Rules and Regulations. Final rule; request for comments

Agency: Federal Aviation Administration, DOT
Action: Final rule; request for comments
Citation: FR Doc. 01-25552 · RIN 2120-AA64 · Docket No. 2001-NM-298-AD; Amendment 39-12465; AD 2001-20-17 · 14 CFR 39

Summary

This amendment supersedes an existing airworthiness directive (AD), applicable to all EMBRAER Model EMB-120 series airplanes, that currently requires revising the Airplane Flight Manual, installing a placard on the main instrument panel, and removing the “LIGHT-HEAVY” inflation switch of the leading edge deicing boots. This amendment continues to require those actions and adds requirements to install a low speed alarm for icing conditions, to revise the AFM, and to replace an existing placard with a placard that directs the flightcrew to activate the deicing boots whenever ice is detected by visual cues or ice detector illumination. This amendment is prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. This action is intended to ensure that the flightcrew is provided with accurate indications of the severity of ice accretion, clear indication of unintentional airplane speed reductions in icing conditions, and appropriate procedures to prevent reduced controllability of the aircraft due to accretion of ice on the airplane.

Dates

Effective October 22, 2001. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 22, 2001. The incorporation of certain other publications listed in the regulations was approved previously by the Director of the Federal Register as of July 12, 2001 (66 FR 34083, June 27, 2001). Comments for inclusion in the Rules Docket must be received on or before November 13, 2001.

Supplementary Information

On June 20, 2001, the FAA issued AD 2001-13-14, amendment 39-12295 (66 FR 34083, June 27, 2001), applicable to all EMBRAER Model EMB-120 series airplanes, to require revising the Airplane Flight Manual (AFM), installing a placard on the main instrument panel, and removing the “LIGHT-HEAVY” inflation switch of the leading edge deicing boots. That action was prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions required by that AD are intended to ensure that the flightcrew is provided with accurate indications of the severity of ice accretion and appropriate procedures and actions to prevent reduced controllability of the airplane due to accretion of ice on the airplane. Actions Since Issuance of Previous Rule Since the issuance of that AD, the Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, has notified the FAA that an unsafe condition may exist on all EMBRAER Model EMB-120 series airplanes. The DAC advises that it has received reports of loss of control events occurring on EMBRAER Model EMB-120 series airplanes that were flying during icing conditions. The DAC advises that such events indicate that the flightcrews may not have correctly determined both the severity of the ice accretion and the need to take immediate action to prevent excessive loss of airspeed, especially when using the autopilot. This situation, if not corrected, could result in reduced controllability of the airplane due to accretion of ice on the airplane. Issuance of Service Information EMBRAER has issued Service Bulletin 120-30-0033, Change 01, dated September 6, 2001, that describes procedures for installing a low speed alarm on the glareshield panel, adding new electrical wires in the cockpit and in the electronic compartment, installing or replacing two placards, and reworking the pitot-static system between frames 3 and 4. EMBRAER also issued Service Bulletin 120-30-0033, Change 02, dated September 14, 2001, which includes two new electrical diagrams, corrects the hook-up charts, and describes a check for correct installation of diodes. EMBRAER has issued Service Bulletin 120-25-0258, Change 01, dated August 30, 2001, which describes procedures for installing a placard to instruct pilots to immediately activate the deicing boots and disengage the autopilot, whenever ice is detected by visual cues or ice detector illumination. The original issue of Service Bulletin 120-25-0258, dated May 14, 2001, was cited as a source of service information in AD 2001-13-14. Change 01 is identical in technical content to the original service bulletin, and merely specifies that a new placard has been developed for airplanes that have been modified per EMBRAER Service Bulletin 120-30-0033, and contains procedures for installing the new placard. The DAC classified these service bulletins as mandatory and issued Brazilian airworthiness directive 2001-05-02R1, effective September 30, 2001, in order to assure the continued airworthiness of these airplanes in Brazil. FAA's Conclusions This airplane model is manufactured in Brazil and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. Explanation of Requirements of Rule Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD supersedes AD 2001-13-14 to continue to require revising the AFM, installing a placard on the main instrument panel, and removing the “LIGHT-HEAVY” inflation switch of the leading edge deicing boots. This AD will also require installing a low speed alarm for icing conditions, revising the AFM, and replacing an existing placard with a placard that directs the flightcrew to activate the deicing boots whenever ice is detected by visual cues or ice detector illumination. Differences Between This AD and the Brazilian AD This AD differs from the Brazilian AD in the following ways: 1. This AD is more specific as to when to disconnect the autopilot. 2. This AD includes instructions to remove the current information contained in the Normal Procedures Section advising the flightcrew to select either HEAVY or LIGHT mode. 3. This AD adds a WARNING to the Normal Procedures section to exit icing conditions if the flightcrew detects large or frequent changes in trim or excessive performance degradation. 4. This AD includes additional AFM instructions regarding abnormal operations with the icing low speed alarm activated. 5. This AD also includes dispatch relief regarding certain Master Minimum Equipment List items for the ice detection system and the new icing low speed alarm system. Interim Action This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking. Determination of Rule's Effective Date Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days. Comments Invited Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed. Submit comments using the following format: • Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues. • For each issue, state what specific change to the AD is being requested. • Include justification (e.g., reasons or data) for each request. Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-298-AD.” The postcard will be date stamped and returned to the commenter. Regulatory Impact The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132. The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. Section 39.13 is amended by removing amendment 39-12295 (66 FR 34083, June 27, 2001), and by adding a new airworthiness directive (AD), amendment 39-12465, to read as follows: 2001-20-17 Empresa Brasileira de Aeronautica S.A. (EMBRAER): Amendment 39-12465. Docket 2001-NM-298-AD. Supersedes AD 2001-13-14, Amendment 39-12295. *Applicability: * All Model EMB-120, -120RT, -120ER, and -120FC series airplanes, certificated in any category. Note 1: This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (m) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it. Compliance: Required as indicated, unless accomplished previously. To ensure that the flightcrew is provided with accurate indications of the severity of ice accretion, clear indication of unintentional airplane speed reductions in icing conditions, and appropriate procedures to prevent reduced controllability of the aircraft due to accretion of ice on the airplane; accomplish the following: Restatement of the Requirements of AD 2001-13-14 Airplane Flight Manual (a) Within 20 flight hours after July 12, 2001 (the effective date of AD 2001-13-14, amendment 39-12295): Revise the Limitations and Normal Procedures Sections of the FAA-approved Airplane Flight Manual (AFM) to include the following procedures, as specified in paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) of this AD. This may be accomplished by inserting a copy of this AD in the AFM. (1) In the Limitations section under the existing title ‘Operation in Icing Conditions,’ insert the following: “Autopilot use is prohibited when atmospheric icing conditions exist, at the first sign of icing accretion anywhere on the airplane, or after the illumination of the Ice Condition light, whichever occurs first. Leading edge deicers switch must be operated in the ‘Heavy’ mode only.” (2) In the Normal Procedures section under the existing title, “Operation in Icing Conditions,” delete the following: “Leading edge deicers switch ON Select “Heavy” or “Light” mode (1 or 3 minutes cycle), based on the flightcrew's judgement and evaluation of the severity of the ice encounter and rate of accretion.” (3) In the Normal Procedures section under the existing title, ‘Operation in Icing Conditions,’ insert the following: “Leading edge deicers switch On (TIMER 1 or TIMER 2) Select ‘Heavy’ mode if Light/Heavy switch is still installed.” (4) In the Normal Procedures section insert the following warning: “WARNING: If large or frequent changes in longitudinal trim, and/or excessive performance degradation occur (identified by large increases in power required to maintain airspeed and altitude), immediately request priority handling from air traffic control to exit icing conditions.” Placard Installation (b) Within 400 flight hours after July 12, 2001: Install a placard to activate the deicing boots and disengage the autopilot, whenever ice is detected by visual cues or ice detector illumination, to the left of the pilot's airspeed indicator and one placard to the right of the co-pilot's altimeter, per EMBRAER Service Bulletin 120-25-0258, dated May 14, 2001, or Change 01, dated August 30, 2001. Removal of Inflation Switch (c) Within 400 flight hours after July 12, 2001: Remove the “Light-Heavy” inflation switch of the leading edge deicing boots, per EMBRAER Service Bulletin 120-30-0032, Change 01, dated June 13, 2001. New Requirements of This AD Installation of a Low Speed Alarm (d) Within 40 days after the effective date of this AD: Install a low speed alarm for icing conditions per EMBRAER Service Bulletin 120-30-0033, Change 01, dated September 6, 2001, or Change 02, dated September 14, 2001. Accomplish the installation together with or after the removal of the leading edge boots inflation cycle control “light-heavy” switch, required by paragraph (c) of this AD. Placards (e) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Remove the placard required by paragraph (b) of this AD, and prior to further flight, replace it with a new placard to specify activation of the deicing boots whenever ice is detected by visual cues or ice detector illumination, per EMBRAER Service Bulletin 120-30-0033, Change 01, dated September 6, 2001, or Change 02, dated September 14, 2001. Airplane Flight Manual (f) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Accomplish the actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD. (1) Remove the AFM Limitation required by paragraph (a)(1) of this AD, and revise the Limitations Section of the FAA-approved AFM under the existing title of “Operation in Icing Conditions” to include the following procedures (This may be accomplished by inserting a copy of this AD in the AFM.): For airplanes on which the HEAVY/LIGHT switch is installed: Leading edge deicers switch must be operated in the HEAVY mode only at the first sign of icing accretion anywhere on the airplane or after the illumination of the ICE CONDITION light, whichever occurs first. For airplanes on which the low speed alarm has NOT been installed: Autopilot use is prohibited at the first sign of icing accretion anywhere on the airplane or after illumination of the ICE CONDITION light, whichever occurs first. Airspeeds: Flaps and Gear UP 160 KIAS MINIMUM (All engines operating) Flaps 15% Gear UP 160 KIAS MINIMUM (All engines operating) Note: In the event of an engine failure in icing conditions, maintain the engine failure airspeeds shown in Section V, Performance. The icing condition low speed alarm may activate if the airspeed is below 160 KIAS with the flaps up.” (2) Remove the following paragraph from the Limitations Section of the AFM under the existing title of “Operation in Icing Conditions,” that currently reads as follows: “When operating in known or forecast icing conditions, the specific procedures for operation in icing conditions presented in the Normal Procedures Section of this manual must be followed.” (3) Insert the following into the Limitations Section of the AFM under the existing title of “Operation in Icing Conditions”: “When operating in known or forecast icing conditions, the specific procedures for operation in icing conditions presented in the Abnormal Procedures and Normal Procedures Sections of the AFM must be followed.” (g) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Revise the Emergency and Abnormal Procedures Sections of the AFM under the existing titles of “Flight With All Engines Inoperative,” “Forced Landing,” “Ditching,” “Takeoff with Engine Failure (Above V ¹ ),” “One Engine Inoperative Approach and Landing,” “One Engine Inoperative Go-Around,” and “Engine Airstart” to include the following Note (This may be accomplished by inserting a copy of this AD in the AFM.): “ Note: In the event of an engine failure in icing conditions, maintain the engine failure airspeeds shown in Section V, Performance. The icing condition low speed alarm may activate as airspeed decreases below 160 KIAS.” (h) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Accomplish the actions specified in paragraphs (h)(1) and (h)(2) of this AD. (1) Revise the Abnormal Procedures Section of the AFM under the existing titles of “Flap Control Fault,” “Flap Disagreement,” “Flap Asymmetry,” “Loss of the Green (Hydraulic) System,” “Loss of the Blue (Hydraulic) System,” and “Loss of Both Hydraulic Systems” to include the following procedures (This may be accomplished by inserting a copy of this AD in the AFM.): “ Note: In the event of a 0° flap landing in icing conditions, maintain 160 KIAS until landing is assured. Reduce airspeed to cross runway threshold (50 ft) at VREF 45 + 35 KIAS. The icing condition low speed alarm may activate as airspeed decreases below 160 KIAS.” (2) Revise the Abnormal Procedures Section of the AFM to include the following new section (This may be accomplished by inserting a copy of this AD in the AFM.): “ICING CONDITION LOW SPEED ALARM (If installed): • LOW SPEED amber light illuminated on the Icing Cond Low speed Alarm Panel. • Buzzer sound. 1. Airspeed ABOVE 160 KIAS 2. Leading Edge Deicer Switch VERIFY TIMER 1 OR TIMER 2 Note: ICING CONDITION LOW SPEED ALARM may not be cancelable by the flightcrew, and may not extinguish until 170 KIAS. Applying power should promptly recover speed. If necessary, disengage the autopilot, push over to regain airspeed, and notify ATC of altitude deviation. When ICING CONDITION LOW SPEED ALARM extinguishes: Autopilot AS REQUIRED Note: Monitor the ice accretion and the airspeed. Severe Icing Conditions CHECK If Severe Icing Conditions are confirmed: Flying in Severe Icing Conditions Procedure APPLY (i) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Add the following new procedure to the Normal Procedures Section of the AFM under the existing title of “Daily Checks, Before Engine Start,” as follows (This may be accomplished by inserting a copy of this AD in the AFM.): “Icing Condition Low Speed Alarm System: TEST Button PRESS Check the buzzer sounding continously and the LOW SPEED amber light illuminated. Release button. Check sound and light extinguished.” (j) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Revise the Normal Procedures Section of the AFM under the existing title of “Turbulent Air Penetration,” as specified in paragraphs (j)(1) and (j)(2) of this AD. This may be accomplished by inserting a copy of this AD in the AFM. (1) Remove the following from the existing paragraph under “Turbulent Air Penetration”: “1. Airspeed: 180 KIAS (from sea level to 15000 ft); 160 KIAS (above 15000 ft)” (2) Replace the wording specified in paragraph (j)(1) with the following: “1. Airspeed: 175 KIAS” (k) Prior to further flight after accomplishment of the installation required by paragraph (d) of this AD: Revise the Normal Procedures Section of the FAA-approved AFM under the existing title of “Operation in Icing Conditions” as specified in paragraphs (k)(1) and (k)(2) of this AD. This may be accomplished by inserting a copy of this AD in the AFM. (1) Remove the following from the wording under the existing title of “Operation in Icing Conditions”: “At the first sign of icing accretion anywhere on the airplane, proceed: Windshield Heat Switches ON Leading Edge Deicers Switch ON Select HEAVY or LIGHT mode (1 or 3 minutes cycle), based on the pilot's judgement and evaluation of the severity of the ice encounter and rate of accretion.” (2) Insert the following wording under the existing title of “Operation in Icing Conditions”: “At the first sign of icing accretion anywhere on the airplane or ICE CONDITION light illumination, whichever occurs first, proceed as follows: If the icing condition low speed alarm is NOT installed: Autopilot DISENGAGE Windshield Heat Switches ON Leading Edge Deicers Switch ON (TIMER 1 or TIMER 2) Inflation Cycle Switch (if installed) HEAVY If the icing condition low speed alarm IS installed: Windshield Heat Switches ON Leading Edge Deicers Switch ON (TIMER 1 or TIMER 2) “WARNING: If large or frequent changes in longitudinal trim, and/or excessive performance degradation (identified by large increases in power required to maintain airspeed and altitude), immediately request priority handling from air traffic control to exit icing conditions.” Master Minimum Equipment List (MMEL) (l) The dispatch relief conditions specified in paragraphs (l)(1) and (l)(2) of this AD are considered to be acceptable for continued operations if either the ice detection system or the low speed alarm system is inoperative: (1) The airplane may be operated for a period of three days with the ice detection system inoperative, provided that, whenever operating in visible moisture at temperatures below 10 degrees C (50 degrees F): (i) All ice protection systems are turned on (except leading edge deicing during takeoff), and (ii) AFM limitations and normal procedures for operating in icing conditions are complied with. (2) The airplane may be operated for a period of three days with the icing condition low speed alarm system inoperative, provided: (i) It is not operated in known or forecast icing conditions, and (ii) If icing conditions are inadvertently encountered, the autopilot must be disconnected and steps must be taken to exit icing conditions. Note 2: Refer to MMEL/MEL system for complete dispatch requirements. Where a difference exists between this AD and the MMEL, the provisions of this AD prevail. Alternative Methods of Compliance (m) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Atlanta ACO. Note 3: Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Atlanta ACO. Special Flight Permits (n) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished. Incorporation by Reference (o) Except for the actions specified in paragraphs (a), (f), (g), (h), (i), (j), and (k) of this AD the actions shall be done in accordance with EMBRAER Service Bulletin 120-25-0258, dated May 14, 2001; EMBRAER Service Bulletin 120-30-0032, Change 01, dated June 13, 2001; EMBRAER Service Bulletin 120-25-0258, Change 01, dated August 30, 2001; EMBRAER Service Bulletin 120-30-0033, Change 01, dated September 6, 2001; and EMBRAER Service Bulletin 120-30-0033, Change 02, dated September 14, 2001; as applicable. (1) The incorporation by reference of EMBRAER Service Bulletin 120-25-0258, Change 01, dated August 30, 2001; EMBRAER Service Bulletin 120-30-0033, Change 01, dated September 6, 2001; and EMBRAER Service Bulletin 120-30-0033, Change 02, dated September 14, 2001, is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. (2) The incorporation by reference of EMBRAER Service Bulletin 120-25-0258, dated May 14, 2001; and EMBRAER Service Bulletin 120-30-0032, Change 01, dated June 13, 2001, was approved previously by the Director of the Federal Register as of July 12, 2001 (66 FR 34083, June 27, 2001). (3) Copies may be obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil. Copies may be inspected at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, suite 450, Atlanta, Georgia; or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC. Note 4: The subject of this AD is addressed in Brazilian airworthiness directive 2001-05-02R1, effective date of September 30, 2001. Effective Date (p) This amendment becomes effective on October 22, 2001. Issued in Renton, Washington, on October 3, 2001. Charles Huber, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. FR Doc. 01-25395 Filed 10-11-01; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1904 [Docket No. R-02A] RIN 1218-AC00 Occupational Injury and Illness Recording and Reporting Requirements AGENCY: Occupational Safety and Health Administration (OSHA), U.S. Department of Labor. ACTION: Final rule. SUMMARY: The Occupational Safety and Health Administration (OSHA) is delaying the effective date of three provisions of the Occupational Injury and Illness Recording and Reporting Requirements rule published January 19, 2001 (66 FR 5916-6135) and is establishing interim criteria for recording cases of work-related hearing loss. The provisions being delayed are §§ 1904.10(a) and (b), which specify recording criteria for cases involving occupational hearing loss, § 1904.12, which defines “musculoskeletal disorder (MSD)” and requires employers to check the MSD column on the OSHA Log if an employee experiences a work-related musculoskeletal disorder, and § 1904.29(b)(7)(vi), which states that MSDs are not considered privacy concern cases. The effective date of these provisions is delayed from January 1, 2002 until January 1, 2003. OSHA will continue to evaluate §§ 1904.10 and 1904.12 over the next year. OSHA is also adding a new paragraph (c) to §1904.10, establishing criteria for recording cases of work-related hearing loss during calendar year 2002. Section 1904.10(c) codifies the enforcement policy in effect since 1991, under which employers must record work related shifts in hearing of an average of 25dB or more at 2000, 3000 and 4000 hertz in either ear. DATES: The amendments in this rule will become effective on January 1, 2002. FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and Health Administration, U.S. Department of Labor, Directorate of Safety Standards Programs, Room N-3609, 200 Constitution Avenue, N.W., Washington, DC 20210. Telephone (202) 693-2222. SUPPLEMENTARY INFORMATION: I. Background In January, 2001 (66 FR 5916-6135), OSHA published revisions to its rule on recording and reporting occupational injuries and illnesses (29 CFR parts 1904 and 1952) to take effect on January 1, 2002. On July 3, 2001, the agency proposed to delay the effective date of Sections 1904.10 Recording criteria for cases involving occupational hearing loss, and 1904.12 Recording criteria for cases involving work-related musculoskeletal disorders, until January 1, 2003 (66 FR 35113-35115). In that notice, OSHA explained that, as a result of the regulatory review required by the Andrew Card memorandum (66 FR 7702), it was reconsidering the requirement in Section 1904.10 to record a case involving an occupational hearing loss averaging 10dB, or more. OSHA found that there were reasons to question the appropriateness of 10dB as the recording criterion, and asked for comment on other approaches and criteria, including recording losses averaging 15, 20 or 25dB. In view of the uncertainty concerning the appropriate criteria, OSHA preliminarily concluded that it should delay implementing the 10dB requirement for a year while it reconsidered the question. The proposal stated that if implementation of Section 1904.10 were delayed for a year, employers would continue to record hearing loss cases during that year using the 25dB criterion articulated in OSHA's 1991 enforcement policy (See 66 FR 35114-35115). OSHA also stated that it was reconsidering the requirement in Section 1904.12 that employers check the MSD column on the OSHA Log for a case involving a “musculoskelal disorder” as defined in that Section. This action was taken in light of a the Secretary's decision to develop a comprehensive plan to address ergonomic hazards, and to schedule a series of forums to consider key issues relating to the plan, including the approach to defining an ergonomic injury. OSHA preliminarily found that it would be premature to define a musculoskeletal disorder for recordkeeping purposes before further progress has been made in developing the comprehensive ergonomics plan, and that a delay in the effective date of Section 1904.12 was therefore appropriate. 66 FR 35115. The Agency noted that the proposed delay would not affect the employer's obligation to record all injuries and illnesses, including musculoskeletal injuries and illnesses, that meet the criteria in Sections 1904.4-1904.7, regardless of whether a particular injury or illness would meet the definition of MSD found in Section 1904.12. Id. The period for submission of comments on the proposed rule closed on September 4, 2001. After considering the views of interested parties, OSHA has determined that the effective date of Sections 1904.10(a) and 1904.12(a) and (b) should be delayed until January 1, 2003, and that a new paragraph (c) should be added to Section 1904.10 re-establishing a 25dB recording criterion for hearing loss cases for calendar year 2002. II. Summary and Explanation of Final Rule A. Recording Occupational Hearing Loss Cases Section 1904.10 of the final recordkeeping rule requires employers to record, by checking the “hearing loss” column on the OSHA 300 Log, a case in which an employee's hearing test (audiogram) reveals that a Standard Threshold Shift (STS) in hearing acuity has occurred. An STS is defined as “a change in hearing threshold, relative to the most recent audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000 and 4000 hertz in one or both ears.” The recordkeeping rule itself does not require the employer to test employee's hearing. However, OSHA's occupational noise standard (29 CFR 1910.95), requires employers in general industry to conduct periodic audiometric testing of employees when employees' noise exposures are equal to, or exceed, an 8-hour time-weighted average of 85dB. If such testing reveals that an employee has sustained hearing loss equal to an STS, the employer must take protective measures, including requiring the use of hearing protectors, to prevent further hearing loss. The old recordkeeping rule, which remains in effect until January 1, 2001, contained no specific threshold for recording hearing loss cases. In 1991, OSHA issued an enforcement policy on the criteria for recording hearing loss cases, to remain in effect until new criteria were established by rulemaking. The 1991 policy stated that OSHA would cite employers for failing to record work related shifts in hearing of an average of 25dB or more at 2000, 3000 and 4000 hertz in either ear. Subsequently, OSHA released interpretations stating that the employer could adjust the audiogram for aging using the tables in Appendix F of the Noise Standard, and that the employer was to use the employee's pre-employment audiogram as the baseline reference audiogram for determining a recordable hearing loss. One of the major issues in the recordkeeping rulemaking was to determine the level of occupational hearing loss that constitutes a health condition serious enough to warrant recording. This was necessary because the final rule no longer requires recording of minor or insignificant health conditions. See, e.g., 66 FR 5931. OSHA proposed a requirement to record hearing loss averaging 15dB at 2000, 3000 and 4000 hertz in one or both ears. OSHA adopted the lower 10dB threshold in the final rule based in large part upon comments submitted by the Coalition to Preserve OSHA and NIOSH and Protect Workers' Hearing, asserting that “[a]n age-corrected STS is a large hearing change that can affect communicative competence.” 66 FR 6008. In its July 3 proposal to delay implementation of Section 1904.10, OSHA expressed reservations about whether 10dB is the appropriate threshold for recording hearing loss. The agency acknowledged that there is evidence that an STS may not be a serious health problem, particularly for employees who have not previously sustained hearing loss, and that a 10dB shift may not be a reliable criterion for recording purposes because of normal variations in audiometric measurement (66 FR 35114). For these and other reasons, OSHA reopened the record to permit consideration of additional evidence and to explore alternative approaches ( Id. ). Most commenters supported the proposed delay in implementation of Section 1940.10 (see, e.g., Exs. 3-1, 3-6, 3-14, 3-22, 3-25, 3-26, 3-29, 3-34, 3-49, 3-50, 3-54). The view expressed by Organization Resources Counselors, Inc. is representative. ORC (Ex. 3-49, p. 3) argued: [T]he finding of a Standard Threshold Shift (STS) [is] a ‘flag’ for the implementation of a series of actions required by the OSHA standard on exposure to occupational noise. It was not intended, by itself, to be an indicator of illness, or impairment, but, rather, a sentinel event that triggers a series of actions that will prevent illness or impairment from occurring. As such a tool, it has been an effective protector of employee hearing, but does not, by itself, rise to the level of recordability. See also, e.g., Ex. 3-54 (American Iron and Steel Institute), Ex. 3-50 (National Association of Manufacturers and Can Manufacturers Institute). Several commenters opposed the delay, with most citing the protective purposes served by recordkeeping requirements (see, e.g., Exs. 3-3, 3-4, 3-8, 3-9, 3-10, 3-11, 3-12, 3-17, 3-31). In a representative comment, the AFL-CIO argued that the requirement to record a 10dB hearing loss on the Log would aid in the early detection and prevention of occupational hearing loss. It stated (Ex. 3-24-1, p.3) that, [r]ecording a 10 dB STS on Form 300 is a practical and reasonable means to assist in the early detection of a loss in hearing so that workplace intervention measures can be implemented to protect workers from the hazards of noise. Having employers continue to record shifts in hearing of an average of 25 dB * * * is too high a threshold of loss in hearing acuity to be sufficiently proactive in preventing worker hearing loss. OSHA is not persuaded by this argument. As the AFL-CIO concedes (Ex. 3-24-1, p.6), Congress intended the recordkeeping system to capture non-minor injuries and illnesses. OSHA is reconsidering the finding that a 10dB shift in hearing acuity represents such a health condition, and intends to resolve this issue based on all the available evidence. In the meantime, there is sufficient question concerning the appropriateness of 10dB as a recording threshold to justify a limited delay in implementing Section 1904.10(a) and (b). Delaying implementation of the 10dB threshold for a year while OSHA reconsiders the criteria for recording hearing loss cases will not deprive employers and employees of information about noise hazards. The occupational noise exposure standard requires that employees in general industry be tested for hearing loss when noise exposure exceeds an 8-hour time-weighted average of 85dB, and that employees be informed, in writing, if a 10dB shift has occurred. The audiometric test records must be retained for the duration of the affected employee's employment. See 29 CFR 1910.95 (g), (m). The noise standard also specifies the protective measures to be taken to prevent further hearing loss for employees who have experience a 10dB shift, including the use of hearing protectors and referral for audiological evaluation where appropriate. See 29 CFR 1910.95 (g)(8). These requirements, which apply without regard to the recording criteria in the recordkeeping rule, will protect workers against the hazards of noise. The one-year delay in implementing Section 1904.10(a) and (b) will therefore not deprive employers and workers of the means to detect and prevent hearing loss. Several commenters supported a requirement to record a hearing loss averaging 25 dB or more while OSHA reconsidered the 10dB criterion (see, e.g., Exs. 3-49, 3-54), The American Iron and Steel Institute (AISI) argued that the 25dB criterion should be included in the regulatory text to avoid any confusion about employers' compliance responsibilities during calendar year 2002. OSHA agrees with AISI on this point, and has added a new paragraph (c) to Section 1904.10 specifying the criteria to be used for the 2002 recording year. The AISI also recommended that OSHA continue its policy of allowing employers to correct employee's audiograms for aging (presbycusis) using the age correction tables in the occupational noise standard (Ex. 3-54). Since this was OSHA's policy in the past, the Agency has also included language to this effect in the new paragraph, 1904.10(c). A few commenters urged OSHA to make sure that the State Plan States have the same recording criteria as federal OSHA (see, e.g., Exs. 3-22, 3-49). When OSHA issues a final determination for the recording of occupational hearing loss for calendar years 2003 and beyond, the states will be required to have identical criteria. However, the purpose of this notice is to maintain the status quo regarding the recording of occupational hearing loss for the year 2002, while OSHA reconsiders what the appropriate recording criteria should be. Therefore, the State Plan States will be allowed to maintain their policies for the recording of hearing loss during 2002. B. Defining an MSD and Checking the MSD Column Section 1904.12 provides that if an employee experiences a recordable musculoskeletal disorder (MSD), the employer must record it on the OSHA Log and must check the MSD column. For recordkeeping purposes, the rule defines MSDs as disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs that are not caused by slips, trips, falls, motor vehicle accidents or other similar accidents (see Section 1904.12(b)(1)). The Section also explains that in determining whether an MSD is recordable, the employer must use the same criteria that apply to other injuries and illnesses. To be recordable, the disorder must be work related, must be a new case, and must meet one or more of the general recording criteria. Section 1904.12 states that “[t]here are no special criteria for determining which musculoskeletal disorders to record,” and refers the reader to other sections of the rule in which the basic recording criteria are found. OSHA's purpose in including an MSD column on the Log was to gather data on “musculoskeletal disorders” as that term is defined in Section 1904.12. Two months after publication of the new recordkeeping rule, Congress disapproved OSHA's ergonomics standard under the Congressional Review Act (Pub. L. 107.5 Mar. 20, 2001). Following Congressional disapproval of the ergonomics standard, the Secretary announced that she intends to develop a comprehensive plan to address ergonomics hazards and scheduled a series of forums to consider basic issues related to ergonomics (66 FR 31694, 66 FR 33578). One of the key issues to be considered in connection with the Secretary's comprehensive plan is the approach to defining an ergonomic injury. In the July proposal, OSHA preliminarily found that it would be premature to implement the new definition of MSD in Section 1904.12 before considering the views of business, labor and the public health community on the problem of ergonomic hazards. It also preliminarily found that it would create confusion and uncertainty to require employers to implement the new MSD definition while the Secretary was considering how to define an ergonomic injury under the comprehensive plan. 66 FR 35115. Many commenters supported the delay, citing reasons similar to those in the July 3 proposal ( see, e.g., Exs. 3-1, 3-6, 3-14, 3-19, 3-20, 3-25, 3-26, 3-27, 3-29, 3-32, 3-35, 3-37, 3-38, 3-43, 3-44, 3-49, 3-50, 3-54, 3-59, 3-61). OSHA continues to believe a delay is justified for these reasons. Several commenters opposed a delay in implementing the recordkeeping rule's definition of MSD and the requirement to check the MSD column ( see, e.g., Exs. 3-3, 3-8, 3-9, 3-10, 3-11, 3-12, 3-17, 3-21, 3-24, 3-28, 3-31, 3-36, 3-40, 3-42, 3-52). In a representative comment, the AFL-CIO argued that delayed implementation of Section 1904.12 will make it more difficult for employers, workers and OSHA to address workplace ergonomic hazards, and will seriously undermine OSHA's ability to enforce the general duty clause for ergonomic hazards ( see Ex. 3-24-1, pp. 15-22). OSHA does not agree with this assessment. Employers are required to record all injuries and illnesses meeting the criteria established in Sections 1904.4 through 1904.7 of the recordkeeping rule regardless of whether a particular injury or illness meets the definition of MSD in Section 1904.12. Thus, the delay in implementing Section 1904.12 will not reduce the number of cases recorded or affect the narrative description of the injury or illness that must be provided for each case. Employers who use the Log and injury reports to discover ergonomic hazards will be able to continue to do so, relying on the description-of-injury information and other data to identify soft-tissued disorders in their workplaces (Ex. 3-24-1, p. 15). Employees will continue to have access to the information provided in the Log and, under the new rule, to the information in the part of the Incident Report explaining how the incident occurred. Employers and employees will be able to categorize this injury and illness information in any manner they find useful. The delay need not lead to the elimination of useful statistical data on MSDs, as the AFL-CIO suggests (Ex. 3-24-1, p. 16). The definition of MSD in Section 1904.12 is a new one. The Secretary is currently considering approaches to defining ergonomic injuries in connection with her comprehensive plan, and it is premature to say, at this point, what definition would be appropriate to produce useful data. To require employers to implement a new definition of MSD while the agency is considering the issue in connection with the comprehensive ergonomics plan could create unnecessary confusion which would not, in OSHA's view, be balanced by improvements in the national statistics. Finally, OSHA notes that the delay in the implementation of Section 1904.12 will have no effect on the Department's enforcement of the general duty clause. The definition of MSD in that section has never been in effect, and has not been a factor in enforcement of the clause. The sole effect of the delay is that employers need not use the definition to categorize cases on the OSHA Recordkeeping Log for calendar year 2002. This recordkeeping issue does not affect an employer's obligation under the general duty clause. The employer remains obligated to free its workplace from recognized hazards that are likely to cause serious physical harm. OSHA is adding a note following the introduction to Section 1904.12 to inform employers of the policy that will be in effect during 2002. The note also informs the employer that, instead of checking the column on the 300 Log for musculoskeletal disorders (since this column is being removed from the log), the employer is to check the column for “injury” or “all other illness,” depending on the circumstances of the case. In a related matter, paragraph 1904.29(b)(7)(vi) of the rule states that employers must consider an illness case to be a privacy concern case, and withhold the employee's name from the forms, if the employee independently and voluntarily requests that his or her name not be entered on the Log. The second sentence of the paragraph states that “[m]usculoskeletal disorders (MSDs) are not considered privacy concern cases.” OSHA will be unable to enforce this requirement during the period of time that the definition of MSD in the rule is delayed. Accordingly, OSHA is adding a note to section 1904.29(b)(7)(vi) stating that the first sentence of that section takes effect on January 1, 2002, and the second sentence takes effect on January 1, 2003. C. The 1904 Forms Consistent with the above decisions, OSHA will issue new recordkeeping forms that have been modified to remove the MSD and hearing loss columns from the OSHA 300 Log of Work-Related Injuries and Illnesses and the OSHA 300A Summary of Work-Related Injuries and Illnesses. The instructions accompanying the forms have also been modified to reflect the decisions for the 1904 requirements that will be in effect during calendar year 2002. Employers may obtain copies of the forms from OSHA's Internet homepage at www.osha.gov, or by contacting the OSHA publications office at (202) 693-1888. Paperwork Reduction Act OSHA has submitted to OMB a request for approval of the information collection requirements of the final recordkeeping rule, including the effect on the rule's paperwork burden of the delay in implementation of Sections 1904.10 and 1904.12 until January 1, 2003, and the adoption of an interim 25dB recording criterion for hearing loss cases for calendar year 2002. OSHA will publish a subsequent Federal Register document when OMB takes further action on the information collection requirements in the recordkeeping rule. Regulatory Flexibility Certification Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601), the Assistant Secretary certifies that the final rule will not have a significant economic impact on a substantial number of small entities. The rule does not add any new requirements, but merely delays the effective date of two sections of the rule. The delay will not impose any additional costs on the regulated public. Executive Order This document has been deemed significant under Executive Order 12866 and has been reviewed by OMB. Authority This document was prepared under the direction of John Henshaw, Assistant Secretary for Occupational Safety and Health. It is issued under Section 8 of the Occupational Safety and Health Act (29 U.S.C. 657) and 5 U.S.C. 553. John Henshaw, Assistant Secretary of Labor. 29 CFR part 1904 is hereby amended as set forth below: PART 1904—[AMENDED] 1. The authority citation for 29 CFR part 1904 is revised to read as follows: Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533. 2. Section 1904.10 of 29 CFR is amended by adding a note to the section, and by adding a new paragraph (c), to read as follows: § 1904.10 Recording criteria for cases involving occupational hearing loss. (c) Recording criteria for calendar year 2002. From January 1, 2002 until December 31, 2002, you are required to record a work-related hearing loss averaging 25dB or more at 2000, 3000, and 4000 hertz in either ear on the OSHA 300 Log. You must use the employee's original baseline audiogram for comparison. You may make a correction for presbycusis (aging) by using the tables in Appendix F of 29 CFR 1910.95. The requirement of § 1904.37(b)(1) that States with OSHA-approved state plans must have the same requirements for determining which injuries and illnesses are recordable and how they are recorded shall not preclude the states from retaining their existing criteria with regard to this section during calendar year 2002. Note to § 1904.10: Paragraphs (a) and (b) of this section are effective on January 1, 2003. Paragraph (c) of this section applies from January 1, 2002 until December 31, 2002. 3. Section 1904.12 is amended by adding a note to the section, to read as follows: § 1904.12 Recording criteria for cases involving work-related musculoskeletal disorders. Note to § 1904.12: This section is effective January 1, 2003. From January 1, 2002 until December 31, 2002, you are required to record work-related injuries and illnesses involving muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs in accordance with the requirements applicable to any injury or illness under § 1904.5, § 1904.6, § 1904.7, and § 1904.29. For entry (M) on the OSHA 300 Log, you must check either the entry for “injury” or “all other illneses.” 4. Section 1904.29(b)(7)(vi) is revised to read as follows: § 1904.29 Forms. (6) * * * (7) * * * (vi) Other illnesses, if the employee independently and voluntarily requests that his or her name not be entered on the log. Musculoskeletal disorders (MSDs) are not considered privacy concern cases. ( Note: The first sentence of this § 1904.29(b)(7)(vi) is effective on January 1, 2002. The second sentence is effective beginning on January 1, 2003.) [FR Doc. 01-25552 Filed 10-10-01; 8:45 am] [blocked]