[Federal Register Volume 65, Number 100 (Tuesday, May 23, 2000)]
[Proposed Rules]
[Pages 33263-33265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12983]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 65, No. 100 / Tuesday, May 23, 2000 / 
Proposed Rules

[[Page 33263]]



DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-777]
RIN No. 1218-AB36


Ergonomics Program

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Proposed rule; request for comments on economic impact and 
informal public hearing.

-----------------------------------------------------------------------

SUMMARY: OSHA is using this document to provide information and 
analysis concerning the economic impacts of the proposed ergonomics 
rule (64 FR 65768, published November 23,1999) on State and local 
governments, the United States Postal Service, and railroads, and to 
seek comment on these economic impacts. This document supplements the 
Agency's Preliminary Economic Analysis and Initial Regulatory 
Flexibility Analysis of the economic impact of the Ergonomics Program 
Rule (Exhibit 28-1 in the OSHA docket), which did not directly address 
these employers. OSHA is also setting dates for a pre-hearing comment 
period, a public hearing, and a post-hearing comment period to address 
the economic impacts exclusively in these three industries.
    The broader context for OSHA's actions can be found in the Notice 
of Proposed Rulemaking, published in the Federal Register of November 
23, 1999 (64 FR 65768). The procedures in this continuation of the 
public hearing process will be the same as those used in the previous 
nine weeks of public hearings on the proposed ergonomics standard (See 
OSHA's home page at www.osha.gov or 65 FR 11948; March 7, 2000).

Dates:  Notice of intention to appear at the informal public hearing: 
Notices of intention to appear at the informal public hearing must be 
postmarked by June 14, 2000. If you submit your notice of intention to 
appear by facsimile or electronically through OSHA's Internet site, you 
must transmit the notice by June 14, 2000.
    Pre-hearing comments: Written comments addressing the economic 
impacts of the rule in these industries must be postmarked no later 
than June 22, 2000. If you submit comments by facsimile or 
electronically through OSHA's Internet site, you must transmit those 
comments by June 22, 2000.
    Hearing Testimony and documentary evidence: If you will be 
requesting more than 10 minutes for your oral presentation at the 
hearing, you must submit the full testimony, postmarked no later than 
June 27, 2000, or if you will be submitting documentary evidence at the 
hearing, you must submit all of that evidence, postmarked no later than 
June 27, 2000.
    Informal public hearing: The public hearing will be held in 
Washington, DC, beginning at 9 am, on July 7, 2000 and is expected to 
conclude that day.
    Post-hearing comments: Written post-hearing comments must be 
postmarked no later than August 10, 2000. If you submit comments by 
facsimile or electronically through OHSA's Internet site, you must 
transmit those comments no later than August 10, 2000. The publication 
of this notice and the related public hearing do not affect the 90-day 
period established earlier for post-hearing submissions related to the 
ergonomics program proposed standard [65 FR 11948, March 7, 2000]. That 
period also ends August 10, 2000.
    Addresses: Written comments: Mail: Submit two copies of written 
comments to: OSHA Docket Office, Docket No. S-777, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone (202) 693-2350.
    Facsimile: If your written comments are 10 pages or less, you may 
fax them to the Docket Office. The OSHA Docket Office fax number is 
(202) 693-1648.
    Electronic: You may also submit comments electronically through 
OSHA's Homepage at www.osha.gov. Please note, you may not attach 
materials such as studies or journal articles to your electronic 
comments. If you wish to include such materials, you must submit them 
separately in duplicate to the OSHA Docket Office at the address listed 
above. When submitting such materials to the OSHA Docket Office, you 
must clearly identify your electronic comments by name, date, and 
subject, so that we can attach them to your electronic comments.
    Notice of intention to appear: Mail: Notices of intention to appear 
at the informal public hearing may be submitted by mail in 
quadruplicate to: Ms. Veneta Chatmon, OSHA Office of Public Affairs, 
Docket No. S-777, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Room N-3647, Washington, DC 20210; Telephone: (202) 693-2119.
    Facsimile: You may fax your notice of intention to appear to Ms. 
Chatmon at (202) 693-1634.
    Electronic: You may also submit your notice of intention to appear 
electronically through OSHA's Homepage at www.osha.gov.
    Hearing testimony and documentary evidence: You must submit in 
quadruplicate your hearing testimony and any documentary evidence you 
intend to present at the informal public hearing to Ms. Veneta Chatmon, 
OSHA Office of Public Affairs, Docket No. S-777, U.S. Department of 
Labor, Room N-3647, 200 Constitution Ave, NW., Washington, DC 20210. 
Telephone: (202) 693-2119, You may also submit your hearing testimony 
and documentary evidence on disk (3\1/2\ inch) in WP 5.1, 6.0, 6.1, 8.0 
or ASCII, provided you also send the original hardcopy at the same 
time.
    Informal public hearing: The one-day public hearing to be held in 
Washington, D.C. will be located in the Auditorium in the U.S. 
Department of Labor, Francis Perkins Building, 200 Constitution Avenue, 
NW, Washington, D.C. 20210.

For Further Information, Contact: OSHA's Ergonomics Team at (202) 693-
2116, or visit the OSHA Homepage at www.osha.gov.

Supplementary information:

Supplement for State and Local Governments, Railroads and the U.S. 
Postal Service to the Summary of the Preliminary Economic Analysis 
and Initial Regulatory Flexibility Analysis of Proposed Ergonomics 
Program Standard

Introduction

    OSHA has prepared this analysis of the costs, benefits, number of

[[Page 33264]]

establishments and employees affected, and potential impacts of OSHA's 
proposed ergonomics program standard on state and local governments in 
State-plan states, railroads, and the United States Postal Service. The 
methodology used to analyze the economic effects of the proposed 
standard for these sectors is the same as that used for other 
industries in OSHA's Preliminary Economic Analysis of the Proposed 
Ergonomics Program Standard (PEA) (Ex. 28-1). Where different sources 
of data or different assumptions are used for these three sectors, they 
are noted in a Technical Appendix (Ex. 28-15).
    As indicated in the preamble to the ergonomics rule [64 FR 66054], 
OSHA standards do not apply to state and local governments, except in 
states that have voluntarily elected to adopt an OSHA State Plan. 
Because state and local governments in State-plan states can be 
expected to implement the rule, OSHA has analyzed the costs and 
impacts, as well as benefits, of the proposal for those state and local 
governments in State-plan states. Currently, California (a State-plan 
state) has its own ergonomics standard, and other states are in the 
process of developing their own. However, for simplicity, this summary 
analysis ignores the effects of existing and proposed state ergonomics 
regulations.
    OSHA shares jurisdiction for occupational safety and health in the 
railroad industry with the Federal Railroad Administration. Although a 
number of railroad employees will not be covered by this standard, OSHA 
has not located data to identify what proportion of employees will be 
affected by the standard and has therefore decided to include all 
railroad workers in this analysis. This results in a substantial 
overestimate of the impact of the proposal on the railroad industry.
    The US Postal Service (USPS) is now entirely under the jurisdiction 
of OSHA, and would thus be affected in the same ways as other private-
sector employers.

Industrial Profile

    Employment in These Three Industries: Based on Bureau of the Census 
data, there were 8.7 million state and local government employees in 
State-plan states in 1997. This total excludes those employees working 
in some governmental entities, notably hospitals, which have already 
been included in OSHA's PEA (Ex. 28-1) because they were included in 
the Census Bureau's County Business Patterns data used for that 
analysis (Ex. 28-2, p. vi). For the railroad industry, the Bureau of 
Labor Statistics reported that a total of 226,500 employees work for 
the railroads. Based on the USPS annual report, there were 904,636 
employees, including non-career employees, in the Postal Service in 
1998 [USPS, 1998].
    Number of Musculoskeletal Disorders (MSDs) in These Three 
Industries: Using data on OSHA recordable MSDs provided to the record 
by the AFL-CIO [Ex. 32-339-1], and adjusting these data to accord with 
the scope of the proposed rule and OSHA's definition of MSDs, OSHA 
estimates that there were approximately 175,000 MSD cases (both lost 
workday and non-lost workday) among employees in general industry in 
state and local governments in State-plan states. OSHA estimates, using 
the same data and methodology for estimating the number of OSHA 
recordable MSDs that were used for all other private-sector businesses 
in the Preliminary Economic Analysis (Ex. 28-1), that there were a 
total of 1,250 MSDs in the railroad industry, of which 781 were lost 
workday MSDs. For the USPS, information on OSHA-recordable MSDs was not 
available; OSHA therefore estimated that the number of MSDs among 
postal workers was equal to the number of filed workers' compensation 
claims due to ``exertion'' (defined as including both overexertion and 
repetition cases) filed with the Federal Office of Workers' 
Compensation Programs in fiscal year 1996 (OWCP, 1996). There were 
29,407 such cases in that year.
    Number of Establishments in These Three Sectors: Establishment data 
are needed because portions of the proposed standard are triggered on 
an establishment basis. Establishment data are not available for any of 
these sectors; OSHA therefore used a variety of estimation techniques 
to calculate this information. OSHA estimated that there are 167,788 
state and local government establishments, 4,802 railroad 
establishments, and 33,613 USPS establishments, including both post 
offices and classified stations. OSHA welcomes comment both on the 
number of establishments in these sectors, and on how, for regulatory 
purposes, establishments should be defined for state and local 
governments and for railroads. For example, if several state agencies 
work in a single building, would they be considered one or several 
establishments? Would the reporting structure applying to these 
agencies, e.g., whether they report to separate branches of state 
government, affect this definition?

Benefits

    OSHA's method for estimating the potential reductions in the number 
of MSDs the proposed standard would prevent and monetizing the benefits 
associated with this reduction are described in detail in Chapter IV of 
the PEA [Ex. 28-1]. The Agency estimates that, during the first ten 
years after implementation of the proposed standard, the proposal would 
prevent 476,000 covered MSDs among state and local government 
employees, nearly 1,900 covered MSDs among railroad employees, and 
approximately 94,000 covered MSDs among postal workers. The Agency 
estimates that the proposed standard will capture additional annual 
benefits of approximately $1 billion as a result of including workers 
in state and local government in State-plan states, the US Postal 
Service, and the railroads.

Costs of Compliance

    Following the methodology presented in the Chapter V of the 
Preliminary Economic Analysis [Ex. 28-1], OSHA estimated the annual 
costs of compliance for these three industries. Table 1 presents the 
proposal's total annual costs and the total cost to employers for these 
three sectors. In total, these three industries add $418 million per 
year to the total costs (to society) of the rule, and $588 million per 
year to the costs of the proposal to employers. (The difference between 
these two costs is the cost of the proposal's Work Restriction 
Protection provisions, which is a cost to employers but does not 
represent a net cost to society.)

 Table 1.--Annualized Costs of Compliance of the Proposal to Society and
                 to Employers in These Three Industries
                        [In millions of dollars]
------------------------------------------------------------------------
                                                       Annualized costs
                                                             to--
                      Industry                      --------------------
                                                      Society  Employers
------------------------------------------------------------------------
State and Local Governments in State-plan States...       351        497
Railroads..........................................         8          9
United States Postal Service.......................        59         82
                                                    --------------------
      Total........................................       418        588
------------------------------------------------------------------------

Economic Feasibility Analysis

    As in the Preliminary Economic Analysis [Ex. 28-1], OSHA conducted 
a screening analysis of the potential impacts of the proposed standard 
on the before-tax profits and sales of the affected industries. A 
screening analysis

[[Page 33265]]

simply looks at the projected costs of the proposal as a percentage of 
the pre-tax profits and sales of the affected industries but does not 
actually predict the magnitude of the impacts of these costs on these 
before-tax profits or sales. Screening analyses are used to determine 
whether the compliance costs potentially associated with the proposed 
standard could lead to significant impacts on affected establishments 
under the two worst case scenarios (full cost passthrough and no cost 
passthrough). OSHA has used the same methodology in its screening 
analysis for the three industries of interest here. The actual impact 
of the proposed standard on the profit and sales of establishments in a 
given private industry will depend on the price elasticity of demand 
for the products or services produced by establishments in that 
industry, as discussed in detail in Chapter VI of the Preliminary 
Economic Analysis [Ex. 28-1]. For the public (government) sector, the 
impacts of the proposal's compliance costs would indicate the extent to 
which the government jurisdiction would have to raise taxes or cut back 
on government services.
    According to the Census Bureau, total revenues to state and local 
government in the State-plan states in Fiscal Year 1996 were $763.3 
billion [Census, 1996]. The annual costs of compliance for the proposed 
standard would therefore be equal to approximately 0.07 percent of 
these revenues. Increasing the amount of tax collected by these 
entities by $7 for every $10,000 of revenue currently collected would 
permit these entities to fully recover outlay. (For comparison, annual 
increases to payroll made to stay even with inflation are normally 15 
to 20 times these costs.) Changes of this small magnitude will have 
little or no effect on the ability of state and local governments to 
deliver services to their constituents.
    In the railroad industry, estimated annual revenues are $36.9 
billion, and thus the costs of compliance with the standard are 
estimated to equal 0.03% of revenues under the worst-case scenario for 
price increases [DOT, 1999]. Robert Morris Associates [Ex. 28-10] 
estimated the pre-tax profit rate for the railroad industry in 1996 to 
be 12.2%. The standard's costs are therefore estimated to represent 
0.21% of profits in the worst case scenario for profits. Even if the 
costs of compliance were taken entirely from profits (a highly unlikely 
scenario), they would only reduce, for example, $1,000,000 in profits 
to $997,900. Such a change in profits would have no measurable effect 
on the viability or competitive structure of the railroad industry.
    The U.S.P.S. reported revenues in 1996 of $56.6 billion [USPS, 
1998]. Therefore, the cost of complying with the proposal in SIC 43 
would amount to 0.14% of revenue. Such a change in revenues is too 
small to significantly impact finances or raise questions of economic 
feasibility. For comparison, annual increases to payroll made to stay 
even with inflation are 10 to 15 times the annual costs of complying 
with the proposal. Such an impact will have no effect on the viability 
of the U.S. Postal Service.

Regulatory Flexibility Information

    The Agency also examined the impact of the costs of the proposal on 
small governmental entities, i.e., those governmental jurisdictions 
serving fewer than 50,000 people. According to the Census Bureau's 
employment and payroll survey, there were 17,289 governmental 
jurisdictions with fewer than 50,000 people in the State-plan states, 
employing a total of 2,312,873 workers. OSHA estimates that these 
jurisdictions include approximately 45,357 establishments, although 
defining these in the public sector is difficult, since no data on this 
point are available. Employing the assumptions used to analyze the 
costs of the standard to state and local governments, the estimated 
annualized cost of the proposal to small governmental entities would be 
$152 million. According to the Census' survey of government revenues, 
the revenues in governmental jurisdictions serving fewer than 50,000 
people in State-plan states in 1996 were $101 billion. Therefore, the 
costs of compliance would be equal to 0.15 percent of the revenues of 
these entities.
    The Small Business Administration defines ``small'' railroads as 
those employing fewer than 1500 employees in SIC 4013 and fewer than 
500 in SIC 4011. For the purposes of this analysis, OSHA is classifying 
all local and regional railroads in the ``small'' category. Using the 
same methodology as that described above, OSHA estimates the costs of 
compliance for small railroad companies to be $896,233, or 0.03 of the 
revenues and 0.24 percent of the profits, of these companies.
    Because the U.S. Postal Service represents the only large 
governmental entity serving all U.S. citizens, there are no small 
entities in SIC 43.
    The impacts of the proposed standard on the small entities in the 
state and local government and railroad industries do not exceed OSHA's 
criteria for identifying significant impacts on small entities-
compliance costs equal to more than 1 percent of revenues or 5 percent 
of profits.

References

    BLS, 1997. Bureau of Labor Statistics, ``National Employment, 
Hours, and Earnings'', Found at: http://146.142.4.24/cgi-bin/dsrv
    U.S. Bureau of the Census. Survey of Government Employment and 
Payroll, March 1997.
    Data found at: http://www.census.gov/govs/www/apes97loc.html
    U.S. Bureau of the Census. State and Local Finance Estimates, by 
State: 1995-96. Data found at: http://www.census.gov/www/esti96.html
    U.S. Department of Transportation, Bureau of Transportation 
Statistics, Transportation Statistics Annual Report, 1999. Found at: 
http://www.bts.gov/programs/transtu/tsar/tsar99/tsar99pt.html
    U.S. Postal Service, 1998 Annual Report. Found at: http://www.usps.gov/history/anrpt98/pdf.htm
    OWCP 1996. Federal Agency Injury and Illness Data Base, derived 
from Office of Workers' Compensation Programs Case Create data file, 
Department of Labor, Fiscal Year 1996. Formatted by OSHA Office of 
Management and Data Systems. (Unpublished).

Request for Comment

    OSHA requests any additional, relevant data and information and 
comment on all aspects of this analysis, and on the data sources and 
methodology used for this analysis, as outlined in the Technical 
Appendix, Exhibit 28-15.

    Authority: 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, 200 Constitution 
Avenue, NW., Washington, DC 20210. It is issued under sections 4, 6, 
and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 
653, 655, 657), Secretary of Labor's Order No. 6-96 (62 FR 111), and 
29 CFR part 1911.

    Signed at Washington, DC, this 18th day of May, 2000.
Charles N. Jeffress,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 00-12983 Filed 5-19-00; 10:21 am]
BILLING CODE 4510-26-U