<PRE>
[Federal Register: November 14, 2000 (Volume 65, Number 220)]
[Rules and Regulations]               
[<strong>Page</strong> <strong>68811</strong>-<strong>68860</strong>]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no00-25]                         
 
[[pp. <strong>68811</strong>-<strong>68860</strong>]] Ergonomics Program

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BILLING CODE 4510-26-C

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    5. Steps the Agency has taken to minimize the significant economic 
impact on small entities. The final standard contains many elements 
that will reduce burden on small entities as compared with the 
proposal. The scope of the standard is simplified. All employers must 
provide basic information to employees, and there are no special 
obligations for employers with employees engaged in manufacturing or 
manual handling operations. Employers will need less time and effort to 
determine how they are affected by the scope of the rule. In the 
appendices to the standard, OSHA has provided material that employers 
can use to meet this requirement, further reducing the burden of the 
rule. The Agency has also kept an MSD trigger mechanism, and has added 
a screen. Employers do not need to do anything beyond provide 
information to employees unless an MSD incident in a job that meets the 
screen. The addition of the screen serves both to simplify 
decisionmaking for small employers and to target the rule toward high 
risk jobs. For employees in jobs meeting the action trigger, employers 
must provide a quick fix or initiate an ergonomics program. In 
addition, the employer need not control the job unless MSD hazards are 
found during the job hazard analysis. Employers may meet their job 
hazard analysis and control obligations in any one of a variety of 
ways. The addition of clearer compliance endpoints will reduce employer 
uncertainty about whether they are in compliance with the rule. 
Finally, an employer can cease having a program at any time the risks 
in the job are lowered so that the job no longer meets the screen.
    Establishments with fewer than 11 employees do not have to keep 
records. Where a job hazard analysis or job controls are necessary, 
employers do not have to hire a professional ergonomic consultant. The 
Agency will also supply compliance guides for small businesses and a 
Web-based expert system to guide employers through the applicability of 
the final standard. The Agency has provided flexibility in choosing 
controls to reduce MSD hazards, including administrative controls along 
with engineering and work-practice controls. Finally, the Agency is 
permitting existing ergonomic programs to be grandfathered and 
considered in compliance with the standard as long as the existing 
program meets the requirements in paragraph (c).
    The principal reasons that the Agency has made its revisions for 
the final standard are to make the final standard less costly, more 
cost-effective, and still achieve the goal of employee protection. 
These revisions will help all employers, including small employers.

Alternatives to the Proposed Standard

    In the Final Regulatory Flexibility Analysis, OSHA considered 
alternatives with respect to voluntary action, alternative scope 
provisions, alternative trigger provisions, alternative work 
restriction protection provisions and other approaches to the rule 
making such as exempting small or low hazard employers. SBA's Office of 
Advocacy (Ex. 601-X-1) urged OSHA to consider exempting low hazard 
industries, and exempting small firms from WRP. OSHA believes that the 
new two part action trigger is a superior means of focusing the rule's 
obligation on high hazard work situations, while maintaining employee 
protection. The action trigger serves to assure that employers do not 
need to try to fix low hazard jobs. Further, this approach does this in 
a way that assures that even small firms in high hazard industries will 
not need to fix their low hazard jobs, while workers in the occasional 
high hazard job in a low hazard industry receive the protection they 
need. Exempting small businesses from WRP would remove needed 
protections for employees in small businesses. The Agency's analysis 
found that those alternatives that significantly alleviated the impact 
on small businesses more than OSHA's final standard did not provide 
adequate protection to worker health and safety. Many of the 
alternatives to specific provisions, such as WRP, are also discussed in 
the Preamble in the sections describing these provisions.

IX. Unfunded Mandates

    OSHA reviewed the final ergonomics program standard in accordance 
with the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et 
seq.). As discussed above in the Summary of the Final Economic Analysis 
(Section VIII of the preamble), OSHA estimates that compliance with the 
final ergonomics program standard will require the expenditure of 
approximately $4.0 billion each year by employers in the private 
sector. Therefore, the final ergonomics program standard establishes a 
federal private sector mandate and is a significant regulatory action, 
within the meaning of Section 202 of UMRA (2 U.S.C. 1532). OSHA has 
included this statement to address the anticipated effects of the final 
ergonomics program standard pursuant to Section 202.
    OSHA standards do not apply to state and local governments, except 
in states that have voluntarily elected to adopt an OSHA State Plan. 
Consequently, the final standard does not meet the definition of a 
``Federal intergovernmental mandate'' (Section 421(5) of UMRA (2 U.S.C. 
658(5)).
    This final rule was proposed under Section 6(b) of the OSH Act. The 
final ergonomic program standard will prevent 4.6 million MSDs over the 
next 10 years. The final ergonomics program standard will lead to $558 
million per year in costs on state, local or tribal governments. OSHA 
pays 50 percent of State plan costs but does not provide funding for 
state, local or tribal governments to comply with its rules.
    OSHA does not anticipate any disproportionate budgetary effects 
upon any particular region of the nation or particular state, local, or 
tribal governments, or urban or rural or other types of communities. 
Chapters V and VI of the economic analysis provide detailed analyses of 
the costs and impacts of the final rule on particular segments of the 
private sector. OSHA has analyzed the economic impacts of the rule on 
the affected industries and found that compliance costs are, on 
average, only 0.05 percent of sales, and that few, if any, facility 
closures or job losses are anticipated in the affected industries. As a 
result, impacts on the national economy would be too small to be 
measurable by economic models.
    The anticipated benefits and costs of this final standard are 
addressed in the Summary of the Final Economic Analysis (Section VIII 
of this preamble), above, and in the Final Economic Analysis (Ex. 900). 
In addition, pursuant to Section 205 of the UMRA (2 U.S.C. 1535), 
having considered a reasonable number of alternatives as outlined in 
this preamble and in the economic analysis (Ex. 900), the Agency has 
concluded that the final standard is the most cost-effective 
alternative for implementation of OSHA's statutory objective of 
substantially reducing or eliminating a significant risk of material 
impairment. This is discussed at length in the economic analysis (Ex. 
900) and in the Summary and Explanation (Section IV of this preamble) 
for the various provisions of the final ergonomics program standard.

X. Environmental Impact Statement

    Pursuant to the National Environmental Policy Act, the Department 
of Labor has issued regulations to determine when an environmental 
impact statement is required in a rulemaking proceeding. Section 29 CFR 
Sec. 11.10(a)(3) states:

    Preparation of an environmental impact statement will always be 
required for

[[<strong>Page</strong> 68819]]

proposals for promulgation, modification or revocation of health 
standards which will significantly affect air, water, soil quality, 
plant or animal life, the use of land and other aspects of the human 
environment.

    In the preamble to the proposed rule, the Agency stated that no 
environmental impact statement would be required for this rule because 
it does not meet the criteria set forth in 29 CFR Sec. 11.10(a)(3), as 
stated above. OSHA received one comment disagreeing with this 
determination. The commenter (Ex. 500-221) suggested that employer 
compliance activities associated with the proposed Ergonomics Program 
Standard would have the potential to cause enormous environmental 
impacts. The commenter also suggested that the proposed standard would 
increase the demand for electricity by encouraging workplace 
automation; increase the consumption of natural resources by 
encouraging employers to use greater numbers of smaller product 
containers; and impair air quality by encouraging delivery vehicles to 
remain at idle while employees manually move smaller loads per trip. 
Finally, the commenter asserted that the proposed standard would 
encourage automation of trash collection and waste disposal operations, 
and would discourage recycling.
    OSHA notes that the final standard requires employers to control 
problem jobs by modifying the conditions under which the work is 
performed, including such changes as workstation modification, redesign 
of tools, and job rotation. The final standard also requires employers 
to develop ergonomic programs that involve such elements as assessment 
of problem jobs, modification of jobs to reduce MSD hazards, employee 
training, and MSD management.
    Ergonomics-related job modifications typically result in greater 
production efficiencies without the need for additional natural 
resources or the increased discharge of pollutants. As several 
ergonomists testified at the hearings (David Alexander, Tr. Pp 2142-53, 
2369-72 and Dennis Mitchell, Tr. Pp 2366-68) ergonomic modifications 
typically involve mechanization (e.g. the use of carts, shelves, 
adjustable workstations, etc.) and only rarely involve automation (the 
replacement of people by machines.) Automation is a rarely-used 
approach unless the employer considers that process efficiency will be 
improved. The likelihood is that updated, more energy-efficient 
production equipment will actually lead to a decrease, not an increase, 
in energy consumption. In the trash collection and recycling 
industries, automation and mechanization are increasing because of 
factors that long predate issuance of this final rule. Mechanization 
and automation in those industries are likely to produce greater 
efficiencies and lower costs as well as reducing the risks and costs of 
employee injuries. OSHA disagrees with the commenter's assertion that 
recycling would be abandoned on a large scale as a result of OSHA's 
standard on ergonomics programs; by necessity or law, most local 
jurisdictions in the U.S. have now committed themselves to recycling.
    OSHA believes the claims of adverse environmental effects asserted 
by the commenter are highly speculative, and fail to make a plausible 
case that the final Ergonomics Program Standard will significantly 
affect the human environment. Moreover, none of the impacts predicted 
by the commenter takes into account any of the environmental benefits 
that might result from ergonomics-related job modifications, such as 
productivity increases and waste reduction. Accordingly, OSHA concludes 
that the final rule will not result in significant environmental 
impacts and, therefore, an environmental impact statement is not 
required.

XI. Additional Statutory Issues

1. Fair Notice

    Numerous commenters contend that various terms used in the proposed 
standard are unduly vague and fail to provide fair notice of what the 
standard requires. For example, the American Iron & Steel Institute 
asserts that the proposal ``is not written in language that can 
reasonably be understood by those who must comply with it.'' Ex. 32-
206-1. Morgan, Lewis & Bockius believes that several provisions of the 
proposal ``are unworkably vague in their current state.'' Ex. 30-4467 
at p. 6. Organization Resources Counselors, Inc. (ORC) states that the 
proposal contains an ``excess of complex terms and definitions.'' Ex. 
32-78-1 at p. 5. Similar objections were raised by the Edison Electric 
Institute (Ex. 32-300-1 at p. 6); the Integrated Waste Service 
Association (Ex. 22-337-1 at p. 8); the National Coalition on 
Ergonomics (Ex. 32-368-1 at pp. 126-29); the Chamber of Commerce (Ex. 
30-1722 at pp. 24-25 & Ex. 500-188 at pp. 66-69); the Forum for a 
Responsible Ergonomics Standard (Ex. 30-3845 at pp. 26-29); and 
numerous others. Among the phrases in the proposal the commenters 
assert were overly vague are ``eliminate or materially reduce the MSD 
hazards;'' ``significant amount of the employee's worktime;'' 
``repeated exposure;'' ``core element;'' ``no cost to employee;'' 
``employer commitment;'' ``employee participation;'' ``ergonomic 
hazard;'' ``persistent MSD symptoms;'' ``forceful lifting/lowering;'' 
``problem job;'' ``common sense determination;'' ``ergonomic risk 
factors;'' ``OSHA recordable MSD;'' ``reasonably likely to cause or 
contribute to the type of MSD reported;'' ``cold temperatures;'' 
``dynamic motion;'' ``awkward posture;'' ``static posture;'' and 
``reduce to the extent feasible.'' E.g., Ex. 32-368-1 at p. 126 & Ex. 
500-197 at pp. III-3-18 (NCE); Ex. 32-206-1 at pp. 13-14 (American Iron 
& Steel Institute); Ex. 32-241-4 at pp. 166-80 (Anheuser-Busch and 
United Parcel Service).
    Some of the same commenters, as well as others, object to what they 
characterize as the proposal's ``one size fits all'' approach. E.g., 
Ex. 30-3845 at p. 37 (Forum for a Responsible Ergonomics Standard); Ex. 
32-368-1 at p. 72 (NCE); Ex. 30-3077 at p. 1 (National Tooling and 
Machining Association); Ex. 30-2993 at p. 2 (Small Business Legislative 
Council). They believe it is inadvisable for OSHA to issue a standard 
that applies to a wide variety of different industries because 
conditions pertinent to ergonomics vary widely among industries.
    The reason OSHA included general language, such as the phrases the 
commenters contend are too vague, in the proposed standard was to avoid 
the very ``one size fits all'' approach to which some of the same 
commenters and many others object. Because of the numerous variables 
that can result in work-related MSDs, OSHA drafted the proposed rule in 
flexible, performance-oriented language to enable employers to develop 
ergonomics programs tailored to their workplaces, rather than 
attempting to prescribe, for example, the specific manner in which 
employers should control an MSD hazard. As a result, the proposal used 
a number of general phrases to allow employers the maximum amount of 
flexibility consistent with the standard's goal of reducing MSDs.
    In response to the numerous comments that criticized the proposed 
standard as being unduly vague, OSHA has made a number of changes to 
the final standard that are designed to give additional guidance as to 
what the standard requires of employers. Some of the complaints most 
frequently voiced in the comments--that employer obligations are not 
defined with sufficient clarity--are addressed by (1) changing the 
scope of the standard to no longer require employers to determine 
whether their employees are engaged in ``manual handling'' or 
manufacturing;

[[<strong>Page</strong> 68820]]

(2) including an objective Action Trigger for determining whether an 
employer must fix a job in which an employee has reported a MSD 
incident; and (3) establishing compliance endpoints that will enable 
employers to tell with certainty whether they have taken sufficient 
steps to fix a problem job. As a result of these changes, certain 
phrases that commenters claimed were too vague, such as ``significant 
amount of the employee's worktime,'' ``core element of the job,'' and 
``forceful lifting/lowering'' are no longer used. The changes to the 
final rule, and the reasons for them, are discussed in the Summary and 
Explanation section of this preamble. Although the final rule contains 
greater specificity than the proposal, OSHA believes that the final 
rule still gives employers sufficient flexibility to develop ergonomics 
programs that are suited to the particular characteristics of their 
workplaces.
    OSHA believes that this final rule provides fair notice to 
employers of their obligations. On its face, it provides persons of 
ordinary intelligence a reasonable opportunity to understand the 
conduct it prohibits or requires. See Hill v. Colorado, 120 S.Ct 2480, 
2498 (2000). Moreover, in addition to the language of the standard and 
the further guidance provided by this preamble, other sources will be 
available to help employers determine their compliance obligations. 
OSHA intends to make compliance assistance conveniently available to 
the public, both through its website (<A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.osha.gov">www.osha.gov</A>) and through printed 
publications. Among the compliance assistance materials will be a small 
entity compliance guide, as required by the Small Business Regulatory 
Enforcement Fairness Act of 1996, specifically designed to inform small 
businesses of their obligations under the rule in language that is 
readily understandable. Employers and employees will also be able to 
look to guidelines that have proven successful in averting MSDs in 
specific industries, such as the red meat guidelines. Ex. 2-13. OSHA-
funded consultation services through state agencies will be available 
to qualifying employers who request it. And personnel in OSHA's 
national and field offices will be available to answer questions about 
the standard. OSHA also encourages trade associations and other 
business organizations to disseminate information, such as case studies 
of successful ergonomic interventions by employers in their industries, 
that will help facilitate compliance with the standard by their 
members.

2. OSHA's Past Enforcement Efforts

    In the NPRM, OSHA noted that it had gained experience over the 
years in addressing ergonomic issues through a variety of means, 
including enforcement, consultation, training and education, compliance 
assistance, the Voluntary Protection Programs, and issuance of 
voluntary guidelines. 64 FR at 65774. In the area of enforcement, the 
agency had successfully issued over 550 ergonomics citations under the 
OSH Act's General Duty Clause, section 5(a)(1). Id. Almost all of these 
citations, the agency observed, had led to the implementation of 
ergonomics programs by the cited employers, included some corporate-
wide programs developed pursuant to settlement agreements. Id.
    The Chamber of Commerce criticizes OSHA for not mentioning cases 
where, in the Chamber's words, OSHA's enforcement efforts ``abjectly 
failed.'' Ex. 30-1722 at p. 7. The Chamber states that OSHA lost the 
``only three enforcement actions that were actually tried to 
completion,'' citing Pepperidge Farm, 17 O.S.H. Cas. (BNA) 1993 (Rev. 
Comm'n, 1997); Dayton Tire, Division of Bridgestone/Firestone, Inc., 
1998 WL 99288 (ALJ, 1998); and Beverly Enters., 1994 WL 693958 (ALJ, 
1995), review directed (Nov. 9, 1995), decided by the Commission (Oct. 
27, 2000). Ex. 30-1722 at pp. 7-8. See also Ex. 500-197 at Ex. III-C, 
E. Scalia, OSHA's Ergonomics Litigation Record Three Strikes and It's 
Out, cato inst. No. 391. These cases, the Chamber contends, 
``demonstrate the futility of promulgating a mandatory ergonomics 
program standard, and underscore OSHA's failure to understand the state 
of the scientific evidence and its legal authority.'' Ex. 30-1722 at p. 
10. Similarly, the NCE asserts that litigation of ergonomics citations 
under the general duty clause demonstrates OSHA's inability to garner 
sufficient scientific evidence to support an ergonomics rule. Ex. 32-
368-1 at p. 14.
    Contrary to the Chamber's contentions, OSHA has not ``lost'' the 
only three ergonomics cases tried to completion. In the case of Beverly 
Enters., the ``loss'' to which the Chamber refers was an adverse 
administrative law judge's decision that was under review by the 
Commission when the Chamber submitted its comments. The Commission has 
since, in a decision issued on October 27, 2000, reversed the 
administrative law judge's decision and held that the company's 
practices for lifting patients in its nursing homes exposed its nursing 
assistants to a serious recognized hazard. The Commission decision in 
Pepperidge Farm held that the company's employees were exposed to 
recognized lifting and repetitive motion hazards. In Dayton Tire, OSHA 
received an adverse decision from the administrative law judge and 
decided the case did not present a proper vehicle for appeal. The final 
order in Dayton Tire is therefore an unreviewed administrative law 
judge's decision and lacks precedential value. United States v. Sturm, 
Ruger & Co., 84 F.3d 1, 5 n. 4 (1st Cir.1996); Matter of Establishment 
Inspection of Cerro Copper Prods. Co., 752 F.2d 280, 284 (7th Cir. 
1985); Leone Constr., 3 O.S.H. Cas. (BNA) 1979, 1981 (Rev. Comm'n 
1976).
    The Chamber contends that the ``unfavorable'' decisions in these 
three cases undermine the scientific basis for ergonomics regulation 
and hence for this rule. To the contrary, OSHA believes that the 
decisions in Beverly and Pepperidge Farm support both the need for and 
the scientific basis of this rule. They demonstrate that, even under 
the heavy burden of proof OSHA bears in general duty clause litigation, 
the preponderance of the credible evidence shows that workplace 
exposures cause MSDs, that employers recognize this, and that serious 
injuries result from these exposures.
    The Chamber also cites testimony of OSHA witnesses in these cases, 
along with deposition testimony from Hudson Foods, a case that was 
ultimately settled, to attempt to show that experts engaged by OSHA 
cannot state with certainty the degree of risk caused by exposure to 
different levels of ergonomic stressors (Ex. 30-1722 at pp. 26-27, 47); 
that OSHA compliance officers are unqualified to evaluate the health 
risk from ergonomic stressors (Ex. 30-1722 at pp. 28, 64); that experts 
are unable to define with precision terms such as ``awkward posture,'' 
``high force,'' and ``long periods of standing'' (Ex. 30-1722 at pp. 
64-69); that two OSHA expert witnesses in Dayton Tire did not offer 
consistent definitions of the stressors in certain jobs (Ex. 30-1722 at 
p. 69); and that OSHA experts were unable to testify to the 
effectiveness of abatement measures (Ex. 30-1722 at pp. 72-73).
    The Chamber's reliance on selected testimony in these cases does 
not undermine the scientific basis for this final rule. First, as the 
Commission decisions in Beverly and Pepperidge Farm show, the evidence 
in those cases supports OSHA's decision to address ergonomic hazards in 
this final rule. Second, even if reasonable experts differ over the 
nature of ergonomic risks or cannot precisely quantify those risks, 
OSHA is not precluded from issuing a

[[<strong>Page</strong> 68821]]

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

    We find on the scientific evidence presented that manual lifting 
of residents is a known and recognized risk factor for LBP. 
Considering also the evidence showing that the frequency and manner 
in which Beverly's NA's performed their assigned tasks exposed them 
to compressive forces in excess of limits well-established and 
accepted in the scientific community, and that Beverly's working 
conditions resulted in numerous lost-time incidents and prevented 
Beverly's NA's from performing their usual daily activities, we 
conclude that the manual lifting of residents was shown on this 
record to be a hazardous work practice and that Beverly controls the 
methods used to perform the lifting.


[[<strong>Page</strong> 68822]]


Slip op. at 52.
    The Commission further found that Beverly recognized the hazard. 
Among other evidence, the Commission noted that Beverly had adopted a 
``Lift with Care'' program, which referred to the NIOSH limits for safe 
lifting and taught its NA's how to lift patients in a way that would 
reduce the likelihood both of injury to the resident and back injury to 
the NA. Id. at 53, 59-60. In addition, Beverly knew its NA's were 
suffering high rates of LBP from its workers' compensation claims; that 
failure to use correct lifting techniques is one cause of back injury; 
and that its nursing homes did not have enough mechanical hoists to 
ensure that such equipment was available when necessary. Id. at 54-55. 
Finally, the Commission relied on testimony showing that experts 
familiar with the nursing home industry perceive lifts such as those 
performed by Beverly to be hazardous. Id. at 62.
    The Commission found that the hazard was likely to cause serious 
physical harm. ``LBP has a substantial and significant effect on the 
affected employees'' ability to perform their normal activities and 
effectively disables employees for periods of time which are extensive 
in some instances. We conclude that in view of the debilitating effect 
on employees and the potential duration of the disability, LBP is 
properly considered serious physical harm.'' Id. at 68.
    The parties disputed before the Commission whether OSHA had proven 
the feasibility and likely utility of abatement measures. Since the 
administrative law judge had not made factual findings on that issue, 
the Commission remanded the case for such findings. Id. at 72-73.

Settlements of General Duty Clause Citations

    The Chamber of Commerce takes issue with OSHA's claim in the NPRM 
(64 Fed. Reg. at 65774) that the settlement agreements that resolved 
most of the contested General Duty Clause citations showed the success 
of OSHA's enforcement efforts and the efficacy of ergonomics programs. 
Ex. 30-1722 at pp. 10-12. The Chamber says that employers settle 
ergonomic citations to avoid the prospect of expensive litigation, and 
that OSHA therefore cannot conclude that ``those employers ergonomics 
programs will in fact reduce injury in the workplace, and that, in the 
absence of OSHA's interventions, the employees in question would have 
been without protection.'' Id. at 10-11. OSHA continues to believe, 
contrary to the Chamber's assertion, that the settlement agreements are 
highly significant. While avoidance of the time and expense of 
litigation undoubtedly entered into those employers' decisions to 
settle, they nevertheless agreed to put forth substantial efforts to 
reduce or eliminate the hazards for which they had been cited. For 
many, the agreements went far beyond the cited locations to other 
corporate facilities not visited by OSHA and, therefore, far beyond any 
abatement orders OSHA might have obtained in litigation.
    Those agreements and resulting efforts were clearly successful. As 
noted in the proposed rule preamble, OSHA held a workshop in March 
1999, in which ten companies described their experience under their 
settlement agreement and with their ergonomics programs. All the 
companies that reported results to OSHA showed a substantially lower 
severity rate for MSD's since implementing the programs defined in 
their agreements. Ex. 26-1420. Most companies reported lower workers' 
compensation costs, as well as higher productivity and product quality. 
Id. Only five of the 13 companies involved in these agreements 
consistently reported the number of MSD cases or MSD case rates, and 
all five showed a significant decline in the number of lost workdays. 
None of the companies that reported severity statistics showed an 
increase in lost workdays as a result of the ergonomics program.
    The success of OSHA enforcement coupled with settlements requiring 
comprehensive ergonomics programs was confirmed by the United Food and 
Commercial Workers International Union. The union recognized that 
``[t]he majority of our successful programs in the meatpacking and 
poultry industries were propelled by OSHA enforcement. Ergonomic 
settlement agreement and corporate-wide settlement agreements (CWSAs) * 
* * demonstrate industry recognition of the existence of MSD hazards 
and the elements of a program to prevent worker injuries arising from 
exposure to these hazards.'' Ex. 32-210-2, p. 5. The UFCW gave a number 
of examples illustrating the efficacy of these agreements and resulting 
programs. One was that of IBP's Dakota City meatpacking plant, which 
implemented a comprehensive program as a result of citations and 
subsequent settlement agreement. Cost savings attributed to the program 
``* * * were realized in the following areas: [employee] turnover was 
down significantly . * * *; [MSD] incidence dropped dramatically; 
surgeries fell; [and] worker's compensation costs were reduced 
significantly.'' Id. at 9.
    The Chamber of Commerce asserts that a settlement agreement with 
Hudson Foods is an example of a case that the employer settled despite 
palpable weaknesses in OSHA's evidence. Ex. 30-1722 at pp. 11-12. The 
Chamber suggests that OSHA settled for little to get out of litigation 
that was not going well. In fact, OSHA had developed strong evidence to 
support the citations and was fully prepared to go to trial if 
necessary. See generally OSHA's Reply to Hudson Foods. Inc.'s Motion to 
Exclude Expert Testimony, Secretary v. Hudson Foods, Inc., dated April 
30, 1999 (OSHRC Docket No. 98-0079)(Ex. 502-26). However, OSHA was 
willing to settle because the settlement secured all of its objectives. 
Hudson, which was purchased by Tyson Foods, Inc. after OSHA's 
inspection, but before the settlement, withdrew its notice of contest 
to the ergonomic allegations contained in the citations, paid a total 
penalty of $200,000 for all citations, and, most importantly, agreed to 
implement the comprehensive, existing Tyson Foods ergonomics program 
that the parties anticipated would abate the violations. Ex. 502-42, 
pp. 3-5, Exhibits ``A'' and B''. With this hazard recognition and gain 
in employee safety and health, continued litigation over a larger 
penalty was pointless. The exculpatory language cited by the Chamber 
was acceptable in light of the intervening purchase of Hudson by Tyson 
Foods, which had not caused the cited conditions and had displayed good 
faith through its own implementation of a comprehensive ergonomics 
program. Ex. 30-4137, p. 1.

OSHA's Red Meat Guidelines

    In addition to OSHA's enforcement efforts, many knowledgeable 
witnesses agreed that the agency's Ergonomics Program Management 
Guidelines for Meatpacking Plants (``Red Meat Guidelines'') (Ex. 2-13) 
have resulted in implementation of successful workplace programs 
addressing ergonomic hazards. For example, in contrasting OSHA's 
proposal to the Red Meat Guidelines, IBP Inc.''s Bob Wing acknowledged 
that the Guidelines had been successful. Ex. 30-4046, p. 1. Similarly, 
the American Meat Institute (``AMI''), the main representative for the 
U.S. Meat Industry, including 276 meat packers and processors, 
operating 559 facilities, acknowledged that the industry worked with 
OSHA on the Red Meat Guidelines and has been using them for nearly ten 
years. Ex. 30-3677, p. 1. The AMI notes that the Red Meat Guidelines 
work and that the industry has made substantial progress in addressing 
ergonomic issues since

[[<strong>Page</strong> 68823]]

development of the Guidelines. Id. at 1-4. The AMI recommends that the 
Guidelines be extended throughout general industry. Id. at 4. The 
utility of OSHA's Red Meat Guidelines was also hailed by the United 
Food and Commercial Workers Union, which noted that upon publication of 
the Guidelines, industry began to respond both from the standpoint of 
technology, as well as ergonomic programs. Ex. 32-210-2, pp. 25-26. The 
success of the Guidelines led to use and acceptance in other 
industries. The poultry industry appears to have secured substantial 
reductions in chronic MSD's from adherence to the principles in the 
document (Ex. 30-3375, p. 1).

Enforcement Actions and Compliance Costs

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

[[<strong>Page</strong> 68824]]

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

[[<strong>Page</strong> 68825]]

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

[[<strong>Page</strong> 68826]]

requirement that employers ask ``employees and their representatives'' 
for such recommendations does not mean that a unionized employer must 
deal separately with its represented employees and their union. That 
language is intended to encompass the entire range of workplaces, 
including nonunion workplaces, unionized workplaces in which all of the 
employees in problem jobs are represented by the union, and workplaces 
in which some of the employees in problem jobs are represented by the 
union and some are not. In workplaces in which all employees in a 
problem job are within the bargaining unit, employers may, as EEI and 
ISWA suggest, fulfill their obligations under the provisions that 
require the involvement of ``employees and their representatives'' by 
dealing in good faith with the union. The employer and union may agree 
on any mechanism for employee participation that is consistent with the 
standard.
    Some commenters note that ergonomic provisions have been 
incorporated into collective bargaining agreements and assert that 
employers may be forced to violate these agreements to comply with the 
rule. Ex. 30-1722 at p. 82 (Chamber of Commerce); Ex. 500-197 at p. 
III-62 (National Coalition on Ergonomics and others). The duty to 
bargain with recognized unions over safety and health matters does not 
excuse employers from complying with OSH Act standards. Employers and 
unions cannot bargain away an obligation under the Act. See Trans World 
Airlines v. Hardison, 432 U.S. 63, 79 (1977) (``neither a collective-
bargaining contract nor a seniority system may be employed to violate 
the statute.''); Alexander v. Gardner Denver Co., 415 U.S. 36, 51 
(1974) (notwithstanding contrary provision of collective bargaining 
agreement, employee has right to court hearing on race discrimination 
claim under Title VII). See generally United Steelworkers v. Marshall, 
647 F.2d 1189, 1236 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) 
(``[i]n passing a massive worker health and safety statute, Congress 
certainly knew it was laying a basis for agency regulations that would 
replace or obviate worker safety provisions of many collective 
bargaining agreements''), cert. denied, 453 U.S. 913 (1981); see also 
Murphy Oil USA, Inc., 286 NLRB 1039, 1042 (1987) (employer can 
unilaterally adopt work rule required by OSHA standard without 
bargaining with union); Louisiana Chem. Ass'n v. Bingham, 550 F. Supp. 
1136, 1144 (W.D. La. 1982), aff'd, 731 F.2d 280 (5th Cir. 1984). Thus, 
if there is an irreconcilable conflict between the standard and a 
collective bargaining agreement, the standard would prevail.
    The possibility that existing collective bargaining agreements 
address ergonomics does not, as the Chamber of Commerce suggests, place 
employers in an untenable position. If such collectively bargained 
programs meet the standard as adopted or qualify under the standard's 
grandfather clause, they will not need to be altered. If they conflict 
with the standard, the employer's statutory obligation to comply with 
the standard takes priority over the agreement. Murphy Oil, 286 NLRB at 
1042 (employer ``was not only within its rights, but also legally bound 
to adopt a rule that complied with Federal law.''); Standard Candy Co., 
147 NLRB 1070, 1073 (1964) (employer was legally obligated to raise 
wages to new federally-mandated minimum wage without bargaining with 
union).
    To the extent the employer has discretion in the means by which it 
achieves compliance, and the means involve a mandatory subject of 
bargaining, the employer would be required to bargain with the union 
regarding the means of compliance. United Steelworkers, 647 F.2d at 
1236 (``[w]hen an issue related to earnings protection not wholly 
covered by OSHA regulation arises between labor and management, it will 
remain a mandatory subject of collective bargaining''); see Watsonville 
Newspapers, LLC, 327 N.L.R.B. No. 160, slip op. 2-3 (Mar. 24, 1999); 
Dickerson-Chapman, Inc., 313 N.L.R.B. 907, 942 (1994) (although 
employer must comply with OSH Act standard requiring daily inspections 
of open excavations by a ``competent person,'' employer must bargain 
with union about who would be so designated); Hanes Corp., 260 N.L.R.B. 
557, 561-562 & n.12 (1982) (where OSHA standard required use of 
respirators but gave employer discretion with respect to choice of 
respirator, employer could require use of respirator without 
bargaining, but could not unilaterally determine which approved 
respirator would be used). Nothing in the ergonomics program standard 
forecloses employers from bargaining with unions about discretionary 
aspects of the standard that are mandatory subjects of bargaining under 
the NLRA. To the contrary, OSHA has repeatedly emphasized the 
importance of involving employee representatives in all aspects of the 
ergonomics program. As the AFL-CIO points out:

    The reality is that since the OSHAct's passage, employers and 
unions have been able to meet both their responsibilities under 
OSHA's standards and their duty to bargain under the NLRA. Unions 
have a strong interest in dealing with employers over safety and 
health matters, and will eagerly deal with employers over 
ergonomics. The record reflects extensive union-management efforts 
to tackle ergonomic hazards. Thus, the notion that the employer's 
bargaining obligation stands in the way of OSHA compliance does not 
reflect reality. Ex. 500-218 at p. 162.

    The National Coalition on Ergonomics argues that imposition of some 
of the controls suggested by OSHA could violate seniority and line of 
progression provisions in collective bargaining agreements. Ex. 32-368-
1 at p. 81. The NCE is apparently referring to the standard's inclusion 
of employee rotation in the definition of ``administrative controls.'' 
The NCE also claims that employees being rotated into other jobs may 
not be qualified to perform those jobs and that job rotation can create 
a greater hazard by subjecting employees to the risk of new MSD risk 
factors they were not exposed to in their prior jobs. Id.
    These objections are unpersuasive. First, many workplaces are not 
covered by collective bargaining agreements that contain seniority or 
line of progression limitations. In those workplaces, the concerns 
raised by NCE are totally absent. Second, the standard does not require 
any employer to use job rotation. To the contrary, it specifically 
states that engineering controls, where feasible, are to be preferred 
over administrative controls, including job rotation. However, to give 
employers maximum flexibility, the standard gives employers the option 
of using administrative controls. As a result, those employers who can 
use job rotation safely and effectively are free to do so, while those 
who believe job rotation would lead to contractual or safety problems 
can address ergonomic hazards in other ways.
    b. Americans with Disabilities Act. The ADA is an anti-
discrimination statute that prohibits discrimination by covered 
employers against ``qualified individual[s] with a disability,'' that 
is, persons ``with a disability who, with or without reasonable 
accommodation, can perform the essential functions of the employment 
position that such individual holds or desires.'' 42 U.S.C. 12111(8), 
12112(a). Under the ADA, employers must reasonably accommodate disabled 
workers. However, if there is no reasonable accommodation that would 
permit a disabled employee to work for the employer, the employer is 
free to discharge the employee under the ADA.

[[<strong>Page</strong> 68827]]

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

[[<strong>Page</strong> 68828]]

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

[[<strong>Page</strong> 68829]]

Forum for a Responsible Ergonomics Standard contends that women and 
older workers are more susceptible to MSDs than younger persons and 
that the ergonomics standard will therefore encourage employers to 
violate these statutes by hiring a young, male-dominated workforce. Ex. 
30-3845 at pp. 36-37.
    These anti-discrimination statutes were adopted to combat the 
attitudes prevalent among many employers that older workers, or female 
workers, or minority workers, were not as qualified to do a job as well 
as young, white males. Through their enactment, Congress prohibited 
employers from relying on such outdated stereotypes rather than making 
hiring decisions on the basis of a worker's individual capabilities. 
See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (``Congress 
promulgation of the ADEA was prompted by its concern that older workers 
were being deprived of employment on the basis of inaccurate and 
stigmatizing stereotypes.''); Los Angeles Dept. of Water & Power v. 
Manhart, 435 U.S. 702, 707 n. 13 (1978) (``In forbidding employers to 
discriminate against individuals because of their sex, Congress 
intended to strike at the entire spectrum of disparate treatment of men 
and women resulting from sex stereotypes.'').
    In particular, these statutes preclude discriminatory hiring 
decisions based on perceived gender or age-based susceptibility to a 
safety or health risk inherent in the job. In UAW v. Johnson Controls, 
Inc., 499 U.S. 187 (1991), the Supreme Court held that an employer's 
``fetal protection policy'' violated Title VII. Under that policy, the 
employer refused to assign women to jobs involving lead exposure unless 
the women could show they were unable to become pregnant. The employer 
claimed that this policy was justified because lead in a pregnant 
woman's bloodstream could potentially harm the fetus. The Supreme Court 
held that the employer's concern that women who were or might become 
pregnant would be particularly susceptible to a health risk from lead 
exposure was not a valid reason to allow them to exclude such women 
from jobs for which they were qualified.
    The rulemaking record shows that workers of both sexes and all ages 
suffer MSDs when exposed to high levels of the risk factors addressed 
by this standard. OSHA therefore does not believe that the rulemaking 
record supports the commenters' claim that this standard will provide 
any incentive to employers to violate Title VII and the ADEA. However, 
even if some employers believe they can gain some benefit by hiring 
only young, male workers, Title VII and the ADEA prohibit them from 
doing so on the basis that it will make compliance with the standard 
easier.

XII. Procedural Issues

I. Introduction

    OSHA began seeking public participation in this rulemaking when it 
published an Advance Notice of Proposed Rulemaking (ANPR) in August 
1992. The Agency received more than 250 comments in direct response to 
that notice. See Comments in Ex. 3. The next year OSHA conducted an 
extensive survey of employers to obtain information on the extent of 
existing ergonomics programs and practices in general industry. In 
1994-1995, and again in 1998 and 1999, OSHA held a series of 
``stakeholder meetings'' across the country where interested members of 
the public discussed with representatives of OSHA their experiences and 
opinions relating to ergonomics and ergonomic programs. See Ex. 26-
1370. In some cases, OSHA even shared early drafts of regulatory text 
under consideration with participants in these meetings.
    In developing the proposed standard, OSHA took account of all the 
information it had obtained during this period: the ANPR comments; the 
survey responses; and the stakeholders' views and experience, as well 
as its own enforcement experience and information gleaned from a 
comprehensive review of the relevant literature. In response to this 
input, OSHA revised its regulatory approach substantially from that 
reflected in its early drafts of a standard. In February 1999, as part 
of the review process required by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA), 5 U.S.C. Sec. 601 et seq., OSHA 
released to the public a draft proposed Ergonomics Program standard 
(SBREFA draft) that reflected much of the regulatory approach of the 
proposal. The SBREFA draft was also made available on OSHA's website. 
OSHA received a large amount of feedback on this draft from the small 
entity representatives participating in the SBREFA process, and OSHA 
made a number of alterations to the draft based on that feedback. See 
Ex. 23.
    As described in detail below, OSHA's official Notice of Proposed 
Rulemaking provided the public with additional opportunities to 
participate in the rulemaking. Specifically, OSHA established a 70 day 
pre-hearing comment period (later extended to 100 days), during which 
the public could comment and submit evidence on all aspects of the 
proposed standard. OSHA also scheduled a nine week informal public 
hearing, for interested parties to testify on the proposed standard. 
Finally, OSHA established a 90 day post-hearing comment period. The 
post-hearing comment period gave hearing participants 45 additional 
days to submit data and evidence, and 90 additional days to submit 
comments for consideration by OSHA. In sum, those individuals who 
participated in the informal public hearing had 216 days (more than 
seven months) after publication of the proposed rule to submit data and 
evidence to the rulemaking record for OSHA's consideration, and 261 
days (nearly nine months) after publication of the proposed rule to 
submit briefs and arguments to the rulemaking record.
    Although these procedures exceed the legal requirements for OSHA 
rulemaking and are consistent with the procedures used in past Agency 
rulemakings, a number of participants, primarily employer groups, have 
attacked them as inadequate. A major theme of these attacks is that the 
issues in this rulemaking are unprecedentedly complex, and that OSHA 
therefore should have provided extraordinary comment periods and other 
opportunities to challenge its preliminary conclusions. OSHA recognizes 
that the size of the record on some issues could have posed challenges, 
although by no means insurmountable ones, to rulemaking participants. 
OSHA responded to these challenges by making adjustments to the 
rulemaking schedule and to the procedures used in earlier rulemakings 
in order to provide interested parties with easier access to rulemaking 
materials (including extending Docket Office hours), and to ensure that 
the rulemaking proceeded in a fair and orderly manner.

II. The Adequacy of the Rulemaking Process

A. Length of the Pre-Hearing Comment Period

    OSHA published its proposed Ergonomics Program standard on November 
23, 1999. 64 FR 65768 (Nov. 23, 1999); see also 64 FR 73448 (Dec. 30, 
1999) (publication of corrections notice). In the Federal Register 
notice, OSHA established a 70 day pre-hearing comment period to submit 
written comments and evidence on the proposed standard. Id. These 
materials were required to be postmarked by February 1, 2000. Id.

[[<strong>Page</strong> 68830]]

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

[[<strong>Page</strong> 68831]]

awkward posture, static posture, contact stress, cold temperatures, and 
vibration); thus, AISI argued that OSHA was obligated to set a 210 day 
pre-hearing comment period. Ex. 500-223, p. 94. Many commenters noted 
as well that a number of holidays occurred during the pre-hearing 
comment period, and that these, as well as Year 2000 computer issues, 
made review and preparation of comments particularly difficult. See 
e.g., Ex. 30-3865, p. 34; Letters in Exhibit 33. Finally, a number of 
commenters stated that OSHA's grant of a 30 day extension of time from 
70 days to 100 days was not meaningful because it was not granted until 
January 27, 2000, a few days before pre-hearing comments were 
originally scheduled to be filed. See e.g., Exs. 500-188, p. 6 n.3; 
500-109; 30-3956, p. 142.
    No party's due process rights were violated by the 100 day pre-
hearing comment period. As shown above, the comment period was more 
than adequate for interested parties to review the record and submit 
pre-hearing comments. Nor does the OSH Act require OSHA to provide a 30 
day pre-hearing comment period for each risk factor at issue. As 
explained above, the OSH Act provides for a minimum 30 day comment 
period for each ``proposed rule promulgating * * * an occupational 
safety or health standard.'' 29 U.S.C. 655(b)(2) (emphasis added). The 
OSH Act does not place a requirement upon OSHA to provide additional 
time for comment depending upon the number or types of hazards being 
regulated. See Air Contaminants, 965 F.2d at 969 n.8.
    Furthermore, the occurrence of holidays during the pre-hearing 
comment period did not substantially affect the ability of parties to 
review the record and comment on the proposed rule. In fact, holidays 
accounted for only five days of the pre-hearing comment period. 
Similarly, OSHA does not believe that Year 2000 computer conversion 
issues substantially affected stakeholders' ability to comment on the 
proposed standard. Employers and other parties always devote resources 
to different areas of their enterprises at different times of the year. 
For example, when industry and labor are engaged in collective 
bargaining negotiations, employers and labor unions (including safety 
and health representatives) must devote additional resources (including 
time and money) to the negotiations. The time and resources devoted to 
these negotiations certainly ``conflict'' with other priorities of both 
parties. Yet both parties to the negotiations are able to continue to 
function during this period and to carry out their other 
responsibilities. These types of conflicts do not prevent interested 
parties from submitting meaningful comments on any particular proposed 
rule.
    Finally, the extension of the pre-hearing comment period was not 
granted too late. OSHA originally believed that the 70 day pre-hearing 
comment period established in the proposal was sufficient to allow 
interested parties to comment meaningfully on the proposed standard. 
(The 70 day period was more than twice as long as that required by the 
OSH Act, and longer than the 60 day minimum period recommended by 
Executive Order 12866). OSHA seriously considered the requests it 
received to extend the initial 70 day pre-hearing comment period, 
however, and ultimately decided to grant the 30 day extension.
    OSHA granted the extension on January 27, 2000, a few days before 
written comments were originally scheduled to be filed. In addition to 
publishing notice of the extension in the Federal Register on February 
1, 2000, 65 FR 4795 (Feb. 1, 2000), OSHA issued a press release to 
inform the public that the comment period had been extended and placed 
the press release on its web-<strong>page</strong>. See <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.osha.gov/media/oshnews/jan00/national-20000127.html">http://www.osha.gov/media/
oshnews/jan00/national-20000127.html</A>. Some commenters thanked OSHA for 
granting the extension. See Exs. 32-21-1, p.9; 500-1-26; 30-4496, p. 1. 
The 30 day extension was useful in allowing interested parties 
additional time to review the record and comment on the proposed rule.
    In fact, OSHA often grants extensions of comment periods near the 
end of the original period. For example, in the Butadiene rulemaking, 
OSHA granted an extension on the final day of the original pre-hearing 
comment period. 55 FR 42406 (Oct. 19, 1990). Similarly, in the 
tuberculosis rulemaking, OSHA granted an extension a mere 12 days 
before the close of the original pre-hearing comment period. 63 FR 5905 
(Feb. 5, 1998). Indeed, often it is only toward the end of any filing 
period that a need to extend becomes clear. It would hardly be logical 
to permit Agencies to respond to this need only if they did so several 
weeks before the close of the original comment period.

B. There Was Adequate Opportunity for Participants To Prepare for and 
Participate in the Informal Public Hearing

1. The Hearing Procedures and the Hearing Schedule
    In the November 23, 1999 Federal Register notice, OSHA also 
scheduled an informal public hearing to provide interested parties 
another opportunity to comment on the proposed standard. 64 FR 65768 
(Nov. 23, 1999). Participants in the hearing could present testimony 
and ask questions of OSHA and other public witnesses. OSHA scheduled 
the informal public hearing for three cities: Washington, DC; Portland, 
OR; and Chicago, IL. Id. at 65769. The hearing was originally scheduled 
to begin on February 22, 2000, and OSHA required participants to file 
Notices of Intent to Appear by January 24, 2000. Id. at 65768. When 
OSHA extended the pre-hearing comment period, it also delayed the start 
of the hearing until March 13, 2000, 11 days after the close of the 
pre-hearing written comment period. 65 FR 4795 (Feb. 1, 2000). In 
addition, because it received more than 400 Notices of Intent to Appear 
at the hearing, OSHA added an additional 7 days to the hearing in 
Washington, DC and Portland, OR, in order to accommodate all members of 
the public who sought to testify. See 65 FR 11948 (Mar. 7, 2000); 65 FR 
19702 (Apr. 12, 2000).
    On February 25, 2000, the Assistant Secretary issued special 
hearing procedures to ensure that the hearing proceeded in a fair, 
orderly, and timely manner. 65 FR 11948 (Mar. 7, 2000). In doing so, 
the Assistant Secretary acted pursuant to Section 1911.4 of OSHA's 
procedural regulations governing informal public hearings, which allows 
the Assistant Secretary, upon reasonable notice, to specify additional 
or alternative hearing procedures for good cause. 29 CFR 1911.4. OSHA 
published the Hearing Procedures in the Federal Register, mailed them 
to every hearing participant, and placed them on its web-<strong>page</strong>. The 
Assistant Secretary and the Chief Administrative Law Judge also met 
with interested members of the public to describe and answer questions 
about the conduct of the hearing. Representatives of the U.S. Chamber 
of Commerce, United Parcel Service, Inc., the National Coalition on 
Ergonomics, and the AFL-CIO attended this meeting.
    The Hearing Procedures described the nature of the informal public 
hearing, as well as the procedural rules governing the hearing. Id. The 
Hearing Procedures gave the locations and scheduled times for the 
different hearing sites; they also permitted the presiding 
Administrative Law Judge to extend the hearing past the scheduled 
closing time for any particular day ``to assure orderly development of 
the record.'' Id.
    The Hearing Procedures emphasized that the hearing was a 
legislative-type hearing, not an adjudicative one. Id. Thus, neither 
the rules of evidence nor other procedural rules governing

[[<strong>Page</strong> 68832]]

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

[[<strong>Page</strong> 68833]]

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

[[<strong>Page</strong> 68834]]

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

[[<strong>Page</strong> 68835]]

See Ex. 502-476. This amount of time was longer than that provided for 
questioning of most other members of the public, and OSHA believes it 
was sufficient to allow members of the public to question the experts 
on ``crucial issues.''
    OSHA also encouraged its expert witnesses to provide only brief 
oral presentations. Some of them gave only short opening statements. 
See e.g., Tr. pp. 2361-65, 2366-69, 2369-72; see also Tr. pp. 1816 
(Industry questioner thanking panel of OSHA expert witnesses for 
abbreviating testimony). On other occasions, OSHA ceded the Agency's 
time to the public for questioning. See e.g., Tr. pp. 2087; 2496; 2287-
88. Contrary to the arguments of UPS and NCE that the procedures were 
somehow designed to ``minimize time available for industry 
questioning,'' Ex. 500-197. p. IV-13, OSHA's efforts in fact increased 
the amount of time for public questioning of the expert witnesses.
    Third, the Administrative Law Judge changed the questioning format 
after the second day of testimony by the government experts in order to 
allow questioning to proceed more efficiently. To ensure an even 
distribution of questioning, the Administrative Law Judge divided the 
time available for questioning among the three broad categories of 
questioners--labor, industry, and OSHA. The Hearing Procedures issued 
by the Assistant Secretary gave the Administrative Law Judge this 
authority; in fact, the Procedures envisioned the exercise of this 
authority in just such a situation. See 65 FR 11948 (Mar. 7, 2000). 
OSHA believes that this revision in format allowed all interested 
participants an even greater opportunity to question OSHA's expert 
witnesses.
    Finally, OSHA finds completely unfounded the allegation made 
repeatedly by some commenters (including the Chamber) that there was 
insufficient time to question the NIOSH panel. See e.g., Ex. 500-188, 
p. 7. OSHA allotted an entire afternoon, 3\1/2\ hours, for questioning 
of the NIOSH panel. (In total, OSHA scheduled NIOSH for a 4\1/2\ hour 
block of time to present its testimony and respond to questions.) In 
fact, the hearing was recessed early on that day because there were no 
questions left for the NIOSH panel to answer. See Tr. p. 2125. The time 
allotted for questioning of the NIOSH panel was more than adequate; if 
anything, OSHA scheduled too much time for the questioning of this 
panel.
    OSHA also believes that all interested parties had an adequate 
opportunity to present their affirmative testimony. See e.g., Tr. pp. 
16851-52. First, as OSHA stated in its Hearing Procedures, public 
witnesses were asked to summarize their written submissions. See 65 FR 
11948-49 (Mar. 7, 2000). Because written submissions were already part 
of the rulemaking record and available for all to review beforehand, 
there was no reason for participants also to read those submissions 
into the record.
    Second, OSHA established the amount of time for public testimony 
based on the amount of time witnesses requested in their Notices of 
Intent to Appear. Witnesses who requested only 10 minutes to testify 
were typically scheduled for the entire amount of time they requested 
in their Notice. If individuals requested 15 minutes, OSHA typically 
scheduled them for 10 minutes of affirmative testimony. If they 
requested 20 minutes, OSHA typically scheduled them for 15 minutes. For 
witnesses who requested longer periods of time, OSHA scheduled time for 
affirmative testimony based upon the number of topics to be addressed 
by a hearing participant. Thus, UPS filed Notices of Intent to Appear 
for over 20 individuals and requested varying amounts of time to cover 
a wide range of subject areas. Ex. 32-241-1. OSHA allotted these 
witnesses 2\1/2\ days (22 hours and forty-five minutes), a significant 
amount of time by any measure, to present their testimony and respond 
to questions. Ex. 502-476. OSHA believes that the amount of time given 
the public witnesses to testify met the goal of allowing interested 
parties to summarize their main points, while not ``unduly 
protracting'' the rulemaking process.
    Nonetheless, some participants objected throughout the hearing that 
there was not enough time to question public witnesses. See Tr. pp. 
8265; 3500; 6062. NCE et al., for example, stated that OSHA improperly 
``suspended the rules that allow for [cross-examination]'' and asked 
leading questions of certain witnesses in a manner that did not develop 
the rulemaking record. Ex. 500-197, p. IV-11, 15-16.
    OSHA did not suspend any rules allowing for cross-examination. In 
fact, as described in detail above, the hearing procedures expressly 
provided for cross-examination. The hearing was not a trial, however, 
and no OSHA procedural regulation gives the public unlimited time to 
question witnesses. The public's desire to question witnesses must be 
balanced against the primary function of the hearing: to assist OSHA in 
gathering evidence that will help the Agency determine whether and how 
to regulate. Those parties who complained that their ability to 
``cross-examine'' certain witnesses was improperly curtailed 
misunderstood the nature and purpose of OSHA's informal rulemaking 
hearings.
    It is clear that the public witnesses had adequate time to question 
each other. The schedule typically allowed a panel of witnesses to be 
questioned for one hour. In other words, for every hour of testimony, 
OSHA allowed an hour of questioning. Consistent with its decision to 
allow much more time for questioning of the government expert 
witnesses, OSHA also allowed for greater questioning of public 
witnesses who were particularly well-known in the field of ergonomics.

    <bullet> Dr. Don Chaffin, a Professor of Industrial Engineering 
at the University of Michigan, former Director of its Center for 
Ergonomic Studies, and author of numerous articles on ergonomics 
(See Ex. 500-5), appeared on a panel by himself and had only a short 
affirmative presentation; OSHA ceded its own questioning time to 
allow for more questions from the public. Tr. p. 8264.
    <bullet> Dr. Gary Franklin, a physician who treats patients with 
MSDs and has written extensively on ergonomics and MSDs, appeared on 
a panel by himself and only gave a short affirmative presentation; 
the amount of time available for questioning by industry 
representative was significantly increased by the presiding 
Administrative Law Judge. See Tr. pp. 13340-13415.
    <bullet> Dr. Barbara Silverstein, Director of the Safety and 
Health Assessment and Research Program in Washington State and 
author of numerous articles on ergonomics and MSDs, appeared on a 
panel with one other individual and had only a short affirmative 
presentation; members of the public had one hour to question the two 
witnesses. See Ex. 502-476.

    Second, OSHA repeatedly ceded to the public its own questioning 
time to allow for more questioning by public participants. See e.g., 
Tr. pp. 8264; 10546; 17602-03. The Administrative Law Judges also often 
adjusted the schedule to allow more time for questioning of witnesses 
when interested members of the public had remaining questions. See 
e.g., Tr. pp. 8263-66; 13345; 13366; 13380; 13415.
    The time available for questioning could have been substantially 
increased had more scheduled witnesses notified OSHA in advance of 
their intent not to appear. As stated above, over 100 witnesses 
canceled their appearances (amounting to approximately one week of 
scheduled hearing time), often with no advance notice. This included 
many of the same parties who objected most vigorously to the length of 
the questioning time and would have been expected to be most anxious to 
assist OSHA in increasing that time. See e.g., Tr. pp. 3138; 12036-
12041. For

[[<strong>Page</strong> 68836]]

example, UPS and its expert witnesses requested over 20 hours to 
present affirmative testimony. OSHA scheduled almost 23 hours for UPS 
testimony and questioning. UPS, however, canceled all but six of those 
witnesses. OSHA was unable to fill that time; this resulted in 
approximately two days during the hearing where no testimony or 
questioning occurred. See Ex. 502-476. Similarly:
    <bullet> Keller & Heckman LLP requested 40 minutes to testify and 
canceled its appearance. See Exs. 32-215; 32-215-1.
    <bullet> Fed Ex Corporation and its subsidiaries requested 100 
minutes to testify and canceled their appearances. See Exs. 32-203; 32-
205; 32-208; 32-209; 32-208-2.
    <bullet> NCE's economic task force requested 130 minutes to testify 
and canceled its appearance. See Ex. 32-375; Tr. pp. 12036-41.

    <bullet> The Rubber Manufacturers Association requested 45 minutes 
to testify and canceled its appearance. See Ex. 32-242; Tr. p. 3138.
All of these entities, or representatives of these entities, objected 
to the amount of time allotted for cross-examination of witnesses. See 
Ex. 500-197 section IV; Tr. p. 2303.
    NCE et al.contended that OSHA further reduced the time for the 
public questioning of witnesses by using its own questioning time 
ineffectively. Ex. 500-197, IV-14-15. But many participants in the 
hearing complained that others asked irrelevant questions, wasted time, 
and otherwise failed to develop the record efficiently. The AFL-CIO 
pointed to an exchange in which a UPS lawyer spent several transcript 
pages attempting, unsuccessfully, to elicit a particular response from 
an AFL-CIO witness. Ex. 500-218, pp. 168-170. But this merely 
highlights that one participant in a rulemaking may believe that 
certain questions are of relevance, while another participant may think 
precisely the opposite. OSHA designed the informal public hearing to 
give both itself and the hearing participants the opportunity to 
question members of the public in a manner each believed would best 
develop the rulemaking record. OSHA believes that it did this 
effectively throughout the informal hearing.
    The same participants also complained that ``OSHA withheld the 
hearing transcript from the rulemaking's participants'' and that the 
``transcripts were not provided until the hearings were ended.'' Ex. 
500-197, p. IV-17; see also Ex. 500-109. However, OSHA did not withhold 
the transcripts from the hearing participants; nor did OSHA wait until 
the end of the proceedings to make the transcripts available. First, 
during the initial week of the hearing, OSHA informed participants that 
they could contact the reporter directly to receive copies of the 
hearing transcripts. Tr. p. 936. Second, on May 3, 2000, OSHA placed on 
its web <strong>page</strong> unofficial copies of the hearing transcripts. Third, on 
May 30, 2000, OSHA made the official transcripts available on its web-
<strong>page</strong>. OSHA placed paper copies of the official transcripts in the 
Docket Office a few days later.
    There is no statutory, regulatory, or other authority requiring 
that OSHA go to such lengths to provide copies of the transcripts to 
the public. OSHA's procedural regulations state only that transcripts 
``shall be available to any interested person upon such terms as the 
presiding officer may provide.'' See 29 CFR 1911.15(b)(3). OSHA's 
efforts to make the transcripts available certainly exceeded what is 
required by its procedural regulations and was more than adequate to 
allow parties to review transcripts of the proceedings promptly and in 
a meaningful way.

C. Availability of Record Material in the Docket

    When it issued the proposal, OSHA placed in the rulemaking docket a 
large amount of material and evidence. Throughout the rulemaking, OSHA 
received additional evidence, both from rulemaking participants and 
through its own efforts. This entire body of evidence forms the basis 
for the issuance of this final standard, and OSHA took unprecedented 
steps to ensure that all of it was available for public inspection.
    The OSHA Docket Office (Docket Office) provides a number of ways to 
review and access materials submitted. First and foremost, the Docket 
Office maintains hard copies of all documents submitted to the 
rulemaking record and places them on a central shelf in the Docket 
Office reading room. Any interested party can view and copy these 
documents, consistent with applicable copyright laws. Docket Office 
staff are always available to help interested parties find and obtain 
rulemaking materials. Until recently, this method was the only way to 
access an OSHA rulemaking docket.
    Recently, however, OSHA has been exploring methods of using 
technology to make access to its dockets even more convenient. For 
example, OSHA began a process of scanning all materials into an 
electronic database. This permits interested parties to view documents 
in the database, search for documents submitted, and print copies of 
the documents. OSHA intends this system to provide an easier means to 
view materials submitted to its rulemaking records.
    Because OSHA anticipated that there would be a large amount of 
material submitted to the docket during this rulemaking, the Agency 
implemented special procedures to ensure timely and convenient access 
to the docket. For example, OSHA made the proposed rule and preamble, 
the Preliminary Economic Analysis, and the full Health Effects sections 
available on its web <strong>page</strong> and on CD-ROM. In fact, OSHA mailed a CD-ROM 
containing this information free of charge to all parties who 
participated in the stakeholder meetings OSHA held before issuance of 
the proposed rule and to any other interested party upon request.
    OSHA also extended its Docket Office hours by 3 hours a day, and 
designated an area in the Docket Office as an ``ergonomics reading 
room,'' where parties could review docket submissions as soon as they 
were received by the Agency. Ex. DC-423. In addition, OSHA moved people 
from other positions in the Agency to process public comments and scan 
the material into the computer database as quickly as possible. These 
steps, which exceeded any legal obligations and went far beyond OSHA's 
own past practice, were more than adequate to ensure interested parties 
a meaningful opportunity to comment on the proposed rule.
    Although an administrative agency engaged in rulemaking must make 
``critical factual material * * * used to support the agency's 
position'' available to the public for review in a rulemaking 
proceeding, Air Transport Ass'n. v. FAA, 169 F.3d 1, 7 (D.C. Cir. 
1999), agencies generally are not required to make the material 
``available'' in any particular format, so long as the public has an 
opportunity to review the material during the rulemaking.
    There can be no question that OSHA made the material ``available'' 
here within the meaning of this requirement. With only a few 
exceptions, OSHA placed all documents cited in the preamble to the 
Proposal in the Docket Office by November 23, 1999--the date the 
proposal was published. OSHA also scanned the documents into a computer 
database to allow interested parties to view, search, and print copies 
of the documents more efficiently. Docket Office staff were available 
to help interested parties in searching the computer database and 
locating particular documents. See Ex. 30-3956, p. 133 (``[T]he Docket 
Office staff were extraordinarily helpful in attempting to

[[<strong>Page</strong> 68837]]

assist us in gaining access to OSHA's data, even to the extent of 
allowing us a dedicated work station in the docket office (subject, of 
course, to use by OSHA staff in carrying out their projects).''). But 
OSHA did not design the database to serve as the primary mechanism for 
reviewing the rulemaking record; it is an additional convenience for 
the public.
    In fact the computer database for viewing, searching, and printing 
the record is relatively new technology in the context of OSHA's 
rulemakings. Similarly, OSHA has not previously made documents 
available on CD-ROM and the web <strong>page</strong>. Extending the hours the Docket 
Office was open to allow the public greater access to the rulemaking 
record was also not commonplace in earlier rulemakings; the Agency also 
does not typically dedicate a special area of the Docket Office to 
serve as a reading room. Thus, in numerous earlier rulemakings, 
interested parties reviewed and copied (as necessary) the paper copies 
of documents submitted to the record of a particular rulemaking. The 
extraordinary efforts made in this case not only exceeded any 
applicable legal requirements, they were an appropriate response to the 
comments of some parties that the number of issues involved in the 
rulemaking required additional accommodations. See e.g., Ex. 500-223, 
p. 94.
    For these reasons, OSHA does not agree with those commenters who 
contended that underlying record material was not available to 
interested parties for their review. NCE, for example, alleged that 
``numerous documents were missing or unavailable because they had been 
sent out for photocopying, including the 1100 <strong>page</strong> Preliminary Economic 
and Regulatory Flexibility analysis and approximately 500 pages of 
associated materials offered in support of the Agency's conclusions,'' 
Ex. 30-3956, p. 133, and that Exhibits 28-3, 28-4, 28-5, and 28-6 were 
not available for review on November 23, 1999. Ex. 30-3956, Appendix 
IV. NCE also made a number of other attacks on the integrity of the 
record and on OSHA's provision of access to it:
    <bullet> OSHA generally relied upon additional underlying data that 
it did not make available to the public.
    <bullet> There was only one high speed printer for use in the OSHA 
docket office, and that printer takes approximately two hours to print 
800 pages.
    <bullet> The Docket Office only stays open for 6 hours a day.
    <bullet> The computer systems and printers were not operating 
perfectly--there were occasional computer and printer failures.
    <bullet> OSHA rejected a request for electronic copies of the 
entire docket on disk or zip drive, even though the docket was 
available to OSHA staff through its intranet.
    <bullet> The copying fee of 15 cents a <strong>page</strong> was excessive.
    <bullet> OSHA relied on a NIOSH review of 2000 studies in 
supporting the proposed rule; ``the 2000 studies were not'' in the 
docket.
    <bullet> One economic document appeared to be named differently in 
the Preliminary Economic Analysis than in the preamble.
    <bullet> The Docket Index was incomplete at certain times during 
the pre-hearing comment period.
    <bullet> Only the cover pages of some documents were in the docket, 
as compared to the entire document.

Ex. 30-3956, pp. 134-37.
    Many of these allegations are not accurate, and those that are 
represent the minor and harmless complications of managing any large 
record. It is not true that ``numerous'' documents, including the 
Preliminary Economic Analysis, were not available for public inspection 
by November 23, 1999. The Preliminary Economic Analysis was stamped as 
received in the Docket Office at 9:55 a.m. on November 23, 1999. As 
such, it was available for inspection and copying at that time. To the 
extent interested parties had difficulty locating or obtaining the 
Preliminary Economic Analysis, Docket Office staff were available to 
assist them.
    OSHA also disputes the allegation that Exhibits 28-3, 28-4, and 28-
5 were missing on November 23, 1999. In fact, the record indicates that 
Exhibits 28-3 and 28-4 were entered into the computer database on 
November 23, 1999 and thus were certainly available for viewing at that 
time. Exhibit 28-5 is a number without an exhibit; there is no such 
document and ``Exhibit 28-5'' was not cited or relied upon by OSHA in 
the preamble to the proposed rule, or in the Preliminary Economic 
Analysis.
    OSHA does not know which other documents NCE and other commenters, 
see 30-3815, p. 4; 30-3956, pp. 133, 135; 30-3819, p. 3, claim were 
``unavailable.'' After the proposed rule was published, however, OSHA 
discovered that a few documents cited in the proposed rule had been 
inadvertently omitted from the material placed in the docket by 
November 23, 1999. These documents included the following:

    <bullet> Firm Size Data Provided by the Bureau of the Census 
(Exhibit 28-6)--These data provide estimates of the number of firms, 
number of establishments, employment, annual payroll and estimated 
receipts for employment size of firm categories by SIC code. It is 
available to the public from the Small Business Administration web 
<strong>page</strong>. OSHA used this information to estimate the economic impact of 
the proposed rule on various industries, as well as small 
businesses. When OSHA recognized that these data had inadvertently 
not been placed in the docket, it immediately placed in the docket a 
hard copy of the web <strong>page</strong> where interested parties could access the 
material (on December 23, 1999). On February 1, 2000, OSHA placed 
hard copies of the data (127 pages) in the docket. See Ex. 28-6-1.
    <bullet> RMA data--These data provide net return on sales 
information by industry SIC code and are available in many public 
libraries. OSHA used this information to estimate the economic 
impact of the proposed rule on various industries. Due to copyright 
concerns, OSHA originally did not place this information in the 
docket. OSHA later obtained permission to include these data in the 
docket; once it obtained this permission, OSHA placed the 
information in the docket (on February 18, 2000). See Ex. 28-10.
    <bullet> IRS data--These data also provide net return on sales 
information by industry and are available on the IRS web <strong>page</strong>. OSHA 
only used these data for a handful of industry sectors for which the 
RMA data were not available. When OSHA recognized that these data 
had inadvertently not been placed in the docket, it immediately 
placed the material in the docket (on January 31, 2000). See Ex. 28-
9.

    OSHA also did not rely upon data that it did not place in the 
rulemaking record. The commenters who raised this issue did not 
identify precisely what data they were referring to, see Exs. 30-3716, 
p.5; 30-3736, p. 10, but it may have been the same material that was 
requested in a number of Freedom of Information Act (FOIA) requests 
filed by some hearing participants. See e.g., Ex. 503. Some of these 
requests were for information that was in the rulemaking docket, and 
others were for information that was not part of the rulemaking record, 
because OSHA had not relied on it in the proposed rule.
    OSHA responded to the requests for information in a timely manner. 
See Ex. 500-23-1, p. 8. To the extent the information was available, 
OSHA provided it to the requesters, and, as appropriate, placed the 
FOIA requests and responses in the docket. See Ex. 503. OSHA is not, 
however, aware of any information it relied upon that it did not place 
in the docket. To be sure, OSHA receives data and information from a 
number of different sources when preparing a proposed rule. But all 
data that were relevant to the promulgation of the proposed rule and 
were relied upon by OSHA in the rulemaking were placed in the record.

[[<strong>Page</strong> 68838]]

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

[[<strong>Page</strong> 68839]]

however, did not place any new material--material that would have 
required additional analysis--into Exhibit 28-7 after correcting the 
title to the document. OSHA thus does not believe that this inaccurate 
citation deprived the public of an opportunity to review and comment 
upon the material in the Exhibit.
    OSHA also believes that the Docket Index was never ``incomplete.'' 
By its very nature, the Docket Index is an unfinished and ever-growing 
document. Interested parties are continually sending documents to OSHA 
to place in the record. When the Docket Office receives a document, it 
is processed and placed into the record. Part of the processing 
involves entering the document into the computer database and 
generating the Docket Index. Thus, the Docket Index is constantly 
growing as new information is submitted to the record. This does not 
mean, however, that the Docket Index is ``incomplete'' at any 
particular time.
    Docket Office staff processed rulemaking documents as soon as 
possible upon receipt. Indeed, OSHA moved people from other positions 
within the agency to expedite this process. OSHA does not believe that 
its processing of documents into the record and onto a Docket Index 
deprived any interested party an adequate opportunity to review the 
record or to comment meaningfully on the proposed standard.
    Finally, in a few cases, due to copyright concerns, OSHA placed 
only the cover pages and tables of contents of published documents into 
the docket. These documents were generally available to interested 
parties upon request; they were also often publicly available. See 
e.g., Tr. p. 2640 (Hearing participant complaining that only cover <strong>page</strong> 
of book in the record, but admitting he was able to obtain copy of the 
book). Once again, Docket Office staff were available to answer any 
questions from interested parties and to help locate materials that 
might otherwise be difficult to find. OSHA does not believe that this 
practice deprived interested parties of their right to review the 
record.
    As the above discussion demonstrates, OSHA undertook extraordinary 
measures to provide interested members of the public access to the 
rulemaking record. These efforts ensured that all participants had an 
opportunity to examine the underlying information and comment 
meaningfully on the proposed rule.

D. OSHA's Use of Expert Witnesses

    Consistent with its past practice, see Mintz, OSHA: History, Law, 
and Policy 64-5 (BNA 1984), OSHA contracted with a number of experts to 
testify at the hearing and to provide other assistance in the 
rulemaking process. Twenty-eight experts prepared pre-hearing comments, 
testified during the informal public hearing, answered questions at the 
hearing, and submitted post-hearing comments and data. These experts 
testified on a wide range of issues including the work-relatedness of 
MSDs, the diagnosis of MSDs, the implementation of engineering controls 
in workplaces, and the costs of ergonomic programs. See Testimony in 
Ex. 37. OSHA's use of expert witnesses in this way is expressly 
authorized by the OSH Act, is consistent with past practice, and is 
consistent with the practice of other administrative agencies.
    Section 7(c)(2) of the OSH Act states: ``In carrying out his 
responsibilities under this Act, the Secretary [of Labor] is authorized 
to * * * (2) employ experts and consultants or organizations thereof as 
authorized by Section 3109 of Title 5.'' 29 U.S.C. Sec. 656(2). The OSH 
Act does not limit the purposes for which OSHA may obtain expert 
assistance, and assuring that it has appropriate expertise during 
rulemaking proceedings falls squarely within this authorization. In 
United Steelworkers of America v. Marshall (Lead), 647 F.2d 1189 (D.C. 
Cir. 1980), the U.S. Court of Appeals for the District of Columbia 
Circuit upheld OSHA's authority under the OSH Act to employ experts to 
prepare written comments, submit relevant data, and present testimony 
during rulemaking proceedings. The court stated: ``The OSH[] Act 
empowers the agency to employ expert consultants * * * and OSHA might 
have possessed that power even without express statutory authority * * 
* .'' Id. at 1217. The court also noted that it would be absurd to 
require OSHA and other agencies to ``hire enormous regular staffs 
versed in all conceivable technological issues, rather than use their 
appropriations to hire specific consultants for specific problems.'' 
Id.
    OSHA has historically used experts to testify at public hearings 
about parts of proposed rules that fall within their areas of 
expertise. Some earlier OSHA rulemakings that involved OSHA expert 
witnesses included: the Lead rulemaking (1980); the Hazard 
Communication rulemaking (1983); the Ethylene Oxide rulemaking (1984); 
the Benzene rulemaking (1987); and the Methylene Chloride rulemaking 
(1997). Other federal agencies also use expert witnesses in ways 
similar to OSHA's. The Environmental Protection Agency, the Food and 
Drug Administration, and the Department of Transportation, for example, 
make extensive use of consultants in their rulemaking activities. See 
e.g., BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 640-41 (1st Cir. 
1979) (EPA retained outside consultants to analyze pesticide industry 
in preparation of regulation); cf. National Small Shipments Traffic 
Conf., Inc. v. I.C.C., 725 F.2d 1442, 1449 (D.C. Cir. 1984) (ICC 
retained consultant to evaluate various methodological criticisms of 
rulemaking record). As explained in A Guide to Federal Agency 
Rulemaking published by the ABA:

    Agencies sometimes use the services of outside consultants in 
developing rules or supporting analyses, particularly in rulemakings 
involving questions of science or technology as to which the agency 
needs added expertise. The tasks consultants are asked to perform 
vary, but they include testifying as witnesses, conducting research, 
summarizing and evaluating data in the record, and helping draft 
portions of the final rule and its rationale. Lubbers, A Guide to 
Federal Agency Rulemaking 243 (ABA 1998).

    Clearly, therefore, those commenters who claimed that it was 
improper, per se, for OSHA to contract with expert witnesses to 
participate in the rulemaking process were wrong. See e.g., Exs. 500-
43, pp. 1-2; 500-201, p. 2. OSHA has also considered the more specific 
objections that: (1) OSHA did not disclose to the public that it had 
contracted with the expert witnesses to participate in the rulemaking 
proceedings; (2) the expert witnesses had a financial interest in the 
rulemaking and therefore their testimony was tainted; (3) OSHA coached 
the witnesses; (4) the expert witnesses provided additional detailed 
critiques of other public commenters that were not placed in the 
rulemaking record; and (5) OSHA improperly used the expert witnesses to 
review and analyze the public comments and hearing testimony. See Exs. 
500-188, pp. 7-10; 500-197, pp. IV-1925.
    First, the rulemaking record is replete with evidence that OSHA's 
use of expert witnesses and consultants was disclosed to the public and 
was clearly known to the parties who cross-examined OSHA's experts at 
the public hearings. OSHA notified interested members of the public of 
its expert witnesses in several ways: (1) OSHA clearly listed its 
expert witnesses as ``OSHA Witnesses'' on the hearing schedule that was 
sent to hearing participants and placed on the OSHA webpage, see Ex. 
502-476; (2) OSHA placed the witnesses' testimony

[[<strong>Page</strong> 68840]]

under a separate Exhibit number in the Docket Office labeled ``OSHA 
Expert Witnesses'', see Ex. 37; and (3) OSHA referred to its expert 
witnesses when responding to questions from members of the public 
during the first two days of the hearing. See Tr. pp. 1-142; 1-189; 1-
205; 1-206; 1-229; 1-230; 719. Indeed, it was clear to the parties who 
cross-examined OSHA's experts that OSHA's experts were paid witnesses. 
For example, when an attorney representing UPS questioned OSHA witness 
Maurice Oxenburgh, he referenced the ``Expert Witness Cont[r]act for 
Dr. Maurice Oxenburgh.'' Tr. pp. 2637; see also Tr. p. 1440.
    Second, OSHA's expert witnesses had no financial interest, and 
therefore no conflict of interest, in the outcome of the ergonomics 
rulemaking. The basis for this objection, raised by NCE et al., appears 
to be that, because many of the expert witnesses were well-known 
ergonomics experts, they would benefit financially from an ergonomics 
standard, presumably because they would be hired more often to address 
ergonomic issues. According to this theory, the witnesses testified 
that there was a need for a standard on ergonomics in order to receive 
this future, speculative economic benefit. See e.g., Ex. 500-197, p. 
IV-19.
    In fact, however, OSHA hired these witnesses precisely because 
their experience with ergonomics provided them with relevant expertise. 
And their testimony shows clearly why most of them supported 
promulgation of this standard: they have participated in the 
implementation of ergonomics programs similar to those required by this 
standard, and have observed the success of those programs in reducing 
MSD rates, increasing productivity and efficiency, and decreasing 
workers' compensation costs. In other words, they believe that a 
program standard is necessary because they have seen programs work to 
reduce injuries among workers and save money for their employers. See 
e.g., Exs. 37-7; 37-25; 37-20.
    Third, there is no basis for the claim that OSHA improperly 
``coached'' the expert witnesses. One of the witnesses'' functions was 
to help the public understand the scientific and technical research on 
which OSHA based its proposal. OSHA worked with its experts to be sure 
that they were prepared to explain clearly and succinctly, the 
reasoning and assumptions on which OSHA relied in developing the 
proposed standard. Indeed, OSHA believes that it had a responsibility 
to prepare its expert witnesses to present the scientific and technical 
assumptions that underlay the proposal. This preparation, however, does 
not represent improper ``coaching'' the witnesses. See Lead, 647 F.2d 
at 1211-16. None of the expert witnesses testified to anything they did 
not believe; in fact, some criticized aspects of the proposed rule with 
which they disagreed. See e.g., Testimony of Les Boden, Tr. pp. 1683-34 
(``Even though I happen to be here at the request of OSHA, I think it's 
clear that OSHA should reword the language that describes WRP so that 
people like myself, when they first read it, won't think that it means 
that the worker is supposed to be paid 90 percent of their after tax 
earnings * * * .''); Testimony of Laura Punnett, Tr. p. 1011 (``I would 
prefer to see a standard which is based on exposure levels * * * and 
which does not require the occurrence of disorders before a program 
goes into place.'').
    Fourth, OSHA's expert witnesses did not prepare any detailed 
written critiques of public witnesses during the rulemaking process 
that OSHA could have, but did not place in the rulemaking record. The 
commenter who made this allegation, the Chamber, gave no support for 
it, but rather summarily stated: ``the Chamber understands that many of 
these supposed experts have apparently prepared detailed critiques of 
the public comments the Agency received, which have never been released 
to the public, much less subjected to rebuttal or cross-examination.'' 
Ex. 500-188, p. 8 (emphasis added). This allegation is not true. As 
detailed above, OSHA placed in the docket all of the information it 
relied upon in promulgating the standard.
    Fifth and finally, OSHA did not improperly involve expert witnesses 
in the preparation of the proposed and final rule, and in the review 
and analysis of the public comments and hearing transcripts. It is true 
that OSHA hired some experts to help in preparing the proposed and 
final rule and in evaluating the rulemaking record; however, such use 
of experts is not improper. As described above, it is expressly 
authorized by the OSH Act and has been upheld by the D.C. Circuit Court 
of Appeals. Lead, 647 F.2d at 1216 (OSHA properly hired experts ``to 
summarize and evaluate data in the record, prepare record data for 
computer processing, and help draft portions of the Preamble and the 
final standard.''). In the end, OSHA must weigh the evidence and 
determine whether a standard is appropriate and how that standard 
should be designed to substantially reduce a significant risk of 
material harm. After examining all of the evidence in the rulemaking 
record--evidence that was subject to notice and comment--OSHA has made 
the determination that this standard is reasonably necessary and 
appropriate to reduce the significant risk of MSDs. OSHA's use of 
experts in helping to make that determination was not improper or 
inappropriate.

E. Supplemental Hearing on the Economic Impact of the Proposed Standard 
on the United States Postal Service, State and Local Governments, and 
Railroads

    After OSHA published the proposed standard on November 23, 1999, it 
realized that it had failed to include in its Preliminary Economic 
Analysis and Initial Regulatory Flexibility Analysis an assessment of 
the economic impact of the proposed standard on the United States 
Postal Service, State and local governments, and railroads. Once OSHA 
recognized the omission, it conducted a supplemental analysis of the 
economic impact of the proposed standard on these groups (supplemental 
analysis) and published the analysis in the Federal Register. See 65 FR 
33263 (May 23, 2000).
    In order to allow interested parties an opportunity to comment on 
the supplemental analysis, which consisted only of 2 Federal Register 
pages (with a 10 <strong>page</strong> Technical Appendix), OSHA established a 30 day 
pre-hearing comment period, scheduled an informal public hearing on the 
supplemental analysis, and established a 34 day post-hearing comment 
period. 65 FR 33263 (May 23, 2000). The post-hearing comment period for 
the supplemental analysis closed the same day as the post-hearing 
comment period for the rest of the proposed standard. Id.
    The hearing took place on July 7, 2000 in Atlanta, GA, and 8 
parties filed Notices of Intent to Appear. See Exs. 701; 702. The 
hearing was scheduled to begin at 9:00 a.m. and conclude by the end of 
the day. 65 FR 37322, 37323 (June 14, 2000). An OSHA panel was 
available for questioning on the supplemental analysis from 9:15 a.m. 
until 12:00 p.m. A representative of UPS questioned the panel for more 
than two hours, and the presiding Administrative Law Judge permitted 
one person who had not filed a Notice of Intent to Appear to question 
OSHA for about 10 minutes. See Tr. pp. 18153-55; 18218. A 
representative of the railroad industry was the only party to present 
testimony at the afternoon session--the others having canceled their 
appearances--and the hearing concluded early. See Tr. pp. 18217-81.

[[<strong>Page</strong> 68841]]

    OSHA's issuance of the supplemental analysis and procedures for 
comment on the analysis were consistent with applicable law. As 
described in detail above, the OSH Act and OSHA's procedural 
regulations require that OSHA provide at least 30 days for interested 
parties to comment on a proposed rule. 29 U.S.C. 655(2); 29 CFR 
1911.11(b)(3). OSHA gave interested parties such an amount of time to 
submit pre-hearing comments on the supplemental analysis.
    OSHA's procedures for seeking comment were also adequate to allow 
interested parties an opportunity to meaningfully comment on the 
supplemental analysis. The supplemental analysis was based in large 
measure on the original Preliminary Economic Analysis published on 
November 23, 1999. Id. at 33264. Interested parties, therefore, were 
familiar with the methodology employed by OSHA in the supplemental 
analysis before it was published on May 23, 2000. Indeed, virtually all 
of the parties who filed a Notice of Intent to Appear at the informal 
public hearing on the supplemental analysis (or who submitted written 
comments on the supplemental analysis) also filed written comments on 
the November 23, 1999 proposal. See e.g., Comments of the United States 
Postal Service, Ex. 35-106; Comments of the Association of American 
Railroads, Ex. 30-3750; Comments of UPS, Ex. 32-241-4.
    Because it was based on the earlier Preliminary Economic Analysis, 
the supplemental analysis was not a large, complicated document. See 
e.g., Ex. 28-15 (Technical Appendix). Interested parties did not need 
to review numerous additional documents to prepare written comments. In 
addition, the industries analyzed in the supplemental analysis 
represented only a small fraction of the total industries affected by 
the proposed rule.
    OSHA therefore disagrees with those commenters who contended that, 
by setting a 30 day pre-hearing comment period and by failing to 
provide a bifurcated post-hearing comment period (i.e., the first part 
of the period for submission of additional data and evidence and the 
second part for post-hearing briefs and argument), OSHA did not provide 
for adequate comment on the supplemental analysis. OSHA gave interested 
parties more than 60 days to comment on the supplemental analysis 
(including the pre-hearing and post-hearing comment period); OSHA 
believes this period of time was more than adequate to allow interested 
parties to review the relevant record material, submit written comments 
and data, and prepare for the informal public hearing. In fact, the 
information supplied by the railroad industry was largely responsible 
for OSHA's decision to reserve for possible future rulemaking the issue 
of the applicability of the final rule to the railroad industry. See 
Discussion in Part IV, Paragraph (b) above.

F. The Post-Hearing Comment Period

    As stated above, the Hearing Procedures established a 90 day post-
hearing comment period for the rulemaking. 65 FR 11948, 11949 (Mar. 7, 
2000). During the first 45 days of the period (until June 26, 2000), 
hearing participants could submit additional data and evidence to the 
rulemaking record. Id. Hearing participants had until August 10, 2000 
to submit post-hearing briefs and arguments. Furthermore, trade 
associations or other groups who filed Notices of Intent to Appear were 
permitted to attach to their post-hearing submissions comments from 
their members who had not participated in the informal public hearing. 
See e.g., Ex. 500-1. Numerous hearing participants availed themselves 
of the post-hearing comment period. For example:
    <bullet> NCE et al. submitted 906 pages of new information and data 
and submitted a 565 <strong>page</strong> brief. See Exs. 500-118; 500-197.
    <bullet> The Chamber submitted 22 pages of new information and data 
and submitted a 107 <strong>page</strong> brief. See Exs. 500-109; 500-188.
    <bullet> The AFL-CIO submitted 2072 pages of new information and 
data and submitted a 178 <strong>page</strong> brief. See Exs. 500-71; 500-97; 500-218.
    <bullet> The American Iron and Steel Institute submitted 186 pages 
of new information and data and submitted a 129 <strong>page</strong> brief. See Exs. 
500-168; 500-223.
    OSHA and its expert witnesses also participated in the post-hearing 
comment period. OSHA submitted new evidence and data it had obtained 
since publication of the proposal to the docket by June 26, 2000. See 
Ex. 502. Some of OSHA's expert witnesses also submitted new data, 
information, and argument at this time. See e.g., 500-38; 500-134; 500-
84. A few expert witnesses also submitted argument after June 26, 2000. 
See e.g., 500-167. These arguments were postmarked on or before August 
10, 2000, in accordance with the Hearing Procedures. 65 FR 11948, 11949 
(Mar. 7, 2000).
    The 90 day post-hearing comment period and OSHA's participation in 
it were consistent with Agency practice in past OSHA rulemakings, and 
did not deprive any member of the public the opportunity to comment on 
relevant evidence. Past OSHA rulemakings have included post-hearing 
comment periods of similar length. For example:
    <bullet> Powered Industrial Trucks--90 day post-hearing comment 
period. 63 FR 66237 (Dec. 1, 1998).
    <bullet> Cadmium--90 day post-hearing comment period. 57 FR 42101 
(Sept. 14, 1992).
    <bullet> Process Safety Management--90 day post-hearing comment 
period. 57 FR 6356 (Feb. 24, 1992).
    <bullet> Hazard Communication--93 day post-hearing comment period. 
48 FR 53280 (Nov. 25, 1983).
    Indeed, in the Air Contaminants rulemaking the Secretary of Labor 
established a 77 day post-hearing comment period, a shorter period than 
that provided here. 53 FR 34708 (Sept. 7, 1988). As described in more 
detail above, the time allotted for comment in that rulemaking was 
challenged in the 11th Circuit Court of Appeals, which held that those 
comment periods did not deprive individuals of the opportunity to 
comment meaningfully. Air Contaminants, 965 F.2d at 969 n.8.
    Here, too, OSHA believes that the 90 day post-hearing comment 
period was more than adequate to allow interested parties an 
opportunity to submit additional data and argument on the proposed 
rule. As stated above, parties who participated in the informal public 
hearing had 216 days, including the 90 day post-hearing comment period, 
from the date OSHA published the proposed rule to submit data and 
evidence to the rulemaking record for OSHA's consideration. They had 
261 days from the date OSHA published the proposed rule to submit 
briefs and arguments to the rulemaking record. OSHA believes that this 
gave interested parties more than enough time to review the record, 
comment on the evidence submitted, and comment on the proposed rule.
    In addition, the participation of OSHA and its expert witnesses in 
the post-hearing comment period was not improper. See Ex. 803-2. First, 
the Hearing Procedures did not preclude OSHA and its expert witnesses 
from participating in the post-hearing comment period. See 803-2. In 
past rulemakings, OSHA and its expert witnesses have participated fully 
in post-hearing comment periods by submitting data, evidence, and 
argument. See e.g., Docket S775 (Steel Erection); Docket H225 
(Formaldehyde); Docket S048 (Logging); Docket H049 (Respiratory 
Protection). For OSHA and its expert witnesses not to submit additional 
data and information it becomes aware of in the post-hearing

[[<strong>Page</strong> 68842]]

comment period would be negligent, given OSHA's mandate to consider the 
``best available evidence'' in promulgating a standard. It would also 
give rise to the charge that OSHA was relying in the final standard on 
non-record evidence.
    Second, in accordance with the Hearing Procedures, OSHA and its 
expert witnesses submitted all new data and evidence by June 26, 2000. 
Although some of the material was not scanned into the computer 
database until later, all of the information was available after June 
26, 2000, in hard copy form in the Docket Office. OSHA even prepared a 
finding aid to help interested members of the public locate and review 
the information submitted. Thus, interested members of the public had 
an opportunity to review and comment on all new data and evidence 
submitted by OSHA and its expert witnesses. OSHA admits that a handful 
of its expert witnesses, like many other Hearing Participants, 
submitted post-hearing argument on August 10, 2000. See e.g., Exs. 500-
167; 500-187; 500-173. As explained above, this was permitted under the 
Hearing Procedures. 65 FR 11948, 11949 (Mar. 7, 2000). OSHA does not 
believe that these submissions constituted new information or data, as 
some commenters suggested. See 803-2. Rather, these submissions 
interpreted and analyzed evidence and data that were already a part of 
the rulemaking record. In any events, OSHA has not relied in the final 
standard on comments from its expert witnesses submitted after June 26, 
2000.
    OSHA acknowledges that NIOSH submitted a handful of new studies to 
the rulemaking record after the June 26, 2000 deadline. Because of 
this, OSHA has not relied upon these studies in promulgating this final 
rule; OSHA has also not relied upon the conclusions NIOSH reached in 
its post-hearing brief as evidence in the final standard, even though 
OSHA believes that NIOSH's post-hearing brief represents argument, not 
new data and evidence. OSHA has considered, however, the numerous 
studies NIOSH submitted in accordance with the Hearing Procedures on 
June 26, 2000. See Ex. 500-121. In short, OSHA is not relying in this 
standard on any information that interested parties did not have an 
opportunity to comment upon.
    Finally, OSHA notes that some Hearing Participants submitted new 
evidence and data to the rulemaking record on August 10, 2000. See 
e.g., Ex. 500-219. This new data and evidence was not submitted in 
accordance with the Hearing Procedures and other hearing participants 
did not have an opportunity to comment upon it during the post-hearing 
comment period. See 65 FR 11948, 11949 (Mar. 7, 2000). OSHA is thus 
under no obligation to consider it in promulgating the final rule. Even 
so, OSHA has examined the information and data carefully and given it 
appropriate consideration (consistent with the fact that it has not 
been subject to rebuttal by other hearing participants).
    For these reasons, OSHA does not agree with those commenters who 
have implied that the post-hearing comment period was too brief or that 
OSHA and its expert witnesses improperly participated in the post-
hearing comment period. See e.g., Exs. 803-2; 500-197, p. IV-9.

XIII. Federalism

    OSHA has reviewed the final ergonomics program rule in accordance 
with the Executive Order on Federalism (Executive Order 13132, 64 FR 
43255, August 10, 1999). This Order requires that agencies, to the 
extent possible, refrain from limiting state policy options, consult 
with States prior to taking any actions that would restrict state 
policy options, and take such actions only when there is clear 
constitutional authority and the presence of a problem of national 
scope. The Order provides for preemption of State law only if there is 
a clear Congressional intent for the agency to do so. Any such 
preemption is to be limited to the extent possible.
    Section 18 of the Occupational Safety and Health Act (OSH Act) 
expresses Congress' clear intent to preempt State laws with respect to 
which Federal OSHA has promulgated occupational safety or health 
standards. Under the OSH Act a State can avoid preemption only if it 
submits, and obtains Federal approval of, a plan for the development of 
such standards and their enforcement. Occupational safety and health 
standards developed by such State Plan States must, among other things, 
be at least as effective as the Federal standards in providing safe and 
healthful employment and places of employment.
    Since many work-related MSDs are reported every year in every State 
and since MSD hazards are present in workplaces in every state of the 
Union, the risk of work-related MSD disorders is clearly a national 
problem. The Federal final ergonomics program standard is written so 
that employees in every State would be protected by the standard. To 
the extent that there are any State or regional peculiarities, States 
with occupational safety and health plans approved under Section 18 of 
the OSH Act would be able to develop their own comparable State 
standards to deal with any special problems.
    In short, there is a clear national problem related to occupational 
safety and health for employees exposed to MSD hazards in the 
workplace. Any rule pertaining to ergonomics developed by States that 
have elected to participate under Section 18 of the OSH Act would not 
be preempted by this final rule if the State rule is determined by 
Federal OSHA to be ``at least as effective'' as the Federal rule. 
California has already promulgated a final ergonomics standard, and so 
has Washington. The State of North Carolina has proposed one. Because 
the ergonomics program standard may preempt State rules that are not 
``at least as effective'' as the Federal rule, OSHA has determined that 
it has ``federalism implications'' as defined in Executive Order 13132. 
The order requires consultation with State and local governments for 
regulations that have federalism implications.
    In the course of OSHA's development of this final standard for 
ergonomics, OSHA solicited and received a great deal of participation 
from representatives of state, county and municipal governments. Some 
representatives participated by attending one or more stakeholder 
meetings held by OSHA in the early stages of the rulemaking effort. 
Others participated by submitting written comment or testifying at the 
public hearing. Below is a listing of those who participated in the 
rulemaking process.
    Representatives of the following state, county, and municipal 
entities attended one or more of the OSHA-sponsored stakeholder 
meetings addressing the Ergonomic Program Standard:

    The City of Greensboro, N.C.; the Virginia State Department of 
Labor and Industry; the State of Hawaii Department of Labor; the 
Washington State Department of Labor and Industries; Iowa OSHA; the 
Maryland Occupational Safety and Health Administration; the New York 
State Department of Labor; the North Carolina Safety and Health 
Program, and Utah OSHA.

    Representatives of the following state, county, and municipal 
entities were invited to attend one or more of the OSHA-sponsored 
stakeholder meetings addressing the Ergonomic Program Standard, but 
elected not to send a representative:

    Cal/OSHA Consultation Services; California OSHA; the City of 
Casper, Wyoming; The City of Mt. Airy, North Carolina; the City of 
Portland, Oregon, Bureau of Risk Management; the North Carolina 
Department of Labor; the North

[[<strong>Page</strong> 68843]]

Carolina League of Municipalities; the Ohio Bureau of Workers' 
Compensation; Oregon OSHA; the State of Kansas Consultation Program, 
and the Texas Workers Compensation Insurance Fund.

    Representatives of the following state, county, and municipal 
entities provided comments to the public rulemaking docket for the 
proposed Ergonomic Program Standard (Docket S-777):

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

[[<strong>Page</strong> 68844]]

entities gave oral testimony at the informal public hearings on the 
proposed Ergonomic Program Standard:

    The New York State Attorney General; the National League of 
Cities; the Montgomery County (Ohio) Administration; the State of 
New Mexico Worker's Compensation Administration; the State of 
California Department of Health and Human Services; the City of 
Portland, Oregon; the Multnomah County, Oregon Government; the 
Oregon Workers' Compensation Division and the State of Washington 
Department of Labor and Industries.

    Representatives of the following state, county, and municipal 
entities provided written comments at the informal public hearing on 
the proposed Ergonomic Program Standard:

    The Wisconsin Department of Industry and Labor (Ex. DC-78); the 
New Jersey Department of Health and Senior Services (Ex. DC-109A); 
Montgomery County, Ohio (Ex. Il-169); the New Mexico Workers' 
Compensation Administration (Ex. Il-222); the City of Portland, 
Oregon (Ex. Or-324); the Oregon Department of Consumer and Business 
Services (Ex. Or-350-1); the State of Oregon Board of Dentistry (Ex 
OR-351-9); the National League of Cities (Ex. DC-371) and the 
Washington State Department of Labor and Industry (Exs. DC 417, 417-
1 and 417-2).

    OSHA's ergonomics rulemaking process has thus involved hundreds of 
representatives from every level of government. Many State governments 
(e.g., Maine, Washington, Oregon, Kansas, Arizona. Kentucky, 
Pennsylvania, New York, Nevada, Texas, Montana, Missouri, New Mexico, 
Alaska, California, Indiana, North Caroline, Massachusetts, Florida, 
Tennessee, Utah and local and municipal governments (e.g., Nashville, 
TN; Portsmouth, VA; Petersburg, AK; Greensboro, NC; Multnomah County, 
OR; District of Columbia, Blackburn-Christainsburg, VA; Ypsilanti, MI; 
Long Beach, CA; Denver, CO; Richmond, IN; Montgomery County, OH) 
participated either by appearing in person at the hearings or 
submitting written comments. Municipal and State entities represented 
included, water districts, school districts, electrical utilities, 
public works departments, municipal authorities, hospitals and long-
term care facilities, labor commissions, human resource departments, 
universities, legislative bodies, industrial commissions, workers' 
compensation administrations, public transportation systems, emergency 
medical services, public highway authorities, emergency medical 
services, public highway authorities, state insurance funds, public 
health departments, and environmental services.
    Representation by governmental entities has been greater for this 
rule than for any other OSHA rule. OSHA has benefitted from the 
information and data provided by these representatives at stakeholder 
meetings held during the years the standard was under development, and 
the Agency has carefully reviewed and considered the oral testimony and 
written submissions of the participants. Many of their comments are 
addressed throughout the preamble to the final rule, others are 
discussed below.
    An examination of the comments revealed that many commenters shared 
similar concerns and views on how to remedy those concerns. OSHA 
received hundreds of comments, for example, expressing concern that the 
proposed standard lacked clarity. Over 80 of these comments were 
identical, raising concerns about coverage, costs and how to comply. 
For example, many commenters said:

    * * * The lack of specificity throws OSHA's estimates of range 
of impact and cost to employers into serious question. It also 
leaves employers attempting to comply in good faith at risk of non-
compliance. Based on these concerns, I therefore, request that OSHA 
review its proposed ergonomics standard and provide clarification 
about both what kind of work and what types of workers are covered 
by it.

    Commenters asked that OSHA clarify its exemption of construction 
work. OSHA has responded in depth to these concerns in the summary and 
explanation of the rule (see the discussion for paragraph (b), Does 
this standard apply to me?) Other commenters asked for clarification as 
to the application of the rule to the agricultural industry, inmates in 
penal institutions, the manufacturing industry, the ambulance industry, 
and the solid waste management industry. These issues are also 
addressed in the summary and explanation for paragraph (b). Some of the 
specific comments are discussed in greater detail below.
    Some commenters complained the proposal was too long; the comment 
period too short and then questioned the science used by OSHA, 
suggesting that OSHA table its work until the National Academy of 
Sciences completes its second literature review. (Exs.30-1018; 30-1536; 
and 30-1847). Comments addressing procedural issues are discussed in 
the Procedural Issues section of the preamble; those on the science 
supporting this rule are reviewed in the Health Effects section 
(Section V).
    The Des Moines Water Works, the Oregon Department of Consumer and 
Business Services, the Alaska Municipal League, and the Long Beach 
Public Transportation Company (See, e.g., Exs. 30-254; 30-1110; 30-
1536; 30-1539;), among many others, expressed concerns regarding the 
effect of the rule on Workers' Compensation Systems and suggested that 
workers' comp is an area best left to the states to address. Some 
commenters questioned whether OSHA had the authority to address issues 
related to workers' compensation systems and questioned whether OSHA's 
cost estimates included the cost to be expended by ``every company in 
the nation in renegotiate their workers compensation premium costs with 
insurance companies for these WRP payments?'' (Ex. 30-254). Issues 
raised by commenters about workers' compensation and its relation, or 
lack of it, to OSHA's work restriction protections, are responded to in 
the summary and explanation for paragraph (r).
    The Pennsylvania Farm Bureau (Ex. 30-1121) said the proposal raised 
concerns for farm employers even though OSHA did not propose to apply 
the rule to agriculture. One concern cited by this commenter was that 
farmers would be affected by higher costs passed on to them by 
suppliers and others directly impacted by the rule. Another concern 
expressed by the Bureau was the extent to which agricultural operations 
were exempt from the rule. The Bureau cited various OSHA 
interpretations and language used to clarify when general industry and 
agricultural standards applied as the reason for their concern. The 
Pennsylvania Farm Bureau stated that OSHA should exclude agriculture 
from the coverage of the proposed standard. Similar concerns on this 
issue were raised by the Pennsylvania Farm Bureau, the New York Farm 
Bureau, the North Carolina Farm Bureau Federation, and others (See 
e.g., Ex. 30-1201; 30-1418; 30-1421) as well as individual farmers (See 
e.g., Ex. 30-1202 and 30-1204). OSHA notes that the final Ergonomic 
Program Standard does not apply to agricultural operations. A full and 
complete discussion of this issue can be found in the summary and 
explanation for paragraph (b), Does this standard apply to me?
    Some commenters (Exs. 30-1536 and 30-1583) who are members of the 
National League of Cities (NLC) noted that the NLC does not support the 
application of the federal ergonomics standards to municipal 
governments. They cited their inability to obtain funding and their 
lack of technical resources to put an ergonomic program together as 
reasons for the objection. OSHA will provide considerable

[[<strong>Page</strong> 68845]]

compliance assistance to the regulated community that may help NLC 
members reduce expenditures and develop solutions. These materials will 
be listed on OSHA's website at <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.osha.gov">www.osha.gov</A>.
    The Salem County Utilities Authority (Ex. 30-1714) registered their 
support for the position of the National Solid Wastes Management 
Association's (NSWMA) request that the solid waste management industry 
be exempt from the ergonomic program standard. This commenter listed a 
number of reasons similar to those set out by OSHA in the proposed rule 
as the basis for the exemption of the construction, maritime and 
agricultural industries. OSHA's response to NSWMA's concerns are 
addressed in connection with paragraph (b) of the summary and 
explanation.
    The Texas Department of Criminal Justice (TDCJ) (Ex. 30-1847) 
requested an exemption for correctional worker positions and asked for 
clarification of the applicability of the rule to prisoners assigned to 
manufacturing positions. Like other commenters, TDCJ expressed concern 
about the number of new staff that would be needed, in their view, to 
comply with the ergonomics program standard.
    The Butler Rural Electric Cooperative, Inc. (Ex. 30-182) 
acknowledged the importance of an ergonomics program and provided 
details on the work already done by Butler; however, they believe that 
the OSHA ergonomics program standard is not necessary because OSHA 
could continue to rely on the General Duty Clause to do the job. In 
addition, Butler raised some concerns about the Work Restriction 
Protection provisions of the proposal, which they believe will 
encourage fraud. Again, these are areas of concern that have been 
raised by other commenters and are discussed at length in the summary 
and explanation section for paragraph (r).
    The Stanislaus County (CA) Risk Management Division (Ex. 30-1531) 
suggested that more specific guidance was needed to help employers 
comply with the standard. They supported the grandfather clause, 
stating that ``Stanislaus County has saved millions of dollars over the 
last six years with the implementation of our injury and loss 
prevention program. One of these programs includes ergonomics.'' They 
support the grandfather clause because they believe ``There should be 
some incentive for those employers who are already making a good faith 
effort, with programs in place, to be rewarded, and we would encourage 
you to keep the grandfather clause.'' In response, OSHA notes that the 
final rule contains a grandfather clause (see paragraph (c)).
    The Long Beach Public Transportation Company (Ex. 30-1539) stated 
their agreement with the fundamental concepts proposed by OSHA, but 
expressed some opposition regarding the classification of MSDs and the 
standard's potential impact on workers compensation laws. Long Beach 
Transportation encouraged OSHA ``to provide education to promote even 
more voluntary employer ergonomic programs to address the issues of 
MSDs.'' The concluding comment of this entity was that ``The Standard, 
as proposed, however would place an economic and regulatory burden on 
employers, would treat injured employees inequitably and would 
jeopardize voluntary systems already in place to address this issue.'' 
This view was also expressed by many commenters from state, county and 
municipal governments. In response, OSHA notes that employers and 
entities covered by the rule can anticipate to reap substantial 
benefits from their programs (see the discussion of the results 
achieved by others in the final economic analysis).
    The Richmond Ambulance Authority (RAA) (Ex. 30-3311) stated that 
they ``applaud and support OSHA's effort to address ergonomic concerns 
in the workplace.'' This commenter then listed a few areas of concern 
and noted that the exemption criteria for industries with special 
compliance issues clearly apply to the ambulance industry. The RAA said 
that ``compliance efforts by members of the ambulance industry would be 
extremely costly'' and urged OSHA to exclude back pain from the kinds 
of MSDs covered.
    OSHA is grateful to the many state, local, municipal, other 
government entities who have participated actively in this rulemaking. 
All the concerns raised by these commenters have been considered, and 
many changes to the rule have been made based on the comments and 
suggestions provided by these participants.

XIV. State Plans States

    The 23 states and 2 territories which operate their own Federally-
approved occupational safety and health plans must adopt a comparable 
standard within six months of the publication date of a final standard. 
These States include: Alaska, Arizona, California, Connecticut (for 
State and local government employees only), Hawaii, Indiana, Iowa, 
Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York 
(for State and local government employees only), North Carolina, 
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, 
Virginia, Virgin Islands, Washington, Wyoming. Until such time as a 
state or territorial standard is promulgated, Federal OSHA will provide 
interim enforcement assistance, as appropriate.

XV. OMB Review Under the Paperwork Reduction Act of 1995

    This final ergonomics program standard contains collections of 
information (paperwork) that are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995 
(PRA'95), 44 U.S.C. 3501 et seq. and its regulation at 5 CFR Sec. 1320. 
PRA'95 defines collection of information to mean, ``the obtaining, 
causing to be obtained, soliciting, or requiring the disclosure to 
third parties or the public of facts or opinions by or for an agency 
regardless of form or format.'' [44 U.S.C. Sec. 3502(3)(A)]. OSHA 
submitted an Information Collection Request (ICR) for OMB approval when 
the proposed rule for the ergonomic program standard was published on 
November 23, 1999. OMB did not approve the ergonomic program's 
information collection provisions at that time, but instructed the 
Agency that future ICR submissions should use the OMB control number 
1218-0245. OSHA has submitted a final ICR estimating the paperwork 
burden hours and costs, to OMB as required by 5 CFR Sec. 1320.11(h) for 
approval. Public comments regarding paperwork issues are addressed in 
the Summary and Explanation, and Cost and Benefit chapters of the final 
standard.
    The following section provides information on the collections of 
information contained in the final ergonomics program standard, as 
required by 5 CFR Sec. 1320.5(a)(1)(iv) and Sec. 1320.8(d)(2) . It 
describes the collections of information, the need for and proposed use 
of the information, and the covered employers who will be required to 
collect and maintain information under the standard. The section also 
discusses the required time periods for collecting and maintaining this 
information, and provides an estimate of the annual cost and reporting 
burden. (Reporting burden includes the time for reviewing instructions, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information.)
    Title: The ergonomics program standard, 29 CFR Sec. 1910.900.
    Description: The final ergonomics program standard addresses the 
significant risk of work-related MSDs confronting employees in various 
jobs in general industry workplaces. The standard's information 
collection requirements are essential components

[[<strong>Page</strong> 68846]]

that will help employers and employees to recognize work-related MSDs 
and to determine what must be done to address these MSDs and MSD 
hazards in the workplace. OSHA compliance officers will use some of the 
information in their enforcement of the standard.
    Summary of the Collections of Information: The final ergonomics 
standard requires employers to do the following: familiarize themselves 
with the final standard; provide basic ergonomic information to their 
employees; receive employees' reports of musculoskeletal disorders 
(MSDs) or MSD signs or symptoms; and determine if a reported MSD is 
work-related and if the employee's job meets the standard's Action 
Trigger. If an employee's job meets the standard's Action Trigger, the 
employer will incur additional paperwork requirements in complying with 
the ergonomics program requirement or the quick fix option.
    MSD management is triggered when the employee experiences a work-
related MSD that meets the Action Trigger and requires medical 
treatment beyond first aid, or involves MSD signs or MSD symptoms that 
last for 7 or more consecutive days after the employee first reports 
them to the employer. The employer must provide that employee with 
access to a health care professional (HCP). When the employee consults 
with an HCP, the employer must obtain a written opinion from the HCP 
and provide a copy of that opinion to the employee. The employer must 
provide the HCP with a description of the employee's job and 
information about the physical work activities, risk factors, and MSD 
hazards in the job; a copy of this standard; and a list of items that 
the HCP's written opinion must contain, including temporary work 
restrictions, if necessary.
    Paperwork requirements for employers to develop and implement the 
ergonomic program include: management leadership, employee 
participation in the employer's ergonomic program, job hazard analysis, 
hazard control measures, and evaluation of the ergonomic program.
    Employers with 10 or more employees, including part-time employees, 
must keep written or electronic records of the following: (i) Employee 
reports of MSDs, their signs and symptoms and MSD hazards, (ii) 
Employer's response to employee reports; (iii) Job Hazard Analysis; 
(iv) Hazard control measures, (v) Quick fix process, (vi) Ergonomics 
program evaluations, and (vii) Records of work restrictions and the HCP 
written opinions. Employers must keep all records, except the HCP 
written opinion, for 3 years or until replaced by updated records, 
whichever comes first. The HCP written opinion must be kept for the 
duration of the employee's employment plus 3 years.
    Employers must provide employees, their representatives, OSHA, and 
NIOSH access to the above records, except the HCP opinions, for 
examination and copying in accordance with the procedures and time 
periods provided in 29 CFR 1910.1020(e)(1), (e)(2)(ii), (e)(3) and (f). 
Employers must provide the HCP opinion to employees, to anyone having 
the specific written consent of the employee, to OSHA, and to NIOSH 
upon request for examination and copying in accordance with the 
procedures and time periods provided in 29 CFR 1910.1020(e)(1), 
(e)(2)(ii), (e)(3) and (f).
    Respondents: Employers in general industry. The standard does not 
apply to employment covered by the following OSHA standards, or to 
employment such as office management and support services directly 
related to that employment: (i) OSHA construction standards in Part 
1926; (ii) OSHA's maritime standards in Part 1915, 1917, or 1918; or 
OSHA's agriculture standards in Part 1928. The standard also does not 
apply to railroad operations or to employment such as office management 
and support services directly related to the operation of a railroad.
    Frequency of Response: All employers must provide basic ergonomic 
information to current and new employees. The frequency of other 
paperwork requirements is determined by whether the employer has an 
employee who has experienced an MSD incident, and whether the 
employee's job meets the standard's Action Trigger.
    Average Time Per Response: Time per response varies, from minimal 
recordkeeping requirements for a quick fix situation, to establishing 
and implementing a complete ergonomics program.
    Total Burden Hours: Approximately 36.5 million hours.
    Estimated Costs (Operating and Maintenance): $61 million 
(purchasing services).

XVI. Authority and Signature

    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 
20210.
    This final standard is issued pursuant to sections 4, 6, and 8 
Occupational Safety and Health Act, 29 U.S.C. 653, 655, 657, Secretary 
of Labor's Order No. 3-2000 (65 FR 50017) and 29 CFR Part 1911.

List of Subjects in 29 CFR Part 1910

    Ergonomics program, Health, Musculoskeletal disorders, Occupational 
safety and health, reporting and recordkeeping requirements.

    Signed at Washington, DC, this 6th day of November 2000.
Charles N. Jeffress,
Assistant Secretary of Labor for Occupational Safety and Health.

XVII. The Standard

    The Occupational Safety and Health Administration is amending Part 
1910 of title 29 of the Code of Federal Regulations as follows:

PART 1910--[AMENDED]

    New Subpart W of 29 CFR Part 1910 is added to read as follows:
Subpart W--Program Standards
Sec.
1910.900   Ergonomics program standard.

Subpart W--Program Standards

    Authority: Secs. 4, 6, and 8, Occupational Safety and Health 
Act, 29 U.S.C. 653, 655, 657, Secretary of Labor's Order No. 3-2000 
(65 FR 50017); and 29 CFR Part 1911.


Sec. 1910.900  Ergonomics Program Standard.

    (a) What is the purpose of this standard? The purpose of this 
standard is to reduce the number and severity of musculoskeletal 
disorders (MSDs) caused by exposure to risk factors in the workplace. 
This standard does not address injuries caused by slips, trips, falls, 
vehicle accidents, or similar accidents.

    Note to paragraph (a): Definitions of terms used in this 
standard are in paragraph (z) of this section.

    (b) Does this standard apply to all employers? This standard covers 
all employers covered by the Act with the following exceptions:
    This standard does not apply to employment covered by the following 
OSHA standards, or to employment such as office management and support 
services directly related to that employment:
    (i) OSHA's construction standards in Part 1926 of this chapter;
    (ii) OSHA's maritime standards in Part 1915, 1917, or 1918 of this 
chapter; or
    (iii) OSHA's agriculture standards in Part 1928 of this chapter.

[[<strong>Page</strong> 68847]]

    (2) This standard does not apply to railroad operations or to 
employment such as office management and support services directly 
related to the operation of a railroad.
    (c) How does this standard apply if I already have an ergonomics 
program in place when the OSHA ergonomics program standard becomes 
effective? 
    (1) You may continue to implement your program instead of complying 
with paragraphs (d) through (y) of this section, provided that your 
program is written, complies with the requirements of paragraph (c) of 
this section, has been implemented before November 14, 2000, and 
contains the following program elements:
    (i) Management leadership, as demonstrated by an effective MSD 
reporting system and prompt responses to reports, clear program 
responsibilities, and regular communication with employees about the 
program;
    (ii) Employee participation, as demonstrated by the early reporting 
of MSDs and active involvement by employees and their representatives 
in the implementation, evaluation, and future development of your 
program;
    (iii) Job hazard analysis and control, as demonstrated by a process 
that identifies, analyzes, and uses feasible engineering, work 
practice, and administrative controls to control MSD hazards or to 
reduce MSD hazards to the levels below those in the hazard 
identification tools in Appendix D to this section or to the extent 
feasible, and evaluates controls to assure that they are effective;

    Note to paragraph (c)(1)(iii): Personal protective equipment 
(PPE) may be used to supplement engineering, work practice, and 
administrative controls, but you may only use PPE alone where other 
controls are not feasible. Where PPE is used, you must provide it at 
no cost to employees.

    (iv) Training of managers, supervisors, and employees (at no cost 
to these employees) in your ergonomics program and their role in it; 
the recognition of MSD signs and symptoms; the importance of early 
reporting; the identification of MSD hazards in jobs in your workplace; 
and the methods you are taking to control them; and
    (v) Program evaluation, as demonstrated by regular reviews of the 
elements of the program and of the effectiveness of the program as a 
whole, using such measures as reductions in the number and severity of 
MSDs, increases in the number of jobs in which MSD hazards have been 
controlled, or reductions in the number of jobs posing MSD hazards to 
employees; and the correction of identified deficiencies in the 
program. At least one review of the elements and effectiveness of the 
program must have taken place prior to January 16, 2001.
    (2) By January 16, 2002, you must have implemented a policy that 
provides MSD management as specified in paragraphs (p), (q), (r), and 
(s) of this section.
    (3) An employer who has policies or procedures that discourage 
employees from participating in the program or reporting the signs or 
symptoms of MSDs or the presence of MSD hazards in the workplace does 
not qualify for grandfather status under paragraph (c) of this section.
    (d) If the standard applies to me, what initial action must I take?
    (1) You must provide each current and each new employee basic 
information about:
    (i) Common musculoskeletal disorders (MSDs) and their signs and 
symptoms;
    (ii) The importance of reporting MSDs and their signs and symptoms 
early and the consequences of failing to report them early;
    (iii) How to report MSDs and their signs and symptoms in your 
workplace;
    (iv) The kinds of risk factors, jobs and work activities associated 
with MSD hazards; and
    (v) A short description of the requirements of OSHA's ergonomics 
program standard.
    (2) You must make available to the employee a summary of the 
requirements of this standard.
    (3) You must provide the information in written form or, if all 
employees have access, in electronic form. You must provide the 
information to new employees within 14 days of hiring. You must post 
the information in a conspicuous place in the workplace (e.g., employee 
bulletin board or, if all employees have access, electronic posting).

    Note to paragraph (d): You may use the information sheet in non-
mandatory Appendix A to this section to comply with paragraphs 
(d)(1) of this section and the summary sheet in non-mandatory 
Appendix B to this section to comply with paragraph (d)(2) of this 
section.

    (e) What must I do when an employee reports an MSD or the signs or 
symptoms of an MSD?
    (1) You must promptly determine whether the reported MSD or MSD 
signs or symptoms qualify as an MSD incident. You may request the 
assistance of a Health Care Professional (HCP) in making this 
determination. A report is considered to be an MSD incident in the 
following two cases:
    (i) The MSD is work-related and requires days away from work, 
restricted work, or medical treatment beyond first aid; or
    (ii) The MSD signs or symptoms are work-related and last for 7 
consecutive days after the employee reports them to you.
    (2) If the employee has experienced an MSD incident, you must 
determine whether the job meets the standard's Action Trigger. See 
paragraph (f) of this section.
    (3) If the employee has not experienced an MSD incident, you do not 
need to take further action.
    (f) How do I determine whether the employee's job meets the Action 
Trigger?
    (1) A job meets the Action Trigger if:
    (i) An MSD incident has occurred in that job; and
    (ii) The employee's job routinely involves, on one or more days a 
week, exposure to one or more relevant risk factors at the levels 
described in the Basic Screening Tool in Table W-1.
    (2) If the employee's job does not meet the Action Trigger, you do 
not need to take further action.
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    (g) What actions must I take if the employee's job meets the Action 
Trigger? For the employee's job and all jobs in the establishment that 
are the same as that job, you must either:
    (1) Comply with the Quick Fix option in paragraph (o) of this 
section, or
    (2) Develop and implement an ergonomics program that includes the 
following elements:
    (i) Management leadership as specified in paragraph (h) of this 
section;
    (ii) Employee participation as specified in paragraph (i) of this 
section;
    (iii) MSD management as specified by paragraphs (p), (q), (r), and 
(s) of this section;
    (iv) Job hazard analysis as specified by paragraph (j) of this 
section;
    (v) Hazard reduction and control measures as specified in 
paragraphs (k), (l), and (m) of this section, and evaluations as 
specified in paragraph (u) of this section, if the job hazard analysis 
determines that the job presents an MSD hazard;
    (vi) Training as specified in paragraph (t) of this section.
    (h) What must I do to demonstrate management leadership? You must:
    (1) Assign and communicate responsibilities for setting up and 
managing the ergonomics program;
    (2) Provide designated persons with the authority, resources, and 
information necessary to meet their responsibilities;
    (3) Ensure that your policies and practices encourage and do not 
discourage:
    (i) The early reporting of MSDs, their signs and symptoms, and MSD 
hazards; and
    (ii) Employee participation in the ergonomics program;
    (4) Communicate periodically with employees about the ergonomics 
program and their concerns about MSDs.
    (i) What must I do to ensure employee participation in my program? 
You must ensure that employees and their representatives:
    (1) Have ways to promptly report MSDs, MSD signs and symptoms, and 
MSD hazards in your workplace;
    (2) Receive prompt responses to their reports of MSDs, MSD signs 
and symptoms, and MSD hazards;
    (3) Are provided with a summary of the requirements of this 
standard, as specified in paragraph (d)(2) of this section, and have 
ready access to a copy of this standard and to information about MSDs, 
MSD signs and symptoms, MSD hazards, and your ergonomics program; and
    (4) Have ways to be involved in the development, implementation, 
and evaluation of your ergonomics program.
    (j) What must I do to determine whether a job that meets the Action 
Trigger poses an MSD hazard to employees in that job?
    (1) You must conduct a job hazard analysis for that job. You may 
rely on an analysis previously conducted in accordance with this 
section to the extent it is still relevant.
    (2) Your job hazard analysis must include all employees who perform 
the same job, or a sample of employees in that job who have the 
greatest exposure to the relevant risk factors, and include the 
following steps:
    (i) Talk with those employees and their representatives about the 
tasks the employees perform that may relate to MSDs; and
    (ii) Observe the employees performing the job to identify the risk 
factors in the job and to evaluate the magnitude, frequency, and 
duration of exposure to those risk factors.
    (3) You must use one or more of the following methods or tools to 
conduct this analysis:
    (i) One or more of the hazard identification tools listed in 
Appendix D-1 to this section, if the tools are relevant to the risk 
factors being addressed;
    (ii) The occupation-specific hazard identification tool in Appendix 
D-2 to this section;
    (iii) A job hazard analysis conducted by a professional trained in 
ergonomics; or
    (iv) Any other reasonable method that is appropriate to the job and 
relevant to the risk factors being addressed.
    (4) If you determine that there is an MSD hazard in the job, the 
job will be termed a ``problem job.''

    Note to paragraph (j): If you determine that the MSD hazards 
pose a risk only to the employee who reported the MSD, you may limit 
your job controls, training and evaluation to that individual 
employee's job.

    (k) What is my obligation to reduce MSD hazards in a problem job?
    (1) You must:
    (i) Control MSD hazards; or
    (ii) Reduce MSD hazards in accordance with or to levels below those 
in the hazard identification tools in Appendix D to this section; or
    (iii) If you cannot reduce MSD hazards in accordance with 
paragraphs (k)(1)(i) or (k)(1)(ii) of this section, you must do the 
following:
    (A) Reduce MSD hazards to the extent feasible;
    (B) At least every 3 years, assess the job and determine whether 
there are additional feasible controls that would control or reduce MSD 
hazards; and
    (C) If such controls exist, implement them until you have reduced 
the MSD hazards in accordance with paragraphs (k)(1)(i) or (k)(1)(ii) 
of this section.
    (2) If a work-related MSD occurs in a job whose hazard(s) you have 
reduced to the levels specified in paragraph (k)(1) of this section, 
you must:
    (i) Ensure that appropriate controls are still in place, are 
functioning, and are being used properly, and
    (ii) Determine whether new MSD hazards exist and, if so, take steps 
to reduce the hazards as specified in paragraph (m) of this section.

    Note to paragraph (k): The occurrence of an MSD in a problem job 
is not in itself a violation of this standard.

    (l) What kinds of controls must I use to reduce MSD hazards?
    (1) For each problem job, you must use feasible engineering, work 
practice or administrative controls, or any combination of them, to 
reduce MSD hazards in the job. Where feasible, engineering controls are 
the preferred method of control.
    (2) You may use personal protective equipment (PPE) to supplement 
engineering, work practice or administrative controls, but you may use 
PPE alone only where other controls are not feasible. Where you use 
PPE, you must provide it at no cost to employees.
    (m) What steps must I take to reduce MSD hazards? You must:
    (1) Ask employees in the problem job and their representatives to 
recommend measures to reduce MSD hazards;
    (2) Identify and implement initial controls within 90 days after 
you determine that the job meets the Action Trigger. Initial controls 
mean controls that substantially reduce the exposures even if they do 
not reach the levels specified in paragraph (k)(1) of this section.
    (3) Identify and implement permanent controls that meet the levels 
specified in paragraph (k)(1) of this section 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.
    (4) Track your progress and ensure that your controls are working 
as intended and have not created new MSD hazards. This includes 
consulting with employees in problem jobs and their representatives. If 
the controls are not effective or have created new MSD hazards, you 
must use the process in paragraphs (m)(1) and (m)(2) of this section to 
identify additional control measures that are appropriate and

[[<strong>Page</strong> 68851]]

implement any such measures identified.
    (n) [Reserved].
    (o) May I use a Quick Fix instead of setting up a full ergonomics 
program?
    (1) You may use a Quick Fix for a job if your employees have 
experienced no more than one MSD incident in that job, and there have 
been no more than two MSD incidents in your establishment, in the 
preceding 18 months.
    (2) To use a Quick Fix, you must:
    (i) Provide the MSD management required by paragraphs (p), (q), 
(r), and (s) of this section, as appropriate, to the employee promptly 
after you determine that the employee's job meets the Action Trigger;
    (ii) Talk with employees in the job and their representatives about 
the tasks the employees perform that may relate to the MSD incident; 
and
    (iii) Observe employees performing the job to identify which risk 
factors are likely to have caused the MSD incident;
    (iv) Ask the employee(s) performing the job and their 
representatives to recommend measures to reduce exposure to the MSD 
hazards identified;
    (v) Within 90 days of your determination that the job meets the 
Action Trigger in paragraph (e) of this section, implement controls in 
the job in accordance with paragraph (l) of this section that control 
the MSD hazards or reduce MSD hazards in accordance with or to levels 
below those in the hazard identification tools in Appendix D to this 
section, and train the employee(s) in the use of these controls;
    (vi) Within 30 days after you implement the controls, review the 
job to determine whether you have reduced the MSD hazards to the levels 
specified in paragraph (o)(2)(v) of this section; and
    (vii) Keep a record of the Quick Fix process for each job to which 
it is applied. You must keep the record for 3 years.
    (3) If you determine that you have reduced the MSD hazards to the 
levels specified in paragraph (o)(2)(v) of this section, you need take 
no further action except to maintain controls, the training related to 
those controls, and recordkeeping.
    (4) If you have not reduced MSD hazards to the levels specified in 
paragraph (o)(2)(v) of this section, you must implement an ergonomics 
program, as specified in paragraph (g) of this section.
    (p) What MSD management process must I implement for an employee 
who experiences an MSD incident in a job that meets the Action Trigger?
    (1) You must provide the employee with prompt and effective MSD 
management at no cost to the employee. MSD management must include:
    (i) Access to a Health Care Professional (HCP);
    (ii) Any necessary work restrictions, including time off work to 
recover;
    (iii) Work restriction protection; and
    (iv) Evaluation and follow-up of the MSD incident.
    (2) You must obtain a written opinion from the HCP for each 
evaluation conducted under this standard, and provide a copy to the 
employee. You must instruct the HCP that the opinion may not include 
any findings or information that is not related to workplace exposure 
to risk factors, and that the HCP may not communicate such information 
to the employer, except when authorized to do so by State or Federal 
law.
    (3) Whenever an employee consults an HCP for MSD management, you 
must provide the HCP with the following:
    (i) A description of the employee's job and information about the 
physical work activities, risk factors and MSD hazards in the job;
    (ii) A copy of this standard; and
    (iii) A list of information that the HCP's opinion must contain.

    Note to paragraph (p): MSD management under this standard does 
not include medical treatment, emergency or post-treatment 
procedures.

    (q) What information must the HCP's opinion contain? The HCP's 
opinion must contain:
    (1) The HCP's assessment of the employee's medical condition as 
related to the physical work activities, risk factors and MSD hazards 
in the employee's job;
    (2) Any recommended work restrictions, including, if necessary, 
time off work to recover, and any follow-up needed;
    (3) A statement that the HCP has informed the employee of the 
results of the evaluation, the process to be followed to effect 
recovery, and any medical conditions associated with exposure to 
physical work activities, risk factors and MSD hazards in the 
employee's job; and
    (4) A statement that the HCP has informed the employee about work-
related or other activities that could impede recovery from the injury.
    (r) What must I do if temporary work restrictions are needed?
    (1) If an employee experiences an MSD incident in a job that meets 
the Action Trigger, you must provide the employee with any temporary 
work restrictions or time off work that the HCP determines to be 
necessary, or if no HCP was consulted, that you determine to be 
necessary.
    (2) Whenever you place limitations on the work activities of the 
employee in his or her current job or transfer the employee to a 
temporary alternative duty job in accordance with paragraph (r)(1) of 
this section, you must provide that employee with Work Restriction 
Protection, which maintains the employee's employment rights and 
benefits, and 100% of his or her earnings, until the earliest of the 
following three events occurs:
    (i) The employee is able to resume the former work activities 
without endangering his or her recovery; or
    (ii) An HCP determines, subject to the determination review 
provisions in paragraph (s) of this section, that the employee can 
never resume his or her former work activities; or
    (iii) 90 calendar days have passed.
    (3) Whenever an employee must take time off from work in accordance 
with paragraph (r)(1) of this section, you must provide that employee 
with Work Restriction Protection, which maintains the employee's 
employment rights and benefits and at least 90% of his or her earnings 
until the earliest of the following three events occurs:
    (i) The employee is able to return to the former job without 
endangering his or her recovery;
    (ii) An HCP determines, subject to the determination review 
provisions in paragraph (s) of this section, that the employee can 
never return to the former job; or
    (iii) 90 calendar days have passed.
    (4) You may condition the provision of WRP on the employee's 
participation in the MSD management that this standard requires.
    (5) Your obligation to provide WRP benefits to a temporarily 
restricted or removed employee is reduced to the extent that the 
employee receives compensation for earnings lost during the work 
restriction period from either a publicly or an employer-funded 
compensation or insurance program, or receives income from employment 
made possible by virtue of the employee's work restriction.

    Note to paragraph (r): The employer may fulfill the obligation 
to provide work restriction protection benefits for employees 
temporarily removed from work by allowing the employees to take sick 
leave or other similar paid leave (e.g., short-term disability 
leave), provided that such leave maintains the worker's benefits and 
employment rights and provides at least 90% of the employee's 
earnings.

    (s) What must I do if the employee consults his or her own HCP?
    (1) If you select an HCP to make a determination about temporary 
work restrictions or work removal, the

[[<strong>Page</strong> 68852]]

employee may select a second HCP to review the first HCP's finding at 
no cost to the employee. If the employee has previously seen an HCP on 
his or her own, at his or her own expense, and received a different 
recommendation, he or she may rely upon that as the second opinion;
    (2) If your HCP and the employee's HCP disagree, you must, within 5 
business days after receipt of the second HCP's opinion, take 
reasonable steps to arrange for the two HCPs to discuss and resolve 
their disagreement;
    (3) If the two HCPs are unable to resolve their disagreement 
quickly, you and the employee, through your respective HCPs, must, 
within 5 business days after receipt of the second HCP's opinion, 
designate a third HCP to review the determinations of the two HCPs, at 
no cost to the employee;
    (4) You must act consistently with the determination of the third 
HCP, unless you and the employee reach an agreement that is consistent 
with the determination of at least one of the HCPs;
    (5) You and the employee or the employee's representative may agree 
on the use of any expeditious alternative dispute resolution mechanism 
that is at least as protective of the employee as the review procedures 
in paragraph (s) of this section.
    (t) What training must I provide to employees in my establishment?
    (1) You must provide initial training, and follow-up training every 
3 years, for:
    (i) Each employee in a job that meets the Action Trigger;
    (ii) Each of their supervisors or team leaders; and
    (iii) Other employees involved in setting up and managing your 
ergonomics program.
    (2) The training required for each employee and each of their 
supervisors or team leaders must address the following topics, as 
appropriate:
    (i) The requirements of the standard;
    (ii) Your ergonomics program and the employee's role in it;
    (iii) The signs and symptoms of MSDs and ways of reporting them;
    (iv) The risk factors and any MSD hazards in the employee's job, as 
identified by the Basic Screening Tool in Table W-1 and the job hazard 
analysis;
    (v) Your plan and timetable for addressing the MSD hazards 
identified;
    (vi) The controls used to address MSD hazards; and
    (vii) Their role in evaluating the effectiveness of controls .
    (3) The training for each employee involved in setting up and 
managing the ergonomics program must address the following:
    (i) Relevant topics in paragraph (t)(2) of this section;
    (ii) How to set up, manage, and evaluate an ergonomics program;
    (iii) How to identify and analyze MSD hazards and select and 
evaluate measures to reduce the hazards.
    (4) You must provide initial training to:
    (i) Each employee involved in setting up and managing your 
ergonomics program within 45 days after you have determined that the 
employee's job meets the Action Trigger;
    (ii) Each current employee, supervisor and team leader within 90 
days after you determine that the employee's job meets the Action 
Trigger;
    (iii) Each new employee or current employee prior to starting a job 
that you have already determined meets the Action Trigger;
    (5) You do not have to provide initial training in a topic that 
this standard requires to an employee who has received training in that 
topic within the previous 3 years.
    (6) You must provide the training required by paragraph (t) of this 
section in language that the employee understands. You must also give 
the employee an opportunity to ask questions about your ergonomics 
program and the content of the training and receive answers to those 
questions.
    (u) What must I do to make sure my ergonomics program is effective?
    (1) You must evaluate your ergonomics program at least every 3 
years as follows:
    (i) Consult with your employees in the program, or a sample of 
those employees, and their representatives about the effectiveness of 
the program and any problems with the program;
    (ii) Review the elements of the program to ensure they are 
functioning effectively;
    (iii) Determine whether MSD hazards are being identified and 
addressed; and
    (iv) Determine whether the program is achieving positive results, 
as demonstrated by such indicators as reductions in the number and 
severity of MSDs, increases in the number of problem jobs in which MSD 
hazards have been controlled, reductions in the number of jobs posing 
MSD hazards to employees, or any other measure that demonstrates 
program effectiveness.
    (2) You must also evaluate your program, or a relevant part of it, 
when you have reason to believe that the program is not functioning 
properly.
    (3) If your evaluation reveals deficiencies in your program, you 
must promptly correct the deficiencies.

    Note to paragraph (u): The occurrence of an MSD incident in a 
problem job does not in itself mean that the program is ineffective.

    (v) What is my recordkeeping obligation?
    (1) If you have 11 or more employees, including part-time or 
temporary employees, you must keep written or electronic records of the 
following:
    (i) Employee reports of MSDs, MSD signs and symptoms, and MSD 
hazards,
    (ii) Your response to such reports,
    (iii) Job hazard analyses,
    (iv) Hazard control measures,
    (v) Quick fix process,
    (vi) Ergonomics program evaluations, and
    (vii) Work restrictions, time off of work, and HCP opinions.
    (2) You must provide all records required by this standard, other 
than the HCP opinions, upon request, for examination and copying, to 
employees, their representatives, the Assistant Secretary and the 
Director in accordance with the procedures and time periods provided in 
Sec. 1910.1020(e)(1), (e)(2)(i), (e)(3), and (f).
    (3) You must provide the HCP opinion required by this standard, 
upon request, for examination and copying, to the employee who is the 
subject of the opinion, to anyone having the specific written consent 
of the employee, and to the Assistant Secretary and the Director in 
accordance with the procedures and time periods provided in 
Sec. 1910.1020(e)(1), (e)(2)(ii), (e)(3), and (f).
    (4) You must keep all records for 3 years or until replaced by 
updated records, whichever comes first, except the HCP's opinion, which 
you must keep for the duration of the employee's employment plus 3 
years.
    (5) You do not have to retain the HCP opinion beyond the term of an 
employee's employment if the employee has worked for less than one year 
and if you provide the employee with the records at the end of his or 
her employment.
    (w) When does this standard become effective? This standard becomes 
effective January 16, 2001.
    (x) When must I comply with the provisions of the standard?
    (1) You must provide the information in paragraph (d) of this 
section to your employees by October 15, 2001. After that date you must 
respond to employee reports of MSDs and signs and symptoms of MSDs.
    (2) You must meet the time frames shown in Table W-2 for the other 
requirements of this section, when you have determined that an employee 
has experienced an MSD incident, in accordance with paragraph (e) of 
this section.

[[<strong>Page</strong> 68853]]



                                       Table W-2.--Compliance Time Frames
----------------------------------------------------------------------------------------------------------------
         Requirements and related recordkeeping                                Time frames
----------------------------------------------------------------------------------------------------------------
Paragraph (e), (f): Determination of Action Trigger....  Within 7 calendar days after you determine that the
                                                          employee has experienced 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          Initiate within 30 calendar days after you determine
 Employee Participation.                                  that a job meets the Action Trigger.
----------------------------------------------------------------------------------------------------------------
Paragraph (t)(4)(i): Train Employees involved in         Within 45 calendar days after you determine that a job
 setting up and managing your ergonomics program.         meets the Action 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 Action Trigger
----------------------------------------------------------------------------------------------------------------
Paragraph (t)(5)(ii): Train current employees,           Within 90 calendar days after you determine that the
 supervisors or team leaders.                             employee's job 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 (o) of this section 
for Quick Fix timeframes.

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

[[<strong>Page</strong> 68854]]

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

Appendices to Sec. 1910.900

Non-Mandatory Appendix A to Sec. 1910.900: What You Need To Know 
About Musculoskeletal Disorders (MSDs)
Non-Mandatory Appendix B to Sec. 1910.900: Summary of the OSHA 
Ergonomics Program Standard
Appendix C to Sec. 1910.900 [Reserved]
Appendix D to Sec. 1910.900: Hazard Identification Tools
Appendix D-1 to Sec. 1910.900: Ergonomics Job Hazard Analysis Tools 
(Mandatory)
Appendix D-2 to Sec. 1910.900: VDT Workstation Checklist
Appendix E: Ergonomics Rule Flow Chart


[[<strong>Page</strong> 68855]]


[GRAPHIC] [TIFF OMITTED] TR14NO00.223


[[<strong>Page</strong> 68856]]


[GRAPHIC] [TIFF OMITTED] TR14NO00.224

BILLING CODE 4510-26-C

[[<strong>Page</strong> 68857]]

Non-Mandatory Appendix B to Sec. 1910. 900: Summary of the OSHA 
Ergonomics Program Standard

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

[[<strong>Page</strong> 68858]]

Appendix C to Sec. 1910.900 [Reserved]

Appendix D to Sec. 1910.900: Hazard Identification Tools

    Appendix D to Sec. 1910.900 contains hazard identification tools. 
This appendix consists of Appendix D-1, Ergonomics Job Hazard Analysis 
Tools, and Appendix D-2, VDT Workstation Checklist.

Appendix D-1 to Sec. 1910.900: Ergonomics Job Hazard Analysis Tools 
(Mandatory)

    Paragraph (j)(3)(i) of the OSHA Ergonomics Program Standard allows 
employers to use any of the job hazard analysis tools in this appendix, 
where appropriate to the risk factors in the job, to fulfill their 
obligations to conduct a job hazard analysis (paragraph (j)(3)) and 
reduce MSD hazards (paragraphs (k) and (m)). This mandatory appendix 
contains important information about these tools. A description of each 
of these tools is also contained in the Summary and Explanation of 
paragraph (j) in the preamble to this standard.
BILLING CODE 4510-26-P

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