November 16, 2010 Celeste Monforton, DrPH, MPH 0Comment

On January 29, OSHA proposed a simple revision to a paper form—called the OSHA 300 log—on which some U.S. employers are required to record work-related injuries. The Bureau of Labor Statistics (BLS) collects a sample of these forms annually to estimate national rates of work-related injuries. The change proposed by OSHA involves adding a column to the form so that work-related musculoskeletal disorders (MSD) would be distinguished from other conditions like amputations, burns, fractures, etc. MSDs account for 30-60% of all work-related injuries and illnesses. They take a large toll on workers and their families, are responsible for millions of lost work-hours, and substantial medical care costs. When OSHA proposed the change to its injury surveillance log it described benefits, such as:

“…more complete data for analyzing the magnitude of the MSD problem and trends over time in the country as a whole, as well as in specific industries, and assisting OSHA, and other safety and health policy makers, in understanding MSDs and making informed decisions on policies concerning workplace MSDs.”

The employer-reported cases on the OSHA 300 logs and the BLS statistics derived from them are far from perfect, but they are the best system currently in place to assess harm to U.S. workers from occupational exposures.

Public health and worker safety advocates strongly support the proposed change to the OSHA 300 log. They often call it “restoring the MSD column to the OSHA log” because there was a final rule adopted at the end of the Clinton Administration to insert the column, but it was scrapped in 2001 by the GW Bush Administration’s OSHA.

One year into the Obama Administration, OSHA proposed the revision to add the MSD surveillance column onto the form. The agency solicited public comments for 60 days and held a public meeting to gather additional feedback. By July 14, 2010, the revision to the injury surveillance rule was finalized by OSHA. It should have been published then in the Federal Register. Instead, the White House’s Office of Information and Regulatory Affairs (OIRA), part of the Office of Management and Budget (OMB), has been “reviewing” it for four months.

As I wrote in “Why is Obama’s Reg Czar reviewing non-significant worker safety rules?” this simple change to OSHA’s injury surveillance system does not even meet the White House’s own criteria for OIRA review of agency rules. Presidential Executive Order 12866 (Section (a)(3)(A) says

“OIRA may review only actions identified by the agency or by OIRA as significant regulatory actions.”

When OSHA published its proposal—a proposal also blessed by OIRA—-OSHA said:

“This proposed rule is not a ‘significant regulatory action’ within the context of Executive Order 12866 or the Unfunded Mandates Reform Act, or a ‘major rule’ under the Congressional Review Act.”


“The rulemaking imposes far less than $100 million in annual costs on the economy, and does not meet any of the other criteria specified for a significant regulatory action or major rule in the Executive Order, Unfunded Mandates Reform Act and the Congressional Review Act.”

If this modest revision to OSHA’s injury surveillance system is not subject to OIRA review, why has it been in Obama’s Reg Czar’s office for 4 months? I worry what this tells us about the next two years in the Obama Administration? How will the White House react to more ambitious worker safety protections under consideration by OSHA, like a mandate for employers to implement injury and illness prevention programs (I2P2).

OSHA chief David Michaels PhD, MPH, speaks frequently about his agency’s broken rulemaking system. He says it takes far too long to get a new rule on the books to protect workers from known hazards. He promises reforms:

“OSHA will look for ways to streamline the lengthy rulemaking process. Some standards have taken more than a decade to establish, and that’s not an acceptable, timely response when we find workers are in danger.”

I’ve no doubt that his staff is working long hours to improve the system. But many of the steps in the rulemaking process are legally required, necessary, and add value to the final product. The agency leaders can do something about self-imposed, delay-causing action —such as sending a regulatory action to OIRA for review when not required to do so. The OSHA 300 Log revision fits this category.

Advocates for progressive rules to protect public health, safety and the environment have witnessed for decades the hurdles imposed by OIRA—under both Republican or Democratic Administrations. The Center for Progressive Reform call OIRA the choke point for federal regulations. It’s time for Labor Secretary Solis and OSHA Chief Michaels to tell OIRA’s Cass Sunstein

“time is a wasting, we need to publish this change, and move onto implementing it.”

They can throw in for good measure the words of the Executive Order:

“Because federal agencies [such as OSHA] are the repositories of significant substantive expertise and experience, they are responsible for developing regulations and assuring that the regulations are consistent with applicable law, the President’s priorities, and the principles set forth in this Executive order.”

This authority is granted to the Labor Secretary and OSHA, not to OIRA.

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