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Amendment to the Final Injury and Illness Recording Rule Signed and Filed

Date: Oct 12, 2002


We are pleased to report that the amendment to the final Injury and Illness Recording Rule was signed by John Henshaw and filed with the Federal Register on October 10 and is scheduled for publication on Friday October 12.

The amendment would:

  1. confirm that the new rule goes into effect on January 1, 2002;


  2. delay the implementation of the provisions for recording MSDs and 10 dB STS for one year (until January 1, 2003):


  3. formally adopt (as we urged) the 25 dB STS recording criteria for hearing loss as an interim rule for calendar year 2002 while permitting the states to retain "their existing criteria" for recording hearing loss during 2002; and


  4. delay the exclusion of MSD cases from the category of privacy concern cases for one year (until January 1, 2003).


As noted above, the amendment effectively confirms the new rule will go into effect on January 1, 2002 absent some extraordinary event. It does not address the pending requests for a moratorium on citations during the early months of 2002, or for clarifications of various ambiguous provisions, or the pending suit by NAM.

In delaying the implementation of the provisions for recording MSDs and 10 dB STS for a period of one year, notes in the regulatory text of the amendment actually state that the delayed provisions are scheduled to go into effect on January 1, 2003. While there is every expectation that those provisions will be revised in the interim, those notes will keep some pressure on DOL to address the ergonomics issue (as well as the hearing loss issue) at least in this context.

In adopting the 25 dB STS recording criteria for hearing loss as an interim rule for calendar year 2002. Unless the agency took this step (or the highly questionable step of asserting that these hearing loss cases fell into the category of significant diagnosed injuries and illnesses), there would not have been any legally enforceable obligation to record hearing loss cases in 2002.

Finally, OSHA took the position that the states could choose to maintain the status quo with respect to the recording of hearing loss during 2002. What actions will be taken by the states operating under state plans that have used the 10 dB STS criterion remains to be seen. California issued its proposed injury and illness recording rule without waiting for this amendment. There are no provisions in the California regulatory text addressing hearing loss or MSDs but the hearing loss and MSD columns have been retained in its Form 300A.

Keller and Heckman LLP has been providing and continues to offer training seminars on the new rule to assist employers with their compliance efforts.

For additional information on the rule or our training sessions, please contact any one of the following individuals: David Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com; or Lawrence Halprin at 202-434-4177 or by e-mail at halprin@khlaw.com.