discharge of pollutants. As that the proposal contains an ‘‘excess of maximum amount of flexibility
several ergonomists testified at the complex terms and definitions.’’ Ex. 32– consistent with the standard’s goal of
hearings (David Alexander, Tr. Pp 78–1 at p. 5. Similar objections were reducing MSDs.
2142–53, 2369–72 and Dennis Mitchell, raised by the Edison Electric Institute In response to the numerous
Tr. Pp 2366–68) ergonomic (Ex. 32–300–1 at p. 6); the Integrated comments that criticized the proposed
modifications typically involve Waste Service Association (Ex. 22–337– standard as being unduly vague, OSHA
mechanization (e.g. the use of carts, 1 at p. 8); the National Coalition on has made a number of changes to the
shelves, adjustable workstations, etc.) Ergonomics (Ex. 32–368–1 at pp. 126– final standard that are designed to give
and only rarely involve automation (the 29); the Chamber of Commerce (Ex. 30– additional guidance as to what the
replacement of people by machines.) 1722 at pp. 24–25 & Ex. 500–188 at pp. standard requires of employers. Some of
Automation is a rarely-used approach 66–69); the Forum for a Responsible the complaints most frequently voiced
unless the employer considers that Ergonomics Standard (Ex. 30–3845 at in the comments—that employer
process efficiency will be improved. pp. 26–29); and numerous others. obligations are not defined with
The likelihood is that updated, more Among the phrases in the proposal the sufficient clarity—are addressed by (1)
energy-efficient production equipment commenters assert were overly vague changing the scope of the standard to no
will actually lead to a decrease, not an are ‘‘eliminate or materially reduce the longer require employers to determine
increase, in energy consumption. In the MSD hazards;’’ ‘‘significant amount of whether their employees are engaged in
trash collection and recycling the employee’s worktime;’’ ‘‘repeated ‘‘manual handling’’ or manufacturing;

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68820 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

(2) including an objective Action Trigger 2. OSHA’s Past Enforcement Efforts Pepperidge Farm held that the
for determining whether an employer In the NPRM, OSHA noted that it had company’s employees were exposed to
must fix a job in which an employee has gained experience over the years in recognized lifting and repetitive motion
reported a MSD incident; and (3) addressing ergonomic issues through a hazards. In Dayton Tire, OSHA received
establishing compliance endpoints that variety of means, including an adverse decision from the
will enable employers to tell with enforcement, consultation, training and administrative law judge and decided
certainty whether they have taken education, compliance assistance, the the case did not present a proper vehicle
sufficient steps to fix a problem job. As Voluntary Protection Programs, and for appeal. The final order in Dayton
a result of these changes, certain phrases issuance of voluntary guidelines. 64 FR Tire is therefore an unreviewed
that commenters claimed were too at 65774. In the area of enforcement, the administrative law judge’s decision and
vague, such as ‘‘significant amount of agency had successfully issued over 550 lacks precedential value. United States
the employee’s worktime,’’ ‘‘core ergonomics citations under the OSH v. Sturm, Ruger & Co., 84 F.3d 1, 5 n.
element of the job,’’ and ‘‘forceful 4 (1st Cir.1996); Matter of Establishment
Act’s General Duty Clause, section
lifting/lowering’’ are no longer used. Inspection of Cerro Copper Prods. Co.,
5(a)(1). Id. Almost all of these citations,
The changes to the final rule, and the 752 F.2d 280, 284 (7th Cir. 1985); Leone
the agency observed, had led to the
reasons for them, are discussed in the Constr., 3 O.S.H. Cas. (BNA) 1979, 1981
implementation of ergonomics programs
Summary and Explanation section of (Rev. Comm’n 1976).
by the cited employers, included some The Chamber contends that the
this preamble. Although the final rule corporate-wide programs developed
contains greater specificity than the ‘‘unfavorable’’ decisions in these three
pursuant to settlement agreements. Id. cases undermine the scientific basis for
proposal, OSHA believes that the final The Chamber of Commerce criticizes
rule still gives employers sufficient ergonomics regulation and hence for
OSHA for not mentioning cases where,
flexibility to develop ergonomics this rule. To the contrary, OSHA
in the Chamber’s words, OSHA’s believes that the decisions in Beverly
programs that are suited to the enforcement efforts ‘‘abjectly failed.’’
particular characteristics of their and Pepperidge Farm support both the
Ex. 30–1722 at p. 7. The Chamber states need for and the scientific basis of this
workplaces. that OSHA lost the ‘‘only three rule. They demonstrate that, even under
OSHA believes that this final rule enforcement actions that were actually the heavy burden of proof OSHA bears
provides fair notice to employers of tried to completion,’’ citing Pepperidge in general duty clause litigation, the
their obligations. On its face, it provides Farm, 17 O.S.H. Cas. (BNA) 1993 (Rev. preponderance of the credible evidence
persons of ordinary intelligence a Comm’n, 1997); Dayton Tire, Division of shows that workplace exposures cause
reasonable opportunity to understand Bridgestone/Firestone, Inc., 1998 WL MSDs, that employers recognize this,
the conduct it prohibits or requires. See 99288 (ALJ, 1998); and Beverly Enters., and that serious injuries result from
Hill v. Colorado, 120 S.Ct 2480, 2498 1994 WL 693958 (ALJ, 1995), review these exposures.
(2000). Moreover, in addition to the directed (Nov. 9, 1995), decided by the The Chamber also cites testimony of
language of the standard and the further Commission (Oct. 27, 2000). Ex. 30– OSHA witnesses in these cases, along
guidance provided by this preamble, 1722 at pp. 7–8. See also Ex. 500–197 with deposition testimony from Hudson
other sources will be available to help at Ex. III–C, E. Scalia, OSHA’s Foods, a case that was ultimately
employers determine their compliance Ergonomics Litigation Record Three settled, to attempt to show that experts
obligations. OSHA intends to make Strikes and It’s Out, cato inst. No. 391. engaged by OSHA cannot state with
compliance assistance conveniently These cases, the Chamber contends, certainty the degree of risk caused by
available to the public, both through its ‘‘demonstrate the futility of exposure to different levels of
website ( and through promulgating a mandatory ergonomics ergonomic stressors (Ex. 30–1722 at pp.
printed publications. Among the program standard, and underscore 26–27, 47); that OSHA compliance
compliance assistance materials will be OSHA’s failure to understand the state officers are unqualified to evaluate the
a small entity compliance guide, as of the scientific evidence and its legal health risk from ergonomic stressors
required by the Small Business authority.’’ Ex. 30–1722 at p. 10. (Ex. 30–1722 at pp. 28, 64); that experts
Regulatory Enforcement Fairness Act of Similarly, the NCE asserts that litigation are unable to define with precision
1996, specifically designed to inform of ergonomics citations under the terms such as ‘‘awkward posture,’’
small businesses of their obligations general duty clause demonstrates ‘‘high force,’’ and ‘‘long periods of
under the rule in language that is OSHA’s inability to garner sufficient standing’’ (Ex. 30–1722 at pp. 64–69);
readily understandable. Employers and scientific evidence to support an that two OSHA expert witnesses in
employees will also be able to look to ergonomics rule. Ex. 32–368–1 at p. 14. Dayton Tire did not offer consistent
guidelines that have proven successful Contrary to the Chamber’s definitions of the stressors in certain
in averting MSDs in specific industries, contentions, OSHA has not ‘‘lost’’ the jobs (Ex. 30–1722 at p. 69); and that
such as the red meat guidelines. Ex. 2– only three ergonomics cases tried to OSHA experts were unable to testify to
13. OSHA-funded consultation services completion. In the case of Beverly the effectiveness of abatement measures
through state agencies will be available Enters., the ‘‘loss’’ to which the (Ex. 30–1722 at pp. 72–73).
to qualifying employers who request it. Chamber refers was an adverse The Chamber’s reliance on selected
And personnel in OSHA’s national and administrative law judge’s decision that testimony in these cases does not
field offices will be available to answer was under review by the Commission undermine the scientific basis for this
questions about the standard. OSHA when the Chamber submitted its final rule. First, as the Commission
also encourages trade associations and comments. The Commission has since, decisions in Beverly and Pepperidge
other business organizations to in a decision issued on October 27, Farm show, the evidence in those cases
disseminate information, such as case 2000, reversed the administrative law supports OSHA’s decision to address
studies of successful ergonomic judge’s decision and held that the ergonomic hazards in this final rule.
interventions by employers in their company’s practices for lifting patients Second, even if reasonable experts differ
industries, that will help facilitate in its nursing homes exposed its nursing over the nature of ergonomic risks or
compliance with the standard by their assistants to a serious recognized cannot precisely quantify those risks,
members. hazard. The Commission decision in OSHA is not precluded from issuing a

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rule. ‘‘OSHA is not required to support will prevent or materially reduce the OSHA. Id. at 2034–38. The Commission
its finding that a significant risk exists hazard are available. concluded that the evidence did not
with anything approaching scientific The Commission also agreed with show that the steps taken by the
certainty.’’ Benzene, 448 U.S. at 656. As OSHA that repetitive motion assembly company were inadequate and therefore
long as its findings are supported by a line tasks posed a recognized hazard. 17 held that Pepperidge Farm had fulfilled
body of reputable scientific thought, O.S.H. Cas. (BNA) at 2010. Over a three- its duty under the general duty clause
OSHA may use conservative year period, 28 employees engaged in with respect to the repetitive motion
assumptions in interpreting the repetitive motion tasks had undergone hazards. Id. at 2040–41.
evidence and risk error on the side of 42 separate surgical procedures,
including 32 carpal tunnel releases. Id. Beverly Enterprises
overprotection rather than
underprotection. Id. See also American at 2015. Based on this evidence and on In Beverly Enterprises, OSHRC No.
Dental Ass’n v. Martin, 984 F.2d 823, testimony about the rate of carpal tunnel 91–3344 et al., (Rev. Comm’n, Oct. 27,
827 (7th Cir.), cert. denied, 510 U.S. 859 syndrome in the general population, the 2000), the nursing assistants (NA’s) the
(1993) (‘‘OSHA was required neither to Commission found that the incidence of company employed in its nursing
quantify the risk to workers health nor carpal tunnel injury caused by repetitive homes were required to lift patients
to establish the existence of significant motions performed at the plant was manually and, in many cases, without
risk to a scientific certainty.’’). ‘‘substantially in excess of that found in assistance. Those employees suffered a
Certainly, the record of this rulemaking other populations, including other disproportionate number of cases of
contains conflicting evidence on the populations of workers.’’ Id. at 2029. lower back pain (LBP), which was often
issues the Chamber raises, such as the The Commission relied on expert so severe that the employee would be
relationship between ergonomic testimony, evidence of biological off work for long periods of time, in
stressors and MSDs. However, given the plausibility, and epidemiological some cases six months to over a year.
high number of MSDs workers have studies, to find that the high rate of Slip. op. at 16. The administrative law
been suffering and continue to suffer, MSDs suffered by the employees was judge concluded that OSHA had not
OSHA does not believe that the lack of caused by their work on the assembly proven that the cases of LBP were
a consensus among knowledgeable line. Id. at 2028–29. The Commission caused by Beverly’s lifting practices.
experts justifies further delay in the also held that the employer recognized The ALJ therefore vacated the citation
issuance of a rule that is needed to the hazard posed by the repetitive for lack of proof of a hazard.
protect workers against such ailments. motions because the company’s own The Commission reversed the ALJ’s
In addition, there is a substantial body medical staff attributed the cause of decision. The Commission extensively
of scientific evidence to support the employee disorders to the tasks examined the evidence showing that the
promulgation of an ergonomics performed at the facility. Id. at 2030. nurses aides were exposed to the risk of
standard. And, the Commission held that the contracting LBP from their lifting
upper extremity musculoskeletal activities. The evidence included: (1)
Because the Chamber and other disorders resulting in surgery, disability,
rulemaking participants have argued The high rate of lost-time cases of LBP
and restricted work suffered by suffered by Beverly’s NA’s; (2) evidence
that Pepperidge Farm and Beverly employees from their assembly line
undermine the basis for this rule, a brief of biomechanical modeling, which
tasks ‘‘clearly involved serious physical evaluated the compressive force
discussion of those cases is appropriate. harm.’’ Id. at 2032. The actual hazard imposed by lifts of various weights and
Pepperidge Farm posed to employees from the highly body positions on the lower back and
repetitive work, as opposed to a calculated the percentage of the working
In Pepperidge Farm, the Commission potential hazard, was thus not ‘‘benign,’’ population that could safely perform
held that the employer willfully as claimed by one writer. Ex. 500–197 such lifts; (3) the NIOSH lifting
violated the OSH Act in requiring its at p.12. equation, a formula developed for
employees to perform hazardous lifts, Finally, the Commission accepted NIOSH for determining a safe level of
which caused them to suffer high rates OSHA’s position that Pepperidge Farm lift based on data compiled by various
of serious MSDs. The administrative law was required to follow a process of researchers on the biomechanical,
judge found that the employer’s manual abatement to eliminate or materially epidemiological, psychophysical, and
lifting tasks, which required the lifting reduce the hazard. 17 O.S.H. Cas. (BNA) physiological bases for LBP; and (4)
of objects weighing up to 165 pounds, at 2034–35. The Commission agreed epidemiological studies showing a
were hazardous, that the company with OSHA on the core components of correlation between patient lifting and
recognized the hazard, and that feasible such a process—‘‘accurate record LBP in populations of health care
means of abating the hazard existed. 17 keeping, medical treatment for injured workers. The Commission concluded:
O.S.H. Cas. (BNA) at 2003. The employees, workplace analysis to assess
employer did not dispute before the the potential hazard and steps to abate We find on the scientific evidence
Commission the ALJ’s findings that the presented that manual lifting of residents is
it, education and training of workers
a known and recognized risk factor for LBP.
lifting tasks were hazardous and that and management, and further actions, to Considering also the evidence showing that
abatement was feasible, but argued that the extent feasible, to materially reduce the frequency and manner in which Beverly’s
it did not recognize the hazard. The the hazard.’’ Id. at 2034. Under this NA’s performed their assigned tasks exposed
Commission rejected the argument, process, the employer would determine them to compressive forces in excess of
finding that Pepperidge Farm ‘‘precisely what particular mix of limits well-established and accepted in the
recognized the hazard based on engineering and administrative controls scientific community, and that Beverly’s
recommendations by its worker’s most efficiently reduces the [hazard].’’ working conditions resulted in numerous
compensation carrier and its own Id. at 2033. The Commission found that lost-time incidents and prevented Beverly’s
NA’s from performing their usual daily
corporate ergonomist. Id. at 2003–07. Pepperidge Farm had in fact followed activities, we conclude that the manual
Thus, Pepperidge Farm illustrates, as such a process by implementing a lifting of residents was shown on this record
OSHA has found in this rulemaking, number of engineering and to be a hazardous work practice and that
that repetitive lifting of heavy objects is administrative controls and taking the Beverly controls the methods used to perform
hazardous and that feasible means that other process steps recommended by the lifting.

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Slip op. at 52. agreements are highly significant. While The Chamber of Commerce asserts
The Commission further found that avoidance of the time and expense of that a settlement agreement with
Beverly recognized the hazard. Among litigation undoubtedly entered into Hudson Foods is an example of a case
other evidence, the Commission noted those employers’ decisions to settle, that the employer settled despite
that Beverly had adopted a ‘‘Lift with they nevertheless agreed to put forth palpable weaknesses in OSHA’s
Care’’ program, which referred to the substantial efforts to reduce or eliminate evidence. Ex. 30–1722 at pp. 11–12. The
NIOSH limits for safe lifting and taught the hazards for which they had been Chamber suggests that OSHA settled for
its NA’s how to lift patients in a way cited. For many, the agreements went little to get out of litigation that was not
that would reduce the likelihood both of far beyond the cited locations to other going well. In fact, OSHA had
injury to the resident and back injury to corporate facilities not visited by OSHA developed strong evidence to support
the NA. Id. at 53, 59–60. In addition, and, therefore, far beyond any the citations and was fully prepared to
Beverly knew its NA’s were suffering abatement orders OSHA might have go to trial if necessary. See generally
high rates of LBP from its workers’ obtained in litigation. OSHA’s Reply to Hudson Foods. Inc.’s
compensation claims; that failure to use Those agreements and resulting Motion to Exclude Expert Testimony,
correct lifting techniques is one cause of efforts were clearly successful. As noted Secretary v. Hudson Foods, Inc., dated
back injury; and that its nursing homes in the proposed rule preamble, OSHA April 30, 1999 (OSHRC Docket No. 98–
did not have enough mechanical hoists held a workshop in March 1999, in 0079)(Ex. 502–26). However, OSHA was
to ensure that such equipment was which ten companies described their willing to settle because the settlement
available when necessary. Id. at 54–55. experience under their settlement secured all of its objectives. Hudson,
Finally, the Commission relied on agreement and with their ergonomics which was purchased by Tyson Foods,
testimony showing that experts familiar programs. All the companies that Inc. after OSHA’s inspection, but before
with the nursing home industry reported results to OSHA showed a the settlement, withdrew its notice of
perceive lifts such as those performed substantially lower severity rate for contest to the ergonomic allegations
by Beverly to be hazardous. Id. at 62. MSD’s since implementing the programs contained in the citations, paid a total
The Commission found that the defined in their agreements. Ex. 26– penalty of $200,000 for all citations,
hazard was likely to cause serious 1420. Most companies reported lower and, most importantly, agreed to
physical harm. ‘‘LBP has a substantial workers’ compensation costs, as well as implement the comprehensive, existing
and significant effect on the affected higher productivity and product quality. Tyson Foods ergonomics program that
employees’’ ability to perform their Id. Only five of the 13 companies the parties anticipated would abate the
normal activities and effectively involved in these agreements violations. Ex. 502–42, pp. 3–5, Exhibits
disables employees for periods of time consistently reported the number of ‘‘A’’ and B’’. With this hazard
which are extensive in some instances. MSD cases or MSD case rates, and all recognition and gain in employee safety
We conclude that in view of the five showed a significant decline in the and health, continued litigation over a
debilitating effect on employees and the number of lost workdays. None of the larger penalty was pointless. The
potential duration of the disability, LBP companies that reported severity exculpatory language cited by the
is properly considered serious physical statistics showed an increase in lost Chamber was acceptable in light of the
harm.’’ Id. at 68. workdays as a result of the ergonomics intervening purchase of Hudson by
The parties disputed before the program. Tyson Foods, which had not caused the
Commission whether OSHA had proven The success of OSHA enforcement cited conditions and had displayed
the feasibility and likely utility of coupled with settlements requiring good faith through its own
abatement measures. Since the comprehensive ergonomics programs implementation of a comprehensive
administrative law judge had not made was confirmed by the United Food and ergonomics program. Ex. 30–4137, p. 1.
factual findings on that issue, the Commercial Workers International
Commission remanded the case for such Union. The union recognized that ‘‘[t]he OSHA’s Red Meat Guidelines
findings. Id. at 72–73. majority of our successful programs in In addition to OSHA’s enforcement
the meatpacking and poultry industries efforts, many knowledgeable witnesses
Settlements of General Duty Clause
were propelled by OSHA enforcement. agreed that the agency’s Ergonomics
Ergonomic settlement agreement and Program Management Guidelines for
The Chamber of Commerce takes corporate-wide settlement agreements Meatpacking Plants (‘‘Red Meat
issue with OSHA’s claim in the NPRM (CWSAs) * * * demonstrate industry Guidelines’’) (Ex. 2–13) have resulted in
(64 Fed. Reg. at 65774) that the recognition of the existence of MSD implementation of successful workplace
settlement agreements that resolved hazards and the elements of a program programs addressing ergonomic
most of the contested General Duty to prevent worker injuries arising from hazards. For example, in contrasting
Clause citations showed the success of exposure to these hazards.’’ Ex. 32–210– OSHA’s proposal to the Red Meat
OSHA’s enforcement efforts and the 2, p. 5. The UFCW gave a number of Guidelines, IBP Inc.’’s Bob Wing
efficacy of ergonomics programs. Ex. examples illustrating the efficacy of acknowledged that the Guidelines had
30–1722 at pp. 10–12. The Chamber these agreements and resulting been successful. Ex. 30–4046, p. 1.
says that employers settle ergonomic programs. One was that of IBP’s Dakota Similarly, the American Meat Institute
citations to avoid the prospect of City meatpacking plant, which (‘‘AMI’’), the main representative for the
expensive litigation, and that OSHA implemented a comprehensive program U.S. Meat Industry, including 276 meat
therefore cannot conclude that ‘‘those as a result of citations and subsequent packers and processors, operating 559
employers ergonomics programs will in settlement agreement. Cost savings facilities, acknowledged that the
fact reduce injury in the workplace, and attributed to the program ‘‘* * * were industry worked with OSHA on the Red
that, in the absence of OSHA’s realized in the following areas: Meat Guidelines and has been using
interventions, the employees in [employee] turnover was down them for nearly ten years. Ex. 30–3677,
question would have been without significantly . * * *; [MSD] incidence p. 1. The AMI notes that the Red Meat
protection.’’ Id. at 10–11. OSHA dropped dramatically; surgeries fell; Guidelines work and that the industry
continues to believe, contrary to the [and] worker’s compensation costs were has made substantial progress in
Chamber’s assertion, that the settlement reduced significantly.’’ Id. at 9. addressing ergonomic issues since

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68823

development of the Guidelines. Id. at 1– section 5(a)(1) citations are typical of ergonomics problems, their compliance
4. The AMI recommends that the the employers who will have duties costs would not be representative of the
Guidelines be extended throughout under this standard. Section 5(a)(1) costs the average employer will incur in
general industry. Id. at 4. The utility of comes into play when there is a serious complying with the standard.
OSHA’s Red Meat Guidelines was also recognized hazard in an employer’s Moreover, the existence of an
hailed by the United Food and workplace that need not be abated ergonomics standard will help reduce
Commercial Workers Union, which under a specific standard. In order to compliance costs compared to
noted that upon publication of the prove an employer violated section enforcement of ergonomics protection
Guidelines, industry began to respond 5(a)(1), OSHA must prove that a under section 5(a)(1). It has frequently
both from the standpoint of technology, recognized hazard that is likely to cause been observed that reliance on
as well as ergonomic programs. Ex. 32– death or serious physical harm exists in standards is preferable to enforcement
210–2, pp. 25–26. The success of the the employer’s workplace. Nelson Tree under section 5(a)(1) because standards
Guidelines led to use and acceptance in Srvs v. OSHRC, 60 F.3d 1207, 1209 (6th spell out employer duties more
other industries. The poultry industry Cir. 1995). OSHA must also specify a specifically than does section 5(a)(1).
appears to have secured substantial means by which the employer can E.g., St. Joe Minerals Corp. v. OSHRC,
reductions in chronic MSD’s from eliminate or materially reduce the 647 F.2d 840, 846 n.13 (8th Cir. 1981);
adherence to the principles in the hazard and demonstrate the feasibility B & B Insulation, Inc. v. OSHRC, 583
document (Ex. 30–3375, p. 1). and likely utility of those means. Id. F.2d 1364, 1371 & n.12 (5th Cir. 1978).
OSHA can not, however, ‘‘demand’’ that That is true of this final rule. For
Enforcement Actions and Compliance example, unlike section 5(a)(1), this rule
Costs an employer abate a 5(a)(1) violation in
any particular way. The employer is not establishes safe harbors that will enable
Some commenters (e.g., Anheuser- limited to using the means listed in the employers to know with a high degree
Busch and United Parcel Service, Ex. citation to eliminate or materially of certainty when they have fulfilled
32–241–4 at pp. 259–266 and the reduce the hazard but is free to use any their compliance obligations. By
National Coalition on Ergonomics et al., means that accomplishes that goal. See providing better notice of employer
Ex. 500–197 at pp. II–79–84) contend OSHA Field Inspection Reference duties than does section 5(a)(1), the
that OSHA’s compliance cost estimates Manual, Ch. A.4.f(2) (‘‘the employer is standard will promote the efficient use
ignore the way the agency has enforced not limited to the abatement methods of employer resources and thereby help
ergonomic requirements under section suggested by OSHA.’’); Marshall v. B.W. minimize costs.
5(a)(1). The commenters assert that
Harrison Lumber Co., 569 F.2d 1303, 3. Cost-effectiveness.
OSHA’s estimated costs of compliance
1308 (5th Cir. 1978). An employer will All OSH Act standards must be cost
with the ergonomics standard are far
generally have more detailed knowledge effective. Cotton Dust, 453 U.S. at 514
lower than the costs of the controls
of its operations and processes than n. 32. A standard is cost-effective if the
OSHA has ‘‘demanded’’ in 5(a)(1)
OSHA will gain during a relatively brief protective measures it requires are the
enforcement actions.
This argument lacks a factual inspection of the workplace and may least costly of the available alternatives
foundation because it is unsupported by therefore be able to devise methods of that achieve the same level of
any evidence of the abatement costs eliminating ergonomics hazards that are protection. Id.; Lockout/Tagout II, 37
associated with the section 5(a)(1) more cost effective than those proposed F.3d at 668.
ergonomics citations. In any event, by OSHA. As a result, the costs OSHA has taken a number of steps to
OSHA does not believe those costs are associated with the means of abatement ensure that this final rule is cost-
extravagant. In many cases, the listed in a citation, even if those costs effective. First, the rule allows
abatement measures sought by OSHA were quantified in this record, may well employers with problem jobs to use any
were already being used by similarly- be higher than those the employer will combination of engineering,
situated employers. In Hudson Foods, as actually incur. administrative, and work practice
discussed above, the settlement For additional reasons as well, the controls to control the MSD hazards.
agreement simply required Hudson to costs associated with section 5(a)(1) Therefore, from the entire range of
adopt the ergonomics program of its citations cannot be used to calculate the controls that would be potentially
new owner, Tyson Foods. In Pepperidge costs of this standard. The employers effective in an employer’s workplace,
Farm, abatement of the lifting violations who have been cited for 5(a)(1) the employer is able to select those that
found by the Commission required the ergonomics violations are not are the least costly.
company to do no more than its own representative of the universe of The standard also ensures the cost-
corporate ergonomist had employers who will have compliance effective use of employer resources by
recommended. 17 O.S.H. Cas. (BNA) at duties under the standard. As noted focusing employers’ compliance
2004–06. Similarly, the process for above, to sustain a 5(a)(1) citation, resources where they will do the most
abating the repetitive motion hazards OSHA must be able to prove not only good: on those jobs that are
that Pepperidge Farm had already been that a hazard is present but that the demonstrably causing MSDs. It requires
following was found by the Commission hazard is one that is recognized by the all covered employers to provide basic
to meet its duty to implement a feasible employer or its industry and is likely to information about MSDs to its
means of abatement. Id. at 2039–41. cause death or serious physical harm. employees, but only those employers
Thus, the citations in Pepperidge Farm Because of this heavy burden of proof, whose employees experience MSD
did not require the employer to take OSHA has only issued 5(a)(1) citations incidents in jobs that meet the
additional steps beyond those it was for ergonomic violations to a relatively standard’s Action Trigger have
already taking. small number of employers, and those additional duties. In this regard, the
Moreover, these arguments reflect a employers have been cited because their final standard is more cost-effective
fundamental misunderstanding of the employees had been suffering unusually than the proposal, which would have
significance of abatement requirements high rates of work-related MSDs. And required all employers engaged in
in 5(a)(1) citations and on a mistaken because the employers cited under manufacturing and manual handling to
belief that employers who received 5(a)(1) had particularly severe implement ergonomics programs.

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68824 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

The Quick Fix option in the final rule 4. Alleged Conflict With Other Federal and to give the employees the
also adds to the rule’s cost-effectiveness Statutes opportunity to ask questions about the
by allowing employers to fix problem A number of commenters contend ergonomics program. Paragraph (u)
jobs without incurring the additional that portions of the standard conflict requires employers to consult with
costs of setting up an entire ergonomics with other federal laws, in particular the employees and their representatives
program. The Quick Fix option is National Labor Relations Act (NLRA), about the effectiveness of the program
available for those jobs that can be fixed 29 U.S.C. 141 et seq., the Americans and any problems with it.
quickly and completely once the job is with Disabilities Act (ADA), 42 U.S.C. Some commenters contend that the
identified as a problem job. 12101 et seq., the Family and Medical requirement for employee participation
Leave Act (FMLA), 29 U.S.C. 2601 et in an ergonomics program, to the extent
The extended compliance dates in the it applies in nonunion workplaces,
standard will also help minimize seq., Title VII of the Civil Rights Act of
would conflict with section 8(a)(2) of
employers’ compliance costs. Employers 1964, 42 U.S.C. s 2000e et seq., and the
the NLRA, which prohibits employers
are given 11 months from the date of the Age Discrimination in Employment Act
from dominating or interfering with a
standard’s publication to provide their (ADEA), 29 U.S.C. 621 et seq. The
labor organization. Ex. 32–368–1 at pp.
employees with the basic information preamble to the proposed standard
124–26 (National Coalition on
the standard requires. Employers will discussed in some detail the standard’s
Ergonomics); Ex. 32–234–2 at pp. 29–30
thereby have sufficient time to first consistency with the NLRA and the
(National Solid Waste Management
become familiar with the standard ADA, see 64 FR at 65,794–65,795
Association); Ex. 30–3845 at p. 36
themselves and then have time to (NLRA), 66,058–66,059 (ADA), and, as
(Forum for a Responsible Ergonomics
provide the required information to discussed below, the comments do not Standard). The National Coalition on
their employees. alter OSHA’s conclusion that there is no Ergonomics (NCE) states that because
conflict with those statutes. The the standard requires that employers
Employers are given up to four years proposed preamble did not address the
from the standard’s effective date to provide ways for employees to be
FMLA, Title VII, or the ADEA, but there involved in developing, implementing,
complete the implementation of too we conclude there is no conflict, as
permanent controls for problem jobs. and evaluating ergonomics programs,
discussed below. the standard is an ‘‘open invitation’’ to
This extended time frame will promote a. National Labor Relations Act—
cost-effectiveness in several ways. First, violate Section 8(a)(2). Ex. 32–368–1 at
NLRA’s prohibition on employer- p 126. NCE also asserts that requiring
it will give employers sufficient time to dominated labor organizations in
learn about the range of available employers to respond to employee
nonunion workplaces. Various reports of MSD symptoms would
controls, both from the compliance provisions of the standard require
assistance OSHA plans to make require conduct violating Section
employers to convey information to 8(a)(2). Id.
available and from other sources. Many their employees and obtain information
employers will thereby be able to These arguments are without merit.
from their employees. Paragraph (i), Nothing in the standard requires
implement ‘‘off-the-shelf’’ controls, governing employee participation,
which will be less costly than if the creation of any sort of employee
requires that employees: (1) Have ways organization or committee, let alone one
employer needs to develop controls on to promptly report MSDs, their signs
its own or hire an outside expert to that violates the NLRA. Section 8(a)(2)
and symptoms, and MSD hazards in the of the NLRA does not restrict the ability
recommend controls. Second, the workplace; (2) receive prompt responses
extended compliance period will enable of nonunion employers to deal with
to their reports of MSD signs and employees as individuals, and such
an employer to adopt an incremental symptoms and MSD hazards; (3) have
abatement approach that may, in turn, employers can comply fully with the
ready access to the standard and to standard’s employee participation
result in less expensive controls than if information about MSDs, MSD signs provisions by doing so. Contrary to
the employer had to commit itself to a and symptoms, and the employer’s NCE’s contention, the requirement that
control strategy immediately. For ergonomics program; and (4) have ways employers respond to employee reports
example, an employer can first try a to be involved in developing, of MSD symptoms does not violate the
low-cost control and, if it works, would implementing and evaluating the NLRA. Even before the passage of the
not need to consider higher-cost ergonomics program. Paragraph (j) OSH Act, it was common for employees
controls. Third, the extended time frame requires an employer analyzing a to report injuries to employers, and for
will enable employers who have more problem job to talk with affected responsible employers to respond to
than one problem job to control the employees and their representatives those reports by correcting workplace
highest risk jobs first while still giving about the tasks they perform that relate hazards. See Taft Broadcasting Co.,
them sufficient time to control their to MSDs. Paragraph (m) provides that an Kings Island Div., 13 O.S.H. Cas. (BNA)
other problem jobs. This will enable employer required to control a problem 1137, 1140 (Rev. Comm’n 1987), aff’d,
such an employer to avert more MSDs job must ask employees and their 849 F.2d 990 (6th Cir. 1988). It has
at an earlier time and thereby minimize representatives for recommendations never been suggested that such actions
its costs for MSD management and about reducing the MSD hazards and violate the NLRA, and they clearly do
worker removal protection. consult with employees and their not.
Finally, OSHA is permitting those representatives about the effectiveness Moreover, nonunion employers can
employers who already have of the controls the employer use a variety of other means to comply
implemented ergonomics programs implements. Paragraph (o) provides that with the employee participation
meeting certain criteria to continue an employer who chooses the Quick Fix provisions of the standard without
those programs rather than establish option must ask employees and their running afoul of section 8(a)(2)’s
new programs under this final rule. representatives for recommendations proscription against dominating or
Those employers whose current about reducing the MSD hazards. interfering with the formation or
programs qualify for ‘‘grandfathering’’ Paragraph (t) requires the employer to administration of any labor
will therefore not incur any new costs train employees in the aspects of the organization. A ‘‘labor organization’’
as a result of this final rule. ergonomics program that affect them under the NLRA is ‘‘any organization of

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68825

any kind, or any agency or employee a safety conference—that is structured because it would require employers to
representation committee or plan, in so as not to ‘‘deal with’’ the employer, make unilateral changes in mandatory
which employees participate and which within the meaning of Section 8(a)(2). subjects of bargaining, thereby
exists for the purpose, in whole or in See 64 FR at 65,795 (discussing Ex. 26– subjecting them to unfair labor practice
part, of dealing with employers 29: May 13, 1999 testimony of Henry L. charges under section 8(a)(5) of the
concerning grievances, labor disputes, Solano, Solicitor of Labor, to the NLRA, labor unrest, and possible
wages, rates of pay, hours of Subcommittee on Workforce criminal penalties. Ex. 30–1722 at p. 82.
employment, or conditions of work.’’ 29 Protections, Committee on Education The NCE and others say that unionized
U.S.C. § 152(5). A critical component of and the Workforce in the House of employers would be forced into direct
this definition is that the organization or Representatives). In addition, the dealing with represented employees and
committee ‘‘deal[] with’’ an employer. preamble noted that employers can will thereby violate section 8(a)(5). Ex.
Such ‘‘dealing’’ occurs if there is a provide mechanisms for individual 500–197 at pp. III–53–61. Similarly, the
‘‘bilateral process’’ that entails a pattern employees to report problems and make Edison Electric Institute (EEI) reads the
or practice by which a group of recommendations, or can assign safety proposed standard as requiring
employees makes proposals to responsibilities to employees as part of employers to deal with individual
management and management responds their job descriptions, without employees regarding their working
to those proposals by acceptance or implicating Section 8(a)(2). Id. conditions and contends that this
rejection by word or deed. EFCO Corp., The NCE questions whether ‘‘brain- requirement ‘‘creates the seeds of
327 N.L.R.B. No. 71 (Dec. 31, 1998), storming’’ groups or ‘‘information- conflict with the exclusive bargaining
aff’d, EFCO Corp. v. NLRB, 2000 WL gathering’’ committees would actually authority of recognized unions under
623436 (4th Cir. 2000) (unpublished); fall outside the scope of Sections 2(5) Section 9(a) of the [NLRA].’’ Ex. 32–
Electromation, Inc., 309 N.L.R.B. 990 and 8(a)(2). Ex. 32–368–1 at p. 126. 300–1 at p. 9. The Integrated Waste
(1992). However, if there are only These types of entities are specifically Services Association (ISWA) makes a
isolated instances in which a group mentioned in NLRA case law as ones similar argument. Ex. 22–7–1 at pp. 16–
makes ad hoc proposals to management, that would pass muster. See E.I. du 17. EEI and ISWA urge OSHA to make
the element of dealing is lacking. E.I. du Pont, 311 N.L.R.B. at 894, cited in Ex. clear in the final rule that where
Pont de Nemours & Co., 311 N.L.R.B. 26–23, pp. 11–12; see also EFCO Corp., employees are represented by a certified
893, 894 (1993). 327 N.L.R.B. No. 71, slip op. 5 (‘‘[a] bargaining representative, employers
In its preamble to the proposed rule, significant portion of the purposes and will satisfy the employee involvement
OSHA carefully explained that the functions of the Safety Committee, such provisions of the standard by dealing in
requirement that employees have ways as the reporting and correction of safety good faith with the union. Ex. 32–300–
of being involved in the ergonomics problems, would not contribute to a 1 at p. 11 (EEI); Ex. 22–337–1 at p.17
program can be satisfied by measures finding that it is a labor organization’’); (ISWA).
that fall short of the employer- id. (employee suggestion screening As discussed elsewhere in this
dominated committees and other committee did not ‘‘deal with’’ preamble, employee participation in an
employee organizations that violate employer because it merely reviewed ergonomics program is a vital
Section 8(a)(2). In general, the agency and forwarded suggestions without component of an effective program.
emphasized that the ‘‘nature, form, and formulating proposals or presenting OSHA further believes that unions,
extent of how employers must provide them to management). Nor does the fact where they exist, must be involved in
employees with opportunities to that the proposed preamble elsewhere the program and has therefore provided
participate will vary among refers to an ‘‘ergonomics committee’’ or that ‘‘representatives’’ of employees be
workplaces,’’ depending upon a variety a ‘‘labor-management CTD committee’’ afforded the opportunity to participate
of factors, including ‘‘[t]he presence or as effective components of an in job hazard analyses,
absence of a union.’’ 64 FR at 65,800. In ergonomics program suggest that the recommendations for controls, and
particular, it explained that OSHA has agency is being ‘‘disingenuous,’’ as NCE program evaluation. Cf. OSHA Field
been careful to structure the ‘‘employee charges. Ex. 32–368–1 at p. 125 n. 228. Inspection Reference Manual, Ch. II,
participation requirements so that they The general reference to an ‘‘ergonomics Sec. A.3.f (where employees are
are entirely consonant with the case law committee’’ does not suggest that represented by a recognized union, the
based on the NLRA.’’ 64 FR at 65,795. OSHA, contrary to its express highest ranking on-site union official or
Thus, the agency explained that the statements, requires employers to union employee representative
proposed rule does not ‘‘mandate any institute employee committees that designates who will represent
particular method ‘‘ such as employee violate Section 8(a)(2), and the reference employees during a walkaround
committees ‘‘ for ensuring employee to a joint-labor management committee inspection); OSHA Instruction CPL 2–
participation,’’ and that this ‘‘leaves is consistent with OSHA’s statement 2.45A (Sept. 13, 1994), Process Safety
employers free to involve employees in that a permissible mechanism for Management of Highly Hazardous
the program in ways that do not violate employee participation in unionized Chemicals—Compliance Guidelines and
the NLRA but will further meaningful workplaces, consistent with the Enforcement Procedures, Appendix B
employee participation.’’ Id. proposed standard and the NLRA, is a (‘‘employee representative’’ under
Moreover, OSHA has already ‘‘joint labor-management committee employee participation provision of
explained that there are various established in compliance with the process safety management standard, 29
permissible ways to meet the NLRA by bargaining between the C.F.R. 1910.119(c), refers to recognized
requirement that employees be involved employer and the union representing union). Thus, rather than bypassing
in developing, implementing, and the employees.’’ 64 FR at 65,795. unions, the standard provides that they
evaluating ergonomics programs. The Impact on collective bargaining play an important role.
preamble to the proposed standard agreements in unionized workplaces. As For example, the employer must,
pointed to certain methods of obtaining to unionized settings, the Chamber of under paragraph (m), ask the
employee input through employee Commerce contends that the proposed ‘‘employees and their representatives’’
group activity—a brainstorming group, rule would force employers to run afoul for recommendations about how to best
an information-gathering committee, or of the NLRA and the Railway Labor Act eliminate or control MSD hazards. The

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68826 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

requirement that employers ask 1136, 1144 (W.D. La. 1982), aff’d, 731 The reality is that since the OSHAct’s
‘‘employees and their representatives’’ F.2d 280 (5th Cir. 1984). Thus, if there passage, employers and unions have been
for such recommendations does not is an irreconcilable conflict between the able to meet both their responsibilities under
OSHA’s standards and their duty to bargain
mean that a unionized employer must standard and a collective bargaining under the NLRA. Unions have a strong
deal separately with its represented agreement, the standard would prevail. interest in dealing with employers over safety
employees and their union. That The possibility that existing collective and health matters, and will eagerly deal
language is intended to encompass the bargaining agreements address with employers over ergonomics. The record
entire range of workplaces, including ergonomics does not, as the Chamber of reflects extensive union-management efforts
nonunion workplaces, unionized to tackle ergonomic hazards. Thus, the notion
Commerce suggests, place employers in that the employer’s bargaining obligation
workplaces in which all of the an untenable position. If such stands in the way of OSHA compliance does
employees in problem jobs are collectively bargained programs meet not reflect reality. Ex. 500–218 at p. 162.
represented by the union, and the standard as adopted or qualify under
workplaces in which some of the The National Coalition on Ergonomics
the standard’s grandfather clause, they argues that imposition of some of the
employees in problem jobs are will not need to be altered. If they
represented by the union and some are controls suggested by OSHA could
conflict with the standard, the violate seniority and line of progression
not. In workplaces in which all
employer’s statutory obligation to provisions in collective bargaining
employees in a problem job are within
comply with the standard takes priority agreements. Ex. 32–368–1 at p. 81. The
the bargaining unit, employers may, as
over the agreement. Murphy Oil, 286 NCE is apparently referring to the
EEI and ISWA suggest, fulfill their
NLRB at 1042 (employer ‘‘was not only standard’s inclusion of employee
obligations under the provisions that
within its rights, but also legally bound rotation in the definition of
require the involvement of ‘‘employees
to adopt a rule that complied with ‘‘administrative controls.’’ The NCE also
and their representatives’’ by dealing in
Federal law.’’); Standard Candy Co., 147 claims that employees being rotated into
good faith with the union. The employer
NLRB 1070, 1073 (1964) (employer was other jobs may not be qualified to
and union may agree on any mechanism
legally obligated to raise wages to new perform those jobs and that job rotation
for employee participation that is
federally-mandated minimum wage can create a greater hazard by subjecting
consistent with the standard.
without bargaining with union). employees to the risk of new MSD risk
Some commenters note that factors they were not exposed to in their
ergonomic provisions have been To the extent the employer has
discretion in the means by which it prior jobs. Id.
incorporated into collective bargaining These objections are unpersuasive.
agreements and assert that employers achieves compliance, and the means
involve a mandatory subject of First, many workplaces are not covered
may be forced to violate these by collective bargaining agreements that
agreements to comply with the rule. Ex. bargaining, the employer would be
required to bargain with the union contain seniority or line of progression
30–1722 at p. 82 (Chamber of limitations. In those workplaces, the
Commerce); Ex. 500–197 at p. III–62 regarding the means of compliance.
concerns raised by NCE are totally
(National Coalition on Ergonomics and United Steelworkers, 647 F.2d at 1236
absent. Second, the standard does not
others). The duty to bargain with (‘‘[w]hen an issue related to earnings
require any employer to use job rotation.
recognized unions over safety and protection not wholly covered by OSHA
To the contrary, it specifically states
health matters does not excuse regulation arises between labor and
that engineering controls, where
employers from complying with OSH management, it will remain a mandatory
feasible, are to be preferred over
Act standards. Employers and unions subject of collective bargaining’’); see administrative controls, including job
cannot bargain away an obligation Watsonville Newspapers, LLC, 327 rotation. However, to give employers
under the Act. See Trans World Airlines N.L.R.B. No. 160, slip op. 2–3 (Mar. 24, maximum flexibility, the standard gives
v. Hardison, 432 U.S. 63, 79 (1977) 1999); Dickerson-Chapman, Inc., 313 employers the option of using
(‘‘neither a collective-bargaining N.L.R.B. 907, 942 (1994) (although administrative controls. As a result,
contract nor a seniority system may be employer must comply with OSH Act those employers who can use job
employed to violate the statute.’’); standard requiring daily inspections of rotation safely and effectively are free to
Alexander v. Gardner Denver Co., 415 open excavations by a ‘‘competent do so, while those who believe job
U.S. 36, 51 (1974) (notwithstanding person,’’ employer must bargain with rotation would lead to contractual or
contrary provision of collective union about who would be so safety problems can address ergonomic
bargaining agreement, employee has designated); Hanes Corp., 260 N.L.R.B. hazards in other ways.
right to court hearing on race 557, 561–562 & n.12 (1982) (where b. Americans with Disabilities Act.
discrimination claim under Title VII). OSHA standard required use of The ADA is an anti-discrimination
See generally United Steelworkers v. respirators but gave employer discretion statute that prohibits discrimination by
Marshall, 647 F.2d 1189, 1236 (D.C. Cir. with respect to choice of respirator, covered employers against ‘‘qualified
1980), cert. denied, 453 U.S. 913 (1981) employer could require use of respirator individual[s] with a disability,’’ that is,
(‘‘[i]n passing a massive worker health without bargaining, but could not persons ‘‘with a disability who, with or
and safety statute, Congress certainly unilaterally determine which approved without reasonable accommodation, can
knew it was laying a basis for agency respirator would be used). Nothing in perform the essential functions of the
regulations that would replace or the ergonomics program standard employment position that such
obviate worker safety provisions of forecloses employers from bargaining individual holds or desires.’’ 42 U.S.C.
many collective bargaining with unions about discretionary aspects 12111(8), 12112(a). Under the ADA,
agreements’’), cert. denied, 453 U.S. 913 of the standard that are mandatory employers must reasonably
(1981); see also Murphy Oil USA, Inc., subjects of bargaining under the NLRA. accommodate disabled workers.
286 NLRB 1039, 1042 (1987) (employer To the contrary, OSHA has repeatedly However, if there is no reasonable
can unilaterally adopt work rule emphasized the importance of involving accommodation that would permit a
required by OSHA standard without employee representatives in all aspects disabled employee to work for the
bargaining with union); Louisiana of the ergonomics program. As the AFL– employer, the employer is free to
Chem. Ass’n v. Bingham, 550 F. Supp. CIO points out: discharge the employee under the ADA.

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Commenters argue that the proposed business hardship, which is defined as the incidence of MSDs. The standard
standard improperly requires employers ‘‘an action requiring significant should therefore lessen the number of
to take steps beyond those required by difficulty or expense, when considered occasions on which employers would
the ADA in that the standard’s in light of’’ certain statutory factors. Id. need to raise defenses under the ADA,
requirement that employers control §§ 12111(10), 12112(b)(5)(A). such as that the accommodation
ergonomics hazards requires steps As OSHA explained in the preamble involves an undue hardship or that the
beyond ADA’s requirement for to the proposed standard, the disabled person is a direct threat, see 42
reasonable accommodation. Ex. 32–368– ergonomics standard and the ADA are U.S.C. 12113(b), to the health or safety
1 at p. 118 (NCE); Ex. 30–1722 at p. 81 complementary in purpose. 64 FR at of others that cannot be eliminated by
(Chamber of Commerce). These 66,058–66,059. The standard the reasonable accommodation. 64 FR at
comments are fundamentally implements measures in problem jobs 66,060. This salutary effect does not
misguided. that would reduce the likelihood of establish a conflict with the ADA and
In the preamble to the proposed rule those jobs causing or aggravating MSDs provides no ADA-based reason for not
OSHA explained its authority under the (a category that includes impairments implementing the standard.
OSH Act for promulgating this standard. that may be disabilities under the ADA, NCE argues that a provision in the
In order to achieve the Act’s purpose of although it also includes impairments proposal (proposed section
assuring ‘‘safe and healthful’’ that do not rise to the level of an ADA- 1910.132(a)(2)) conflicts with the ADA
workplaces, 29 U.S.C. 651(b), the covered disability). These measures will by requiring employers to keep
Secretary of Labor is authorized to not only prevent MSDs within the confidential certain information
promulgate health and safety standards, meaning of the ergonomics standard, pertaining to an employee’s medical
id. § 655(b), which may require but also make it easier for persons with condition that the employer could,
‘‘conditions, or the adoption or use of existing impairments (including ADA- under limited circumstances, release
one or more practices, means, methods, covered disabilities) to work in those under the ADA. Ex. 32–368–1 at
operations, or processes, reasonably jobs. Accordingly, the standard pp.119–20. The proposed provision
necessary or appropriate to provide safe comports well with the ADA’s goal of would have required confidentiality ‘‘to
or healthful employment and places of reducing barriers to the employment of the extent permitted and required by
employment.’’ Id. § 652(8). Pursuant to individuals with disabilities. law,’’ avoiding any possible conflict
this authority, see 64 FR at 65,774– Notwithstanding this complementary
with another statute’s disclosure
65,775, OSHA has determined, based on purpose, the NCE and the Chamber of
requirement. The provision has been
the best available evidence, that the Commerce argue that the standard
deleted from the final standard because,
various components of the ergonomics impermissibly conflicts with the ADA
as NCE notes, it is superfluous. Ex. 32–
standard are reasonably necessary and because it may require employers to
make changes to jobs it is not required 368–1 at p.120.
appropriate to provide adequate
protection from hazards that are to make under the ADA. Ex. 32–368–1 NCE also objects to a provision in the
reasonably likely to cause or contribute at p. 118 (NCE); Ex. 30–1722 at p. 81 proposed standard providing that the
to work-related MSDs. It is on the basis (Chamber). This contention is meritless. employer instruct the health care
of this authority that OSHA is requiring As noted, the ergonomics standard is provider (HCP) that diagnoses unrelated
employers to take such actions as squarely based on OSHA’s authority to to workplace exposure to MSD must
analyzing jobs to identify MSD hazards, promulgate health and safety standards. remain confidential and must not be
implementing measures to control such Moreover, although the NCE and the included in the opinion communicated
hazards, and removing a disincentive to Chamber suggest that the ADA prohibits to the employer. Ex. 32–368–1 at p.119.
reporting MSDs by providing economic OSHA from requiring changes to jobs This provision has been carried over
protection for workers who are placed beyond the reasonable accommodations into the final standard (with the
on temporary work restrictions or required under the ADA, nothing in the addition of an exception as discussed
removed from work because of MSDs ADA even remotely supports this below). Although NCE appears to
related to their jobs. See generally 64 FR proposition. 29 C.F.R. pt. 1630 app. at contend that this provision also
at 65,838–65,861. Nothing in the ADA 354 (‘‘nothing in [EEOC ADA conflicts with the ADA’s confidentiality
limits OSHA’s authority under the OSH regulations] prohibits employers * * * exceptions, it offers no cogent reason
Act to issue standards that are from providing accommodations beyond why this is so. OSHA continues to
reasonably necessary and appropriate to those required by th[e]’’ regulations). believe, as it explained in the preamble
protect worker health and safety. Similarly, nothing in the ergonomics to the proposed standard, that a
The ADA’s definition of disability is standard conflicts with the ADA. The provision protecting the confidentiality
not keyed to impairments that are standard does not purport to authorize of medical conditions that are not
occupational in origin, but more discrimination that is prohibited by the workplace-related is needed to protect
generally encompasses impairments ADA; nor does it purport to eliminate employees’ privacy and, for that reason,
(whatever their origin) that substantially any defenses that an employer may have has been a routine feature of OSHA
limit (or are regarded as limiting) an to an ADA action. NCE’s charge that health standards for many years. 64 FR
individual’s major life activities. 42 OSHA is attempting to eliminate at 65,844. Such a confidentiality
U.S.C. §§ 12111(10), 12112(b)(5)(A). defenses under the ADA is based on a provision is reasonably necessary to
Reasonable accommodations to such misunderstanding of the thrust of the encourage employee reporting of MSD
impairments may include ‘‘job pertinent agency statements in the hazards because employees could be
restructuring, part-time or modified preamble to the proposed standard. Ex. deterred from such reporting if they
work schedules, reassignment to a 32–368–1 at p. 121; see 64 FR at 66,059– knew information about their medical
vacant position, acquisition or 66,060. OSHA explained that the condition would be improperly
modification of equipment or devices’’ ergonomics standard, by requiring disclosed. Thus, the agency clearly has
and other similar accommodations. Id. employers to control problem jobs, the authority to adopt such a provision.
§ 12111(9)(B). Employers are not ultimately should make it easier for Moreover, OSHA has added language to
required, however, to provide employers to hire persons with MSD- the provision clarifying that it is subject
accommodations that would pose undue related disabilities and should lessen to an exception: the information may be

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68828 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

communicated where authorized by unable to continue in his or her current The ergonomics standard does not
federal or state law. job due to a work-related MSD may be preclude employers from making use of
Finally, the NCE contends that placed on leave for up to 6 months [90 the FMLA medical certification
compliance with the proposed standard days in the final rule] with 90% of pay. provisions when questions arise as to
could subject employers to The Chamber states that the agency has the application of the FMLA to an
discrimination claims under the ADA. not explained how ‘‘it acquired the employee with an MSD-based
NCE argues that because the ergonomics authority to enact a regulation that condition. We note, however, that in the
standard may require employers to alter would make Congressional policies scenario with which NCE seems most
jobs to a greater extent than does the embodied in the FMLA irrelevant for concerned—the employee who is on
ADA’s reasonable accommodation OSHA’s preferred class of employees,’’ paid WRP-leave—it is highly unlikely
requirement, persons with non-MSD Ex. 30–1722 at p. 82. The NCE similarly that there will be a bona fide dispute
disabilities may claim that the employer contends that ‘‘OSHA cannot supersede about whether the employee has a
has engaged in disparate treatment by the requirements of another federal serious health condition that has
providing more extensive statute without express statutory rendered him or her unable to perform
accommodations for MSD disabilities authority,’’ Ex. 32–368–1 at p. 124. the functions of the job. See 29 CFR
than non-MSD disabilities. Ex. 32–368– Similar arguments are made by the 825.114(a)(2) (serious health condition
1 at p. 119. Even assuming that National Solid Wastes Management includes condition that causes more
allegations of differing degrees of Association (Ex. 32–234–2 at p. 28); and than three consecutive calendar days of
accommodation for different disabilities Paul, Hastings, Janofsky & Walker LLP incapacity and involves either two visits
states a viable claim of disparate (Ex. 32–211–1 at pp. 10–11); to a HCP or one visit followed by a
treatment under the ADA, the employer As with the ADA, there is nothing in regimen of continuing treatment under
would have a defense to such a claim. the FMLA or its implementing the HCP’s supervision), 825.115. In
EEOC regulation, 29 CFR 1630.15(e), regulations that suggests any restriction other words, it is implausible that an
recognizes that ‘‘[i]t may be a defense to on OSHA’s authority to regulate employee on paid WRP-leave would
a charge of discrimination under this workplace safety and health. Nor is resist the employer’s designation of the
part that a challenged action is required there anything in the ergonomics leave as FMLA-leave on the ground that
or necessitated by another Federal law standard that would cause an employer he or she does not have a serious health
or regulation.’’ The employer’s to violate the FMLA. There is thus no condition.
obligation to comply with the FMLA-based obstacle to adoption of the NCE also contends that compliance
ergonomics standard would constitute a standard. Moreover, the FMLA requires with the proposed standard could
legitimate, nondiscriminatory reason employers to accommodate employees’ subject employers to discrimination
explaining the difference between its need for time off to care for their own claims under the FMLA because
treatment of disabilities also covered or their family’s health. The ergonomics workers covered by the standard may
under the ergonomics standard and its rule will prevent many incipient MSDs receive WRP consisting of paid leave,
treatment of other disabilities. See from progressing to the type of serious while other workers with serious health
generally id. pt. 1630, app. at 369 health conditions that might justify conditions who are unable to perform
(necessity of compliance with federal leave under the FMLA and will thereby their job are entitled only to unpaid
law or regulation a defense, where not reduce the need for employees to invoke leave under the FMLA. NCE 123–124.
a pretext for discrimination). the FMLA’s protections. Thus, as with The FMLA’s anti-discrimination
OSHA emphasizes that this final the ADA, the ergonomics standard provision, however, does not sweep so
standard does not limit an employer’s works in concert with, not against, the broadly. It prohibits interference with
obligation to comply with the ADA. If purposes of the FMLA. the exercise of rights under that statute,
an HCP advises the employer, pursuant The NCE raises some questions about 29 U.S.C. 2615(a)(1), and proscribes
to paragraph (r)(2)(ii) of the standard, the interplay between the FMLA and the discrimination against an individual for
that an employee with a MSD can never standard’s work restriction protection having engaged in activity such as
resume his or her former work activities, (WRP) provisions. Ex. 32–368–1 at p. opposing unlawful practices under the
any obligations the employer has toward 123. NCE asks, for example, whether an statute, filing charges, or giving
that employee under the ADA would employee could receive six months of information or testifying in connection
remain in effect. WRP payments while removed from with FMLA proceedings or inquiries. 29
c. Family and Medical Leave Act. work and then obtain an additional 12 U.S.C. 2615(a)(2), (b). An employer who
Under the FMLA, an ‘‘eligible weeks of unpaid leave under the FMLA. has placed employees on paid WRP-
employee’’ is entitled to take up to a FMLA regulations provide that an leave under the ergonomics standard
total of 12 work weeks of unpaid leave employer may in specified has not, by that action, interfered with
for the birth of a child and to care for circumstances designate paid leave as other employees’ FMLA rights. Nor
such child, for the placement of a child FMLA leave. 29 CFR 825.208. Nothing would its reason for not giving similar
for adoption or foster care, to care for a in the ergonomics standard precludes an paid leave to those other employees—
spouse or an immediate family member employer from designating WRP-leave that the employees were outside the
with a serious health condition, or when as FMLA leave if the limited scope of the WRP provisions of the
he or she is unable to work because of circumstances under which paid leave ergonomics standard—constitute a basis
a serious health condition. See 29 U.S.C. may be designated as FMLA leave are of prohibited discrimination under the
2612(a)(1). In response to the proposed met. FMLA (such as retaliation for protected
standard, the Chamber of Commerce NCE also contends that the ergonomic activities).
and the NCE pointed out that, while the standard’s provisions regarding d. Title VII of the Civil Rights Act of
FMLA only requires employers to opinions of health care providers (HCPs) 1964 and the ADEA. Title VII prohibits
provide 12 weeks of unpaid leave to conflict with FMLA regulations employment practices and devices that
employees with serious health regarding medical certifications for the discriminate on the basis of race, color,
conditions, the proposed standard’s existence of a serious health condition. religion, sex, or national origin. The
provisions for work restriction Ex. 32–368–1 at p. 123; citing 29 U.S.C. ADEA prohibits employment
protection provided that an employee 2613. See also 29 CFR 825.305–825.308. discrimination on the basis of age. The

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Forum for a Responsible Ergonomics employers believe they can gain some days), during which the public could
Standard contends that women and benefit by hiring only young, male comment and submit evidence on all
older workers are more susceptible to workers, Title VII and the ADEA aspects of the proposed standard. OSHA
MSDs than younger persons and that the prohibit them from doing so on the basis also scheduled a nine week informal
ergonomics standard will therefore that it will make compliance with the public hearing, for interested parties to
encourage employers to violate these standard easier. testify on the proposed standard.
statutes by hiring a young, male- Finally, OSHA established a 90 day
dominated workforce. Ex. 30–3845 at XII. Procedural Issues
post-hearing comment period. The post-
pp. 36–37. I. Introduction hearing comment period gave hearing
These anti-discrimination statutes participants 45 additional days to
OSHA began seeking public
were adopted to combat the attitudes submit data and evidence, and 90
participation in this rulemaking when it
prevalent among many employers that additional days to submit comments for
published an Advance Notice of
older workers, or female workers, or consideration by OSHA. In sum, those
Proposed Rulemaking (ANPR) in August
minority workers, were not as qualified individuals who participated in the
1992. The Agency received more than
to do a job as well as young, white informal public hearing had 216 days
250 comments in direct response to that
males. Through their enactment, (more than seven months) after
Congress prohibited employers from notice. See Comments in Ex. 3. The next
year OSHA conducted an extensive publication of the proposed rule to
relying on such outdated stereotypes submit data and evidence to the
rather than making hiring decisions on survey of employers to obtain
information on the extent of existing rulemaking record for OSHA’s
the basis of a worker’s individual consideration, and 261 days (nearly
capabilities. See Hazen Paper Co. v. ergonomics programs and practices in
general industry. In 1994–1995, and nine months) after publication of the
Biggins, 507 U.S. 604, 610 (1993) proposed rule to submit briefs and
(‘‘Congress promulgation of the ADEA again in 1998 and 1999, OSHA held a
series of ‘‘stakeholder meetings’’ across arguments to the rulemaking record.
was prompted by its concern that older Although these procedures exceed the
workers were being deprived of the country where interested members
of the public discussed with legal requirements for OSHA
employment on the basis of inaccurate rulemaking and are consistent with the
and stigmatizing stereotypes.’’); Los representatives of OSHA their
experiences and opinions relating to procedures used in past Agency
Angeles Dept. of Water & Power v. rulemakings, a number of participants,
Manhart, 435 U.S. 702, 707 n. 13 (1978) ergonomics and ergonomic programs.
See Ex. 26–1370. In some cases, OSHA primarily employer groups, have
(‘‘In forbidding employers to attacked them as inadequate. A major
discriminate against individuals even shared early drafts of regulatory
text under consideration with theme of these attacks is that the issues
because of their sex, Congress intended in this rulemaking are unprecedentedly
to strike at the entire spectrum of participants in these meetings.
In developing the proposed standard, complex, and that OSHA therefore
disparate treatment of men and women should have provided extraordinary
resulting from sex stereotypes.’’). OSHA took account of all the
information it had obtained during this comment periods and other
In particular, these statutes preclude opportunities to challenge its
discriminatory hiring decisions based period: the ANPR comments; the survey
responses; and the stakeholders’ views preliminary conclusions. OSHA
on perceived gender or age-based recognizes that the size of the record on
susceptibility to a safety or health risk and experience, as well as its own
enforcement experience and some issues could have posed
inherent in the job. In UAW v. Johnson challenges, although by no means
Controls, Inc., 499 U.S. 187 (1991), the information gleaned from a
comprehensive review of the relevant insurmountable ones, to rulemaking
Supreme Court held that an employer’s
literature. In response to this input, participants. OSHA responded to these
‘‘fetal protection policy’’ violated Title
OSHA revised its regulatory approach challenges by making adjustments to the
VII. Under that policy, the employer
substantially from that reflected in its rulemaking schedule and to the
refused to assign women to jobs
early drafts of a standard. In February procedures used in earlier rulemakings
involving lead exposure unless the
1999, as part of the review process in order to provide interested parties
women could show they were unable to
required by the Small Business with easier access to rulemaking
become pregnant. The employer
Regulatory Enforcement Fairness Act materials (including extending Docket
claimed that this policy was justified
(SBREFA), 5 U.S.C. § 601 et seq., OSHA Office hours), and to ensure that the
because lead in a pregnant woman’s
bloodstream could potentially harm the released to the public a draft proposed rulemaking proceeded in a fair and
fetus. The Supreme Court held that the Ergonomics Program standard (SBREFA orderly manner.
employer’s concern that women who draft) that reflected much of the II. The Adequacy of the Rulemaking
were or might become pregnant would regulatory approach of the proposal. Process
be particularly susceptible to a health The SBREFA draft was also made
risk from lead exposure was not a valid available on OSHA’s website. OSHA A. Length of the Pre-Hearing Comment
reason to allow them to exclude such received a large amount of feedback on Period
women from jobs for which they were this draft from the small entity OSHA published its proposed
qualified. representatives participating in the Ergonomics Program standard on
The rulemaking record shows that SBREFA process, and OSHA made a November 23, 1999. 64 FR 65768 (Nov.
workers of both sexes and all ages suffer number of alterations to the draft based 23, 1999); see also 64 FR 73448 (Dec. 30,
MSDs when exposed to high levels of on that feedback. See Ex. 23. 1999) (publication of corrections
the risk factors addressed by this As described in detail below, OSHA’s notice). In the Federal Register notice,
standard. OSHA therefore does not official Notice of Proposed Rulemaking OSHA established a 70 day pre-hearing
believe that the rulemaking record provided the public with additional comment period to submit written
supports the commenters’ claim that opportunities to participate in the comments and evidence on the
this standard will provide any incentive rulemaking. Specifically, OSHA proposed standard. Id. These materials
to employers to violate Title VII and the established a 70 day pre-hearing were required to be postmarked by
ADEA. However, even if some comment period (later extended to 100 February 1, 2000. Id.

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OSHA received a number of requests Numerous other OSHA rulemakings nine weeks of informal public hearings
to extend the pre-hearing comment have also included pre-hearing and a 90 day post-hearing comment
period and delay the informal public comment periods of similar length. For period on the proposed rule. Thus,
hearing. See e.g., Letters in Ex. 33. In example: those parties who filed Notices of Intent
response to these requests, OSHA • Tuberculosis—123 day pre-hearing to Appear at the hearing had a total of
extended the pre-hearing comment comment period. 63 FR 5905 (Feb. 5, 261 days (nearly nine months) from the
period an additional 30 days, until 1998). date the proposal was issued to the end
March 2, 2000, and delayed the start of • Butadiene—91 day pre-hearing of the post-hearing comment period to
the informal public hearing by 20 days, comment period. 55 FR 42406 (Oct. 19, comment on the proposed rule. OSHA
until March 13, 2000. 65 FR 4795 (Feb. 1990). believes that this period of time was
1, 2000). This schedule gave interested • Bloodborne Pathogens—76 day pre- more than adequate to allow interested
parties a total of 100 days to submit pre- hearing comment period. 54 FR 23042 parties an opportunity to review the
hearing comments on the proposed (May 30, 1989). record and submit meaningful
standard. OSHA also notified • Hazard Communication—60 day comments.
participants of a number of innovations pre-hearing comment period. 48 FR In addition, OSHA’s procedures
in its filing and docket access 53280 (Nov. 25, 1983). typically provide that only parties who
procedures, so that parties would have Most significantly, it is clear that the participated in an OSHA rulemaking
as little difficulty as possible in 100 day comment period provided the hearing may file post-hearing
reviewing the record and filing public with an adequate opportunity to submissions. But in this rule OSHA
comments in the time allowed. See Ex. comment on the proposed rule. The permitted trade associations or other
DC–423. For example, OSHA placed comprehensive and detailed nature of groups who were eligible to file such
copies of the proposed rule, the full many of the pre-hearing comments comments to attach to their own
Health Effects section, and the full OSHA received is itself compelling submissions comments from their
Preliminary Economic Analysis on its evidence of this fact. For example: members who were not eligible to file
webpage and on CD–ROM. OSHA • The National Coalition on on their own. Many interested parties
mailed a CD–ROM free of charge to all Ergonomics (NCE) submitted a 156 page (e.g., members of the National
individuals who had participated in comment, as well as attachments of 321 Association of Manufacturers) who did
earlier stakeholder meetings and to any pages. Ex. 30–3956. not file a Notice of Intent to Appear,
other interested party upon request. • The U.S. Chamber of Commerce therefore, were able to submit post-
The 100-day pre-hearing comment (Chamber) submitted a 95 page hearing submissions through their trade
period was more than three times as comment, as well as attachments of 524 association or other group. See e.g.,
long as that required by the OSH Act. pages. Ex. 30–1722. Letters in Ex. 500–1.
The OSH Act only requires OSHA to • Anheuser-Busch, Inc. and United Moreover, many interested parties
give interested parties 30 days to Parcel Service, Inc. (UPS) submitted a were familiar with the overall structure
comment on a proposed standard. 29 299 page comment, as well as of the proposed rule before it was
U.S.C. 655(2). OSHA’s procedural attachments of 2007 pages. These published on November 23, 1999.
regulations also state that a proposed attachments consisted of additional OSHA posted the SBREFA draft, which
rule must provide interested persons comment and evidence prepared by 23 was similar to the proposed rule in
with 30 days in which to submit expert witnesses. Ex. 32–241. many respects, on its website in
‘‘written data, views, and arguments, • The Union of Needletrades and February, 1999. Many interested parties,
which shall be available for public Industrial Textile Employees (UNITE) including small business owners,
inspection and copying.’’ 29 CFR submitted a 70 page comment, as well commented on the draft rule. See Ex. 23.
1911.11(b)(3). See also Executive Order as attachments of 1078 pages. Ex. 32– In addition, OSHA had engaged
12866, 58 FR 51735 (Sept. 30, 1993) 198–4. interested parties in discussions on
(encouraging administrative agencies to • The United Food and Commercial ergonomics issues for quite some time
provide a minimum 60 day pre-hearing Workers Union (UFCW) submitted a 179 before publication of the proposed rule.
comment period). The 100 day pre- page comment, as well as attachments of See Discussion in Part II above. Many
hearing comment period provided here 2218 pages. Ex. 32–210–2. parties who commented on the
was more than adequate to meet all of Although some of these submissions proposed rule and participated in the
these requirements. came from parties complaining that the informal public hearing were very
This comment period is also comment period was inadequate, the familiar with the issues relevant to the
consistent with past OSHA practice in comments listed above, as well as many rulemaking long before the pre-hearing
rulemakings of this magnitude. In the others, demonstrated a thorough comment period began.
Air Contaminants Rulemaking, OSHA mastery of the proposal and preamble, For these reasons, OSHA does not
proposed to lower the permissible as well as extensive familiarity with agree with those commenters who
exposure limits for over 400 hazardous OSHA’s Preliminary Economic complained that 100 days was an
substances, 54 FR 2332 (Jan. 19, 1989), Analysis, its Health Effects discussion, inadequate amount of time to analyze
an enormous undertaking by any and much of the material in the record. the rulemaking record fully and to
measure. The Eleventh Circuit See e.g., Exs. 30–1722; 30–3956; 32–241. submit meaningful comments on the
subsequently rejected a challenge to the And a number of comments were proposal. A couple of commenters went
47 day pre-hearing comment period submitted early, including the so far as to claim that the 100 day pre-
OSHA afforded in that rulemaking. Chamber’s 619 page comment, which hearing comment period violated
AFL–CIO v. OSHA, 965 F.2d 962, 969 was submitted on February 16, 2000, a parties’ due process rights. Ex. 30–3956,
n.8 (11th Cir. 1992) (Air Contaminants) full two weeks before the due date. See p. 141; 30–3865, pp. 33–4. The
(‘‘[W]e are unpersuaded that the time Ex. 30–1722. American Iron and Steel Institute (AISI)
period allowed in this rulemaking was Moreover, the pre-hearing comment suggested that the OSH Act required
so insufficient as to prevent interested period represented only one aspect of OSHA to give a 30 day pre-hearing
parties from commenting on the the public participation opportunities in comment period for each hazard at issue
proposed rule.’’). this rulemaking. OSHA also scheduled in the rulemaking (i.e., force, repetition,

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awkward posture, static posture, contact responsibilities. These types of conflicts an informal public hearing to provide
stress, cold temperatures, and do not prevent interested parties from interested parties another opportunity to
vibration); thus, AISI argued that OSHA submitting meaningful comments on comment on the proposed standard. 64
was obligated to set a 210 day pre- any particular proposed rule. FR 65768 (Nov. 23, 1999). Participants
hearing comment period. Ex. 500–223, Finally, the extension of the pre- in the hearing could present testimony
p. 94. Many commenters noted as well hearing comment period was not and ask questions of OSHA and other
that a number of holidays occurred granted too late. OSHA originally public witnesses. OSHA scheduled the
during the pre-hearing comment period, believed that the 70 day pre-hearing informal public hearing for three cities:
and that these, as well as Year 2000 comment period established in the Washington, DC; Portland, OR; and
computer issues, made review and proposal was sufficient to allow Chicago, IL. Id. at 65769. The hearing
preparation of comments particularly interested parties to comment was originally scheduled to begin on
difficult. See e.g., Ex. 30–3865, p. 34; meaningfully on the proposed standard. February 22, 2000, and OSHA required
Letters in Exhibit 33. Finally, a number (The 70 day period was more than twice participants to file Notices of Intent to
of commenters stated that OSHA’s grant as long as that required by the OSH Act, Appear by January 24, 2000. Id. at
of a 30 day extension of time from 70 and longer than the 60 day minimum 65768. When OSHA extended the pre-
days to 100 days was not meaningful period recommended by Executive hearing comment period, it also delayed
because it was not granted until January Order 12866). OSHA seriously the start of the hearing until March 13,
27, 2000, a few days before pre-hearing considered the requests it received to 2000, 11 days after the close of the pre-
comments were originally scheduled to extend the initial 70 day pre-hearing hearing written comment period. 65 FR
be filed. See e.g., Exs. 500–188, p. 6 n.3; comment period, however, and 4795 (Feb. 1, 2000). In addition, because
500–109; 30–3956, p. 142. ultimately decided to grant the 30 day it received more than 400 Notices of
No party’s due process rights were extension. Intent to Appear at the hearing, OSHA
violated by the 100 day pre-hearing OSHA granted the extension on added an additional 7 days to the
comment period. As shown above, the January 27, 2000, a few days before hearing in Washington, DC and
comment period was more than written comments were originally Portland, OR, in order to accommodate
adequate for interested parties to review scheduled to be filed. In addition to all members of the public who sought to
the record and submit pre-hearing publishing notice of the extension in the testify. See 65 FR 11948 (Mar. 7, 2000);
comments. Nor does the OSH Act Federal Register on February 1, 2000, 65 FR 19702 (Apr. 12, 2000).
require OSHA to provide a 30 day pre- 65 FR 4795 (Feb. 1, 2000), OSHA issued On February 25, 2000, the Assistant
hearing comment period for each risk a press release to inform the public that Secretary issued special hearing
factor at issue. As explained above, the the comment period had been extended procedures to ensure that the hearing
OSH Act provides for a minimum 30 and placed the press release on its web- proceeded in a fair, orderly, and timely
day comment period for each ‘‘proposed page. See manner. 65 FR 11948 (Mar. 7, 2000). In
rule promulgating * * * an oshnews/jan00/national-20000127.html. doing so, the Assistant Secretary acted
occupational safety or health standard.’’ Some commenters thanked OSHA for pursuant to Section 1911.4 of OSHA’s
29 U.S.C. 655(b)(2) (emphasis added). granting the extension. See Exs. 32–21– procedural regulations governing
The OSH Act does not place a 1, p.9; 500–1–26; 30–4496, p. 1. The 30 informal public hearings, which allows
requirement upon OSHA to provide day extension was useful in allowing the Assistant Secretary, upon reasonable
additional time for comment depending interested parties additional time to notice, to specify additional or
upon the number or types of hazards review the record and comment on the alternative hearing procedures for good
being regulated. See Air Contaminants, proposed rule. cause. 29 CFR 1911.4. OSHA published
965 F.2d at 969 n.8. In fact, OSHA often grants extensions the Hearing Procedures in the Federal
Furthermore, the occurrence of of comment periods near the end of the Register, mailed them to every hearing
holidays during the pre-hearing original period. For example, in the participant, and placed them on its web-
comment period did not substantially Butadiene rulemaking, OSHA granted page. The Assistant Secretary and the
affect the ability of parties to review the an extension on the final day of the Chief Administrative Law Judge also
record and comment on the proposed original pre-hearing comment period. 55 met with interested members of the
rule. In fact, holidays accounted for only public to describe and answer questions
FR 42406 (Oct. 19, 1990). Similarly, in
five days of the pre-hearing comment about the conduct of the hearing.
the tuberculosis rulemaking, OSHA
period. Similarly, OSHA does not Representatives of the U.S. Chamber of
granted an extension a mere 12 days
believe that Year 2000 computer Commerce, United Parcel Service, Inc.,
before the close of the original pre-
conversion issues substantially affected the National Coalition on Ergonomics,
hearing comment period. 63 FR 5905
stakeholders’ ability to comment on the and the AFL–CIO attended this meeting.
(Feb. 5, 1998). Indeed, often it is only
proposed standard. Employers and other The Hearing Procedures described the
toward the end of any filing period that
parties always devote resources to nature of the informal public hearing, as
a need to extend becomes clear. It
different areas of their enterprises at well as the procedural rules governing
would hardly be logical to permit
different times of the year. For example, the hearing. Id. The Hearing Procedures
when industry and labor are engaged in Agencies to respond to this need only if gave the locations and scheduled times
collective bargaining negotiations, they did so several weeks before the for the different hearing sites; they also
employers and labor unions (including close of the original comment period. permitted the presiding Administrative
safety and health representatives) must B. There Was Adequate Opportunity for Law Judge to extend the hearing past the
devote additional resources (including Participants To Prepare for and scheduled closing time for any
time and money) to the negotiations. Participate in the Informal Public particular day ‘‘to assure orderly
The time and resources devoted to these Hearing development of the record.’’ Id.
negotiations certainly ‘‘conflict’’ with The Hearing Procedures emphasized
other priorities of both parties. Yet both 1. The Hearing Procedures and the that the hearing was a legislative-type
parties to the negotiations are able to Hearing Schedule hearing, not an adjudicative one. Id.
continue to function during this period In the November 23, 1999 Federal Thus, neither the rules of evidence nor
and to carry out their other Register notice, OSHA also scheduled other procedural rules governing

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adjudications applied. Id. The hearing witnesses who were to testify on behalf See Ex. 502–476. Throughout the
was intended to provide an opportunity of OSHA, the panel of experts from informal public hearing, OSHA
for persons who filed a Notice of Intent NIOSH, and each public witness who continued to work with hearing
to Appear to testify and question had filed a Notice of Intent to Appear. participants to try to accommodate their
witnesses. Id. Such participation, Id. schedules. As OSHA made changes to
however, was designed to ‘‘facilitate the The schedule organized the public the hearing schedule, OSHA posted the
development of a clear, accurate and witnesses into panels, and allotted each changes on its web page and often
complete record, while assuring fairness witness an amount of time to testify announced them at the beginning or end
and due process.’’ Id. ‘‘The intent is to based upon the time the witness had of a hearing day. See e.g., Tr. pp. 7161;
provide an opportunity for effective oral requested. Id. The Hearing Procedures 7567; 13121; 13531.
presentation by interested persons, and established the following format for The informal public hearing began on
to avoid procedures which might questioning of the public witnesses: March 13, 2000 in Washington, DC and
unduly impede or protract the each public witness on a panel would ended on May 15, 2000. OSHA’s
rulemaking process * * * ’’ Id. at present testimony; after all of the Director of the Safety Standards
11947–48. witnesses on the panel presented, the Program Directorate (Director) made a
The Procedures also described the panel as a group would answer short statement at the beginning of the
conduct of the rulemaking hearing. questions from members of the public hearing. For the rest of the first two days
First, a panel of OSHA representatives and OSHA. 65 FR 11948–49 (Mar. 7, of the hearing, a panel of representatives
would be available to answer questions 2000). The Hearing Procedures, from OSHA and the Solicitor of Labor
on the proposed standard for two full however, also gave the presiding (OSHA panel), headed by the Director,
days, on March 13 and 14, 2000. Id. at Administrative Law Judge authority to answered questions on ergonomics
11948. The Hearing Procedures allocate the time for questioning of generally and on the proposed standard
explained the process for handling the witnesses in a different manner, as he specifically. In total, the OSHA panel
questioning of the OSHA panel, to deemed appropriate. Id. at 11949. This answered questions for approximately
assure that the questioning time was provided a fair and orderly process for 16 hours. See Tr. pp. 1–5–819.
distributed in a fair and equitable questioning the public witnesses while As established in the Hearing
manner. Id. They also prescribed the allowing flexibility to accommodate Procedures, OSHA allowed each
manner of questioning of OSHA’s expert participants’ desire for more or less member of the public who filed a Notice
witnesses and a panel of witnesses from questioning of certain witnesses. See of Intent to Appear to question the
the National Institute of Occupational e.g., Tr. pp. 9043; 9378–79; 13345. OSHA panel. In order to accommodate
Safety and Health (NIOSH). Id. After OSHA published the initial the large number of individuals who
The Hearing Procedures directed
schedule, a substantial number of wished to question the OSHA panel, the
public participants to use their oral
participants requested that OSHA alter Hearing Procedures provided that the
presentations to summarize and clarify
the hearing schedule. OSHA questioning occur in ‘‘rounds.’’ In total,
their written submissions rather than to
accommodated these individuals to the there were four rounds of questioning of
read those submissions into the record.
extent possible. Some examples of the the OSHA panel; thus, questioners were
Id. The Procedures provided that the
accommodations made for various able to question at four different times
Administrative Law Judge should
allocate time for questioning of public hearing participants included: over the two days. The amount of time
witnesses as appropriate; however, the • American College of Occupational allotted for questioners in each round
procedures required that the ‘‘testimony and Environmental Medicine was the following:
and questioning of all witnesses —Rescheduled from 4/13/2000 to 5/11/ • Round 1— Ten minutes per
scheduled for each day [be] completed 2000. questioner. Tr. p. 1–27.
that day.’’ Id. The Procedures further • American Iron and Steel Institute— • Round 2— 20 minutes per
encouraged participants having similar Rescheduled from 4/07/2000 to 4/18/ questioner. Tr. p. 1–244.
interests to ‘‘designate one 2000. • Round 3— 20 minutes per
representative [to] conduct the • American Society of Safety questioner. Tr. p. 615.
questioning on their behalf.’’ Id. Engineers—Rescheduled from 5/09/ • Round 4— 15 minutes per
Finally, the Hearing Procedures 2000 to 4/21/2000. questioner. Tr. p. 771.
established a 45 day post-hearing period • International Order of the Golden Thus, each member of the public had
in which participants could submit Rule—Rescheduled from 4/07/2000 to up to one hour and five minutes to
additional information and data to the 4/12/2000. question the OSHA panel.
record, and a 90-day post-hearing period • Levi-Strauss—Rescheduled from 4/ After the first two days of the hearing,
in which they could submit briefs and 18/2000 to 5/04/2000. 28 OSHA expert witnesses testified
arguments on the proposed standard. Id. • National Automobile Dealers about various aspects of ergonomics,
Along with the Hearing Procedures, Association—Rescheduled from 4/13/ MSDs, and other issues raised by the
OSHA distributed a schedule for 2000 to 4/14/2000. proposed rule. Ex. 502–476. A panel of
witness testimony at the informal public • Association for Suppliers of representatives from NIOSH also
hearing. See Ex. 502–476. OSHA sent Printing, Publishing, and Converting testified about the causes and
the initial schedule for the Washington, Technologies—Rescheduled from 3/31/ prevention of ergonomic injuries. Id.
DC and Chicago, IL locations to hearing 2000 to 5/09/2000. The OSHA expert witnesses were
participants on February 26, 2000 (with • Screenprinting and Graphic grouped into subject-matter panels.
the Hearing Procedures), and posted it Imaging Association International— Generally, each expert provided
on the OSHA web page. OSHA sent the Rescheduled from 3/22/2000 to 4/12/ affirmative testimony for about 15
schedule for the Portland, OR location 2000. minutes (45 minutes per panel), and the
to the Portland participants on March 8, • UniSea Inc.—Rescheduled from 4/ panel answered questions for about two
2000, and also posted it on the OSHA 27/2000 to 5/02/2000. hours. In some instances, panels
web page. The schedules listed the dates • Three UPS expert witnesses— answered questions for approximately
and times for the testimony of the expert Rescheduled from 4/2000 to 5/10/2000. three hours. See e.g., Ex. 502–476,

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Testimony of Wednesday, March 15, allotted time among industry, labor, and Attachments to Ex. 30–1722. OSHA
2000; March 20, 2000; March 21, 2000. OSHA). therefore disagrees with those
During the first two days of testimony OSHA scheduled appearance times commenters who stated that 11 days
by OSHA’s experts, the questioning for all of the more than 400 parties who was insufficient to review the comments
followed the same format as the filed Notices of Intent to Appear at the and testimony submitted, or to prepare
questioning of the OSHA panel. After hearing. Id. More than 100 of these for questioning of all of the witnesses
the first two days of testimony, parties, however, canceled their who were scheduled to appear over the
however, the Administrative Law Judge scheduled testimony. Many of these nine weeks of hearings. See Exs. 500–
altered the allocation of time so that parties did not notify OSHA of their 188, p. 6; 500–197, p. IV–5; 30–3956, p.
employer representatives collectively, cancellations, or did so at the last 142.
and labor representatives collectively, minute, so that OSHA was often not The conduct of the hearing was also
were each given approximately 40% of able to adjust the schedule to allow consistent with the OSH Act and
the time to ask questions, and OSHA more time for other witnesses. See e.g., OSHA’s procedural regulations.
was assigned approximately the Tr. pp. 3138; 9379; 12036–12041. Although this legislative type hearing is
remaining 20%. Questioners who did informal, OSHA’s procedural
2. Adequacy of the Procedures
not represent either employers or labor regulations provide for more than the
were allotted proportional amounts of A number of participants complained bare essentials of informal rulemaking
time from industry and labor’s time. Tr. that the 11 days between the end of the and include: (1) An ALJ to preside at the
pp. 1774–75; 1780–1790. comment period and the beginning of hearing; (2) ‘‘an opportunity for cross-
OSHA’s expert witnesses testified the hearing was too short to allow them examination on crucial issues,’’ and (3)
from Wednesday, March 15, 2000, to participate meaningfully in the a verbatim transcript of the hearing. 29
through Tuesday morning, March 21, rulemaking. See Exs. 500–188, p. 6; CFR 1911.15(b) (emphasis added).
2000. See Ex. 502–476. In order to 500–197, p. IV–5; 30–3956, p. 142. Indeed, OSHA rulemakings differ from
maximize the public’s time to question OSHA disagrees. There is no statutory the rulemakings of other federal
these experts, OSHA encouraged the requirement that OSHA allow any agencies in that members of the public
witnesses to shorten their affirmative particular amount of time between the can question OSHA’s expert witnesses
presentations, and ceded some of its close of the comment period and the and each other. The procedural
own time for questioning to industry public hearing. OSHA’s own procedural regulations also permit the Assistant
and labor. See Tr. pp. 1791; 1816; 2087; regulations, however, require a 10 day Secretary for OSHA, upon reasonable
2496; 2287–88. period between the close of the pre- notice, to ‘‘prescribe additional or
A panel of NIOSH experts also hearing comment period and the alternative procedural requirements:
testified during the first week of the hearing. 29 CFR 1911.11(b)(4). The 11- • In order to expedite the conduct of
hearing, on Friday, March 17, 2000. See day period OSHA provided in this the proceeding;
Ex. 502–476. NIOSH was scheduled to rulemaking was consistent with those • In order to provide greater
appear for 41⁄2 hours, and the public regulations. protection to interested persons
questioners, including both labor and During this period, OSHA made whenever it is found necessary or
industry representatives, had been unprecedented efforts to assist appropriate to do so; or
allocated 31⁄2 hours for questioning. See participants in preparing for the • For any other good cause which
Ex. 502–476. However, the questioners hearing. OSHA extended its Docket may be consistent with the applicable
used only 2 hours and forty-five Office hours and established a separate laws.’’
minutes of this time. See Tr. p. 2125. ergonomics reading room. See Ex. DC– See 29 CFR 1911.4.
Public witnesses testified during the 423. It also made Docket Office staff Here, as it frequently does, OSHA
remainder of the nine weeks of the available to help individuals locate scheduled the informal public hearing
informal public hearing. After a panel of materials quickly and efficiently. when it published the proposed rule on
public witnesses presented testimony, Interested parties were able to review November 23, 1999. The informal public
the witnesses were available for the materials submitted to the hearing complied with OSHA’s
questioning by members of the public rulemaking record as soon as they were procedural regulations: (1) An
and OSHA. See Ex. 502–476. The received by OSHA. Administrative Law Judge presided over
Administrative Law Judge presiding After the schedule for the it; (2) interested parties were given an
over the hearing on any particular day Washington, DC and Chicago, IL hearing opportunity to cross-examine witnesses
exercised discretion in terms of how the locations was issued on February 26, on crucial issues; (3) OSHA provided
testimony and questioning of the public hearing participants could use it to transcripts of the proceedings; and (4)
witnesses would proceed. On a few utilize their own preparation period OSHA designed procedures that
occasions the presiding Administrative most effectively. And hearing effectuated the stated intent of OSHA
Law Judge admitted into the rulemaking participants had no need to read each informal hearings, i.e., ‘‘to provide an
record evidence and testimony that others’ comments to prepare for their opportunity for effective oral
were not submitted in accordance with own questioning of the OSHA panel. presentation by interested persons
the hearing procedures. See Tr. pp. Parties had more than 100 days to which can be carried out with
1095–97; 7168–73. Such allowances by prepare for this process. In addition, expedition. * * *’’ 29 CFR
the Presiding Officer were appropriate many hearing participants were already 1911.15(a)(3).
under the hearing procedures in order to familiar with the NIOSH and OSHA Due to the large number of
ensure a clear, complete, and accurate expert witnesses and with the substance individuals who filed Notices of Intent
rulemaking record. With respect to the of their testimony. One of the to Appear, the Assistant Secretary also
allocation of time for questioning of the participants who complained repeatedly had ‘‘good cause’’ to issue special
public witnesses, in the vast majority of that there was inadequate time to hearing procedures to ensure that the
instances the questioning proceeded in prepare for the public hearing had, in hearing proceeded in a fair and orderly
a similar format to that established fact, cross-examined some of the expert manner. The Assistant Secretary issued
during the questioning of OSHA’s witnesses on similar issues in earlier the Hearing Procedures on February 25,
expert witnesses (i.e., dividing the OSHA enforcement litigation. See 2000, giving hearing participants

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68834 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

reasonable notice. OSHA mailed the hearing procedures used in past OSHA deviated from its past practice and set
Hearing Procedures the very next day to rulemakings. aside two full days for the panel to
all individuals who had filed Notices of For these reasons, OSHA does not answer questions on the proposal. See
Intent to Appear, published them in the agree with those commenters who stated Ex. 502–476.
Federal Register, and posted them on that the informal public hearing was not Furthermore, in order to ensure that
the OSHA web page. In addition, the adequate to provide interested parties the questioning was evenly distributed
Assistant Secretary and the Chief an opportunity to present additional among the participants, OSHA set up a
Administrative Law Judge held a evidence, and to cross-examine public format for the questioning. OSHA
meeting with interested parties on witnesses and OSHA on crucial issues. established several ‘‘rounds’’ of
March 7, 2000, in order to discuss the See Exs. 500–188, pp. 6–10; 500–197, questioning. Although there were a large
procedures and answer any questions pp. IV–11–14. On the contrary, OSHA number of individuals who wished to
from the participants. believes that the process struck an question OSHA during the first two
The conduct of the informal hearing appropriate balance: it gave interested rounds, only a few had remaining
was also consistent with that of other parties the opportunity to present questions in rounds three and four. In
OSHA rulemakings. For example, in the testimony, to question OSHA, and to fact, by the final round of questioning
Tuberculosis rulemaking, the Pre- question other members of the public, only three questioners (representing
hearing Guidelines signed by the while ensuring that the proceedings Boral Bricks, NCE, and the Chamber)
Administrative Law Judge laid out the would proceed in an orderly manner. asked questions of OSHA. Tr. pp. 771–
following similar parameters: Specific objections included the 819. Those parties who utilized their
• The purpose of the hearing was for complaints of some participants that full time in every round had over one
information gathering and clarification; they did not have enough time to hour total to question OSHA. OSHA
the hearing was not an adjudicative one question the OSHA panel and that believes that this schedule provided
but rather an informal administrative OSHA did not disclose who would be adequate time for interested parties to
proceeding. representing it on the panel until the question the Agency, while not unduly
• Each hearing day would end when day the informal public hearing began. protracting the rulemaking process.
See e.g., Tr. pp. 1–42–43. A few of these Finally, OSHA did not prejudice any
the scheduled testimony and questions
commenters, United Parcel Service, Inc., member of the public by waiting until
for the day had been completed.
the National Coalition on Ergonomics, the day of the hearing to disclose the
• Because written submissions were
and the U.S. Chamber of Commerce, members of the OSHA panel. The
made a part of the rulemaking record,
requested that the OSHA panel return purpose of the first two days of the
public witnesses ‘‘should’’ use their oral
for additional questioning at the end of informal public hearing was to allow
testimony to summarize and clarify
the informal public hearing. Ex. DC– interested parties an opportunity to
their written submissions.
424. Before the Assistant Secretary question OSHA about its proposed rule;
• Questioning of public witnesses could respond to that request, however, the purpose was not to provide an
should be limited to 15 minutes, but the it was modified (and presumably opportunity to question individuals
presiding Administrative Law Judge withdrawn) on April 11, 2000. Id.; see about their views of the proposed rule.
could alter the schedule as appropriate also Tr. pp. 17956–58. The panel members were made
to allow more time for questioning of a In any event, OSHA believes that the available to answer questions about the
particular witness. hearing participants had more than an proposed rule on behalf of OSHA. They
• If the hearing were to fall adequate opportunity to question the did not appear to express personal
significantly behind schedule, the OSHA panel on the proposed rule. The opinions about ergonomics or the
presiding Administrative Law Judge OSHA panel answered questions for proposed standard. Thus, there is no
could further restrict the questioning or approximately 16 hours; those validity to the implication that
order further consolidation of the participants who questioned the panel questioners should have had additional
questioning. for each round had over one hour to time to prepare for the kind of
• Participants having similar interests question the panel. credibility-based cross examination that
should, if possible, designate one Like other administrative agencies, would be appropriate in adversarial
representative to conduct the OSHA explains its reasons for issuing a litigation. See e.g., Tr. pp. 539–41.
questioning on their behalf. proposed rule in the preamble to the Some participants also objected
• If an organization were represented proposal and other supporting during the hearing that there was not
by more than one questioner, only one documentation. OSHA is not required enough time to question the
person should question a witness on a by any law or regulation to explain its government’s expert witnesses. Tr. pp.
particular topic area. rationale further at the informal public 936–941; 1438–1444. The Chamber, for
• Questions should be brief and hearing. OSHA, however, generally example, complained that OSHA only
should be designed to clarify a spends some time at the beginning of gave ‘‘industry as a whole under two
presentation or elicit information within rulemaking hearings answering a few hours of cross-examination’’ to question
the competence or expertise of the questions from participants. In the past, the NIOSH panel. Ex. 500–188, p. 7
witness. OSHA usually made a panel available (emphasis in original).
• A tentative 120 day post-hearing for a few hours at the beginning of the Once again, OSHA believes that the
comment period was established. hearing. For example, in both the amount of time allotted for questioning
Docket H–371, Ex. 24; See also Pre- Tuberculosis and Access to Employee its expert witnesses was reasonable and
hearing Guidelines for Hearing on Exposure to Medical Records hearings, provided interested parties adequate
Employer Payment for Personal the OSHA panel answered questions for time to ask questions, clarify
Protective Equipment, Docket S–042, a couple of hours at the beginning of the presentations, and elicit new
Ex. 17 (including same); Mintz, OSHA: hearings. See Docket H–022B, Ex. 171A; information, while not unduly
History, Law, and Policy 66–7 (BNA Docket H–371, Ex. 25A. Recognizing protracting the rulemaking process.
1984). As is clear from the above, OSHA that there were a number of parties who Each panel was available for
did not deviate meaningfully in the wished to question the Agency more questioning for over two hours (and on
ergonomics rulemaking hearing from the extensively in this case, however, OSHA many occasions for over three hours).

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See Ex. 502–476. This amount of time e.g., Tr. pp. 16851–52. First, as OSHA ability to ‘‘cross-examine’’ certain
was longer than that provided for stated in its Hearing Procedures, public witnesses was improperly curtailed
questioning of most other members of witnesses were asked to summarize misunderstood the nature and purpose
the public, and OSHA believes it was their written submissions. See 65 FR of OSHA’s informal rulemaking
sufficient to allow members of the 11948–49 (Mar. 7, 2000). Because hearings.
public to question the experts on written submissions were already part It is clear that the public witnesses
‘‘crucial issues.’’ of the rulemaking record and available had adequate time to question each
OSHA also encouraged its expert for all to review beforehand, there was other. The schedule typically allowed a
witnesses to provide only brief oral no reason for participants also to read panel of witnesses to be questioned for
presentations. Some of them gave only those submissions into the record. one hour. In other words, for every hour
short opening statements. See e.g., Tr. Second, OSHA established the of testimony, OSHA allowed an hour of
pp. 2361–65, 2366–69, 2369–72; see amount of time for public testimony questioning. Consistent with its
also Tr. pp. 1816 (Industry questioner based on the amount of time witnesses decision to allow much more time for
thanking panel of OSHA expert requested in their Notices of Intent to questioning of the government expert
witnesses for abbreviating testimony). Appear. Witnesses who requested only witnesses, OSHA also allowed for
On other occasions, OSHA ceded the 10 minutes to testify were typically greater questioning of public witnesses
Agency’s time to the public for scheduled for the entire amount of time who were particularly well-known in
questioning. See e.g., Tr. pp. 2087; 2496; they requested in their Notice. If the field of ergonomics.
2287–88. Contrary to the arguments of individuals requested 15 minutes, • Dr. Don Chaffin, a Professor of Industrial
UPS and NCE that the procedures were OSHA typically scheduled them for 10 Engineering at the University of Michigan,
somehow designed to ‘‘minimize time minutes of affirmative testimony. If they former Director of its Center for Ergonomic
available for industry questioning,’’ Ex. requested 20 minutes, OSHA typically Studies, and author of numerous articles on
500–197. p. IV–13, OSHA’s efforts in scheduled them for 15 minutes. For ergonomics (See Ex. 500–5), appeared on a
fact increased the amount of time for witnesses who requested longer periods panel by himself and had only a short
public questioning of the expert of time, OSHA scheduled time for affirmative presentation; OSHA ceded its
own questioning time to allow for more
witnesses. affirmative testimony based upon the questions from the public. Tr. p. 8264.
Third, the Administrative Law Judge number of topics to be addressed by a • Dr. Gary Franklin, a physician who treats
changed the questioning format after the hearing participant. Thus, UPS filed patients with MSDs and has written
second day of testimony by the Notices of Intent to Appear for over 20 extensively on ergonomics and MSDs,
government experts in order to allow individuals and requested varying appeared on a panel by himself and only
questioning to proceed more efficiently. amounts of time to cover a wide range gave a short affirmative presentation; the
To ensure an even distribution of of subject areas. Ex. 32–241–1. OSHA amount of time available for questioning by
questioning, the Administrative Law allotted these witnesses 21⁄2 days (22 industry representative was significantly
Judge divided the time available for increased by the presiding Administrative
hours and forty-five minutes), a Law Judge. See Tr. pp. 13340–13415.
questioning among the three broad significant amount of time by any • Dr. Barbara Silverstein, Director of the
categories of questioners—labor, measure, to present their testimony and Safety and Health Assessment and Research
industry, and OSHA. The Hearing respond to questions. Ex. 502–476. Program in Washington State and author of
Procedures issued by the Assistant OSHA believes that the amount of time numerous articles on ergonomics and MSDs,
Secretary gave the Administrative Law given the public witnesses to testify met appeared on a panel with one other
Judge this authority; in fact, the the goal of allowing interested parties to individual and had only a short affirmative
Procedures envisioned the exercise of summarize their main points, while not presentation; members of the public had one
this authority in just such a situation. hour to question the two witnesses. See Ex.
‘‘unduly protracting’’ the rulemaking 502–476.
See 65 FR 11948 (Mar. 7, 2000). OSHA process.
believes that this revision in format Nonetheless, some participants Second, OSHA repeatedly ceded to
allowed all interested participants an objected throughout the hearing that the public its own questioning time to
even greater opportunity to question there was not enough time to question allow for more questioning by public
OSHA’s expert witnesses. public witnesses. See Tr. pp. 8265; participants. See e.g., Tr. pp. 8264;
Finally, OSHA finds completely 3500; 6062. NCE et al., for example, 10546; 17602–03. The Administrative
unfounded the allegation made stated that OSHA improperly Law Judges also often adjusted the
repeatedly by some commenters ‘‘suspended the rules that allow for schedule to allow more time for
(including the Chamber) that there was [cross-examination]’’ and asked leading questioning of witnesses when
insufficient time to question the NIOSH questions of certain witnesses in a interested members of the public had
panel. See e.g., Ex. 500–188, p. 7. OSHA manner that did not develop the remaining questions. See e.g., Tr. pp.
allotted an entire afternoon, 31⁄2 hours, rulemaking record. Ex. 500–197, p. IV– 8263–66; 13345; 13366; 13380; 13415.
for questioning of the NIOSH panel. (In 11, 15–16. The time available for questioning
total, OSHA scheduled NIOSH for a 41⁄2 OSHA did not suspend any rules could have been substantially increased
hour block of time to present its allowing for cross-examination. In fact, had more scheduled witnesses notified
testimony and respond to questions.) In as described in detail above, the hearing OSHA in advance of their intent not to
fact, the hearing was recessed early on procedures expressly provided for cross- appear. As stated above, over 100
that day because there were no examination. The hearing was not a witnesses canceled their appearances
questions left for the NIOSH panel to trial, however, and no OSHA procedural (amounting to approximately one week
answer. See Tr. p. 2125. The time regulation gives the public unlimited of scheduled hearing time), often with
allotted for questioning of the NIOSH time to question witnesses. The public’s no advance notice. This included many
panel was more than adequate; if desire to question witnesses must be of the same parties who objected most
anything, OSHA scheduled too much balanced against the primary function of vigorously to the length of the
time for the questioning of this panel. the hearing: to assist OSHA in gathering questioning time and would have been
OSHA also believes that all interested evidence that will help the Agency expected to be most anxious to assist
parties had an adequate opportunity to determine whether and how to regulate. OSHA in increasing that time. See e.g.,
present their affirmative testimony. See Those parties who complained that their Tr. pp. 3138; 12036–12041. For

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example, UPS and its expert witnesses hearing participants; nor did OSHA wait submitted, and print copies of the
requested over 20 hours to present until the end of the proceedings to make documents. OSHA intends this system
affirmative testimony. OSHA scheduled the transcripts available. First, during to provide an easier means to view
almost 23 hours for UPS testimony and the initial week of the hearing, OSHA materials submitted to its rulemaking
questioning. UPS, however, canceled all informed participants that they could records.
but six of those witnesses. OSHA was contact the reporter directly to receive Because OSHA anticipated that there
unable to fill that time; this resulted in copies of the hearing transcripts. Tr. p. would be a large amount of material
approximately two days during the 936. Second, on May 3, 2000, OSHA submitted to the docket during this
hearing where no testimony or placed on its web page unofficial copies rulemaking, the Agency implemented
questioning occurred. See Ex. 502–476. of the hearing transcripts. Third, on May special procedures to ensure timely and
Similarly: 30, 2000, OSHA made the official convenient access to the docket. For
• Keller & Heckman LLP requested 40 transcripts available on its web-page. example, OSHA made the proposed rule
minutes to testify and canceled its OSHA placed paper copies of the and preamble, the Preliminary
appearance. See Exs. 32–215; 32–215–1. official transcripts in the Docket Office Economic Analysis, and the full Health
• Fed Ex Corporation and its a few days later. Effects sections available on its web
subsidiaries requested 100 minutes to There is no statutory, regulatory, or page and on CD–ROM. In fact, OSHA
testify and canceled their appearances. other authority requiring that OSHA go mailed a CD–ROM containing this
See Exs. 32–203; 32–205; 32–208; 32– to such lengths to provide copies of the information free of charge to all parties
209; 32–208–2. transcripts to the public. OSHA’s who participated in the stakeholder
• NCE’s economic task force procedural regulations state only that meetings OSHA held before issuance of
requested 130 minutes to testify and transcripts ‘‘shall be available to any the proposed rule and to any other
canceled its appearance. See Ex. 32– interested person upon such terms as interested party upon request.
375; Tr. pp. 12036–41. the presiding officer may provide.’’ See OSHA also extended its Docket Office
29 CFR 1911.15(b)(3). OSHA’s efforts to hours by 3 hours a day, and designated
• The Rubber Manufacturers an area in the Docket Office as an
make the transcripts available certainly
Association requested 45 minutes to ‘‘ergonomics reading room,’’ where
exceeded what is required by its
testify and canceled its appearance. See parties could review docket submissions
procedural regulations and was more
Ex. 32–242; Tr. p. 3138. as soon as they were received by the
than adequate to allow parties to review
All of these entities, or representatives transcripts of the proceedings promptly Agency. Ex. DC–423. In addition, OSHA
of these entities, objected to the amount and in a meaningful way. moved people from other positions in
of time allotted for cross-examination of the Agency to process public comments
witnesses. See Ex. 500–197 section IV; C. Availability of Record Material in the and scan the material into the computer
Tr. p. 2303. Docket database as quickly as possible. These
NCE et al.contended that OSHA When it issued the proposal, OSHA steps, which exceeded any legal
further reduced the time for the public placed in the rulemaking docket a large obligations and went far beyond
questioning of witnesses by using its amount of material and evidence. OSHA’s own past practice, were more
own questioning time ineffectively. Ex. Throughout the rulemaking, OSHA than adequate to ensure interested
500–197, IV–14–15. But many received additional evidence, both from parties a meaningful opportunity to
participants in the hearing complained rulemaking participants and through its comment on the proposed rule.
that others asked irrelevant questions, own efforts. This entire body of Although an administrative agency
wasted time, and otherwise failed to evidence forms the basis for the engaged in rulemaking must make
develop the record efficiently. The issuance of this final standard, and ‘‘critical factual material * * * used to
AFL–CIO pointed to an exchange in OSHA took unprecedented steps to support the agency’s position’’ available
which a UPS lawyer spent several ensure that all of it was available for to the public for review in a rulemaking
transcript pages attempting, public inspection. proceeding, Air Transport Ass’n. v.
unsuccessfully, to elicit a particular The OSHA Docket Office (Docket FAA, 169 F.3d 1, 7 (D.C. Cir. 1999),
response from an AFL–CIO witness. Ex. Office) provides a number of ways to agencies generally are not required to
500–218, pp. 168–170. But this merely review and access materials submitted. make the material ‘‘available’’ in any
highlights that one participant in a First and foremost, the Docket Office particular format, so long as the public
rulemaking may believe that certain maintains hard copies of all documents has an opportunity to review the
questions are of relevance, while submitted to the rulemaking record and material during the rulemaking.
another participant may think precisely places them on a central shelf in the There can be no question that OSHA
the opposite. OSHA designed the Docket Office reading room. Any made the material ‘‘available’’ here
informal public hearing to give both interested party can view and copy within the meaning of this requirement.
itself and the hearing participants the these documents, consistent with With only a few exceptions, OSHA
opportunity to question members of the applicable copyright laws. Docket Office placed all documents cited in the
public in a manner each believed would staff are always available to help preamble to the Proposal in the Docket
best develop the rulemaking record. interested parties find and obtain Office by November 23, 1999—the date
OSHA believes that it did this rulemaking materials. Until recently, the proposal was published. OSHA also
effectively throughout the informal this method was the only way to access scanned the documents into a computer
hearing. an OSHA rulemaking docket. database to allow interested parties to
The same participants also Recently, however, OSHA has been view, search, and print copies of the
complained that ‘‘OSHA withheld the exploring methods of using technology documents more efficiently. Docket
hearing transcript from the rulemaking’s to make access to its dockets even more Office staff were available to help
participants’’ and that the ‘‘transcripts convenient. For example, OSHA began interested parties in searching the
were not provided until the hearings a process of scanning all materials into computer database and locating
were ended.’’ Ex. 500–197, p. IV–17; see an electronic database. This permits particular documents. See Ex. 30–3956,
also Ex. 500–109. However, OSHA did interested parties to view documents in p. 133 (‘‘[T]he Docket Office staff were
not withhold the transcripts from the the database, search for documents extraordinarily helpful in attempting to

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assist us in gaining access to OSHA’s were occasional computer and printer provide estimates of the number of firms,
data, even to the extent of allowing us failures. number of establishments, employment,
a dedicated work station in the docket • OSHA rejected a request for annual payroll and estimated receipts for
electronic copies of the entire docket on employment size of firm categories by SIC
office (subject, of course, to use by code. It is available to the public from the
OSHA staff in carrying out their disk or zip drive, even though the Small Business Administration web page.
projects).’’). But OSHA did not design docket was available to OSHA staff OSHA used this information to estimate the
the database to serve as the primary through its intranet. economic impact of the proposed rule on
mechanism for reviewing the • The copying fee of 15 cents a page various industries, as well as small
rulemaking record; it is an additional was excessive. businesses. When OSHA recognized that
convenience for the public. • OSHA relied on a NIOSH review of these data had inadvertently not been placed
In fact the computer database for 2000 studies in supporting the proposed in the docket, it immediately placed in the
viewing, searching, and printing the rule; ‘‘the 2000 studies were not’’ in the docket a hard copy of the web page where
docket. interested parties could access the material
record is relatively new technology in (on December 23, 1999). On February 1,
the context of OSHA’s rulemakings. • One economic document appeared
2000, OSHA placed hard copies of the data
Similarly, OSHA has not previously to be named differently in the (127 pages) in the docket. See Ex. 28–6–1.
made documents available on CD–ROM Preliminary Economic Analysis than in • RMA data—These data provide net
and the web page. Extending the hours the preamble. return on sales information by industry SIC
the Docket Office was open to allow the • The Docket Index was incomplete code and are available in many public
public greater access to the rulemaking at certain times during the pre-hearing libraries. OSHA used this information to
record was also not commonplace in comment period. estimate the economic impact of the
earlier rulemakings; the Agency also • Only the cover pages of some proposed rule on various industries. Due to
documents were in the docket, as copyright concerns, OSHA originally did not
does not typically dedicate a special place this information in the docket. OSHA
area of the Docket Office to serve as a compared to the entire document.
later obtained permission to include these
reading room. Thus, in numerous earlier Ex. 30–3956, pp. 134–37. data in the docket; once it obtained this
rulemakings, interested parties reviewed Many of these allegations are not permission, OSHA placed the information in
and copied (as necessary) the paper accurate, and those that are represent the docket (on February 18, 2000). See Ex.
copies of documents submitted to the the minor and harmless complications 28–10.
record of a particular rulemaking. The of managing any large record. It is not • IRS data—These data also provide net
true that ‘‘numerous’’ documents, return on sales information by industry and
extraordinary efforts made in this case are available on the IRS web page. OSHA
not only exceeded any applicable legal including the Preliminary Economic
Analysis, were not available for public only used these data for a handful of industry
requirements, they were an appropriate sectors for which the RMA data were not
response to the comments of some inspection by November 23, 1999. The available. When OSHA recognized that these
parties that the number of issues Preliminary Economic Analysis was data had inadvertently not been placed in the
involved in the rulemaking required stamped as received in the Docket docket, it immediately placed the material in
additional accommodations. See e.g., Office at 9:55 a.m. on November 23, the docket (on January 31, 2000). See Ex. 28–
Ex. 500–223, p. 94. 1999. As such, it was available for 9.
For these reasons, OSHA does not inspection and copying at that time. To OSHA also did not rely upon data that
agree with those commenters who the extent interested parties had it did not place in the rulemaking
contended that underlying record difficulty locating or obtaining the record. The commenters who raised this
material was not available to interested Preliminary Economic Analysis, Docket issue did not identify precisely what
parties for their review. NCE, for Office staff were available to assist data they were referring to, see Exs. 30–
example, alleged that ‘‘numerous them. 3716, p.5; 30–3736, p. 10, but it may
documents were missing or unavailable OSHA also disputes the allegation have been the same material that was
because they had been sent out for that Exhibits 28–3, 28–4, and 28–5 were requested in a number of Freedom of
photocopying, including the 1100 page missing on November 23, 1999. In fact, Information Act (FOIA) requests filed by
Preliminary Economic and Regulatory the record indicates that Exhibits 28–3 some hearing participants. See e.g., Ex.
Flexibility analysis and approximately and 28–4 were entered into the 503. Some of these requests were for
500 pages of associated materials offered computer database on November 23, information that was in the rulemaking
in support of the Agency’s 1999 and thus were certainly available docket, and others were for information
conclusions,’’ Ex. 30–3956, p. 133, and for viewing at that time. Exhibit 28–5 is that was not part of the rulemaking
that Exhibits 28–3, 28–4, 28–5, and 28– a number without an exhibit; there is no record, because OSHA had not relied on
6 were not available for review on such document and ‘‘Exhibit 28–5’’ was it in the proposed rule.
November 23, 1999. Ex. 30–3956, not cited or relied upon by OSHA in the OSHA responded to the requests for
Appendix IV. NCE also made a number preamble to the proposed rule, or in the information in a timely manner. See Ex.
of other attacks on the integrity of the Preliminary Economic Analysis. 500–23–1, p. 8. To the extent the
OSHA does not know which other information was available, OSHA
record and on OSHA’s provision of
documents NCE and other commenters, provided it to the requesters, and, as
access to it:
• OSHA generally relied upon see 30–3815, p. 4; 30–3956, pp. 133, appropriate, placed the FOIA requests
additional underlying data that it did 135; 30–3819, p. 3, claim were and responses in the docket. See Ex.
not make available to the public. ‘‘unavailable.’’ After the proposed rule 503. OSHA is not, however, aware of
• There was only one high speed was published, however, OSHA any information it relied upon that it
printer for use in the OSHA docket discovered that a few documents cited did not place in the docket. To be sure,
office, and that printer takes in the proposed rule had been OSHA receives data and information
approximately two hours to print 800 inadvertently omitted from the material from a number of different sources
pages. placed in the docket by November 23, when preparing a proposed rule. But all
• The Docket Office only stays open 1999. These documents included the data that were relevant to the
for 6 hours a day. following: promulgation of the proposed rule and
• The computer systems and printers • Firm Size Data Provided by the Bureau were relied upon by OSHA in the
were not operating perfectly—there of the Census (Exhibit 28–6)—These data rulemaking were placed in the record.

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68838 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

The allegation that ‘‘2000 studies’’ material in the docket. As stated earlier, impede participants’ ability to view the
relied upon by NIOSH in its literature OSHA is required to make critical material in the rulemaking.
review were not in the docket on material available for public inspection The fact that the Docket Office was
November 23, 1999 is also factually during the rulemaking proceeding. open for 6 hours a day during the
inaccurate and of questionable OSHA is generally not required to make prehearing comment period also did not
relevance. NIOSH did not rely on 2000 such material available in any particular deny any party an adequate opportunity
studies in its literature review. As form or manner. In this case, OSHA to review the record. Particularly with
described more fully in Section V above, made the relevant material available in the technological assistance described
NIOSH originally examined 2000 hard copy format for review and above, OSHA believes that interested
studies in preparing its literature review copying (as appropriate) in the Docket parties could adequately review the
but chose to use only about one-third of Office reading room. OSHA is aware of record and comment on the proposed
them, based on certain methodological no commenter who has suggested that rule in the time allotted. And as also
criteria NIOSH established for the study. any of the material in the docket was discussed above, the quality and
Ultimately, NIOSH included about 600 not available in hard copy form or that comprehensiveness of the pre-hearing
studies in its literature review. Many of any of the copying machines were not submissions, including NCE’s own 156
these studies were in the rulemaking functioning during the comment period. page submission, belie any suggestion
docket. For example, a quick check by Indeed, one commenter expressly noted that the parties were impeded in their
OSHA located the following studies in that there were ‘‘no particular ability to comment. Even so, when the
the rulemaking record: difficulties’’ in requesting, reviewing, hearing began OSHA extended the
• Aaras A. [1994]. Relationship and copying documents in the Docket Office hours to allow the public
between trapezius load and the rulemaking record. Ex. 500–218, p. 165. even more time to review the comments
incidence of musculoskeletal illness in And as explained, OSHA never and evidence received into the
the neck and shoulder. Int. J. Ind. intended its computer database to serve rulemaking record. Docket Office hours
Ergonomics 14(4):341–348. Ex. 26–892. as the sole method for interested parties were extended on March 13, 2000; the
• Armstrong T. et al. [1987a]. to use to review the record. OSHA Docket Office continued these extended
Ergonomic considerations in hand and hours until September 1, 2000, well
intended the database to be an
wrist tendinitis. J. Hand. Sur. after the rulemaking record closed.
additional tool to facilitate this review,
12A(5):830–837. Ex. 26–48. Certainly, the $0.15 a page fee the
• Bigos S. et al. [1986b]. Back injuries for those participants who prefer
Docket Office charges for copying and
in industry: a retrospective study. III. electronic access. OSHA does not
printing did not deny interested parties
Employee-related factors. Spine 11:252– believe that the occasional technical
an opportunity to review the record.
256. Ex. 26–871. failure of this additional tool deprived
OSHA is authorized to charge this
• Dehlin O. [1977]. Back symptoms any party of an opportunity to review
nominal fee in order to recoup some of
and psychological perception of work: a relevant material.
the costs of paper and toner, etc. See 29
study among nursing aides in a geriatric Similarly, interested parties were not CFR 70.40(d)(2). But OSHA does not
hospital. Scand. J. Rehabil. Med. 9:61– denied meaningful review because charge any fee for interested parties to
65. Ex. 26–820. OSHA did not produce the entire docket enter the Docket Office and review
Even though a few of the studies electronically or on a zip file. First, as documents submitted to the record, so
examined by NIOSH may not have been described above, OSHA provided a the fee did not prevent any interested
in the docket, however, the public number of documents to interested party from viewing any document.
would not have been deprived of an parties on its web page and on CD– The fact that one particular economic
adequate opportunity to review the ROM, including the full Health Effects document was improperly named in the
information OSHA relied upon in the section as well as the entire Preliminary Preliminary Economic Analysis also did
proposed rule, because OSHA relied Economic Analysis. Second, OSHA not deprive parties of an adequate
upon the NIOSH literature review in made the information in the docket review of the record. Certainly, OSHA
discussing the epidemiological evidence available electronically on its computer took pains to ensure that all documents
supporting the proposed standard. The database. Providing the entire docket on were accurately cited in the preamble to
NIOSH literature review was in the a zip file would have been the proposed rule, as well as in the
docket and available for review by administratively difficult, expensive, computer database. It is precisely
November 23, 1999. Ex. 26–1. OSHA’s and time consuming, particularly since because human error may occur from
use of, and reliance upon, its research the docket was constantly growing, with time to time, however, that Docket
arm in this manner was expressly new submissions being received by Office staff are available to answer
contemplated by Congress when it Docket Office staff daily. questions from interested parties, as
created NIOSH in the OSH Act. See 29 Third, providing the record in such a well as to make inquiries of OSHA if
U.S.C. § 671. Furthermore, OSHA is not way would raise copyright issues for parties are having difficulty locating
obligated to place in the docket every some of the material in the record. certain documents. The specific
underlying study used by any researcher Finally, and as mentioned previously, document referred to by NCE, Exhibit
in reviewing the scientific literature OSHA is not required to provide the 28–7—Tabulations from OSHA’s 1993
about any particular subject. Cf. Cable & material in the record as an electronic Ergonomics Survey, was inadvertently
Wireless P.L.C. v. FCC, 166 F.3d 1224, or zip file. OSHA is, of course, titled Description of Cost Estimates of
1234 (D.C. Cir. 1999) (FCC did not continually investigating new ways to Ergonomic Controls Under Draft OSHA
unreasonably rely upon published study provide interested members of the Ergonomics Standard in both the
even though underlying data for the public with access to the rulemaking Preliminary Economic Analysis and the
study was not available to the FCC or record. However, there is surely no due Summary of the Preliminary Economic
the public). process requirement that OSHA provide Analysis (Summary) in the Preamble.
It is also not true that printer failures access to the document in any particular OSHA corrected the error in the
and other computer problems prevented form, and OSHA’s decision not to Summary in a corrections notice
interested parties from reviewing and provide an additional form of electronic published December 30, 1999. See 64
commenting meaningfully on any access did not violate due process or FR 73448–58 (Dec. 30, 1999). OSHA,

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however, did not place any new D. OSHA’s Use of Expert Witnesses Other federal agencies also use expert
material—material that would have Consistent with its past practice, see witnesses in ways similar to OSHA’s.
required additional analysis—into Mintz, OSHA: History, Law, and Policy The Environmental Protection Agency,
Exhibit 28–7 after correcting the title to 64–5 (BNA 1984), OSHA contracted the Food and Drug Administration, and
the document. OSHA thus does not with a number of experts to testify at the the Department of Transportation, for
believe that this inaccurate citation hearing and to provide other assistance example, make extensive use of
deprived the public of an opportunity to in the rulemaking process. Twenty-eight consultants in their rulemaking
review and comment upon the material experts prepared pre-hearing comments, activities. See e.g., BASF Wyandotte
in the Exhibit. testified during the informal public Corp. v. Costle, 598 F.2d 637, 640–41
hearing, answered questions at the (1st Cir. 1979) (EPA retained outside
OSHA also believes that the Docket
hearing, and submitted post-hearing consultants to analyze pesticide
Index was never ‘‘incomplete.’’ By its
comments and data. These experts industry in preparation of regulation);
very nature, the Docket Index is an
testified on a wide range of issues cf. National Small Shipments Traffic
unfinished and ever-growing document.
including the work-relatedness of Conf., Inc. v. I.C.C., 725 F.2d 1442, 1449
Interested parties are continually (D.C. Cir. 1984) (ICC retained consultant
sending documents to OSHA to place in MSDs, the diagnosis of MSDs, the
implementation of engineering controls to evaluate various methodological
the record. When the Docket Office criticisms of rulemaking record). As
receives a document, it is processed and in workplaces, and the costs of
ergonomic programs. See Testimony in explained in A Guide to Federal Agency
placed into the record. Part of the Rulemaking published by the ABA:
processing involves entering the Ex. 37. OSHA’s use of expert witnesses
document into the computer database in this way is expressly authorized by Agencies sometimes use the services of
the OSH Act, is consistent with past outside consultants in developing rules or
and generating the Docket Index. Thus, supporting analyses, particularly in
the Docket Index is constantly growing practice, and is consistent with the
rulemakings involving questions of science
as new information is submitted to the practice of other administrative
or technology as to which the agency needs
record. This does not mean, however, agencies. added expertise. The tasks consultants are
Section 7(c)(2) of the OSH Act states: asked to perform vary, but they include
that the Docket Index is ‘‘incomplete’’ at
‘‘In carrying out his responsibilities testifying as witnesses, conducting research,
any particular time.
under this Act, the Secretary [of Labor] summarizing and evaluating data in the
Docket Office staff processed is authorized to * * * (2) employ record, and helping draft portions of the final
rulemaking documents as soon as experts and consultants or organizations rule and its rationale. Lubbers, A Guide to
possible upon receipt. Indeed, OSHA thereof as authorized by Section 3109 of Federal Agency Rulemaking 243 (ABA 1998).
moved people from other positions Title 5.’’ 29 U.S.C. § 656(2). The OSH Clearly, therefore, those commenters
within the agency to expedite this Act does not limit the purposes for who claimed that it was improper, per
process. OSHA does not believe that its which OSHA may obtain expert se, for OSHA to contract with expert
processing of documents into the record assistance, and assuring that it has witnesses to participate in the
and onto a Docket Index deprived any appropriate expertise during rulemaking rulemaking process were wrong. See
interested party an adequate proceedings falls squarely within this e.g., Exs. 500–43, pp. 1–2; 500–201, p.
opportunity to review the record or to authorization. In United Steelworkers of 2. OSHA has also considered the more
comment meaningfully on the proposed America v. Marshall (Lead), 647 F.2d specific objections that: (1) OSHA did
standard. 1189 (D.C. Cir. 1980), the U.S. Court of not disclose to the public that it had
Finally, in a few cases, due to Appeals for the District of Columbia contracted with the expert witnesses to
copyright concerns, OSHA placed only Circuit upheld OSHA’s authority under participate in the rulemaking
the cover pages and tables of contents of the OSH Act to employ experts to proceedings; (2) the expert witnesses
published documents into the docket. prepare written comments, submit had a financial interest in the
These documents were generally relevant data, and present testimony rulemaking and therefore their
available to interested parties upon during rulemaking proceedings. The testimony was tainted; (3) OSHA
request; they were also often publicly court stated: ‘‘The OSH[] Act empowers coached the witnesses; (4) the expert
available. See e.g., Tr. p. 2640 (Hearing the agency to employ expert consultants witnesses provided additional detailed
participant complaining that only cover * * * and OSHA might have possessed critiques of other public commenters
that power even without express that were not placed in the rulemaking
page of book in the record, but
statutory authority * * * .’’ Id. at 1217. record; and (5) OSHA improperly used
admitting he was able to obtain copy of
The court also noted that it would be the expert witnesses to review and
the book). Once again, Docket Office
absurd to require OSHA and other analyze the public comments and
staff were available to answer any
agencies to ‘‘hire enormous regular hearing testimony. See Exs. 500–188,
questions from interested parties and to
staffs versed in all conceivable pp. 7–10; 500–197, pp. IV–1925.
help locate materials that might First, the rulemaking record is replete
technological issues, rather than use
otherwise be difficult to find. OSHA with evidence that OSHA’s use of expert
their appropriations to hire specific
does not believe that this practice witnesses and consultants was disclosed
consultants for specific problems.’’ Id.
deprived interested parties of their right OSHA has historically used experts to to the public and was clearly known to
to review the record. testify at public hearings about parts of the parties who cross-examined OSHA’s
As the above discussion proposed rules that fall within their experts at the public hearings. OSHA
demonstrates, OSHA undertook areas of expertise. Some earlier OSHA notified interested members of the
extraordinary measures to provide rulemakings that involved OSHA expert public of its expert witnesses in several
interested members of the public access witnesses included: the Lead ways: (1) OSHA clearly listed its expert
to the rulemaking record. These efforts rulemaking (1980); the Hazard witnesses as ‘‘OSHA Witnesses’’ on the
ensured that all participants had an Communication rulemaking (1983); the hearing schedule that was sent to
opportunity to examine the underlying Ethylene Oxide rulemaking (1984); the hearing participants and placed on the
information and comment meaningfully Benzene rulemaking (1987); and the OSHA webpage, see Ex. 502–476; (2)
on the proposed rule. Methylene Chloride rulemaking (1997). OSHA placed the witnesses’ testimony

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under a separate Exhibit number in the that underlay the proposal. This material harm. After examining all of
Docket Office labeled ‘‘OSHA Expert preparation, however, does not the evidence in the rulemaking record—
Witnesses’’, see Ex. 37; and (3) OSHA represent improper ‘‘coaching’’ the evidence that was subject to notice and
referred to its expert witnesses when witnesses. See Lead, 647 F.2d at 1211– comment—OSHA has made the
responding to questions from members 16. None of the expert witnesses determination that this standard is
of the public during the first two days testified to anything they did not reasonably necessary and appropriate to
of the hearing. See Tr. pp. 1–142; 1–189; believe; in fact, some criticized aspects reduce the significant risk of MSDs.
1–205; 1–206; 1–229; 1–230; 719. of the proposed rule with which they OSHA’s use of experts in helping to
Indeed, it was clear to the parties who disagreed. See e.g., Testimony of Les make that determination was not
cross-examined OSHA’s experts that Boden, Tr. pp. 1683–34 (‘‘Even though improper or inappropriate.
OSHA’s experts were paid witnesses. I happen to be here at the request of
E. Supplemental Hearing on the
For example, when an attorney OSHA, I think it’s clear that OSHA
Economic Impact of the Proposed
representing UPS questioned OSHA should reword the language that
Standard on the United States Postal
witness Maurice Oxenburgh, he describes WRP so that people like
Service, State and Local Governments,
referenced the ‘‘Expert Witness myself, when they first read it, won’t
and Railroads
Cont[r]act for Dr. Maurice Oxenburgh.’’ think that it means that the worker is
Tr. pp. 2637; see also Tr. p. 1440. supposed to be paid 90 percent of their After OSHA published the proposed
Second, OSHA’s expert witnesses had after tax earnings * * * .’’); Testimony standard on November 23, 1999, it
no financial interest, and therefore no of Laura Punnett, Tr. p. 1011 (‘‘I would realized that it had failed to include in
conflict of interest, in the outcome of prefer to see a standard which is based its Preliminary Economic Analysis and
the ergonomics rulemaking. The basis on exposure levels * * * and which Initial Regulatory Flexibility Analysis
for this objection, raised by NCE et al., does not require the occurrence of an assessment of the economic impact
appears to be that, because many of the disorders before a program goes into of the proposed standard on the United
expert witnesses were well-known place.’’). States Postal Service, State and local
ergonomics experts, they would benefit Fourth, OSHA’s expert witnesses did governments, and railroads. Once OSHA
financially from an ergonomics not prepare any detailed written recognized the omission, it conducted a
standard, presumably because they critiques of public witnesses during the supplemental analysis of the economic
would be hired more often to address rulemaking process that OSHA could impact of the proposed standard on
ergonomic issues. According to this have, but did not place in the these groups (supplemental analysis)
theory, the witnesses testified that there rulemaking record. The commenter who and published the analysis in the
was a need for a standard on ergonomics made this allegation, the Chamber, gave Federal Register. See 65 FR 33263 (May
in order to receive this future, no support for it, but rather summarily 23, 2000).
speculative economic benefit. See e.g., stated: ‘‘the Chamber understands that In order to allow interested parties an
Ex. 500–197, p. IV–19. many of these supposed experts have opportunity to comment on the
In fact, however, OSHA hired these apparently prepared detailed critiques supplemental analysis, which consisted
witnesses precisely because their of the public comments the Agency only of 2 Federal Register pages (with
experience with ergonomics provided received, which have never been a 10 page Technical Appendix), OSHA
them with relevant expertise. And their released to the public, much less established a 30 day pre-hearing
testimony shows clearly why most of subjected to rebuttal or cross- comment period, scheduled an informal
them supported promulgation of this examination.’’ Ex. 500–188, p. 8 public hearing on the supplemental
standard: they have participated in the (emphasis added). This allegation is not analysis, and established a 34 day post-
implementation of ergonomics programs true. As detailed above, OSHA placed in hearing comment period. 65 FR 33263
similar to those required by this the docket all of the information it (May 23, 2000). The post-hearing
standard, and have observed the success relied upon in promulgating the comment period for the supplemental
of those programs in reducing MSD standard. analysis closed the same day as the
rates, increasing productivity and Fifth and finally, OSHA did not post-hearing comment period for the
efficiency, and decreasing workers’ improperly involve expert witnesses in rest of the proposed standard. Id.
compensation costs. In other words, the preparation of the proposed and The hearing took place on July 7, 2000
they believe that a program standard is final rule, and in the review and in Atlanta, GA, and 8 parties filed
necessary because they have seen analysis of the public comments and Notices of Intent to Appear. See Exs.
programs work to reduce injuries among hearing transcripts. It is true that OSHA 701; 702. The hearing was scheduled to
workers and save money for their hired some experts to help in preparing begin at 9:00 a.m. and conclude by the
employers. See e.g., Exs. 37–7; 37–25; the proposed and final rule and in end of the day. 65 FR 37322, 37323
37–20. evaluating the rulemaking record; (June 14, 2000). An OSHA panel was
Third, there is no basis for the claim however, such use of experts is not available for questioning on the
that OSHA improperly ‘‘coached’’ the improper. As described above, it is supplemental analysis from 9:15 a.m.
expert witnesses. One of the witnesses’’ expressly authorized by the OSH Act until 12:00 p.m. A representative of UPS
functions was to help the public and has been upheld by the D.C. Circuit questioned the panel for more than two
understand the scientific and technical Court of Appeals. Lead, 647 F.2d at hours, and the presiding Administrative
research on which OSHA based its 1216 (OSHA properly hired experts ‘‘to Law Judge permitted one person who
proposal. OSHA worked with its experts summarize and evaluate data in the had not filed a Notice of Intent to
to be sure that they were prepared to record, prepare record data for computer Appear to question OSHA for about 10
explain clearly and succinctly, the processing, and help draft portions of minutes. See Tr. pp. 18153–55; 18218.
reasoning and assumptions on which the Preamble and the final standard.’’). A representative of the railroad industry
OSHA relied in developing the In the end, OSHA must weigh the was the only party to present testimony
proposed standard. Indeed, OSHA evidence and determine whether a at the afternoon session—the others
believes that it had a responsibility to standard is appropriate and how that having canceled their appearances—and
prepare its expert witnesses to present standard should be designed to the hearing concluded early. See Tr. pp.
the scientific and technical assumptions substantially reduce a significant risk of 18217–81.

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OSHA’s issuance of the supplemental prepare for the informal public hearing. deprive any member of the public the
analysis and procedures for comment on In fact, the information supplied by the opportunity to comment on relevant
the analysis were consistent with railroad industry was largely evidence. Past OSHA rulemakings have
applicable law. As described in detail responsible for OSHA’s decision to included post-hearing comment periods
above, the OSH Act and OSHA’s reserve for possible future rulemaking of similar length. For example:
procedural regulations require that the issue of the applicability of the final • Powered Industrial Trucks—90 day
OSHA provide at least 30 days for rule to the railroad industry. See post-hearing comment period. 63 FR
interested parties to comment on a Discussion in Part IV, Paragraph (b) 66237 (Dec. 1, 1998).
proposed rule. 29 U.S.C. 655(2); 29 CFR above. • Cadmium—90 day post-hearing
1911.11(b)(3). OSHA gave interested comment period. 57 FR 42101 (Sept. 14,
F. The Post-Hearing Comment Period 1992).
parties such an amount of time to
submit pre-hearing comments on the As stated above, the Hearing • Process Safety Management—90
supplemental analysis. Procedures established a 90 day post- day post-hearing comment period. 57
OSHA’s procedures for seeking hearing comment period for the FR 6356 (Feb. 24, 1992).
comment were also adequate to allow rulemaking. 65 FR 11948, 11949 (Mar. 7, • Hazard Communication—93 day
interested parties an opportunity to 2000). During the first 45 days of the post-hearing comment period. 48 FR
meaningfully comment on the period (until June 26, 2000), hearing 53280 (Nov. 25, 1983).
supplemental analysis. The participants could submit additional Indeed, in the Air Contaminants
supplemental analysis was based in data and evidence to the rulemaking rulemaking the Secretary of Labor
large measure on the original record. Id. Hearing participants had established a 77 day post-hearing
Preliminary Economic Analysis until August 10, 2000 to submit post- comment period, a shorter period than
published on November 23, 1999. Id. at hearing briefs and arguments. that provided here. 53 FR 34708 (Sept.
33264. Interested parties, therefore, Furthermore, trade associations or other 7, 1988). As described in more detail
were familiar with the methodology groups who filed Notices of Intent to above, the time allotted for comment in
employed by OSHA in the supplemental Appear were permitted to attach to their that rulemaking was challenged in the
analysis before it was published on May post-hearing submissions comments 11th Circuit Court of Appeals, which
23, 2000. Indeed, virtually all of the from their members who had not held that those comment periods did
parties who filed a Notice of Intent to participated in the informal public not deprive individuals of the
Appear at the informal public hearing hearing. See e.g., Ex. 500–1. Numerous opportunity to comment meaningfully.
on the supplemental analysis (or who hearing participants availed themselves Air Contaminants, 965 F.2d at 969 n.8.
submitted written comments on the of the post-hearing comment period. For Here, too, OSHA believes that the 90
supplemental analysis) also filed example: day post-hearing comment period was
written comments on the November 23, • NCE et al. submitted 906 pages of more than adequate to allow interested
1999 proposal. See e.g., Comments of new information and data and parties an opportunity to submit
the United States Postal Service, Ex. 35– submitted a 565 page brief. See Exs. additional data and argument on the
106; Comments of the Association of 500–118; 500–197. proposed rule. As stated above, parties
American Railroads, Ex. 30–3750; • The Chamber submitted 22 pages of who participated in the informal public
Comments of UPS, Ex. 32–241–4. new information and data and hearing had 216 days, including the 90
Because it was based on the earlier submitted a 107 page brief. See Exs. day post-hearing comment period, from
Preliminary Economic Analysis, the 500–109; 500–188. the date OSHA published the proposed
supplemental analysis was not a large, • The AFL–CIO submitted 2072 pages rule to submit data and evidence to the
complicated document. See e.g., Ex. 28– of new information and data and rulemaking record for OSHA’s
15 (Technical Appendix). Interested submitted a 178 page brief. See Exs. consideration. They had 261 days from
parties did not need to review numerous 500–71; 500–97; 500–218. the date OSHA published the proposed
additional documents to prepare written • The American Iron and Steel rule to submit briefs and arguments to
comments. In addition, the industries Institute submitted 186 pages of new the rulemaking record. OSHA believes
analyzed in the supplemental analysis information and data and submitted a that this gave interested parties more
represented only a small fraction of the 129 page brief. See Exs. 500–168; 500– than enough time to review the record,
total industries affected by the proposed 223. comment on the evidence submitted,
rule. OSHA and its expert witnesses also and comment on the proposed rule.
OSHA therefore disagrees with those participated in the post-hearing In addition, the participation of
commenters who contended that, by comment period. OSHA submitted new OSHA and its expert witnesses in the
setting a 30 day pre-hearing comment evidence and data it had obtained since post-hearing comment period was not
period and by failing to provide a publication of the proposal to the docket improper. See Ex. 803–2. First, the
bifurcated post-hearing comment period by June 26, 2000. See Ex. 502. Some of Hearing Procedures did not preclude
(i.e., the first part of the period for OSHA’s expert witnesses also submitted OSHA and its expert witnesses from
submission of additional data and new data, information, and argument at participating in the post-hearing
evidence and the second part for post- this time. See e.g., 500–38; 500–134; comment period. See 803–2. In past
hearing briefs and argument), OSHA did 500–84. A few expert witnesses also rulemakings, OSHA and its expert
not provide for adequate comment on submitted argument after June 26, 2000. witnesses have participated fully in
the supplemental analysis. OSHA gave See e.g., 500–167. These arguments post-hearing comment periods by
interested parties more than 60 days to were postmarked on or before August submitting data, evidence, and
comment on the supplemental analysis 10, 2000, in accordance with the argument. See e.g., Docket S775 (Steel
(including the pre-hearing and post- Hearing Procedures. 65 FR 11948, 11949 Erection); Docket H225 (Formaldehyde);
hearing comment period); OSHA (Mar. 7, 2000). Docket S048 (Logging); Docket H049
believes this period of time was more The 90 day post-hearing comment (Respiratory Protection). For OSHA and
than adequate to allow interested parties period and OSHA’s participation in it its expert witnesses not to submit
to review the relevant record material, were consistent with Agency practice in additional data and information it
submit written comments and data, and past OSHA rulemakings, and did not becomes aware of in the post-hearing

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comment period would be negligent, hearing participants did not have an health plans approved under Section 18
given OSHA’s mandate to consider the opportunity to comment upon it during of the OSH Act would be able to
‘‘best available evidence’’ in the post-hearing comment period. See develop their own comparable State
promulgating a standard. It would also 65 FR 11948, 11949 (Mar. 7, 2000). standards to deal with any special
give rise to the charge that OSHA was OSHA is thus under no obligation to problems.
relying in the final standard on non- consider it in promulgating the final In short, there is a clear national
record evidence. rule. Even so, OSHA has examined the problem related to occupational safety
Second, in accordance with the information and data carefully and and health for employees exposed to
Hearing Procedures, OSHA and its given it appropriate consideration MSD hazards in the workplace. Any
expert witnesses submitted all new data (consistent with the fact that it has not rule pertaining to ergonomics developed
and evidence by June 26, 2000. been subject to rebuttal by other hearing by States that have elected to participate
Although some of the material was not participants). under Section 18 of the OSH Act would
scanned into the computer database For these reasons, OSHA does not not be preempted by this final rule if the
until later, all of the information was agree with those commenters who have State rule is determined by Federal
available after June 26, 2000, in hard implied that the post-hearing comment OSHA to be ‘‘at least as effective’’ as the
copy form in the Docket Office. OSHA period was too brief or that OSHA and Federal rule. California has already
even prepared a finding aid to help its expert witnesses improperly promulgated a final ergonomics
interested members of the public locate participated in the post-hearing standard, and so has Washington. The
and review the information submitted. comment period. See e.g., Exs. 803–2; State of North Carolina has proposed
Thus, interested members of the public 500–197, p. IV–9. one. Because the ergonomics program
had an opportunity to review and standard may preempt State rules that
XIII. Federalism
comment on all new data and evidence are not ‘‘at least as effective’’ as the
submitted by OSHA and its expert OSHA has reviewed the final Federal rule, OSHA has determined that
witnesses. OSHA admits that a handful ergonomics program rule in accordance it has ‘‘federalism implications’’ as
of its expert witnesses, like many other with the Executive Order on Federalism defined in Executive Order 13132. The
Hearing Participants, submitted post- (Executive Order 13132, 64 FR 43255, order requires consultation with State
hearing argument on August 10, 2000. August 10, 1999). This Order requires and local governments for regulations
See e.g., Exs. 500–167; 500–187; 500– that agencies, to the extent possible, that have federalism implications.
173. As explained above, this was refrain from limiting state policy In the course of OSHA’s development
permitted under the Hearing options, consult with States prior to of this final standard for ergonomics,
Procedures. 65 FR 11948, 11949 (Mar. 7, taking any actions that would restrict OSHA solicited and received a great
2000). OSHA does not believe that these state policy options, and take such deal of participation from
submissions constituted new actions only when there is clear representatives of state, county and
information or data, as some constitutional authority and the municipal governments. Some
commenters suggested. See 803–2. presence of a problem of national scope. representatives participated by
Rather, these submissions interpreted The Order provides for preemption of attending one or more stakeholder
and analyzed evidence and data that State law only if there is a clear meetings held by OSHA in the early
were already a part of the rulemaking Congressional intent for the agency to stages of the rulemaking effort. Others
record. In any events, OSHA has not do so. Any such preemption is to be
participated by submitting written
relied in the final standard on limited to the extent possible.
comment or testifying at the public
comments from its expert witnesses Section 18 of the Occupational Safety
and Health Act (OSH Act) expresses hearing. Below is a listing of those who
submitted after June 26, 2000. participated in the rulemaking process.
OSHA acknowledges that NIOSH Congress’ clear intent to preempt State
Representatives of the following state,
submitted a handful of new studies to laws with respect to which Federal
county, and municipal entities attended
the rulemaking record after the June 26, OSHA has promulgated occupational
one or more of the OSHA-sponsored
2000 deadline. Because of this, OSHA safety or health standards. Under the
stakeholder meetings addressing the
has not relied upon these studies in OSH Act a State can avoid preemption
Ergonomic Program Standard:
promulgating this final rule; OSHA has only if it submits, and obtains Federal
also not relied upon the conclusions approval of, a plan for the development The City of Greensboro, N.C.; the Virginia
of such standards and their State Department of Labor and Industry; the
NIOSH reached in its post-hearing brief State of Hawaii Department of Labor; the
as evidence in the final standard, even enforcement. Occupational safety and Washington State Department of Labor and
though OSHA believes that NIOSH’s health standards developed by such Industries; Iowa OSHA; the Maryland
post-hearing brief represents argument, State Plan States must, among other Occupational Safety and Health
not new data and evidence. OSHA has things, be at least as effective as the Administration; the New York State
considered, however, the numerous Federal standards in providing safe and Department of Labor; the North Carolina
studies NIOSH submitted in accordance healthful employment and places of Safety and Health Program, and Utah OSHA.
with the Hearing Procedures on June 26, employment. Representatives of the following state,
2000. See Ex. 500–121. In short, OSHA Since many work-related MSDs are county, and municipal entities were
is not relying in this standard on any reported every year in every State and invited to attend one or more of the
information that interested parties did since MSD hazards are present in OSHA-sponsored stakeholder meetings
not have an opportunity to comment workplaces in every state of the Union, addressing the Ergonomic Program
upon. the risk of work-related MSD disorders Standard, but elected not to send a
Finally, OSHA notes that some is clearly a national problem. The representative:
Hearing Participants submitted new Federal final ergonomics program
Cal/OSHA Consultation Services;
evidence and data to the rulemaking standard is written so that employees in California OSHA; the City of Casper,
record on August 10, 2000. See e.g., Ex. every State would be protected by the Wyoming; The City of Mt. Airy, North
500–219. This new data and evidence standard. To the extent that there are Carolina; the City of Portland, Oregon,
was not submitted in accordance with any State or regional peculiarities, Bureau of Risk Management; the North
the Hearing Procedures and other States with occupational safety and Carolina Department of Labor; the North

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Carolina League of Municipalities; the Ohio 30–637 and 500–18); Gilbert Public Schools Pennsylvania Department of Labor and
Bureau of Workers’ Compensation; Oregon (Ex. 30–691); Elsinore Valley Municipal Industry (Ex. L–30–4932); Attorney General
OSHA; the State of Kansas Consultation Water District (Ex. 30–693); District of of Missouri (Ex. L–30–5216); Nevada City
Program, and the Texas Workers Columbia Water and Sewer Authority (Ex. School District (Ex. 31–23); City of Ridgecrest
Compensation Insurance Fund. 30–702); Bullhead City Schools (Ex. 30–704); (Ex. 31–135); City of De Pere (Ex. 31–137);
Mukilteo Water District (Exs. 30–714 and 30– Sonoma County Water Agency (Ex. 31–146);
Representatives of the following state,
982); City of Tampa Water Department (Ex. Denver Public Schools (Ex. 31–180); Porter
county, and municipal entities provided 30–869); the Industrial Commission of Hills Presbyterian Village (Exs. 31–209 and
comments to the public rulemaking Arizona (Ex. 30–877); Valley County Water 30–220); Stark County Department of Human
docket for the proposed Ergonomic District (Ex. 30–880); Plainview Water Services (Ex. 31–213); San Diego City
Program Standard (Docket S–777): District (Ex. 30–900); Lake Hemet Municipal Schools (Ex. 31–234); Fairfax County
Butler Rural Elec Cooperative Inc. (Exs. Water District (Ex. 30–902); Jordan Valley Government Risk Management Division (Ex.
30–182 and 30–239); North Park Public Water Conservancy District (Ex. 30–916); City 31–306); Lewis County Public Health (Ex.
Water District (Ex. 30–212); City of Garner of David City and David City Utilities (Ex. 31–308); Washington State Farm Bureau (Ex.
(Ex. 30–219); Colchester Public Works (Ex. 30–1002); Bellevue Department of Public 31–312); Indiana Association of Cities and
30–247); Appomattox River Water Authority Works (Ex. 30–1003); City of Nooksack (Ex. Towns, for Richmond Indiana (Ex. 31–328);
(Ex. 30–248); South Island Public Services 30–1009); Multnomah County Department of State of New Mexico Workers Compensation
District (Exs. 30–252; 30–281; and 30–354); Support Services (Ex. 30–1018); Kentucky Admin (Exs. 500–13–1 thru 500–13–5);
Des Moines Water Works (Exs. 30–254 and Labor Cabinet (Ex. 30–1024); Olivehain Washington Department of Labor and
30–279); Mishawaka Utilities (Exs. 30–255 Municipal Water District (Ex. 30–1039); Industry (Exs. 500–20–1 thru 500–20–8);
and 30–278); Public Works Department (Ex. Oregon Department of Consumer and Oregon Department of Consumer and
30–257); Saginaw Midland Municipal Water Business Services (Ex. 30–1110); North Park Business Services (Ex. 500–28–1);
Supply Corp (Ex. 30–258); Board of Public Public Water District (Ex. 30–1114); Board of Washington State Department of Labor and
Utilities (Ex. 30–261); City of Nashville (Ex. Public Utilities (Ex. 30–1116); Village of Industry (Exs. 500–41–1 thru 500–41–120);
30–270); Stroudsburg Municipal Authority Morrisville Water and Light Department (Ex. State of Oregon Department of Consumer and
(Ex. 30–271); City of Laurel (Ex. 30–272); City 30–1118); Pennsylvania Farm Bur (Exs. 30– Business Services (Ex. 500–71–22);
of Drain (Ex. 30–273); McCormick Comm of 1121; 30–1202; and 30–1204); Owatonna Washington State Department of Labor and
Public Works (Ex. 30–274); Ilion Water Public Utilities (Ex. 30–1124); City of Industry (Ex. 500–86); Oregon Department of
Comm Municipal Building (Ex. 30–275); Monona (Ex. 30–1125); Consumers Insurance and Finance (Ex. 500–141–1);
Rural Lorain County Water Authority (Ex. Pennsylvania Water Co (Ex. 30–1127); Rock Oregon Workers Compensation Department
30–285); Winchester Municipal Utilities (Ex. Rapids Utilities (Ex. 30–1128); Warminster (Ex. 500–141–2); Oregon Department of
30–286); Ohio Rural Elec Cooperatives Inc. Municipal Authority (Ex. 30–1130); June Insurance and Finance (Ex. 500–141–3); New
(Ex. 30–297); St. Louis County Water Co (Ex. Lake Public Utility District (Ex. 30–1140); Mexico Workers Compensation
30–302); City of East Jordan (Ex. 30–304); City Hall, City of Canyonville (Ex. 30–1206); Administration (Ex. 500–184–1); City of
Clarksdale Public Utilities (Ex. 30–305); Central New York Water Authority (Ex. 30– Portland Environmental Services (Ex. 501–4);
Westmont Water Department (Ex. 30–342); 1212); Sanitary District No. 4 Town of Washington State (Ex. 502–67); Alaska
Bucks County Water and Sewer Authority Brookfield (Ex. 30–1247); Nevada Irrigation Department of Labor (Ex. 502–98); California
(Ex. 30–343); Town of Hillsborough (Ex. 30– District (Ex. 30–1262); City of Boerne (Ex. Department of Labor (Ex. 502–104);
347); Department of Water Supply (Ex. 30– 30–1265); Blacksburg Christainsburg VPI California Office of Occupational Safety and
356); the City of Portsmouth (Ex. 30–357); Water Authority (Ex. 30–1272); Casitas Health (Ex. 502–106); California Department
Cedar Rapids Water Department (Ex. 30– Municipal Water District (Ex. 30–1275); of Industrial Relations (Ex. 502–220);
366); State of Maine Comm on Labor (Ex. 30– Jennings North West Regional Utilities (Ex. Pittsburgh County Memorial Hospital (Ex.
376); City of Elko (Ex. 30–377); Arizona 30–1310); Ypsilanti Comm Utilities 502–285); Allouez Water Department (Ex.
School Alliance (Ex. 30–382); New Jersey AM Authority (Ex. 30–1329); Mammoth Comm 600–X–15); Goshen Water and Sewer Plant
Water Co (Ex. 30–402); Fayette County Water District (Ex. 30–1376); City of Elko (Ex. 600–X–16); Stevens Point Water and
Hospital (Ex. 30–420); Mohave Union High City Hall (Ex. 30–1413); Charter Township of Sewage Treatment Department (Ex. 600–X–
School District Number 30 (Ex. 30–433); Independence (Ex. 30–1415); Town of Oyster 18); City of George West (Ex. 600–X–19);
Cartwright School District Number 83 (Ex. Bay, N.Y. (Ex. 30–1447); Clear Creek Pennsylvania AM Water Company (Ex. 600–
30–439); City of Murfreesboro (Ex. 30–440); Community Services District (Ex. 30–1471); X–20); City of Cuyahoga Falls (Ex. 600–X–
Gurnee Public Works (Ex. 30–450); City of Washington Suburban Sanitary Commission 21); Water and Light Department (Ex. 600–X–
David City (Ex. 30–482); Cartwright School (Ex. 30–1508); Contra Costa Water District 22); Mars Hill Utility District (Ex. 600–X–23);
District Number 83 (Ex. 30–492); Tualatin (Ex. 30–1526); Bona Vista Water Marshall County Board of Public Utilities
Valley Water District (Ex. 30–495); United Improvement District (Ex. 30–1527); (Ex. 600–X–24); The City of North Myrtle
Water Conservation District (Ex. 30–500); Stanislaus County (Ex. 30–1531); Alaska Beach (Ex. 600–X–25); Niagara County Water
Shoshone Municipal Pipeline (Ex. 30–501); Municipal League (Ex. 30–1536); Long Beach District (Ex. 600–X–26); Old Hickory Utility
South Fulton (Ex. 30–504); City of Hood Public Transportation Co. (Ex. 30–1539); District of Davidson County (Ex. 600–X–27);
River (Ex. 30–505); Municipal Authority of Municipal Association of South Carolina (Ex. Bella Vista Water District (Ex. 600–X–28);
the Township of Robinson (Ex. 30–507); City 30–1583); Salem County Utilities Authority Columbus Water Works (Ex. 600–X–29); Dept
of Petersburg (Ex. 30–508); Town of (Ex. 30–1714); Texas Department of Criminal of Engineering and Public Works (Exs. 600–
Greensboro (Ex. 30–510); Thermalito Justice (Ex. 30–1847); Western Governors X–31 and 600–X–67); North Carolina General
Irrigation District (Ex. 30–512); McCloud Association (Ex. 30–2036); State of Kansas Assembly (Ex. 601–X–391); New Jersey State
Comm Services District (Ex. 30–513); State of Department of Human Resources (Ex. 30– League of Municipalities (Ex. 601–X–444);
Kansas Department of Human Resources (Ex. 2041); Public Hospital District No. 1 of Pend the Commonwealth of Massachusetts (Ex.
30–522); Salt River Project (Ex. 30–526); HI Oreille County (Exs. 30–2731 and 30–4103); 601–X–630); Florida House of
Desert District Water (Ex. 30–549); Clear Oregon Department of Consumer and Representatives (Exs. 601–X–712 and 601–X–
Creek Comm Services District (Ex. 30–553); Business Services (Ex. 30–3022); Point 838); Texas House of Representatives (Ex.
Cucamonga County Water District (Ex. 30– Lookout Village (Ex. 30–3073); Oswego 601–X–946); State of Tennessee (Ex. 601–X–
558); Ramona Municipal Water District (Ex. County Ambulance (Ex. 30–3186); Louisville 980); Utah State Senate (Ex. 601–X–1013);
30–578); Clackamas River Water (Ex. 30– Water Company (Ex. 30–3187); Richmond West Virginia Municipal League (Ex. 601–X–
579); State University of New York (Ex. 30– Ambulance Authority (Ex. 30–3311); New 1125); Rhode Island League of Cities and
584); Kyrene School District (Ex. 30–590); York Department of Labor (Ex. 30–3731); Towns (Ex. 601–X–1133); New Jersey State
Arizona School Alliance (Ex. 30–591); Elizabethtown Water Company (Ex. 30– League of Municipalities (Ex. 601–X–1134);
Pennsylvania State Representative (Ex. 30– 3739); PIMA County Risk Management and the City of Portland Oregon (Ex. 601–X–
599); The Arlington Chamber (Ex. 30–600); Department (Ex. 30–3968); New York State 1494).
Anchorage Water and Wastewater Utility (Ex. Thruway Authority (Ex. 30–4057); Montana In addition, representatives of the
30–622); Multnomah County Oregon (Exs. State Fund (Ex. 30–4847); Commonwealth of following state, county, and municipal

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entities gave oral testimony at the Representation by governmental League, and the Long Beach Public
informal public hearings on the entities has been greater for this rule Transportation Company (See, e.g., Exs.
proposed Ergonomic Program Standard: than for any other OSHA rule. OSHA 30–254; 30–1110; 30–1536; 30–1539;),
The New York State Attorney General; the has benefitted from the information and among many others, expressed concerns
National League of Cities; the Montgomery data provided by these representatives regarding the effect of the rule on
County (Ohio) Administration; the State of at stakeholder meetings held during the Workers’ Compensation Systems and
New Mexico Worker’s Compensation years the standard was under suggested that workers’ comp is an area
Administration; the State of California development, and the Agency has best left to the states to address. Some
Department of Health and Human Services; carefully reviewed and considered the commenters questioned whether OSHA
the City of Portland, Oregon; the Multnomah oral testimony and written submissions had the authority to address issues
County, Oregon Government; the Oregon of the participants. Many of their related to workers’ compensation
Workers’ Compensation Division and the systems and questioned whether
comments are addressed throughout the
State of Washington Department of Labor and
Industries. preamble to the final rule, others are OSHA’s cost estimates included the cost
discussed below. to be expended by ‘‘every company in
Representatives of the following state, An examination of the comments the nation in renegotiate their workers
county, and municipal entities provided revealed that many commenters shared compensation premium costs with
written comments at the informal public similar concerns and views on how to insurance companies for these WRP
hearing on the proposed Ergonomic remedy those concerns. OSHA received payments?’’ (Ex. 30–254). Issues raised
Program Standard: hundreds of comments, for example, by commenters about workers’
The Wisconsin Department of Industry and expressing concern that the proposed compensation and its relation, or lack of
Labor (Ex. DC–78); the New Jersey standard lacked clarity. Over 80 of these it, to OSHA’s work restriction
Department of Health and Senior Services comments were identical, raising protections, are responded to in the
(Ex. DC–109A); Montgomery County, Ohio concerns about coverage, costs and how summary and explanation for paragraph
(Ex. Il–169); the New Mexico Workers’ to comply. For example, many (r).
Compensation Administration (Ex. Il–222); commenters said: The Pennsylvania Farm Bureau (Ex.
the City of Portland, Oregon (Ex. Or–324); the 30–1121) said the proposal raised
Oregon Department of Consumer and * * * The lack of specificity throws
OSHA’s estimates of range of impact and cost concerns for farm employers even
Business Services (Ex. Or–350–1); the State
to employers into serious question. It also though OSHA did not propose to apply
of Oregon Board of Dentistry (Ex OR–351–9);
the National League of Cities (Ex. DC–371) leaves employers attempting to comply in the rule to agriculture. One concern
and the Washington State Department of good faith at risk of non-compliance. Based cited by this commenter was that
Labor and Industry (Exs. DC 417, 417–1 and on these concerns, I therefore, request that farmers would be affected by higher
417–2). OSHA review its proposed ergonomics costs passed on to them by suppliers
standard and provide clarification about both and others directly impacted by the
OSHA’s ergonomics rulemaking what kind of work and what types of workers
rule. Another concern expressed by the
process has thus involved hundreds of are covered by it.
Bureau was the extent to which
representatives from every level of Commenters asked that OSHA clarify agricultural operations were exempt
government. Many State governments its exemption of construction work. from the rule. The Bureau cited various
(e.g., Maine, Washington, Oregon, OSHA has responded in depth to these OSHA interpretations and language
Kansas, Arizona. Kentucky, concerns in the summary and used to clarify when general industry
Pennsylvania, New York, Nevada, explanation of the rule (see the and agricultural standards applied as
Texas, Montana, Missouri, New Mexico, discussion for paragraph (b), Does this the reason for their concern. The
Alaska, California, Indiana, North standard apply to me?) Other Pennsylvania Farm Bureau stated that
Caroline, Massachusetts, Florida, commenters asked for clarification as to OSHA should exclude agriculture from
Tennessee, Utah and local and the application of the rule to the the coverage of the proposed standard.
municipal governments (e.g., Nashville, agricultural industry, inmates in penal Similar concerns on this issue were
TN; Portsmouth, VA; Petersburg, AK; institutions, the manufacturing raised by the Pennsylvania Farm
Greensboro, NC; Multnomah County, industry, the ambulance industry, and Bureau, the New York Farm Bureau, the
OR; District of Columbia, Blackburn- the solid waste management industry. North Carolina Farm Bureau Federation,
Christainsburg, VA; Ypsilanti, MI; Long These issues are also addressed in the and others (See e.g., Ex. 30–1201; 30–
Beach, CA; Denver, CO; Richmond, IN; summary and explanation for paragraph 1418; 30–1421) as well as individual
Montgomery County, OH) participated (b). Some of the specific comments are farmers (See e.g., Ex. 30–1202 and 30–
either by appearing in person at the discussed in greater detail below. 1204). OSHA notes that the final
hearings or submitting written Some commenters complained the Ergonomic Program Standard does not
comments. Municipal and State entities proposal was too long; the comment apply to agricultural operations. A full
represented included, water districts, period too short and then questioned and complete discussion of this issue
school districts, electrical utilities, the science used by OSHA, suggesting can be found in the summary and
public works departments, municipal that OSHA table its work until the explanation for paragraph (b), Does this
authorities, hospitals and long-term care National Academy of Sciences standard apply to me?
facilities, labor commissions, human completes its second literature review. Some commenters (Exs. 30–1536 and
resource departments, universities, (Exs.30–1018; 30–1536; and 30–1847). 30–1583) who are members of the
legislative bodies, industrial Comments addressing procedural issues National League of Cities (NLC) noted
commissions, workers’ compensation are discussed in the Procedural Issues that the NLC does not support the
administrations, public transportation section of the preamble; those on the application of the federal ergonomics
systems, emergency medical services, science supporting this rule are standards to municipal governments.
public highway authorities, emergency reviewed in the Health Effects section They cited their inability to obtain
medical services, public highway (Section V). funding and their lack of technical
authorities, state insurance funds, The Des Moines Water Works, the resources to put an ergonomic program
public health departments, and Oregon Department of Consumer and together as reasons for the objection.
environmental services. Business Services, the Alaska Municipal OSHA will provide considerable

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compliance assistance to the regulated The Long Beach Public Virginia, Virgin Islands, Washington,
community that may help NLC members Transportation Company (Ex. 30–1539) Wyoming. Until such time as a state or
reduce expenditures and develop stated their agreement with the territorial standard is promulgated,
solutions. These materials will be listed fundamental concepts proposed by Federal OSHA will provide interim
on OSHA’s website at OSHA, but expressed some opposition enforcement assistance, as appropriate.
The Salem County Utilities Authority regarding the classification of MSDs and
(Ex. 30–1714) registered their support XV. OMB Review Under the Paperwork
the standard’s potential impact on
for the position of the National Solid Reduction Act of 1995
workers compensation laws. Long Beach
Wastes Management Association’s Transportation encouraged OSHA ‘‘to This final ergonomics program
(NSWMA) request that the solid waste provide education to promote even standard contains collections of
management industry be exempt from more voluntary employer ergonomic information (paperwork) that are subject
the ergonomic program standard. This programs to address the issues of to review by the Office of Management
commenter listed a number of reasons MSDs.’’ The concluding comment of and Budget (OMB) under the Paperwork
similar to those set out by OSHA in the this entity was that ‘‘The Standard, as Reduction Act of 1995 (PRA’95), 44
proposed rule as the basis for the proposed, however would place an U.S.C. 3501 et seq. and its regulation at
exemption of the construction, maritime economic and regulatory burden on 5 CFR § 1320. PRA’95 defines collection
and agricultural industries. OSHA’s employers, would treat injured of information to mean, ‘‘the obtaining,
response to NSWMA’s concerns are employees inequitably and would causing to be obtained, soliciting, or
addressed in connection with paragraph jeopardize voluntary systems already in requiring the disclosure to third parties
(b) of the summary and explanation. place to address this issue.’’ This view or the public of facts or opinions by or
The Texas Department of Criminal was also expressed by many for an agency regardless of form or
Justice (TDCJ) (Ex. 30–1847) requested commenters from state, county and format.’’ [44 U.S.C. § 3502(3)(A)]. OSHA
an exemption for correctional worker municipal governments. In response, submitted an Information Collection
positions and asked for clarification of OSHA notes that employers and entities Request (ICR) for OMB approval when
the applicability of the rule to prisoners covered by the rule can anticipate to the proposed rule for the ergonomic
assigned to manufacturing positions. reap substantial benefits from their program standard was published on
Like other commenters, TDCJ expressed programs (see the discussion of the November 23, 1999. OMB did not
concern about the number of new staff results achieved by others in the final approve the ergonomic program’s
that would be needed, in their view, to economic analysis). information collection provisions at that
comply with the ergonomics program The Richmond Ambulance Authority time, but instructed the Agency that
standard. (RAA) (Ex. 30–3311) stated that they future ICR submissions should use the
The Butler Rural Electric Cooperative, ‘‘applaud and support OSHA’s effort to OMB control number 1218–0245. OSHA
Inc. (Ex. 30–182) acknowledged the address ergonomic concerns in the has submitted a final ICR estimating the
importance of an ergonomics program workplace.’’ This commenter then listed paperwork burden hours and costs, to
and provided details on the work a few areas of concern and noted that OMB as required by 5 CFR § 1320.11(h)
already done by Butler; however, they the exemption criteria for industries for approval. Public comments
believe that the OSHA ergonomics with special compliance issues clearly regarding paperwork issues are
program standard is not necessary apply to the ambulance industry. The addressed in the Summary and
because OSHA could continue to rely RAA said that ‘‘compliance efforts by Explanation, and Cost and Benefit
on the General Duty Clause to do the members of the ambulance industry chapters of the final standard.
job. In addition, Butler raised some would be extremely costly’’ and urged The following section provides
concerns about the Work Restriction OSHA to exclude back pain from the information on the collections of
Protection provisions of the proposal, kinds of MSDs covered. information contained in the final
which they believe will encourage OSHA is grateful to the many state, ergonomics program standard, as
fraud. Again, these are areas of concern local, municipal, other government required by 5 CFR § 1320.5(a)(1)(iv) and
that have been raised by other entities who have participated actively § 1320.8(d)(2) . It describes the
commenters and are discussed at length in this rulemaking. All the concerns collections of information, the need for
in the summary and explanation section raised by these commenters have been and proposed use of the information,
for paragraph (r). considered, and many changes to the and the covered employers who will be
The Stanislaus County (CA) Risk rule have been made based on the required to collect and maintain
Management Division (Ex. 30–1531) comments and suggestions provided by information under the standard. The
suggested that more specific guidance these participants. section also discusses the required time
was needed to help employers comply periods for collecting and maintaining
with the standard. They supported the XIV. State Plans States
this information, and provides an
grandfather clause, stating that The 23 states and 2 territories which estimate of the annual cost and
‘‘Stanislaus County has saved millions operate their own Federally-approved reporting burden. (Reporting burden
of dollars over the last six years with the occupational safety and health plans includes the time for reviewing
implementation of our injury and loss must adopt a comparable standard instructions, gathering and maintaining
prevention program. One of these within six months of the publication the data needed, and completing and
programs includes ergonomics.’’ They date of a final standard. These States reviewing the collection of information.)
support the grandfather clause because include: Alaska, Arizona, California, Title: The ergonomics program
they believe ‘‘There should be some Connecticut (for State and local standard, 29 CFR § 1910.900.
incentive for those employers who are government employees only), Hawaii, Description: The final ergonomics
already making a good faith effort, with Indiana, Iowa, Kentucky, Maryland, program standard addresses the
programs in place, to be rewarded, and Michigan, Minnesota, Nevada, New significant risk of work-related MSDs
we would encourage you to keep the Mexico, New York (for State and local confronting employees in various jobs
grandfather clause.’’ In response, OSHA government employees only), North in general industry workplaces. The
notes that the final rule contains a Carolina, Oregon, Puerto Rico, South standard’s information collection
grandfather clause (see paragraph (c)). Carolina, Tennessee, Utah, Vermont, requirements are essential components

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68846 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

that will help employers and employees opinion, for 3 years or until replaced by Safety and Health Act, 29 U.S.C. 653,
to recognize work-related MSDs and to updated records, whichever comes first. 655, 657, Secretary of Labor’s Order No.
determine what must be done to address The HCP written opinion must be kept 3–2000 (65 FR 50017) and 29 CFR Part
these MSDs and MSD hazards in the for the duration of the employee’s 1911.
workplace. OSHA compliance officers employment plus 3 years.
Employers must provide employees, List of Subjects in 29 CFR Part 1910
will use some of the information in their
enforcement of the standard. their representatives, OSHA, and Ergonomics program, Health,
Summary of the Collections of NIOSH access to the above records, Musculoskeletal disorders,
Information: The final ergonomics except the HCP opinions, for Occupational safety and health,
standard requires employers to do the examination and copying in accordance reporting and recordkeeping
following: familiarize themselves with with the procedures and time periods requirements.
the final standard; provide basic provided in 29 CFR 1910.1020(e)(1), Signed at Washington, DC, this 6th day of
ergonomic information to their (e)(2)(ii), (e)(3) and (f). Employers must November 2000.
employees; receive employees’ reports provide the HCP opinion to employees, Charles N. Jeffress,
of musculoskeletal disorders (MSDs) or to anyone having the specific written
Assistant Secretary of Labor for Occupational
MSD signs or symptoms; and determine consent of the employee, to OSHA, and Safety and Health.
if a reported MSD is work-related and if to NIOSH upon request for examination
the employee’s job meets the standard’s and copying in accordance with the XVII. The Standard
Action Trigger. If an employee’s job procedures and time periods provided
meets the standard’s Action Trigger, the The Occupational Safety and Health
in 29 CFR 1910.1020(e)(1), (e)(2)(ii),
employer will incur additional Administration is amending Part 1910
(e)(3) and (f).
paperwork requirements in complying Respondents: Employers in general of title 29 of the Code of Federal
with the ergonomics program industry. The standard does not apply Regulations as follows:
requirement or the quick fix option. to employment covered by the following PART 1910—[AMENDED]
MSD management is triggered when OSHA standards, or to employment
the employee experiences a work- such as office management and support New Subpart W of 29 CFR Part 1910
related MSD that meets the Action services directly related to that is added to read as follows:
Trigger and requires medical treatment employment: (i) OSHA construction
beyond first aid, or involves MSD signs Subpart W—Program Standards
standards in Part 1926; (ii) OSHA’s
or MSD symptoms that last for 7 or more Sec.
maritime standards in Part 1915, 1917,
consecutive days after the employee 1910.900 Ergonomics program standard.
or 1918; or OSHA’s agriculture
first reports them to the employer. The standards in Part 1928. The standard Subpart W—Program Standards
employer must provide that employee also does not apply to railroad
with access to a health care professional operations or to employment such as Authority: Secs. 4, 6, and 8, Occupational
(HCP). When the employee consults office management and support services Safety and Health Act, 29 U.S.C. 653, 655,
with an HCP, the employer must obtain directly related to the operation of a 657, Secretary of Labor’s Order No. 3–2000
a written opinion from the HCP and railroad. (65 FR 50017); and 29 CFR Part 1911.
provide a copy of that opinion to the Frequency of Response: All employers
employee. The employer must provide must provide basic ergonomic § 1910.900 Ergonomics Program Standard.
the HCP with a description of the information to current and new (a) What is the purpose of this
employee’s job and information about employees. The frequency of other standard? The purpose of this standard
the physical work activities, risk factors, paperwork requirements is determined is to reduce the number and severity of
and MSD hazards in the job; a copy of by whether the employer has an musculoskeletal disorders (MSDs)
this standard; and a list of items that the employee who has experienced an MSD caused by exposure to risk factors in the
HCP’s written opinion must contain, incident, and whether the employee’s workplace. This standard does not
including temporary work restrictions, job meets the standard’s Action Trigger. address injuries caused by slips, trips,
if necessary. Average Time Per Response: Time per falls, vehicle accidents, or similar
Paperwork requirements for response varies, from minimal accidents.
employers to develop and implement recordkeeping requirements for a quick
the ergonomic program include: Note to paragraph (a): Definitions of terms
fix situation, to establishing and used in this standard are in paragraph (z) of
management leadership, employee implementing a complete ergonomics this section.
participation in the employer’s program.
ergonomic program, job hazard analysis, Total Burden Hours: Approximately (b) Does this standard apply to all
hazard control measures, and evaluation 36.5 million hours. employers? This standard covers all
of the ergonomic program. Estimated Costs (Operating and employers covered by the Act with the
Employers with 10 or more Maintenance): $61 million (purchasing following exceptions:
employees, including part-time services). This standard does not apply to
employees, must keep written or employment covered by the following
electronic records of the following: (i) XVI. Authority and Signature OSHA standards, or to employment
Employee reports of MSDs, their signs This document was prepared under such as office management and support
and symptoms and MSD hazards, (ii) the direction of Charles N. Jeffress, services directly related to that
Employer’s response to employee Assistant Secretary of Labor for employment:
reports; (iii) Job Hazard Analysis; (iv) Occupational Safety and Health, U.S. (i) OSHA’s construction standards in
Hazard control measures, (v) Quick fix Department of Labor for Occupational Part 1926 of this chapter;
process, (vi) Ergonomics program Safety and Health, U.S. Department of (ii) OSHA’s maritime standards in
evaluations, and (vii) Records of work Labor, 200 Constitution Avenue, NW, Part 1915, 1917, or 1918 of this chapter;
restrictions and the HCP written Washington, DC 20210. or
opinions. Employers must keep all This final standard is issued pursuant (iii) OSHA’s agriculture standards in
records, except the HCP written to sections 4, 6, and 8 Occupational Part 1928 of this chapter.

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(2) This standard does not apply to your workplace; and the methods you employees within 14 days of hiring. You
railroad operations or to employment are taking to control them; and must post the information in a
such as office management and support (v) Program evaluation, as conspicuous place in the workplace
services directly related to the operation demonstrated by regular reviews of the (e.g., employee bulletin board or, if all
of a railroad. elements of the program and of the employees have access, electronic
(c) How does this standard apply if I effectiveness of the program as a whole, posting).
already have an ergonomics program in using such measures as reductions in Note to paragraph (d): You may use the
place when the OSHA ergonomics the number and severity of MSDs, information sheet in non-mandatory
program standard becomes effective? increases in the number of jobs in which Appendix A to this section to comply with
(1) You may continue to implement MSD hazards have been controlled, or paragraphs (d)(1) of this section and the
your program instead of complying with reductions in the number of jobs posing summary sheet in non-mandatory Appendix
paragraphs (d) through (y) of this MSD hazards to employees; and the B to this section to comply with paragraph
section, provided that your program is correction of identified deficiencies in (d)(2) of this section.
written, complies with the requirements the program. At least one review of the (e) What must I do when an employee
of paragraph (c) of this section, has been elements and effectiveness of the reports an MSD or the signs or
implemented before November 14, 2000, program must have taken place prior to symptoms of an MSD?
and contains the following program January 16, 2001. (1) You must promptly determine
elements: (2) By January 16, 2002, you must whether the reported MSD or MSD signs
(i) Management leadership, as have implemented a policy that or symptoms qualify as an MSD
demonstrated by an effective MSD provides MSD management as specified incident. You may request the
reporting system and prompt responses in paragraphs (p), (q), (r), and (s) of this assistance of a Health Care Professional
to reports, clear program section. (HCP) in making this determination. A
responsibilities, and regular (3) An employer who has policies or
report is considered to be an MSD
communication with employees about procedures that discourage employees
incident in the following two cases:
the program; from participating in the program or
reporting the signs or symptoms of (i) The MSD is work-related and
(ii) Employee participation, as requires days away from work,
demonstrated by the early reporting of MSDs or the presence of MSD hazards
in the workplace does not qualify for restricted work, or medical treatment
MSDs and active involvement by beyond first aid; or
employees and their representatives in grandfather status under paragraph (c)
of this section. (ii) The MSD signs or symptoms are
the implementation, evaluation, and
(d) If the standard applies to me, what work-related and last for 7 consecutive
future development of your program;
initial action must I take? days after the employee reports them to
(iii) Job hazard analysis and control,
(1) You must provide each current you.
as demonstrated by a process that
identifies, analyzes, and uses feasible and each new employee basic (2) If the employee has experienced
engineering, work practice, and information about: an MSD incident, you must determine
administrative controls to control MSD (i) Common musculoskeletal whether the job meets the standard’s
hazards or to reduce MSD hazards to the disorders (MSDs) and their signs and Action Trigger. See paragraph (f) of this
levels below those in the hazard symptoms; section.
(ii) The importance of reporting MSDs (3) If the employee has not
identification tools in Appendix D to
and their signs and symptoms early and experienced an MSD incident, you do
this section or to the extent feasible, and
the consequences of failing to report not need to take further action.
evaluates controls to assure that they are
them early; (f) How do I determine whether the
effective; (iii) How to report MSDs and their employee’s job meets the Action
Note to paragraph (c)(1)(iii): Personal signs and symptoms in your workplace;
protective equipment (PPE) may be used to
(iv) The kinds of risk factors, jobs and
supplement engineering, work practice, and (1) A job meets the Action Trigger if:
work activities associated with MSD
administrative controls, but you may only hazards; and (i) An MSD incident has occurred in
use PPE alone where other controls are not (v) A short description of the that job; and
feasible. Where PPE is used, you must (ii) The employee’s job routinely
requirements of OSHA’s ergonomics
provide it at no cost to employees. involves, on one or more days a week,
program standard.
(iv) Training of managers, supervisors, (2) You must make available to the exposure to one or more relevant risk
and employees (at no cost to these employee a summary of the factors at the levels described in the
employees) in your ergonomics program requirements of this standard. Basic Screening Tool in Table W–1.
and their role in it; the recognition of (3) You must provide the information (2) If the employee’s job does not meet
MSD signs and symptoms; the in written form or, if all employees have the Action Trigger, you do not need to
importance of early reporting; the access, in electronic form. You must take further action.
identification of MSD hazards in jobs in provide the information to new BILLING CODE 4510–26–P

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(g) What actions must I take if the (4) Have ways to be involved in the additional feasible controls that would
employee’s job meets the Action development, implementation, and control or reduce MSD hazards; and
Trigger? For the employee’s job and all evaluation of your ergonomics program. (C) If such controls exist, implement
jobs in the establishment that are the (j) What must I do to determine them until you have reduced the MSD
same as that job, you must either: whether a job that meets the Action hazards in accordance with paragraphs
(1) Comply with the Quick Fix option Trigger poses an MSD hazard to (k)(1)(i) or (k)(1)(ii) of this section.
in paragraph (o) of this section, or employees in that job? (2) If a work-related MSD occurs in a
(2) Develop and implement an (1) You must conduct a job hazard job whose hazard(s) you have reduced
ergonomics program that includes the analysis for that job. You may rely on to the levels specified in paragraph
following elements: an analysis previously conducted in (k)(1) of this section, you must:
(i) Management leadership as accordance with this section to the (i) Ensure that appropriate controls
specified in paragraph (h) of this extent it is still relevant. are still in place, are functioning, and
section; (2) Your job hazard analysis must are being used properly, and
(ii) Employee participation as include all employees who perform the (ii) Determine whether new MSD
specified in paragraph (i) of this section; same job, or a sample of employees in hazards exist and, if so, take steps to
(iii) MSD management as specified by that job who have the greatest exposure reduce the hazards as specified in
paragraphs (p), (q), (r), and (s) of this to the relevant risk factors, and include paragraph (m) of this section.
section; the following steps: Note to paragraph (k): The occurrence of
(iv) Job hazard analysis as specified (i) Talk with those employees and an MSD in a problem job is not in itself a
by paragraph (j) of this section; their representatives about the tasks the violation of this standard.
(v) Hazard reduction and control employees perform that may relate to (l) What kinds of controls must I use
measures as specified in paragraphs (k), MSDs; and to reduce MSD hazards?
(l), and (m) of this section, and (ii) Observe the employees performing (1) For each problem job, you must
evaluations as specified in paragraph (u) the job to identify the risk factors in the use feasible engineering, work practice
of this section, if the job hazard analysis job and to evaluate the magnitude, or administrative controls, or any
determines that the job presents an MSD frequency, and duration of exposure to combination of them, to reduce MSD
hazard; those risk factors. hazards in the job. Where feasible,
(vi) Training as specified in paragraph (3) You must use one or more of the engineering controls are the preferred
(t) of this section. following methods or tools to conduct method of control.
(h) What must I do to demonstrate this analysis: (2) You may use personal protective
management leadership? You must: (i) One or more of the hazard equipment (PPE) to supplement
(1) Assign and communicate identification tools listed in Appendix engineering, work practice or
responsibilities for setting up and D–1 to this section, if the tools are administrative controls, but you may
managing the ergonomics program; relevant to the risk factors being use PPE alone only where other controls
(2) Provide designated persons with addressed; are not feasible. Where you use PPE,
the authority, resources, and (ii) The occupation-specific hazard you must provide it at no cost to
information necessary to meet their identification tool in Appendix D–2 to employees.
responsibilities; this section; (m) What steps must I take to reduce
(3) Ensure that your policies and (iii) A job hazard analysis conducted MSD hazards? You must:
practices encourage and do not by a professional trained in ergonomics; (1) Ask employees in the problem job
discourage: or and their representatives to recommend
(i) The early reporting of MSDs, their (iv) Any other reasonable method that measures to reduce MSD hazards;
signs and symptoms, and MSD hazards; is appropriate to the job and relevant to (2) Identify and implement initial
and the risk factors being addressed. controls within 90 days after you
(ii) Employee participation in the (4) If you determine that there is an determine that the job meets the Action
ergonomics program; MSD hazard in the job, the job will be Trigger. Initial controls mean controls
(4) Communicate periodically with termed a ‘‘problem job.’’ that substantially reduce the exposures
employees about the ergonomics Note to paragraph (j): If you determine that even if they do not reach the levels
program and their concerns about the MSD hazards pose a risk only to the specified in paragraph (k)(1) of this
MSDs. employee who reported the MSD, you may section.
(i) What must I do to ensure employee limit your job controls, training and (3) Identify and implement permanent
participation in my program? You must evaluation to that individual employee’s job.
controls that meet the levels specified in
ensure that employees and their (k) What is my obligation to reduce paragraph (k)(1) of this section within 2
representatives: MSD hazards in a problem job? years after you determine that a job
(1) Have ways to promptly report (1) You must: meets the Action Trigger, except that
MSDs, MSD signs and symptoms, and (i) Control MSD hazards; or initial compliance can take up to
MSD hazards in your workplace; (ii) Reduce MSD hazards in January 18, 2005 whichever is later.
(2) Receive prompt responses to their accordance with or to levels below those (4) Track your progress and ensure
reports of MSDs, MSD signs and in the hazard identification tools in that your controls are working as
symptoms, and MSD hazards; Appendix D to this section; or intended and have not created new
(3) Are provided with a summary of (iii) If you cannot reduce MSD MSD hazards. This includes consulting
the requirements of this standard, as hazards in accordance with paragraphs with employees in problem jobs and
specified in paragraph (d)(2) of this (k)(1)(i) or (k)(1)(ii) of this section, you their representatives. If the controls are
section, and have ready access to a copy must do the following: not effective or have created new MSD
of this standard and to information (A) Reduce MSD hazards to the extent hazards, you must use the process in
about MSDs, MSD signs and symptoms, feasible; paragraphs (m)(1) and (m)(2) of this
MSD hazards, and your ergonomics (B) At least every 3 years, assess the section to identify additional control
program; and job and determine whether there are measures that are appropriate and

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implement any such measures management at no cost to the employee. (2) Whenever you place limitations on
identified. MSD management must include: the work activities of the employee in
(n) [Reserved]. (i) Access to a Health Care his or her current job or transfer the
(o) May I use a Quick Fix instead of Professional (HCP); employee to a temporary alternative
setting up a full ergonomics program? (ii) Any necessary work restrictions, duty job in accordance with paragraph
(1) You may use a Quick Fix for a job including time off work to recover; (r)(1) of this section, you must provide
if your employees have experienced no (iii) Work restriction protection; and that employee with Work Restriction
more than one MSD incident in that job, (iv) Evaluation and follow-up of the Protection, which maintains the
and there have been no more than two MSD incident. employee’s employment rights and
MSD incidents in your establishment, in (2) You must obtain a written opinion benefits, and 100% of his or her
the preceding 18 months. from the HCP for each evaluation earnings, until the earliest of the
(2) To use a Quick Fix, you must: conducted under this standard, and following three events occurs:
(i) Provide the MSD management provide a copy to the employee. You (i) The employee is able to resume the
required by paragraphs (p), (q), (r), and must instruct the HCP that the opinion former work activities without
(s) of this section, as appropriate, to the may not include any findings or endangering his or her recovery; or
employee promptly after you determine information that is not related to (ii) An HCP determines, subject to the
that the employee’s job meets the Action workplace exposure to risk factors, and determination review provisions in
Trigger; that the HCP may not communicate paragraph (s) of this section, that the
(ii) Talk with employees in the job such information to the employer, employee can never resume his or her
and their representatives about the tasks except when authorized to do so by former work activities; or
the employees perform that may relate State or Federal law. (iii) 90 calendar days have passed.
to the MSD incident; and (3) Whenever an employee consults (3) Whenever an employee must take
(iii) Observe employees performing an HCP for MSD management, you must time off from work in accordance with
the job to identify which risk factors are provide the HCP with the following: paragraph (r)(1) of this section, you
likely to have caused the MSD incident; (i) A description of the employee’s job must provide that employee with Work
(iv) Ask the employee(s) performing and information about the physical Restriction Protection, which maintains
the job and their representatives to work activities, risk factors and MSD the employee’s employment rights and
recommend measures to reduce hazards in the job; benefits and at least 90% of his or her
exposure to the MSD hazards identified; (ii) A copy of this standard; and earnings until the earliest of the
(v) Within 90 days of your (iii) A list of information that the
following three events occurs:
determination that the job meets the HCP’s opinion must contain. (i) The employee is able to return to
Action Trigger in paragraph (e) of this Note to paragraph (p): MSD management the former job without endangering his
section, implement controls in the job in under this standard does not include medical or her recovery;
accordance with paragraph (l) of this treatment, emergency or post-treatment (ii) An HCP determines, subject to the
section that control the MSD hazards or procedures. determination review provisions in
reduce MSD hazards in accordance with (q) What information must the HCP’s paragraph (s) of this section, that the
or to levels below those in the hazard opinion contain? The HCP’s opinion employee can never return to the former
identification tools in Appendix D to must contain: job; or
this section, and train the employee(s) (1) The HCP’s assessment of the (iii) 90 calendar days have passed.
in the use of these controls; employee’s medical condition as related (4) You may condition the provision
(vi) Within 30 days after you to the physical work activities, risk of WRP on the employee’s participation
implement the controls, review the job factors and MSD hazards in the in the MSD management that this
to determine whether you have reduced employee’s job; standard requires.
the MSD hazards to the levels specified (2) Any recommended work (5) Your obligation to provide WRP
in paragraph (o)(2)(v) of this section; restrictions, including, if necessary, benefits to a temporarily restricted or
and time off work to recover, and any removed employee is reduced to the
(vii) Keep a record of the Quick Fix follow-up needed; extent that the employee receives
process for each job to which it is (3) A statement that the HCP has compensation for earnings lost during
applied. You must keep the record for informed the employee of the results of the work restriction period from either
3 years. the evaluation, the process to be a publicly or an employer-funded
(3) If you determine that you have followed to effect recovery, and any compensation or insurance program, or
reduced the MSD hazards to the levels medical conditions associated with receives income from employment made
specified in paragraph (o)(2)(v) of this exposure to physical work activities, possible by virtue of the employee’s
section, you need take no further action risk factors and MSD hazards in the work restriction.
except to maintain controls, the training employee’s job; and Note to paragraph (r): The employer may
related to those controls, and (4) A statement that the HCP has fulfill the obligation to provide work
recordkeeping. informed the employee about work- restriction protection benefits for employees
(4) If you have not reduced MSD related or other activities that could temporarily removed from work by allowing
hazards to the levels specified in impede recovery from the injury. the employees to take sick leave or other
paragraph (o)(2)(v) of this section, you (r) What must I do if temporary work similar paid leave (e.g., short-term disability
must implement an ergonomics restrictions are needed? leave), provided that such leave maintains
program, as specified in paragraph (g) of (1) If an employee experiences an the worker’s benefits and employment rights
this section. MSD incident in a job that meets the and provides at least 90% of the employee’s
(p) What MSD management process Action Trigger, you must provide the earnings.
must I implement for an employee who employee with any temporary work (s) What must I do if the employee
experiences an MSD incident in a job restrictions or time off work that the consults his or her own HCP?
that meets the Action Trigger? HCP determines to be necessary, or if no (1) If you select an HCP to make a
(1) You must provide the employee HCP was consulted, that you determine determination about temporary work
with prompt and effective MSD to be necessary. restrictions or work removal, the

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employee may select a second HCP to ergonomics program must address the Note to paragraph (u): The occurrence of
review the first HCP’s finding at no cost following: an MSD incident in a problem job does not
to the employee. If the employee has (i) Relevant topics in paragraph (t)(2) in itself mean that the program is ineffective.
previously seen an HCP on his or her of this section; (v) What is my recordkeeping
own, at his or her own expense, and (ii) How to set up, manage, and obligation?
received a different recommendation, he evaluate an ergonomics program; (1) If you have 11 or more employees,
or she may rely upon that as the second (iii) How to identify and analyze MSD including part-time or temporary
opinion; hazards and select and evaluate employees, you must keep written or
(2) If your HCP and the employee’s measures to reduce the hazards. electronic records of the following:
HCP disagree, you must, within 5 (4) You must provide initial training (i) Employee reports of MSDs, MSD
business days after receipt of the second to: signs and symptoms, and MSD hazards,
HCP’s opinion, take reasonable steps to (i) Each employee involved in setting (ii) Your response to such reports,
arrange for the two HCPs to discuss and up and managing your ergonomics (iii) Job hazard analyses,
resolve their disagreement; program within 45 days after you have (iv) Hazard control measures,
(3) If the two HCPs are unable to determined that the employee’s job (v) Quick fix process,
meets the Action Trigger; (vi) Ergonomics program evaluations,
resolve their disagreement quickly, you
(ii) Each current employee, supervisor and
and the employee, through your (vii) Work restrictions, time off of
respective HCPs, must, within 5 and team leader within 90 days after
you determine that the employee’s job work, and HCP opinions.
business days after receipt of the second (2) You must provide all records
HCP’s opinion, designate a third HCP to meets the Action Trigger;
required by this standard, other than the
review the determinations of the two (iii) Each new employee or current
HCP opinions, upon request, for
HCPs, at no cost to the employee; employee prior to starting a job that you
examination and copying, to employees,
(4) You must act consistently with the have already determined meets the
their representatives, the Assistant
determination of the third HCP, unless Action Trigger;
Secretary and the Director in accordance
you and the employee reach an (5) You do not have to provide initial
with the procedures and time periods
agreement that is consistent with the training in a topic that this standard
provided in § 1910.1020(e)(1), (e)(2)(i),
determination of at least one of the requires to an employee who has
(e)(3), and (f).
HCPs; received training in that topic within (3) You must provide the HCP
(5) You and the employee or the the previous 3 years. opinion required by this standard, upon
employee’s representative may agree on (6) You must provide the training
request, for examination and copying, to
the use of any expeditious alternative required by paragraph (t) of this section the employee who is the subject of the
dispute resolution mechanism that is at in language that the employee opinion, to anyone having the specific
least as protective of the employee as understands. You must also give the written consent of the employee, and to
the review procedures in paragraph (s) employee an opportunity to ask the Assistant Secretary and the Director
of this section. questions about your ergonomics in accordance with the procedures and
(t) What training must I provide to program and the content of the training time periods provided in
employees in my establishment? and receive answers to those questions. § 1910.1020(e)(1), (e)(2)(ii), (e)(3), and
(1) You must provide initial training, (u) What must I do to make sure my (f).
and follow-up training every 3 years, ergonomics program is effective? (4) You must keep all records for 3
for: (1) You must evaluate your years or until replaced by updated
(i) Each employee in a job that meets ergonomics program at least every 3 records, whichever comes first, except
the Action Trigger; years as follows: the HCP’s opinion, which you must
(ii) Each of their supervisors or team (i) Consult with your employees in keep for the duration of the employee’s
leaders; and the program, or a sample of those employment plus 3 years.
(iii) Other employees involved in employees, and their representatives (5) You do not have to retain the HCP
setting up and managing your about the effectiveness of the program opinion beyond the term of an
ergonomics program. and any problems with the program; employee’s employment if the employee
(2) The training required for each (ii) Review the elements of the has worked for less than one year and
employee and each of their supervisors program to ensure they are functioning if you provide the employee with the
or team leaders must address the effectively; records at the end of his or her
following topics, as appropriate: (iii) Determine whether MSD hazards employment.
(i) The requirements of the standard; are being identified and addressed; and (w) When does this standard become
(ii) Your ergonomics program and the (iv) Determine whether the program is effective? This standard becomes
employee’s role in it; achieving positive results, as effective January 16, 2001.
(iii) The signs and symptoms of MSDs demonstrated by such indicators as (x) When must I comply with the
and ways of reporting them; reductions in the number and severity provisions of the standard?
(iv) The risk factors and any MSD of MSDs, increases in the number of (1) You must provide the information
hazards in the employee’s job, as problem jobs in which MSD hazards in paragraph (d) of this section to your
identified by the Basic Screening Tool have been controlled, reductions in the employees by October 15, 2001. After
in Table W–1 and the job hazard number of jobs posing MSD hazards to that date you must respond to employee
analysis; employees, or any other measure that reports of MSDs and signs and
(v) Your plan and timetable for demonstrates program effectiveness. symptoms of MSDs.
addressing the MSD hazards identified; (2) You must also evaluate your (2) You must meet the time frames
(vi) The controls used to address MSD program, or a relevant part of it, when shown in Table W–2 for the other
hazards; and you have reason to believe that the requirements of this section, when you
(vii) Their role in evaluating the program is not functioning properly. have determined that an employee has
effectiveness of controls . (3) If your evaluation reveals experienced an MSD incident, in
(3) The training for each employee deficiencies in your program, you must accordance with paragraph (e) of this
involved in setting up and managing the promptly correct the deficiencies. section.

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Requirements and related recordkeeping Time frames

Paragraph (e), (f): Determination of Action Trigger ................................. Within 7 calendar days after you determine that the employee has ex-
perienced an MSD incident.

Paragraphs (p), (q), (r), (s): MSD Management ...................................... Initiate within 7 calendar days after you determine that a job meets the
Action Trigger.

Paragraphs (h) & (i): Management Leadership and Employee Participa- Initiate within 30 calendar days after you determine that a job meets
tion. the Action Trigger.

Paragraph (t)(4)(i): Train Employees involved in setting up and man- Within 45 calendar days after you determine that a job meets the Ac-
aging your ergonomics program. tion Trigger.

Paragraph (j): Job Hazard Analysis ......................................................... Initiate within 60 calendar days after you determine that a job meets
the Action Trigger.

Paragraph (m)(2): Implement Initial Controls ........................................... Within 90 calendar days after you determine that a job meets the Ac-
tion Trigger

Paragraph (t)(5)(ii): Train current employees, supervisors or team lead- Within 90 calendar days after you determine that the employee’s job
ers. meets the Action Trigger.

Paragraph (m)(3): Implement Permanent Controls .................................. Within 2 years after you determine that a job meets the Action Trigger,
except that initial compliance can take up to January 18, 2005
whichever is later.

Paragraph (u): Program Evaluation ......................................................... Within 3 years after you determine that a job meets the Action Trigger.

Note to paragraph (x): Refer to paragraph Health and Human Services, or been associated with exposure to risk
(o) of this section for Quick Fix timeframes. designated representative. factors: neck, shoulder, elbow, forearm,
(y) When may I discontinue my Employee representative means, wrist, hand, abdomen (hernia only),
ergonomics program for a job? You may where appropriate, a recognized or back, knee, ankle, and foot. MSDs may
discontinue your ergonomics program certified collective bargaining agent. include muscle strains and tears,
for a job, except for maintaining controls Engineering controls are physical ligament sprains, joint and tendon
and training related to those controls, if changes to a job that reduce MSD inflammation, pinched nerves, and
you have reduced exposure to the risk hazards. Examples of engineering spinal disc degeneration. MSDs include
factors in that job to levels below those controls include changing or such medical conditions as: low back
redesigning workstations, tools, pain, tension neck syndrome, carpal
described in the Basic Screening Tool in
facilities, equipment, materials, or tunnel syndrome, rotator cuff syndrome,
Table W–1.
processes. DeQuervain’s syndrome, trigger finger,
(z) Definitions. The following Follow-up means the process or
definitions apply to this standard: tarsal tunnel syndrome, sciatica,
protocol an employer or HCP uses to epicondylitis, tendinitis, Raynaud’s
Administrative controls are changes check on the condition of an employee
in the way that work in a job is assigned phenomenon, hand-arm vibration
after a work restriction is imposed on syndrome (HAVS), carpet layer’s knee,
or scheduled that reduce the magnitude, that employee.
frequency or duration of exposure to and herniated spinal disc. Injuries
Health care professionals (HCPs) are arising from slips, trips, falls, motor
ergonomic risk factors. Examples of physicians or other licensed health care
administrative controls for MSD hazards vehicle accidents, or similar accidents
professionals whose legally permitted are not considered MSDs for the
include: scope of practice (e.g., license, purposes of this standard.
(1) Employee rotation; registration or certification) allows them MSD hazard means the presence of
(2) Job task enlargement; to provide independently or to be risk factors in the job that occur at a
(3) Alternative tasks; delegated the responsibility to carry out magnitude, duration, or frequency that
(4) Employer-authorized changes in some or all of the MSD management is reasonably likely to cause MSDs that
work pace. requirements of this standard. result in work restrictions or medical
Assistant Secretary means the Job means the physical work activities treatment beyond first aid.
Assistant Secretary of Labor for or tasks that an employee performs. This MSD incident means an MSD that is
Occupational Safety and Health, or standard considers jobs to be the same work-related, and requires medical
designated representative. if they involve the same physical work treatment beyond first aid, or MSD signs
Control MSD Hazards: means to activities or tasks, even if the jobs have or MSD symptoms that last for 7 or more
reduce MSD hazards to the extent that different titles or classifications. consecutive days after the employee
they are no longer reasonably likely to Musculoskeletal disorder (MSD) is a reports them to you.
cause MSDs that result in work disorder of the muscles, nerves, MSD signs are objective physical
restrictions or medical treatment beyond tendons, ligaments, joints, cartilage, findings that an employee may be
first aid. blood vessels, or spinal discs. For developing an MSD. Examples of MSD
Director means the Director of the purposes of this standard, this signs are:
National Institute for Occupational definition only includes MSDs in the (1) Decreased range of motion;
Safety and Health, U.S. Department of following areas of the body that have (2) Deformity;

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(3) Decreased grip strength; and hazards. Work practice controls involve of this standard, temporarily reducing
(4) Loss of muscle function. procedures and methods for safe work. an employee’s work requirements in a
MSD symptoms are physical Examples of work practice controls for new job in order to reduce muscle
indications that an employee may be MSD hazards include: soreness resulting from the use of
developing an MSD. For purposes of (1) Use of neutral postures to perform muscles in an unfamiliar way is not a
this Standard, MSD symptoms do not tasks (straight wrists, lifting close to the work restriction. The day an employee
include discomfort. Examples of MSD body); first reports an MSD is not considered
symptoms are: (2) Use of two-person lift teams; a day away from work, or a day of work
(1) Pain; (3) Observance of micro-breaks. restriction, even if the employee is
(2) Numbness; Work-related means that an exposure removed from his or her regular duties
(3) Tingling; in the workplace caused or contributed for part of the day.
(4) Burning; to an MSD or significantly aggravated a
(5) Cramping; and pre-existing MSD. You means the employer as defined
(6) Stiffness. Work restriction protection (WRP) by the Occupational Safety and Health
Personal protective equipment (PPE) means the maintenance of the earnings Act of 1970 (29 U.S.C. 651 et seq.)
is equipment employees wear that and other employment rights and Appendices to § 1910.900
provides a protective barrier between benefits of employees who are on
the employee and an MSD hazard. temporary work restrictions. Benefits Non-Mandatory Appendix A to § 1910.900:
Examples of PPE are vibration-reduction include seniority and participation in What You Need To Know About
Musculoskeletal Disorders (MSDs)
gloves and carpet layer’s knee pads. insurance programs, retirement benefits
Non-Mandatory Appendix B to § 1910.900:
Problem job means a job that the and savings plans.
Summary of the OSHA Ergonomics
employer has determined poses an MSD Work restrictions are limitations,
Program Standard
hazard to employees in that job. during the recovery period, on an Appendix C to § 1910.900 [Reserved]
Risk factor means, for the purpose of employee’s exposure to MSD hazards. Appendix D to § 1910.900: Hazard
this standard: force, awkward posture, Work restrictions may involve Identification Tools
repetition, vibration, and contact stress. limitations on the work activities of the Appendix D–1 to § 1910.900: Ergonomics Job
Work practice controls are changes in employee’s current job (light duty), Hazard Analysis Tools (Mandatory)
the way an employee performs the transfer to temporary alternative duty Appendix D–2 to § 1910.900: VDT
physical work activities of a job that jobs, or temporary removal from the Workstation Checklist
reduce or control exposure to MSD workplace to recover. For the purposes Appendix E: Ergonomics Rule Flow Chart

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Non-Mandatory Appendix B to § 1910. program and provide supervisors with disabled to ever return to the job,
900: Summary of the OSHA Ergonomics the responsibility and resources to run whichever comes first.
Program Standard the program. The employer must also F. Second Opinion: The standard also
1. Why did OSHA issue an assure that policies encourage and do contains a process permitting the
Ergonomics Program Standard? not discourage employee participation employee to use his or her own HCP as
OSHA has issued an ergonomics in the program, or the reporting of well as the employer’s HCP to
standard to reduce musculoskeletal MSDs, MSD signs and symptoms, and determine whether work restrictions are
disorders (MSDs) developed by workers MSD hazards. required. A third HCP may be chosen by
whose jobs involve repetitive motions, Employees and their representatives the employee and the employer if the
force, awkward postures, contact stress must have ways to report MSDs, MSD first two disagree.
and vibration. The principle behind signs and symptoms and MSD hazards G. Program Evaluation: The employer
ergonomics is that by fitting the job to in the workplace, and receive prompt must evaluate the ergonomics program
the worker through adjusting a responses to those reports. Employees to make sure it is effective. The
workstation, rotating between jobs or must also be given the opportunity to employer must ask employees what they
using mechanical assists, MSDs can be participate in the development, think of it, check to see if hazards are
reduced and ultimately eliminated. implementation, and evaluation of the being addressed, and make any
2. Who is covered by the standard? ergonomics program. necessary changes.
All general industry employers are B. Job Hazard Analysis and Control: If H. Recordkeeping: Employers with 11
required to abide by the rule. The a job meets the Action Trigger, the or more employees, including part-time
standard does not apply to employers employer must conduct a job hazard employees, must keep written or
whose primary operations are covered analysis to determine whether MSD electronic records of employee reports
by OSHA’s construction, maritime or hazards exist in the job. If hazards are of MSDs, MSD signs and symptoms and
agricultural standards, or employers found, the employer must implement MSD hazards, responses to such reports,
who operate a railroad. control measures to reduce the hazards. job hazard analyses, hazard control
3. What does the rule require Employees must be involved in the measures, ergonomics program
employers to do? identification and control of hazards. evaluations, and records of work
The rule requires employers to inform restrictions and the HCP’s written
C. Training: The employer must
workers about common MSDs, MSD opinions. Employees and their
provide training to employees in jobs
signs and symptoms and the importance representatives must be provided access
that meet the Action Trigger, their
of early reporting. When a worker to these records.
supervisors or team leaders and other
reports signs or symptoms of an MSD, I. Dates: Employers must begin to
employees involved in setting up and
the employer must determine whether distribute information, and receive and
managing your ergonomics program.
the injury meets the definition of an respond to employee reports by October
MSD incident—a work-related MSD that D. MSD Management: Employees
must be provided, at no cost, with 15, 2001. Employers must implement
requires medical treatment beyond first permanent controls by November 14,
aid, assignment to a light duty job or prompt access to a Health Care
Professional (HCP), evaluation and 2004 or two years following
temporary removal from work to determination that a job meets the
recover, or work-related MSD signs or follow-up of an MSD incident, and any
temporary work restrictions that the Action Trigger, whichever comes later.
MSD symptoms that last for seven or Initial controls must be implemented
more consecutive days. employer or the HCP determine to be
necessary. Temporary work restrictions within 90 days after the employer
If it is an MSD Incident, the employer
include limitations on the work determines that the job meets the Action
must check the job, using a Basic
activities of the employee in his or her Trigger. Other obligations are triggered
Screening Tool to determine whether
current job, transfer of the employee to by the employer’s determination that
the job exposes the worker to risk
a temporary alternative duty job, or the job has met the Action Trigger.
factors that could trigger MSD problems.
The rule provides a Basic Screening temporary removal from work. 5. Flexibility features of the
Tool that identifies risk factors that E. Work Restriction Protection: Ergonomics Program Standard:
could lead to MSD hazards. If the risk Employers must provide Work A. Employers whose workers have
factors on the job meet the levels of Restriction Protection (WRP) to experienced a few isolated MSDs may
exposure in the Basic Screening Tool, employees who receive temporary work be able to use the ‘‘Quick Fix’’ option
then the job will have met the restrictions. This means maintaining to reduce hazards and avoid
standard’s Action Trigger. 100% of earnings and full benefits for implementing many parts of the
4. What happens when the worker’s employees who receive limitations on program.
job meets the standard’s Action Trigger? the work activities in their current job B. Employers who already have
If the job meets the Action Trigger, the or transfer to a temporary alternative ergonomics programs may be able to
employer must implement the following duty job, and 90% of earnings and full ‘‘grandfather’’ existing programs.
program elements: benefits to employees who are removed C. The employer may discontinue
A. Management Leadership and from work. WRP is good for 90 days, or parts of the program under certain
Employee Participation: The employer until the employee is able to safely conditions.
must set up an MSD reporting and return to the job, or until an HCP The full OSHA Ergonomics Standard
response system and an ergonomics determines that the employee is too can be found at

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Appendix C to § 1910.900 [Reserved] Appendix D–1 to § 1910.900: job hazard analysis (paragraph (j)(3))
Appendix D to § 1910.900: Hazard Ergonomics Job Hazard Analysis Tools and reduce MSD hazards (paragraphs (k)
Identification Tools (Mandatory) and (m)). This mandatory appendix
contains important information about
Appendix D to § 1910.900 contains Paragraph (j)(3)(i) of the OSHA these tools. A description of each of
hazard identification tools. This Ergonomics Program Standard allows
these tools is also contained in the
appendix consists of Appendix D–1, employers to use any of the job hazard
Summary and Explanation of paragraph
Ergonomics Job Hazard Analysis Tools, analysis tools in this appendix, where
and Appendix D–2, VDT Workstation appropriate to the risk factors in the job, (j) in the preamble to this standard.
Checklist. to fulfill their obligations to conduct a

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