Occupational Injury and Illness Recording and Reporting Requirements

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1952

[Docket No. R-02]

RIN 1218-AB24

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 revising its rule addressing the recording and reporting of occupational injuries and illnesses (29 CFR parts 1904 and 1952), including the forms employers use to record those injuries and illnesses. The revisions to the final rule will produce more useful injury and illness records, collect better information about the incidence of occupational injuries and illnesses on a national basis, promote improved employee awareness and involvement in the recording and reporting of job-related injuries and illnesses, simplify the injury and illness recordkeeping system for employers, and permit increased use of computers and telecommunications technology for OSHA recordkeeping purposes.

This rulemaking completes a larger overall effort to revise Part 1904 of Title 29 of the Code of Federal Regulations. Two sections of Part 1904 have already been revised in earlier rulemakings. A rule titled Reporting fatalities and multiple hospitalization incidents to OSHA, became effective May 2, 1994 and has been incorporated into this final rule as § 1904.39. A second rule entitled Annual OSHA injury and illness survey of ten or more employers became effective on March 13, 1997 and has been incorporated into this final rule as § 1904.41.

The final rule being published today also revises 29 CFR 1952.4, Injury and Illness Recording and Reporting Requirements, which prescribes the recordkeeping and reporting requirements for States that have an occupational safety and health program approved by OSHA under § 18 of the Occupational Safety and Health Act (the “Act” or “OSH Act”).

DATES:

This final rule becomes effective 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 Ave., NW, Washington, DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

The following is a table of contents for this preamble. The regulatory text and appendices follow the preamble. Documents and testimony submitted to the docket (Docket R-02) of this rulemaking are cited throughout this preamble by the number that has been assigned to each such docket entry, preceded by the abbreviation “Ex.,” for exhibit.

II. The Occupational Safety and Health Act and the Functions of the Recordkeeping System

III. Overview of the Former OSHA Recordkeeping System

IV. OSHA's Reasons for Revising the Recordkeeping Rule

V. The Present Rulemaking

VI. Legal Authority

VII. Summary and Explanation of the Final Rule

A. Subpart A. Purpose

B. Subpart B. Scope

C. Subpart C. Recordkeeping Forms and Recording Criteria

D. Subpart D. Other OSHA Injury and Illness Recordkeeping Requirements

E. Subpart E. Reporting Fatality, Injury and Illness Information to the Government.

F. Subpart F. Transition From the Former Rule

G. Subpart G. Definitions

VIII. Forms

A. OSHA 300

B. OSHA 300 A

C. OSHA 301

IX. State Plans

X. Final Economic Analysis

XI. Regulatory Flexibility Certification

XII. Environmental Impact Assessment

XIII. Federalism

XIV. Paperwork Reduction Act of 1995

XV. Authority

Regulatory Text of 29 CFR Part 1904 and 29 CFR Section 1952.4

II. The Occupational Safety and Health Act and the Functions of the Recordkeeping System

Statutory Background

The Occupational Safety and Health Act (the “OSH Act” or “Act”) requires the Secretary of Labor to adopt regulations pertaining to two areas of recordkeeping. First, section 8(c)(2) of the Act requires the Secretary to issue regulations requiring employers to “maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.” Section 8(c)(1) of the Act also authorizes the Secretary of Labor to develop regulations requiring employers to keep and maintain records regarding the causes and prevention of occupational injuries and illnesses. Section (2)(b)(12) of the Act states Congress' findings with regard to achieving the goals of the Act and specifically notes that appropriate reporting procedures will help achieve the objectives of the Act.

Second, section 24(a) of the Act requires the Secretary to develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. This section also directs the Secretary to “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.”

After passage of the Act, OSHA issued the required occupational injury and illness recording and reporting regulations as 29 CFR part 1904. Since 1971, OSHA and the Bureau of Labor Statistics (BLS) have operated the injury and illness recordkeeping system as a cooperative effort. Under a Memorandum of Understanding dated July 11, 1990 (Ex. 6), BLS is now responsible for conducting the nationwide statistical compilation of occupational illnesses and injuries (called the Annual Survey of Occupational Injuries and Illnesses), while OSHA administers the regulatory components of the recordkeeping system.

Functions of the Recordkeeping System

This revision of the Agency's recordkeeping rule is firmly rooted in the statutory requirements of the OSH Act (see the Legal Authority section of the preamble, below). OSHA's reasons for revising this regulation to better achieve the goals of the Act are discussed in the following paragraphs.

Occupational injury and illness records have several distinct functions or uses. One use is to provide information to employers whose employees are being injured or made ill by hazards in their workplace. The information in OSHA records makes employers more aware of the kinds of injuries and illnesses occurring in the workplace and the hazards that cause or contribute to them. When employers analyze and review the information in their records, they can identify and

correct hazardous workplace conditions on their own. Injury and illness records are also an essential tool to help employers manage their company safety and health programs effectively.

Employees who have information about the occupational injuries and illnesses occurring in their workplace are also better informed about the hazards they face. They are therefore more likely to follow safe work practices and to report workplace hazards to their employers. When employees are aware of workplace hazards and participate in the identification and control of those hazards, the overall level of safety and health in the workplace improves.

The records required by the recordkeeping rule are also an important source of information for OSHA. During the initial stages of an inspection, an OSHA representative reviews the injury and illness data for the establishment as an aid to focusing the inspection effort on the safety and health hazards suggested by the injury and illness records. OSHA also uses establishment-specific injury and illness information to help target its intervention efforts on the most dangerous worksites and the worst safety and health hazards. Injury and illness statistics help OSHA identify the scope of occupational safety and health problems and decide whether regulatory intervention, compliance assistance, or other measures are warranted.

Finally, the injury and illness records required by the OSHA recordkeeping rule are the source of the BLS-generated national statistics on workplace injuries and illnesses, as well as on the source, nature, and type of these injuries and illnesses. To obtain the data to develop national statistics, the BLS and participating State agencies conduct an annual survey of employers in almost all sectors of private industry. The BLS makes the aggregate survey results available both for research purposes and for public information. The BLS has published occupational safety and health statistics since 1971. These statistics chart the magnitude and nature of the occupational injury and illness problem across the country. Congress, OSHA, and safety and health policy makers in Federal, State and local governments use the BLS statistics to make decisions concerning safety and health legislation, programs, and standards. Employers and employees use them to compare their own injury and illness experience with the performance of other establishments within their industry and in other industries.

III. Overview of the Former OSHA Recordkeeping System

The OSH Act authorizes OSHA to require employers to keep records and to report the recorded information to OSHA. However, the Agency only requires some employers to create and maintain occupational injury and illness records. Those employers who are required to keep records must report on those records only when the government specifically asks for the information, which occurs exclusively under limited circumstances that are described below.

Employers covered by the recordkeeping regulations must keep records of the occupational injuries and illnesses that occur among their employees. To do so, covered employers must complete two forms. First, the employer must maintain a summary form (OSHA Form 200, commonly referred to as the “OSHA Log,” or an equivalent form) that lists each injury and illness that occurred in each establishment during the year. For each case on the Log, the employer also prepares a supplementary record (OSHA Form 101, or an equivalent), that provides additional details about the injury or illness. Most employers use a workers' compensation First Report of Injury in place of the 101 form. The Log is available to employees, former employees, and their representatives. A Summary of the Log is posted in the workplace from February 1 to March 1 of the year following the year to which the records pertain. The Log and summary, as well as the more detailed supplementary record, are available to OSHA inspectors who visit the establishment.

The employer is only obligated to record work-related injuries and illnesses that meet one or more of certain recording criteria. In accordance with the OSH Act, OSHA does not require employers to record cases that only involve “minor” injuries or illnesses,

i.e.,

do not involve death, loss of consciousness, days away from work, restriction of work or motion, transfer to another job, medical treatment other than first aid, or diagnosis of a significant injury or illness by a physician or other licensed health care professional.

The language of the OSH Act also limits the recording requirements to injuries or illnesses that are “work-related.” The Act uses, but does not define, this term. OSHA has interpreted the Act to mean that injuries and illnesses are work-related if events or exposures at work either caused or contributed to the problem. Work-related injuries or illnesses may (1) occur at the employer's premises, or (2) occur off the employer's premises when the employee was engaged in a work activity or was present as a condition of employment. Certain limited exceptions to this overriding geographic presumption were permitted by the former rule.

Although the Act gives OSHA the authority to require all employers covered by the OSH Act to keep records, two major classes of employers are not currently required regularly to keep records of the injuries and illnesses of their employees: employers with no more than 10 employees at any time during the previous calendar year, and employers in certain industries in the retail and service sectors.

Although the Act authorizes OSHA to require employers to submit reports on any or all injuries and illnesses occurring to their employees, there are currently only three situations where OSHA requires an employer to report occupational injury and illness records to the government. First, an employer must report to OSHA within eight hours any case involving a work-related fatality or the in-patient hospitalization of three or more employees as the result of a work-related incident (former 29 CFR 1904.8, final rule 1904.39). These provisions were revised in 1994 to reduce the reporting time for these incidents from 48 hours to 8 hours and reduce the number of hospitalized employees triggering a report from five workers to three workers (59 FR 15594 (April 1, 1994)). Changes made to this section in 1994 have largely been carried forward in the final rule being published today.

Second, an employer who receives an annual survey form from the Bureau of Labor Statistics must submit its annual injury and illness data to the BLS. The BLS conducts an annual survey of occupational injuries and illnesses under 29 CFR 1904.20-22 of the former rule (1904.41 of the final rule). Using a stratified sample, the BLS sends survey forms to randomly selected employers, including employers who, under Part 1904, would otherwise be exempt from the duty to keep the OSHA Log and Summary. These otherwise exempt employers are required to keep an annual record of the injuries and illnesses occurring among their employees that are recordable under Part 1904 if the BLS contacts them as part of the annual survey. At the end of the year, these employers must send the results of recordkeeping to the BLS. The BLS then tabulates the data and uses them to prepare national statistics on occupational injuries and illnesses. The

BLS survey thus ensures that the injury and illness experience of employers otherwise exempted from the requirement to keep OSHA records—such as employers with 10 or fewer employees in the previous year and employers in certain Standard Industrial Classification (SIC) codes—is reflected in the national statistics. In accordance with its statistical confidentiality policy, the BLS does not make public the identities of individual employers.

Finally, OSHA may require employers to send occupational injury and illness data directly to OSHA under a regulation issued in 1997. That section of this regulation is entitled Annual OSHA Injury and Illness Survey of Ten or More Employers. It allows OSHA or the National Institute for Occupational Safety and Health (NIOSH) to collect data directly from employers. This section was published in the

Federal Register

on February 11, 1997 (62 FR 6434) and became effective on March 13, 1997. It has been included in this final rule as section 1904.41 without substantive change; however, this section has been rewritten in plain language for consistency with the remainder of Part 1904.

IV. OSHA's Reasons for Revising the Recordkeeping Rule

OSHA had several interrelated reasons for revising its recordkeeping rule. The overarching goal of this rulemaking has been to improve the quality of workplace injury and illness records. The records have several important purposes, and higher quality records will better serve those purposes. OSHA also believes that an improved recordkeeping system will raise employer awareness of workplace hazards and help employers and employees use and analyze these records more effectively. In revising its recordkeeping rule, the Agency also hopes to reduce underreporting and to remove obstacles to complete and accurate reporting by employers and employees.

A major goal of the revision has been to make the system simpler and easier to use and understand and to update the data on which the system is based. For example, OSHA has updated the list of partially exempt industries to reflect the most recent data available. The revisions to the final rule will also create more consistent statistics from employer to employer. Further, by providing more details about the system in the regulation itself and writing the rule in plain language, fewer unintentional errors will be made and the records will be more consistent. More consistent records will improve the quality of analyses comparing the injury and illness experience of establishments and companies with industry and national averages and of analyses looking for trends over several years.

Another objective of the rulemaking has been to lessen the recordkeeping burden on employers, reduce unnecessary paperwork, and enhance the cost-effectiveness of the rule. The final rule achieves this objective in several ways. It updates the partially exempt industry list, reduces the requirement to keep track of lengthy employee absences and work restrictions caused by work-related injuries and illnesses and, above all, greatly simplifies the forms, regulatory requirements, and instructions to make the system easier for employers and employees to manage and use.

In this rulemaking, OSHA has also addressed some of the objections employers have raised in the years since OSHA first implemented the injury and illness recordkeeping system. For example, the final rule includes a number of changes that will allow employers to exclude certain cases, eliminate the recording of minor illness cases, and allow employers maximum flexibility to use computer equipment to meet their OSHA recordkeeping obligations.

OSHA is also complying with the President's Executive Memorandum on plain language (issued June 1, 1998) by writing the rule's requirements in plain language and using the question-and-answer format to speak directly to the user. OSHA believes that employers, employees and others who compile and maintain OSHA records will find that the plain language of the final rule helps compliance and understanding.

Many of OSHA's goals and objectives in developing this final rule work together and reinforce each other. For example, writing the regulation in plain language makes the rule easier for employers and employees to use and improves the quality of the records by reducing the number of errors caused by ambiguity. In some cases, however, one objective had to be balanced against another. For example, the enhanced certification requirements in the final rule will improve the quality of the records, but they also slightly increase employer burden. Nevertheless, OSHA is confident that the final rule generally achieves the Agency's goals and objectives for this rulemaking and will result in a substantially strengthened and simplified recordkeeping and reporting system.

The Need To Improve the Quality of the Records

The quality of the records OSHA requires employers to keep is of crucial importance for anyone who uses the resulting data. Problems with completeness, accuracy, or consistency can compromise the data and reduce the quality of the decisions made on the basis of those data. Several government studies, as well as OSHA's own enforcement history, have revealed problems with employers' injury and illness recordkeeping practices and with the validity of the data based on those records.

A study conducted by the National Institute for Occupational Safety and Health (NIOSH) between 1981 and 1983 revealed that 25 percent of the 4,185 employers surveyed did not keep OSHA injury and illness records at all, although they were required by regulation to do so (Ex. 15:407-P).

A study of 192 employers in Massachusetts and Missouri conducted by the BLS in 1987 reported that an estimated 10 percent of covered employers did not maintain OSHA records at all, total injuries were underrecorded by approximately 10 percent (even though both overrecording and underrecording were discovered), lost workday injuries were undercounted by 25 percent, and lost workdays were undercounted by nearly 25 percent. Approximately half of the uncounted lost workdays were days of restricted work activity, and the other half were days away from work. Some of the underrecording was due to employers entering lost time cases on their records as no-lost-time cases (Exs. 72-1, 72-2).

Through its inspections of workplaces, OSHA has also discovered that some employers seriously underrecord injuries and illnesses. In cases where the inspector has found evidence that the employer willfully understated the establishment's injury and illness experience, OSHA has levied large penalties and fines under its special citation policy for egregious violations. OSHA has issued 48 egregious injury and illness recordkeeping citations since 1986 (Ex. 74).

As part of the OSHA Data Initiative (ODI), a survey allowing OSHA to collect injury and illness data from employers to direct OSHA's program activities, the Agency conducts Part 1904 records audits of 250 establishments each year. The following table shows the results of the audits conducted to date.

1996 Through 1998 OSHA Recordkeeping Audit Results *

Error type

Data reference year

(percent)

1996

1997

1998

Cases not entered on employers Log

13.56

10.49

12.91

Lost workday cases recorded as non-lost workday cases

8.39

6.53

6.21

Non-lost workday cases recorded as lost workday cases

(**)

2.10

1.94

Total major recording errors

21.95

19.11

21.07

Total cases recorded without major errors

78.05

80.89

78.93

* The results were tabulated using unweighted data and should not be used to draw broad conclusions about the recordkeeping universe.

** Data not calculated for 1996.

Source: OSHA Data Initiative Collection Quality Control: Analysis of Audits on 1996-1998 Employer Injury and Illness Recordkeeping.

Explicit Rules Are Needed To Ensure Consistent Recording

When OSHA's recordkeeping regulation was first promulgated in 1971, many industry safety experts were concerned that the regulations and the instructions on the forms did not provide adequate guidance for employers. They requested that the Department of Labor provide additional instructions on employers' recordkeeping obligations and clarify several recordkeeping issues. The BLS responded in 1972 by publishing supplemental instructions to the recordkeeping forms, BLS Report 412, What Every Employer Needs To Know About OSHA Recordkeeping (Ex. 1). These supplemental instructions were designed to help employers by providing detailed information on when and how to record injury and illness cases on the recordkeeping forms. The supplemental instructions clarified numerous aspects of the rule, including the important recordability criteria that outline which injuries and illnesses are work-related and thus recordable. This BLS Report was revised and reissued in 1973, 1975, and 1978.

In response to requests from labor and industry, and after publication in the

Federal Register

and a public comment period, the BLS 412 report series was replaced in April of 1986 by the

Recordkeeping Guidelines For Occupational Injuries And Illnesses

(the

Guidelines

) (Ex. 2). The

Guidelines

contained an expanded question-and-answer format similar to that of the BLS 412 report and provided additional information on the legal basis for the requirements for recordkeeping under Part 1904. The

Guidelines

provided clearer definitions of the types of cases to be recorded and discussed employer recordkeeping obligations in greater detail. The

Guidelines

also introduced a number of exceptions to the general geographic presumption that injuries and illnesses that occurred “on-premises” were work-related to cover situations where the application of the geographic presumption was considered inappropriate. Further, the

Guidelines

updated the lists that distinguished medical treatment from first aid and addressed new recordkeeping issues. The BLS also published a shortened version of the

Guidelines,

entitled A Brief Guide to Recordkeeping Requirements for Occupational Injuries and Illnesses (Ex. 7).

Although the 1986 edition of the

Guidelines

clarified many aspects of the recordkeeping regulation, concerns persisted about the quality and utility of the injury and illness data. In response to inquiries from employers, unions, employees, BLS, and OSHA staff, the Agency issued many letters of interpretation. These letters restated the former rule's regulatory requirements, interpreted the rules as they applied to specific injury and illness cases, and clarified the application of those requirements. A number of these letters of interpretation have been compiled and entered into the docket of this rulemaking (Ex. 70). OSHA has incorporated many of the prior interpretations directly into the implementation questions and answers in the regulatory text of the final rule, so that all affected employers will be aware of these provisions.

External Critiques of the Former Recordkeeping System

Because of concern about the injury and illness records and the statistics derived from them, several organizations outside OSHA have studied the recordkeeping system. The National Research Council (NRC), the Keystone Center, and the General Accounting Office (GAO) each published reports that evaluated the recordkeeping system and made recommendations for improvements. OSHA has relied on these studies extensively in developing this final rule.

The NRC Report

In response to concern over the underreporting of occupational injuries and illnesses and inconsistencies in the national data collected by the BLS, Congress appropriated funds in 1984 for the BLS to conduct a quality assurance study of its Annual Survey of Occupational Injuries and Illnesses. The BLS asked the National Research Council (NRC) to convene an expert panel to analyze the validity of employer records and the BLS annual survey, to address any problems related to determining and reporting occupational diseases, and to consider other issues related to the collection and use of data on health and safety in the workplace.

In 1987, NRC issued its report, Counting Injuries and Illnesses in the Workplace: Proposals for a Better System (Ex. 4). The report contained 24 specific recommendations (Ex. 4, Ch. 8). In sum, the NRC panel recommended that BLS take the following steps to improve the recordkeeping system: (1) Modify the BLS Annual Survey to provide more information about the injuries and illnesses recorded; (2) discontinue the Supplementary Data System, replace it with a grant program for States and individual researchers, and develop criteria for the detail and quality of the data collected by the replacement system; (3) conduct an ongoing quality assurance program for the Annual Survey to identify underreporting by comparing the information on employers' logs with data from independent sources; (4) implement a system of surveillance for occupational disease, including the collection of data on exposure to workplace hazards; (5) improve the collection of national occupational fatality data; (6) implement an administrative data system that would allow OSHA to obtain individual establishment data to conduct an “effective program for the prevention of

workplace injuries and illnesses * * *”; and (7) thoroughly evaluate recordkeeping practices in individual establishments, using additional resources requested from Congress for that purpose to avoid diverting resources from OSHA inspections of workplace hazards (Ex. 4, p. 10).

The Keystone Report

In 1987, The Keystone Center convened 46 representatives from labor unions, corporations, the health professions, government agencies, Congressional staff, and academia for a year-long dialogue to discuss occupational injury and illness recordkeeping. Two years later, Keystone issued its final report, Keystone National Policy Dialogue on Work-related Illness and Injury Recordkeeping, 1989 (Ex. 5). The report focused on four major topics: (1) Recordkeeping criteria; (2) OSHA enforcement procedures; (3) injury and illness data systems; and (4) occupational illnesses. The Keystone report recommended that: (1) OSHA and the BLS should revise various aspects of the recording criteria; (2) OSHA should use injury and illness data to target enforcement efforts; (3) the BLS should revise the

Guidelines

to make them easily and uniformly understood; (4) the BLS should develop a national system to collect and disseminate occupational injury and illness information; and (5) OSHA and the BLS should broaden the type of information collected concerning occupational illness and make the information available to employees and government agencies for appropriate purposes such as research and study.

The General Accounting Office (GAO) Study

An August 1990 report by the GAO, Options for Improving Safety and Health in the Workplace (Ex. 3), discussed the importance of employer injury and illness records. The GAO noted that these records have several major uses. They help employers, employees and others understand the nature and extent of occupational safety and health problems. They help employers and employees identify safety and health problems in their workplaces so that they can correct the problems. They also enable OSHA to conduct research, evaluate programs, allocate resources, and set and enforce standards. The report focused on the use of the records in OSHA enforcement, particularly in targeting industries and worksites for inspections and determining the scope of inspections.

The GAO report found that there was “possibly significant injury and illness underrecording and subsequent underreporting” (Ex. 3, p. 3). The GAO report gave three main reasons for inaccurate recording and reporting: (1) Employers intentionally underrecord injuries and illnesses in response to OSHA inspection policies or management safety competitions; (2) employers unintentionally underrecord injuries and illnesses because they do not understand the recording and reporting system; and (3) employers record injuries and illnesses inaccurately because they do not place a high priority on recordkeeping and do not supervise their recordkeepers properly. The GAO report noted that OSHA's revised enforcement procedures, which included increasing its fines for recordkeeping violations and modifying its records-review procedures, would likely help to improve the accuracy of recordkeeping. The GAO recommended that the Department of Labor study the accuracy of employers' records using independent data sources, evaluate how well employers understand the revised

Guidelines,

and audit employers' records in selected enforcement activities.

OSHA's Strategy for Improving the Quality of Records

OSHA has developed a four-part strategy to improve the quality of the injury and illness records maintained by employers. The first component is to provide information, outreach and training to employers to make them more aware of the recordkeeping requirements, thereby improving their compliance with these requirements. For example, information on injury and illness recordkeeping is included in many of OSHA's publications and pamphlets, on the OSHA CD-ROM, and on OSHA's Internet site. OSHA personnel answer thousands of recordkeeping questions each year in response to phone calls and letters. OSHA also trains employers at the OSHA Training Institute in recordkeeping procedures and provides speakers on this topic for numerous safety and health events.

The second component is improved enforcement of the recordkeeping requirements. OSHA continues to review employer records during many of its workplace inspections. OSHA also audits the records of some employers who submit data to OSHA under former section 1904.17 (recodified as section 1904.41 Requests from OSHA for Data in the final rule). Although OSHA does not issue citations for minor reporting and recording violations, the Agency does cite and fine employers when it encounters serious or willful injury and illness recordkeeping problems.

The third component of OSHA's overall plan is this revision of the injury and illness recordkeeping rule. The revised final rule will streamline the recordkeeping system by simplifying the forms and the logic used to record an individual case. It will also consolidate the instructions that were formerly contained in the rule itself, in the

Guidelines,

and in many interpretative letters and memoranda. In addition, the final rule will improve the quality of the injury and illness records by changing several requirements to ensure that data are entered correctly. OSHA has simplified and streamlined the recordkeeping forms and processes to reduce errors. Other changes include: (1) Simplifying and clarifying the definitions of terms such as “medical treatment,” “first aid,” and “restricted work” to reduce recording errors; (2) providing specific recordkeeping guidance for specific types of injuries and illnesses; (3) including a detailed discussion of the process of determining whether an injury or illness is work-related; (4) giving employees greater involvement by improving their access to records and providing a longer posting period for the annual summary; (5) requiring higher level management officials to certify the records; (6) adding a falsification/penalty statement to the Summary; (7) adding a disclaimer to the Log to clarify that an employer who records an injury or illness is not admitting fault, negligence or liability for workers' compensation or insurance purposes; and (8) requiring the employer to establish a process for employees to report injuries and illnesses and to tell employees about it, and explicitly prohibiting the employer from discriminating against employees who report injuries and illnesses.

V. The Present Rulemaking

In 1995, the Keystone Center reassembled a group of business, labor, and government representatives to discuss draft proposed changes to the recordkeeping rule. OSHA shared its draft proposed revision of the rule with the participants and the public. The draft was also reprinted in several national safety and health publications. Written comments generated by the on-going dialogue were used to help develop the proposal and the final rule, and they are in the rulemaking record (Ex. 12).

OSHA consulted with the Advisory Committee on Construction Safety and Health (ACCSH) before issuing the

proposed rule. ACCSH made specific recommendations to OSHA for improving the recordkeeping system as it applied to the construction industry. OSHA gave the ACCSH recommendations careful consideration and responded by modifying the proposal in several areas. The ACCSH recommendations, OSHA's written briefing, and the relevant portions of the transcripts of the October and December 1994 ACCSH meetings are also part of the public record (Ex. 10).

OSHA published a Notice of Proposed Rulemaking (NPRM) on February 2, 1996 (61 FR 23), giving formal notice that the Agency proposed to revise the injury and illness recording and reporting regulations, forms, and supplemental instructions (Ex. 14). The proposed rule reflected a number of suggestions made by the Keystone participants and ACCSH.

The NPRM invited all interested parties to submit comments on the proposal to the docket by May 2, 1996. In response to requests from members of the public, OSHA held two public meetings during the comment period and extended the comment period to July 1, 1996.

OSHA received 449 written comments in response to the NPRM and compiled 1200 pages of transcripts from 60 presentations made at the public meeting. Comments and testimony were received from a broad range of interested parties, including corporations, small business entities, trade associations, unions, state and local governments, professional associations, citizens groups, and safety and health organizations. OSHA has carefully reviewed all of the comments and testimony in its preparation of the final rule.

As described in greater detail below, the final rule revises OSHA's regulation for the recording and reporting of work-related deaths, injuries and illnesses. The rule is part of a comprehensive revision of the OSHA injury and illness recordkeeping system.

The final rule becomes effective, on January 1, 2002. At that time, the following recordkeeping actions will occur:

(1) 29 CFR Part 1904, entitled Recording and Reporting Occupational Injuries and Illnesses, will be in effect.

(2) The State plan provisions in 29 CFR Part 1952, Section 1952.4, entitled Injury and Illness Recording and Reporting Requirements will be in effect.

(3) Three new recordkeeping forms will come into use:

(A) OSHA Form 300, OSHA Injury and Illness Log, and OSHA Form 300 A Summary, which will replace the former OSHA Form 200, Log and Summary of Occupational Injuries and Illnesses; and

(B) OSHA Form 301, OSHA Injury and Illness Incident Record, which will replace the former OSHA Form 101, Supplementary Record of Occupational Injuries and Illnesses.

(4) The following BLS/OSHA publications will be withdrawn:

(A) Recordkeeping Guidelines for Occupational Injuries and Illnesses, 1986; and

(B) A Brief Guide to Recordkeeping Requirements for Occupational Injuries and Illnesses, 1986.

(5) All letters of interpretation regarding the former rule's injury and illness recordkeeping requirements will be withdrawn and removed from the OSHA CD-ROM and the OSHA Internet site.

Provisions Not Carried Forward From the Proposal

Two proposed regulatory sections in OSHA's 1996 Notice of Proposed Rulemaking (NPRM) have not been carried forward in this rulemaking. They are: (1) Falsification of, or failure to keep records or provide reports (Proposed section 1904.16), and (2) Subcontractor records for major construction projects (Proposed section 1904.17).

Paragraphs (a) and (b) of proposed section 1904.16, “Falsification of, or failure to keep records or provide reports,” were included in the proposal because they had been included in the former rule. The proposed section included a provision stating that employers may be subject to criminal fines under section 17(g) of the Act for falsifying injury and illness logs and may be cited and fined under sections 9, 10, and 17 of the Act for failure to comply with the recordkeeping rule. Several commenters favored retention of this proposed provision in the final rule because, in their view, OSHA needs strong enforcement of the recordkeeping rule to make sure that employers keep accurate records (see,

e.g.

, Exs. 15: 11, 289). Others, however, objected to the proposed provision (see,

e.g.

, Exs. 15: 22, 335, 375). The views of this latter group were reflected in a comment from the American Petroleum Institute (Ex. 15: 375), which urged OSHA to delete this section from the rule in its entirety because nothing like it is found in any other OSHA regulation or standard. In the final rule, OSHA has decided that this section is not needed to enforce the final rule, and when need be, to issue citations and levy penalties.

The Keystone report recommended, and OSHA proposed, to require construction employers to maintain “site logs,” or comprehensive injury and illness records, for major construction projects. The Keystone report noted that construction sites are normally composed of multiple contractors and subcontractors, each of whom may be present at the site for a relatively short period of time, and that no records of the safety and health experience of the site are readily available, either to OSHA or to employers and employees.

In an attempt to address this problem, the proposed provision would have required site-controlling employers in the construction industry to maintain a separate record reflecting the overall injury and illness experience of employees working for sub-contract construction firms for any construction site having an initial construction contract value exceeding $1,000,000. The site-controlling employer would thus have been required to record the injuries and illnesses of subcontractor employees who were employed by construction employers with 11 or more employees working at the site at any time during the previous calendar year.

Many commenters strongly favored the addition of a construction site log provision to the final rule (see,

e.g.

, Exs. 20; 29; 35; 36; 45; 15: 48, 110, 113, 129, 136, 137, 141, 181, 224, 266, 278, 310, 350, 359, 369, 375, 394, 407, 413, 415, 418, 425, 438, 440). Several of these commenters urged OSHA to expand this “multi-employer” log concept to employers in other industries (see,

e.g.

, Exs. 35; 15: 48, 113, 129, 369, 415, 418, 438). For example, the AFL-CIO (Ex. 15: 418) encouraged OSHA to “[e]xpand this recommendation to all industries. As the Agency is well aware, safety and health problems related to multi-employer worksites and contract work are a major concern in many industries beyond construction. Many of the major chemical explosions and fatalities at steel mills, power plants and paper mills have been related to contract work. With more and more businesses contracting out services for on-site activities, the safety and health concern associated with these practices is growing.”

Other commenters argued that the proposed site log provisions should be expanded to include injuries and illnesses to construction employees working for employers who would otherwise be exempt from OSHA recordkeeping requirements because they employ fewer than 11 workers (see,

e.g.

, Exs. 20; 15: 350, 359, 369, 407, 425). Two of these commenters recommended adding a requirement to the final rule requiring the site-controlling employer to assist smaller

employers with their records (Exs. 15: 350, 359).

Several commenters recommended adding provisions to the final rule that would provide greater access to the construction site log by employees (see,

e.g.

, Exs. 15: 129, 310, 394) and by other employers (see,

e.g.

, Ex. 15: 310). Others recommended that OSHA include in the final rule a requirement for the site-controlling employer to collect the number of hours worked by each subcontractor to make it easier to calculate each subcontractor's injury and illness rates (see,

e.g.

, Exs. 15: 310, 369, 394), and some commenters recommended that the final rule contain a requirement for subcontractors to report work-related injuries and illnesses to the site-controlling employer (see,

e.g.

, Exs. 15: 359, 369, 440).

The Building and Construction Trades Department (BCTD), AFL-CIO discussed many of these issues while commenting in favor of site logs:

On the project level, the fragmentation of employers on construction sites makes it impossible to assess fully safety and health on a particular project. Since the origins of OSHA, injury and illness recordkeeping has been the responsibility of each individual employer. Nevertheless, the hazards of construction activity are shared by employees across the site, and are not specific to a single employer. Employees are often injured or made ill by circumstances that are not under their own employer's full control. The balkanization of recordkeeping contributes to the failure of full and complete communication in construction.

What is needed, at a national and the project level, is a way to record and count the injuries and illnesses that occur on specific projects. We need to know about illnesses and injuries that are associated with distinct types of construction activity, with the various phases of construction, and with the methods, materials, and hazards that are common to those types of work. Furthermore, we need to develop a measure of injury and illness that spans employers, to get a picture of the aggregate outcomes affecting all actors on a common site. Only with such a tool can the construction industry establish and meet performance benchmarks for safety and health.

Site logs would be useful to all of the actors in the occupational safety and health arena. First, employers would benefit from the collection of this data. General contractors increasingly use safety and health information in selecting their subcontractors, and in evaluating projects. Site logs will give them a new tool for both self-evaluation and the evaluation of other contractors. Similarly, subcontractors are often ignorant of the safety and health performance of other contractors and the general contractor. Site logs will lead to better information for all contractors on the project.

Second, employees will benefit from site logs. The site log will focus employers' attentions upon the risks and hazards that are encountered across the worksite. By concretely illustrating that hazards are everyone's problems, the site log will prompt employers and employees to minimize those hazards and to maximize site safety and health.

Third, owners will benefit from site logs. Today, many owners are selecting contractors on the basis of the contractors' rates for lost work days and total recordables. In many cases, these rates are a poor measure for the owner's purpose. An owner's typical concern is with how well a general contractor manages safety and health on the entire site, not with how many injuries and illnesses occurred within that contractor's own workforce. Site logs can be used to measure the management performance of the general contractor, and will greatly assist the owners in their quest for construction safety.

Finally, OSHA will find the site logs to be enormously useful in its efforts to become a “data-driven” agency. First, a project-centric focus will allow OSHA to focus its enforcement and consultation resources. Site logs will be useful to OSHA in scheduling inspections during the phases of construction which appear, through this data, to present the most risks, and in focusing its inspections at construction sites, since the recent illness and injury history of the entire site can be assayed by examining a single document. By the same token, the information revealed by the logs will assist OSHA in reaching out to employers to provide consultative services. Site specific data will also aid OSHA in developing safety and health standards that are appropriately tailored to the risks and hazards of specific types of construction.

The BCTD is convinced that private actors will use site logs to improve safety and health performance. If OSHA establishes a requirement that site logs be kept, the private marketplace will use this new tool to the betterment of employee safety and health (Ex. 15: 394).

Other commenters opposed the addition of a site log provision to the final rule (see,

e.g.

, Exs. 43; 51; 15: 9, 17, 21, 38, 40, 43, 61, 67, 74, 77, 97, 111, 116, 119, 121, 126, 151, 155, 163, 170, 194, 195, 204, 213, 235, 242, 256, 260, 262, 263, 265, 269, 270, 281, 294, 298, 304, 305, 312, 314, 341, 342, 351, 356, 364, 377, 389, 395, 397, 401, 406, 412, 423, 433, 437, 443, 441). The most common argument presented by these commenters was that records should only be kept by the employer, and that one employer should not keep records for another employer's employees (see,

e.g.

, Exs. 15: 9, 116, 126, 163, 195, 204, 260, 262, 265, 281, 294, 304, 312, 314, 341, 342, 351, 364, 389, 395, 396, 397, 401, 406, 423, 433). The Jewell Coal and Coke Company (Ex. 15: 281) stated that:

[t]he sub-contractor should be responsible for keeping up with their own employee injury/illness records as they are the ultimate responsible party for their own employees under worker's compensation regulations and in all other legal issues. This proposal would appear to be trying to switch total responsibility to the site controlling employer for that record keeping purpose and taking the responsibility off the subcontractor with whom the responsibility should lie. It is, we feel, unfairly discriminatory against the site-controlling employer in this case and we are strongly opposed to the wording of this proposal. Even the alternative proposal in this section places the ultimate responsibility upon the project owner for collection of accident and illness information and send it to OSHA. Again we are strongly opposed to the wording of this proposal because it takes the responsibility for record keeping off the sub-contractor and places the ultimate responsibility on the project owner, a responsibility that we feel belongs to the sub-contractor irregardless of their size.

Brown & Root, Inc. (Ex. 15: 423) added “A site controlling employer cannot be held responsible for determining which injuries and illnesses of a subcontractor's employees are recordable. A contractor cannot become involved in the medical records of employees who do not work for him or her. The subcontractor employer has to be held accountable and responsible for his own employees, this responsibility cannot be delegated to another contractor. The number of employees or the value of the construction project is irrelevant.”

Some of the commenters who generally opposed this provision agreed that site-specific data would be useful if it could be collected by a method that allowed each employer to keep its own records (see,

e.g.

, Exs. 15: 9, 116, 195, 260, 262, 265, 304, 364, 401). Other commenters pointed out that there would be problems in getting accurate data from subcontractors (see,

e.g.

, Exs. 15: 242, 263, 269, 270, 310, 314, 377, 395, 397, 406) or suggested that the site-controlling employer should not be held responsible for the quality of the records received from subcontractors (see,

e.g.

, Exs. 33; 15: 176, 195, 231, 273, 294, 301, 305, 312, 351).

The Alabama Branch of the Associated General Contractors of America, Inc. (AGC) cited difficulties associated with other regulatory requirements that could result from the proposed OSHA site log requirement:

This could place an undue hardship on the site controlling employer far beyond his ability to appoint and manage independent contractors and subcontractors without there being other entangling both federal and state obligations, which would lead to the subcontractor's employees being declared employees of the controlling contractor. Many states use the common law to make a determination of the employer/employee relationship, as well as the Internal Revenue Service. This employee/employer relationship under the common law usually

says if a controlling contractor exercises any control as to time, place, method or result of a person's work that they are in fact defacto employees of the controlling contractor, for social security purposes and other state purposes. Therefore, I think it is shallow thinking to believe that the general contractor with 100 subcontractors should have all 5,500 employees under their control and avoid other legal entanglements, without the ability to actually control the subcontractor.

The National Federation of Independent Business (NFIB) expressed concern about the proposed site log provision as it would relate to OSHA's multi-employer citation policy (Ex. 15: 304), and the Small Business Administration (Exs. 51: 67, 437) argued that the proposed requirement would require competing employers to share sensitive business information.

A number of commenters objected to the requirement because of the additional burden it would place on employers (see,

e.g.

, Exs. 51; 15: 40, 43, 67, 77, 97, 119, 121, 163, 194, 204, 235, 242, 256, 263, 269, 270, 294, 298, 304, 312, 314, 356, 377, 389, 395, 397, 406, 412, 437, 441), arguing that the proposed requirement would result in duplication (see,

e.g.

, Exs. 51; 15: 9, 38, 67, 77, 119, 155, 204, 304, 312, 351, 356, 364, 377, 395, 397, 437). For example, the American Iron and Steel Institute (Ex. 15: 395) stated that the proposed requirement would place a “near impossible burden on the ‘site controlling employer’ ” to determine the size of each subcontractor to decide which subcontractors would be required to keep records.

A number of commenters also questioned the value of the statistical data that would be produced by a site log requirement (see,

e.g.

, Exs. 51; 15: 61, 62, 67, 74, 77, 97, 121, 151, 194, 312, 314, 351, 389, 395, 433, 437, 433), and several participants were concerned that the records would not be useful for accident prevention purposes (see,

e.g.

, Exs. 15: 121, 151, 312, 351, 389, 433) .

OSHA received many comments addressing miscellaneous points related to the proposed construction site log requirement. For example, some commenters suggested limiting the scope of the project records required to be maintained (see,

e.g.

, Exs. 15: 17, 21, 111, 116, 213, 155), while others argued that the proposed dollar threshold ($1 million) for a covered construction project was too low and should be raised (see,

e.g.

, Exs. 15: 17, 111, 116, 441). Others suggested that the site log requirement should be triggered by the time duration of the project (Ex. 15: 116); the number of construction workers at the site (Ex. 15: 111); or include only construction employers with more than 11 employees (see,

e.g.

, Exs. 15: 170, 213, 405). Some commenters urged the Agency not to expand the site log concept beyond the construction industry (see,

e.g.

, Exs. 33; 15: 176, 231, 273, 301, 397). Finally, several commenters urged OSHA to make any site log provision in the final rule compatible with the corresponding provisions of the Process Safety Management Standard (29 CFR 1910.119), especially if the site log requirement in the recordkeeping rule was expanded beyond construction (see,

e.g.

, Exs. 33; 15: 159, 176, 231, 273, 301, 335).

Based on a thorough review of the comments received, OSHA has decided not to include provisions in the final that require the site-controlling employer to keep a site log for all recordable injuries and illnesses occurring among employees on the site. OSHA has made this decision for several reasons. First, such a provision would not truly capture the site's injury and illness experience because many subcontractors employ 10 or fewer employees and are therefore exempt from keeping an OSHA Log. To require these very small employers to keep records under Part 1904 for the periods of time they worked on a construction site meeting the dollar threshold for this provision would be a new recordkeeping burden. This would create considerable complexity for these employers and for the site-controlling employer. Second, under the Data Initiative (section 1904.41 of the final rule), OSHA now has a means of targeting data requests for records of the safety and health experience of categories of employers and can therefore obtain the data it needs to establish inspection priorities in a less administratively complex and less burdensome way when the Agency needs such data. Third, OSHA was concerned with the utility of the data that would have been collected under the proposed site log approach, because of the time lag between collection of the data and its use in selecting employers for inspections or other interventions. In many cases work at the site would be complete before the data was collected and analyzed. Finally, a site log requirement is not necessary to enable general contractors to compare the safety records of potential subcontractors since they can require such information as a condition of their contractual arrangements without OSHA requirements. For these reasons, the final rule does not contain a site log provision.

The Use of Alternative Data Sources

Several commenters suggested that the Agency use data from existing data sources, such as state workers' compensation agencies, insurance companies, hospitals, or OSHA inspection files, instead of requiring separate data for OSHA recordkeeping purposes (see,

e.g.

, Exs. 15: 2, 28, 58, 63, 97, 184, 195, 289, 327, 341, 374, 444). For example, Alex F. Gimble observed:

Since similar data are readily available from other sources, such as the National Safety Council, insurance carriers, etc., why not use these statistics, rather than go through this duplication of effort at taxpayer expense? Another approach would be to utilize data collected by OSHA and State Plan compliance officers during site visits over the past 25 years (Ex. 15: 28).

Several commenters suggested that OSHA use injury and illness data from the workers' compensation systems in lieu of employer records. The comments of the American Health Care Association (AHCA) are representative of the views of these commenters:

AHCA encourages OSHA to consider the use of workers' compensation data in lieu of proposed OSHA 300 and 301 forms. Pursuing the enactment of legislation that would allow OSHA access to every state's workers' compensation data would eliminate the need for employers to maintain two sets of records, provide OSHA with necessary safety and health data, and ease administrative and cost burdens now associated with recordkeeping for employers in every industry across the country (Ex. 15: 341).

Ms. Diantha M. Goo recommended the use of injury and illness data obtained from treatment facilities rather than the OSHA records:

The accuracy and usefulness of OSHA's reporting system would be vastly improved if it were to shift responsibility from employers (who have a vested interest in concealment) to the emergency rooms of hospitals and clinics. Hospitals are accustomed to reporting requirements, use the correct terminology in describing the accident and its subsequent treatment and are computerized (Ex. 15: 327).

In response to these comments, OSHA notes that the injury and illness information compiled pursuant to Part 1904 is much more reliable, consistent and comprehensive than data from any available alternative data source, including those recommended by commenters. This is the case because, although some State workers' compensation programs voluntarily provide injury and illness data to OSHA for various purposes, others do not. Further, workers' compensation data vary widely from state to state. Differing state workers' compensation laws and administrative systems have resulted in

large variations in the content, format, accessibility, and computerization of that system's data. In addition, workers' compensation databases often do not include injury and illness data from employers who elect to self-insure.

Additionally, most workers' compensation databases do not include information on the number of workers employed or the number of hours worked by employees, which means that injury and illness incidence rates cannot be computed from the data. Workers' compensation data are also based on insurance accounts (i.e., filed claims), and not on the safety and health experience of individual workplaces. As a result, an individual account often reflects the experience of several corporate workplaces involved in differing business activities. Finally, as discussed below in the Legal Authority section of the preamble, the OSH Act specifically sets out the recordability criteria that must be included in the OSHA recordkeeping system envisioned by the Congress when the Act was passed. The Congress intended that all non-minor work-related injuries and illnesses be captured by the OSHA recordkeeping system, both so that individual establishments could evaluate their injury and illness experience and so that national statistics accurately reflecting the magnitude of the problem of occupational injury and illness would be available.

Although OSHA disagrees that any of the alternate sources of data are satisfactory substitutes for the information gathered under Part 1904, the Agency recognizes that data from these sources have value. To the extent that information from workers' compensation programs, the BLS statistics, insurance companies, trade associations, etc., are available and appropriate for OSHA's purposes, OSHA intends to continue to use them to supplement its own data systems and to assess the quality of its own data. However, consistent with the Congressional mandate of the OSH Act, OSHA must continue to maintain its own recordkeeping system and to gather data for this system through recording and reporting requirements applicable to covered employers.

Section 1952.4 Injury and Illness Recording and Reporting Requirements

The requirements of 29 CFR 1952.4 describe the duties of State-Plan states to implement the 29 CFR 1904 regulations. These requirements are discussed in Section IX of the preamble, State Plans, and in the preamble discussion for section 1904.37, State recordkeeping regulations.

General Issues Raised by Commenters

In addition to the issues discussed above, three issues concerning recordkeeping warrant discussion: analysis of the data, training and qualifications of recordkeepers, and recordkeeping software.

Analysis of the Data

During OSHA's public meetings, Eric Frumin of the Union of Needletrades, Industrial and Textile Employees, AFL-CIO (UNITE) urged OSHA to include a requirement for employers to analyze the OSHA 1904 data in depth to discover patterns and trends of occupational injury and illness, stating that:

[y]ou're telling the employers to evaluate information that's coming to them, and I say that to stress the point that's a very logical, common sense requirement and you're not generally speaking asking them to do that once they compile a log. You stop short of asking employers to evaluate the log in toto, to look for the kinds of trends and comparisons and so forth that we've been discussing here. I think it's important for OSHA to consider some—making such a requirement, particularly in light of a fairly consistent pattern of testimony in this proceeding, wherein employers now do not analyze what's on the log in much depth. * * * But what has emerged at the end of the day is not a whole lot of use of the information on the log for—in terms of analyzing it for trends and various associations or conclusions about how to protect people, how to stop the injuries and illness (Ex. 58X, pp. 372—375).

In the final rule, OSHA has not included any requirement for employers to analyze the data to identify patterns or trends of occupational injury and illness. OSHA agrees with Mr. Frumin that analysis of the data is a logical outgrowth of maintaining records. Employers and employees can use such analyses to identify patterns and trends in occupational injuries and illnesses, and use that information to correct safety and health problems in the workplace. OSHA encourages both employers and employees to use the data for these purposes. However, a requirement of this type would go beyond the scope of the recording and reporting rule, which simply requires employers to keep records of work-related injuries and illnesses, and report the data under certain circumstances. OSHA believes that requirements of this type are better addressed through an OSHA standard, rather than the 1904 recordkeeping regulation.

Training of Recordkeepers

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) suggested that OSHA add requirements for the training of the individual who maintains the 1904 records for the employer, stating that:

[a]nother important issue relates to the qualifications and responsibilities of the individual filling out the 300 log and Form 301. Most workplaces generally have a non-safety and health professional entering this information in the 300 log after the decision of a recordable injury or illness has been made. In our view it is important that these individuals have proper training about the recordkeeping rule and the employer's recordkeeping system. In order to assure the most accurate and complete recording of work-related injuries and illnesses, we encourage the Agency to consider developing guidelines for the qualifications and training of these individuals (Ex. 15: 418).

OSHA has not included a training requirement for the person entering the information on the Part 1904 records in this final rule. The Agency believes that the Section 1904.32 provisions of the final rule calling for annual review of the records and certification of the annual summary by a company executive will ensure that employers assign qualified personnel to maintain the records and to see that they are trained in that task. Further, because OSHA did not include training requirements in its 1996 proposal, the Agency has not gathered sufficient information in the rulemaking docket about whether specific training provisions would have utility, as well as the appropriate qualifications and training levels that would assist in writing such provisions at this time.

As part of its outreach and training program accompanying this rule, OSHA will be providing speeches and seminars for employers to help them train their recordkeeping staff. OSHA will also be producing materials employers can use to help train their recordkeeping staff, including free software employers can use to keep records, training programs, presentations, course outlines, and a training video. All of these materials will be available through OSHA's Internet home page at www.osha.gov.

OSHA-Produced Recordkeeping Software

In its proposal (61 FR 4048), OSHA asked the public to comment on whether or not OSHA should develop computer software to make injury and illness recordkeeping easier for employers, and discussed the features that would be desirable for such software. Those features were:

—decision-making logic for determining if an injury or illness is recordable;

—automatic form(s) generation;

—the ability to assist the employer in evaluating the entered data through several preset analytical tools (

e.g.

, tables, charts, etc.); and

—computer based training tools to assist employers in training employees in proper recordkeeping procedures.

OSHA also suggested that any such software should be in the public domain and/or be available at cost to the public and asked the following questions: What percentage of employers have computers to assist them in their business? What percentage of employers currently use computers for tracking employee-related information (payroll, timekeeping, etc.)? Should the distribution be through the Government, public domain share-ware distribution, or other channels? Should OSHA develop the software or only provide specifications for its requirements?

Several commenters said that most business establishments had computers (see,

e.g.

, Exs. 15: 9, 95, 163, 281, 288, 375). The American Health Care Association (AHCA) estimated that 50% to 70% of their members used computers (Ex. 15: 341), and Raytheon Constructors, Inc. estimated that 60% of employers are using computers. OSHA agrees that computers are available in most businesses, although certainly not all of them. The agency also notes that these comments were made in 1996, and that businesses' computer usage has grown since that time.

A number of commenters urged OSHA to produce and distribute software to help employers keep the Part 1904 records (see,

e.g.

, Exs. 35; 36; 51; 15: 9, 26, 32, 34, 67, 68, 76, 87, 95, 105, 109, 111, 129, 154, 157, 170, 181, 182, 197, 225, 235, 239, 247, 272, 277, 281, 283, 288, 303, 313, 327, 341, 347, 350, 352, 353, 356, 394, 405, 406, 409, 418, 426, 437, 438). The commenters gave various reasons for favoring the provision of OSHA-provided software, including reducing the burden and cost of the rule for employers (see,

e.g.

, Exs. 15: 87, 95, 111, 170, 182, 197, 350), saving businesses programming costs (Ex. 15: 277), helping small businesses (Ex. 51; 15: 67), resulting in more uniform data (see,

e.g.

, Exs. 36; 15: 32, 153, 170, 181, 347, 409, 418), and facilitating analysis of the data (see,

e.g.

, Exs. 35; 15: 153, 418). For example, the Ford Motor Company stated that “Ford feels that the development of recordkeeping software by OSHA, which will employ a decision-making logic, automatic form generation, the ability to assist the employer in evaluating the entered data, and a tutorial section to assist employers in training is necessary. This will enhance the uniformity of data collection amongst all users, which is currently lacking” (Ex. 15: 347). The Muscatine Iowa Chamber of Commerce Safety Committee (Ex. 15: 87) added that:

“[e]very feature identified as a minimum requirement would be a great benefit to employers attempting to comply with the OSHA recordkeeping requirements. Prompts which would in any way aid in the determination of recordability would be appreciated by any person without a great deal of experience in filing OSHA reports. We feel these features are especially important now with the changes in forms and information to be collected.”

Several of the commenters who urged OSHA to provide computer software tempered their support by asking that the use of such software should be optional and not mandatory (see,

e.g.

, Exs. 15: 60, 109, 154, 198, 225, 247, 272, 303, 394), and several other commenters recommended that OSHA provide both software and specifications so employers could use the OSHA product to build their own data systems (see,

e.g.

, Exs. 15: 170, 247, 283).

A number of commenters told OSHA that the Agency should not produce software to help employers with their 1904 recordkeeping obligations (see,

e.g.

, Exs. 15: 78, 82, 85, 156, 163, 324, 348, 359, 363, 374, 375, 378, 402, 414). Several of these commenters suggested OSHA produce software performance specifications for the industry (see,

e.g.

, Exs. 15: 156, 163, 357, 387). The commenters had various reasons for opposing the production of software. Several stated that each employer wants different data in its own unique form (see,

e.g.

, Exs. 15: 78, 85, 375, 414). For example, the Central Vermont Public Service Corporation (Ex. 15: 85) stated that “[b]usinesses using safety related software use programs that can perform OSHA recordkeeping and workers' compensation functions in one package. It is unlikely that software developed by OSHA will perform workers' compensation functions and therefore it will not be well received or utilized by business.” Other commenters stated that OSHA should focus elsewhere, that the private sector could produce software more economically (see,

e.g.

, Exs. 15: 357, 375, 387), and that OSHA software is not needed (see,

e.g.

, Exs. 15: 363, 378). For example, the Synthetic Organic Chemical Manufacturers Association, Inc. (SOCMA) stated that “[a]n outside organization with software development expertise should develop the software. OSHA's limited resources should go directly toward improving safety and health in the workplace” (Ex. 15: 357). The Air Transport Association added: “[m]ost major companies have developed their own software to support required OSHA recordkeeping, and others have taken advantage of commercially available programs. We see no need for OSHA to enter this market” (Ex. 15: 378).

OSHA has decided that the Agency will produce software for employers to use for keeping their OSHA 1904 records. There is obviously a need for the Agency to provide outreach and assistance materials for employers, particularly small employers, to help them meet their obligations in the least burdensome way possible, and software will clearly help achieve this goal. In addition, computer software will improve the consistency of the records kept by employers, and will assist them with analysis of the data. At this time, OSHA has not developed the software or its specifications, but will make every effort to produce and distribute software to assist employers by the time this final rule becomes effective. Use of the OSHA produced software will be optional; employers are not required to use this software and may keep records using paper systems. Employers are also free to produce their own software, or to purchase software.

VI. Legal Authority

A. The Final Recordkeeping Rule Is a Regulation Authorized by Sections 8 and 24 of the Act

The Occupational Safety and Health Act authorizes the Secretary to issue two types of final rules, “standards” and “regulations.” Occupational safety and health standards, issued pursuant to section 6 of the Act, specify the measures to be taken to remedy known occupational hazards. 29 U.S.C. 652(8), 655. Regulations, issued pursuant to general rulemaking authority found, inter alia, in section 8 of the Act, are the means to effectuate other statutory purposes, including the collection and dissemination of records on occupational injuries and illnesses. 29 U.S.C. 657(c)(2).

OSHA is issuing this final recordkeeping rule as a regulation pursuant to the authority expressly granted by sections 8 and 24 of the Occupational Safety and Health Act, 29 U.S.C. 657, 673. Section 8 authorizes the Secretary to issue regulations she determines to be necessary to carry out her statutory functions, including regulations requiring employers to record and report work-related deaths and non-minor injuries and illnesses.

1

Section 8(c)(1) of the Act requires each

employer to “make, keep and preserve, and make available to the Secretary [of Labor] or the Secretary of Health [and Human Services], such records regarding his activities relating to this Act as the Secretary, in cooperation with the Secretary of Health and Human Services, may prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of occupational accidents and illnesses.” Section 8(c)(2) further provides that the “Secretary, in cooperation with the Secretary of Health and Human Services, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.” Section 8(c)(3) empowers the Secretary to require employers to “maintain accurate records of employee exposures to potentially toxic materials or harmful physical agents which are required to be monitored or measured under Section 6.”

1

This rule excludes minor or insignificant injuries and illnesses from reporting requirements. The exclusion of minor illnesses represents a change from the former rule, and is discussed

infra.

Section 8(g)(1) authorizes the Secretary “to compile, analyze, and publish, whether in summary or detailed form, all reports or information obtained under this section.” Section 8(g)(2) of the Act empowers the Secretary “to prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under the Act.”

Section 24 contains a similar grant of regulatory authority. It requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics * * * The Secretary shall compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.” Section 24 also empowers the Secretary to “promote, encourage, or directly engage in programs of studies, information and communication concerning occupational safety and health statistics.” Finally, Section 24 requires employers to “file such reports with the Secretary as he shall prescribe by regulation, as necessary to carry out his functions under this chapter.”

Section 20 of the Act, 29 U.S.C. 669, contains additional implicit authority for collecting and disseminating data on occupational injuries and illnesses. Section 20(a) empowers the Secretaries of Labor and Health and Human Services to consult on research concerning occupational safety and health problems, and provides for the use of such research, “and other information available,” in developing criteria on toxic materials and harmful physical agents. Section 20(d) states that “[i]nformation obtained by the Secretary and the Secretary of [HHS] under this section shall be disseminated by the Secretary to employers and employees and organizations thereof.”

Two federal circuit Courts of Appeals have held that rules imposing recordkeeping requirements are regulations and not standards, and are thus reviewable initially in the district courts, rather than the Courts of Appeals.

Louisiana Chemical Assn.

v.

Bingham,

657 F.2d 777, 782-785 (5th Cir. 1981) (OSHA rule on Access to Employee Exposure and Medical Records);

Workplace Health & Safety Council

v.

Reich,

56 F.3d 1465, 1467-1469 (D.C. Cir. 1995) (OSHA rule on Reporting of Fatality or Multiple Hospitalization Incidents). These courts applied a functional test to differentiate between standards and regulations: standards aim toward correction of identified hazards, while regulations serve general enforcement and detection purposes, including those outlined in section 8. E.g.,

Workplace Health & Safety Council,

56 F.3d at 1468. See also

United Steelworkers of America

v.

Reich,

763 F.2d 728, 735 (3d Cir. 1985) (Hazard Communication rule is a standard because it aims to ameliorate the significant risk of inadequate communication about hazardous chemicals). Clearly, the recordkeeping requirements in this final rule serve general administrative functions: They are intended to “aid OSHA's effort to identify the scope of occupational safety and health problems,” to “serve as the foundation for national statistics on the number and rate of workplace injuries and illnesses” and “to raise employers” awareness of the kinds of injuries and illnesses occurring in their workplaces.” See

Functions of the Recordkeeping System, supra.

Therefore, the final rule falls squarely within the mandate of sections 8 and 24 of the Act and is properly characterized as a regulation.

B. The Legal Standard: The Regulation Must Be Reasonably Related to the Purposes of the Enabling Legislation

Under section 8, the Secretary is empowered to issue “such * * * regulations as [s]he may deem necessary to carry out [her] responsibilities under this Act[,]” including regulations requiring employers to record and to make reports on “work-related deaths, injuries and illnesses other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion or transfer to another job.” 29 U.S.C. 657(g)(2), (c)(2). Similarly, section 24 directs the Secretary to compile accurate statistics on “all disabling serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries. * * *” 29 U.S.C. 673(a). Where an agency is authorized to prescribe regulations “necessary” to implement a statutory provision or purpose, a regulation promulgated under such authority is valid “so long as it is reasonably related to the enabling legislation.”

Mourning

v.

Family Publications Service, Inc.,

411 U.S. 356, 369 (1973).

Section 8(g)(2) is functionally equivalent to the enabling legislation at issue in

Mourning

; therefore a reviewing court must examine the final recordkeeping rule's relationship to the purposes of section 8. Cf.

Louisiana Chemical Assn.

v.

Bingham,

550 F. Supp. 1136, 1138-1140 (W.D. La. 1982),

aff'd

, 731 F.2d 280 (5th Cir. 1984) (records access rule is directly related to the goals stated in the Act and supported by the language of section 8).

C. The Final Recordkeeping Rule's Key Provisions Are Reasonably Related to the Purposes of the OSH Act

The goal of this final rule, as stated in the Summary, is to improve the quality and consistency of injury and illness data while simplifying the recordkeeping system to the extent consistent with the statutory mandate. To achieve this purpose, the final rule carries forward the key elements of the existing recordkeeping scheme, with changes designed to improve efficiency, equity, and flexibility while reducing, to the extent practicable, the economic burden on individual establishments. The central requirements in the final rule may be summarized as follows: All non-exempt employers must record all work-related, significant injuries and illnesses. As discussed below, OSHA's approach to each of these elements—the scope of the exemptions from recording requirements, the meaning of “work-relationship,” and the criteria for determining whether an injury or illness is “significant”—is reasonable and directly related to the statutory language and purpose.

1. Exemptions From Recordkeeping Requirements

The final rule contains two categories of exemptions that, together, relieve most employers of the obligation routinely to record injuries and illnesses sustained by their employees. Section 1904.1 contains a “very small-employer” exemption: Employers need not record injuries or illnesses in the current year if they had 10 or fewer employees at all times during the previous year, unless required to do so pursuant to Sections 1904.41 or 1904.42. Section 1904.2 contains a “low-hazard industry” exemption: Individual business establishments are not required to keep records if they are classified in specific low-hazard retail, service, finance, insurance, or real estate industries.

a. The size-based exemption.

Section 8(d) of the Act expresses Congress' intent to minimize, where feasible, the burden of recordkeeping requirements on employers, particularly small businesses: “Any information obtained by the Secretary, the Secretary of [HHS], or a State agency under this Act shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.” 29 U.S.C. 657(d).

Since 1972, the Secretary has exempted very small businesses from most recordkeeping requirements. On October 4, 1972, OSHA issued a provision, codified at 29 CFR 1904.15(a), exempting employers from routine injury and illness reporting requirements for the current year if they had no more than seven employees during the previous year. The exemption did not relieve these businesses from the obligation to report fatality and multiple hospitalization incidents to OSHA and to participate in the BLS annual survey when selected to do so. 37 FR 20823 (October 4, 1972). In 1977, the Secretary amended section 1904.15 to make it applicable to businesses having ten or fewer employees during the year preceding the current reporting year. 42 FR 38568 (July 29, 1977). As support, the amendment cited the Department of Labor appropriations acts for fiscal years 1975 and 1976, which exempted employers having ten or fewer employees from most routine recordkeeping requirements, and Section 8(d) of the Act.

Id

. The Secretary determined that the amendment appropriately balanced the interest of very small businesses while preserving the essential purposes of the recordkeeping scheme:

The [exemption] has been carefully designed to carry out the mandate of section 8(d) without impairing the Act's basic purpose. Thus, the [exemption] will not diminish the protections afforded employees under the Act because all employers * * * remain subject to the enforcement provisions of the Act. The [exemption] will continue to require * * * small employers * * * to report fatalities and multiple hospitalizations and to participate in the BLS annual survey when selected to do so.

42 FR 10016 (February 18, 1977).

In the present rulemaking, the Secretary proposed to enlarge the scope of the exemption to include employers, in industries other than construction, having 19 or fewer employees during the entire previous calendar year. 61 FR 4057 (February 2, 1996). At the same time, the proposal asked for public comment on whether “the small employer partial exemption [should] remain the same, be eliminated, or be expanded?” 61 FR 4043. In reaching a final decision on this matter, the Secretary resolved two interrelated questions. First, she determined that there is no sound basis for departing from OSHA's prior interpretation that the Act permits a carefully crafted exemption for very small employers. Second, she determined that limiting the exemption to employers with ten or fewer employees effectuates Congress' intent with the minimum degree of impairment to the overall recordkeeping scheme. The first question is essentially one of statutory construction, and is therefore considered below. The second question calls for an analysis of the record and is addressed in the preamble explanation for section 1904.1 of the final rule.

It is a fundamental principle of administrative law that an agency which chooses to reverse a previously held position must supply a “reasoned analysis” of its decision.

Motor Vehicle Mfgrs Assn.

v.

State Farm Mutual Automobile Insurance Co.,

463 U.S. 27, 42 (1983). After careful consideration, the Secretary finds no persuasive basis for eliminating the small-employer exemption in this rule. As a threshold matter, nothing has changed the agency's long-held view that section 8(d) permits a carefully tailored exemption from recordkeeping requirements for very small businesses. 42 FR 10016 (February 18, 1977). This interpretation is consistent with the literal wording of the statute and is further confirmed by the provisions in the Department's appropriations acts for FY 1975 and 1976, exempting employers with ten or fewer employees from routine recordkeeping and reporting requirements. See 42 FR 5356 (January 28, 1977) (noting restriction in FY 1975 and 1976 appropriations acts and stating OSHA would continue to treat firms of up to 10 employees as exempt pending permanent change in the regulations to expand the small-employer exemption).

OSHA also concludes that a very small business exemption limited to the routine recording and reporting of non-fatal injuries and illnesses will not seriously undermine the recordkeeping system. OSHA explained in Section I. of the preamble that there are three primary purposes for recordkeeping and reporting requirements. First, the records are the foundation for national statistics published by the BLS on the number and rate of workplace injuries and illnesses, as well as their source, nature and type. Second, the records provide information useful to employers and employees in their efforts voluntarily to locate and eliminate workplace safety and health hazards. Finally, the records are useful to OSHA in targeting its enforcement efforts and in efficiently conducting its safety and health inspections.

Exempting very small businesses from routine recordkeeping will not significantly compromise these goals. The exemption has no effect upon the obligation of these businesses to participate in the national statistical survey administered by the BLS. See the discussion of § 1904.42 in Section V. Summary and Explanation. If a small business is selected for participation in the survey, it must keep a log of injuries and illnesses and make reports as required by the BLS.

Id.

Thus, even the smallest firms continue to be represented in the national injury and illness statistics.

The second purpose is not seriously compromised by the exemption because injury and illness records are less necessary as an aid to voluntary compliance efforts by very small employers and their employees than they are for larger employers. OSHA's experience is that, in establishments with only a few employees, management and production personnel typically work in close concert. Because of their size, such establishments also tend to record fewer occupational injuries and illnesses. Accordingly, in very small firms, managers are likely to have first-hand knowledge of those occupational injuries and illnesses that occur in their workplaces. By the same token, it is reasonable to believe that employees in very small firms are generally aware of the injuries that occur in their workplaces and do not

rely heavily upon access to employer records to inform themselves about occupational hazards. In short, review and analysis of injury and illness records by very small business employers, or by their employees, may not be required for awareness of workplace conditions.

Finally, routine injury and illness records are of limited usefulness to OSHA in targeting and conducting inspections. Many OSHA inspections are conducted in response to a specific complaint or referral alleging unsafe conditions, or in response to a workplace catastrophe or fatality. A large number of inspections are also conducted under special emphasis programs at the national and local level. The remaining inspections are conducted at specific worksites in the construction industry and in other non-construction industries selected under a planned schedule. Construction inspections are selected using an econometric model that predicts the best time to conduct an inspection at a specific construction project. The general industry scheduled inspections are targeted primarily toward employers with extremely high rates of occupational injury and illness, using data supplied by employers to the OSHA Data Initiative (ODI) under the requirements of former section 1904.17,

Annual OSHA Injury and Illness Survey of Ten or More Employers (now section 1904.41)

. Due to budget, paperwork burden and logistical constraints, OSHA collects data only from employers in high hazard industries, and has generally not collected data from employers with fewer than 40 workers.

OSHA is also prohibited from conducting scheduled inspections of employers with 10 or fewer employees in low hazard industries by an annual rider on OSHA's appropriations bills which has been renewed annually for many years. Thus, OSHA does not collect data from very small employers, and they are excluded from the general industry scheduled inspection program. Because very small firms have been wholly excluded from the general schedule inspection program, the routine injury and illness records of very small businesses have been of little use to OSHA in targeting inspections. Should OSHA wish to include very smaller employers in a special emphasis inspection program or other initiative, the agency may require any business, regardless of its size, to keep records and make reports as necessary. See 29 CFR 1904.41.

OSHA also finds that access to the Log and Incident Report would be of little value to compliance officers in conducting inspections of very small businesses initiated by a complaint or report of a fatality or an accident resulting in multiple hospitalizations. OSHA has long acknowledged that while injury and illness records are frequently useful in identifying hazardous areas or operations within larger establishments subject to programmed inspections, they are significantly less important in the conduct of inspections in the smallest businesses. As OSHA has stated, “experience has shown that when dealing with small employers, the injury and illness records * * * are normally not needed by the CSHO to locate hazards during an inspection. In those cases where log information may be needed, the CSHO can easily obtain the information by interviewing the employees.” 42 FR 10016 (February 18, 1977). See also 47 FR 57699, 5700 (December 28, 1982) (in conducting complaint or fatality inspections, the hazard information is usually provided by the complaint itself, or through prompt investigation.) For these reasons, the Secretary believes that an exemption for very small employers, reasonably tailored to the purposes served by recordkeeping requirements, is appropriate.

b. The hazard-based exemption.

Since 1982, OSHA has exempted from routine recordkeeping requirements certain industries classified in OMB's Standard Industrial Classification (SIC) Manual. The 1982 exemption was limited to establishments in SIC Industry Groups that (1) were not subject to general schedule inspections, and (2) had average lost workday case injury rates, as published by the BLS, at or below 75% of the national average. In 1982, the industry groups that met these criteria were those classified as retail trade, finance, insurance, real estate, and services—SIC codes 52-89, excluding 52-54, 70, 75, 76, 79, and 80. 47 FR 57699-57,700 (December 28, 1982).

The purpose of the exemption “was to further OSHA's continuing effort under section 8(d) of the Act to reduce the paperwork burden on employers without compromising worker safety and health.” 47 FR 57700. Exempting low-hazard industries from routine record-keeping was justified, OSHA explained, for the same reasons that warranted exempting very small businesses. Injury and illness records from establishments in the affected SIC codes were not of significant benefit to OSHA because these industry groups were not then targeted for general schedule inspections.

Id.

The records were not a significant source of information for employers and employees because BLS data showed that approximately 94% of all establishments in the affected industry groups could be expected to have fewer than two injuries per establishment on an annual basis.

Id.

Finally, the exemption would not affect the reliability of safety and health statistics because the affected establishments would continue to participate in the BLS annual survey of occupational injuries and illnesses.

Id.

OSHA continues to believe that a properly tailored exemption for low-hazard industries is appropriate. Congress intended in section 8(d) to minimize the recordkeeping burden on all employers, not only small businesses. Exempting from routine injury and illness reporting requirements those employers whose records are unlikely to be of significant benefit to OSHA, or to the employers and their employees, serves this important interest. However, OSHA recognizes that the balance between the interest of minimizing recordkeeping burdens and that of ensuring accurate, reliable and useful information is a delicate one. In the final rule, OSHA has substantially revised the list of exempt low-hazard industries based upon more reliable three-digit industry classification data. See the discussion of § 1904.1, in the following Summary and Explanation. With these changes, OSHA believes that the rule strikes the appropriate balance.

2. The Meaning of “Work-Relationship”

Section 8 of the Act directs the Secretary to prescribe regulations requiring employers to “maintain accurate records of * * * work-related deaths injuries and illnesses [of a non-minor nature]. 29 U.S.C. 657(c)(2). The definition of work-relationship in section 1904.5 of the final rule is consistent, in all but one respect, with the definition in the

Guidelines

to the former rule. The final rule states that an injury or illness is work-related “if an event or exposure in the work environment either

caused or contributed to

[it] or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception listed in section 1904.5(b)(2) specifically applies” (emphasis added).

The

Guidelines

state that, “[i]f an event * * * occurred in the work environment

that caused or contributed to the

injury”, the case would be recordable, assuming it meets the other requirements for recordability. Ex. 2 at

p. 32 (original emphasis). Further instructions in the

Guidelines

provided that:

The general rule is that all injuries and illnesses which result from events or exposures occurring to employees on the employer's premises are

presumed

to be work related. This presumption is rebuttable. * * * However, the nature of the activity which the employee is engaged in at the time of the event or exposure, the degree of employer control over the employee's activity, the preventability of the incident, or the concept of fault do not affect the determination.

Ex. 2 at p. 34 (original emphasis). The only significant difference between the final rule and the former rule is that the final rule requires that work “significantly” aggravate a pre-existing injury or illness before the case is recordable.

OSHA's approach to work-relationship in both the former and the final recordkeeping rules reflects two important principles. The first is that work need only be a causal factor for an injury or illness to be work-related. The rule requires neither precise quantification of the occupational cause, nor an assessment of the relative weight of occupational and non-occupational causal factors. If work is a tangible, discernible causal factor, the injury or illness is work-related. The second principle is that a “geographic presumption” applies for injuries and illnesses caused by events or exposures that occur in the work environment. These injuries and illnesses must be considered work-related unless an exception to the presumption specifically applies.

The final rule's geographic presumption reflects a theory of causation similar to that applied by courts in some workers' compensation cases. Under the “positional-risk” test, an injury may be found to “arise out of” employment for compensation purposes if it would not have occurred but for the fact that the conditions and obligations of employment placed the claimant in the position where he or she was injured. See 1 Larson's Workers' Compensation Law section 6.50 (1977).

Accord, Odyssey/Americare of Oklahoma

v.

Worden,

948 P.2d 309, 311 (Okla. 1997). Under this “but for” approach to work-relationship, it is not necessary that the injury or illness result from conditions, activities or hazards that are uniquely occupational in nature. Accordingly, the presumption encompasses cases in which an injury or illness results from an event at work that is outside the employer's control, such as a lightning strike, or involves activities that occur at work but that are not directly productive, such as horseplay.

The proposed rule asked for comment on whether OSHA should abandon its historic approach and adopt a new test for determining work-relationship. 61 FR 4044, 4045. The proposal outlined three alternative tests in which the determination of work-relationship turned on the degree to which the injury or illness was linked to occupational causes, as compared with personal factors such as off-the job activities, aging, or pre-existing medical conditions. Two of these alternative tests required evidence of a high degree of work causation to establish work-relationship. Alternative 1 required that occupational factors be the “sole cause” of the injury or illness; any evidence of non-work related causal factors was sufficient to exclude the case. Alternative 2 required that occupational factors be the “predominant cause” before the case could be considered work-related. See 61 FR 4044. Some commenters suggested a modification to Alternative 2 that would have involved substitution of the word “substantial” or “significant” for “predominant.”

The third alternative test was significantly more expansive than that adopted in the final rule. Under Alternative 3, an injury or illness would be considered work-related if the work environment had any possibility of playing a causal role. 61 FR 4044.

Some commenters favored a somewhat different test for work-relationship that focused on the nature of the injury-causing event in the workplace. This test would include in the OSHA records only those cases resulting from uniquely occupational or job-related activities or processes. Supporters of this approach argued that it would exclude injuries and illnesses caused by factors at work that are unrelated to production tasks, or that are unpreventable by the employer's safety and health program.

After careful consideration of the record, OSHA believes that the final rule's test for work-relationship is both more consistent with the Act's purpose and more practical than the “quantified occupational cause” tests or the “unique occupational conditions” test. The language of the statute itself indicates that Congress did not intend to give “work-related” a narrow or technical meaning, but rather sought to cover a variety of causal relationships that might exist in workplaces. Section 2 of the Act addresses injuries and illnesses arising out of “work situations.” Sections 2(b)(1), 2(b)(2), and 2(b)(4) refer to “places of employment,” and to the achievement of safe and healthful “working conditions.” Section 2(b)(7) seeks to assure that no employee will suffer diminished health or life expectancy as a result of his “work experience.” Section 2(b)(12) states that one of the Act's purposes is to provide for reporting procedures which “accurately describe the nature of the occupational safety and health problem.” Section 2(b)(13) encourages joint labor-management efforts to reduce injuries and disease “arising out of employment.”

This conclusion is further supported by the Act's stated purpose to promote research into the causes and prevention of occupational injuries and illnesses. Section 2 of the Act establishes Congress' intent to improve occupational safety and health,

inter alia,

by:

Providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques and approaches for dealing with occupational safety and health problems. 29 U.S.C. § 651(b)(5)

[E]xploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems. * * * 29 U.S.C. § 651(b)(6).

Providing for appropriate reporting procedures with respect to occupational safety and health which will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problems. 29 U.S.C. § 651(b)(12).

The legislative history of the Act demonstrates Congress' awareness of the importance of developing information for future scientific use. The Committee Report accompanying the Senate bill reported to the floor noted that,

[i]n the field of occupational health, the view is particularly bleak, and due to the lack of information and records, may well be considerably worse than we currently know. * * * Recent scientific knowledge points to hitherto unsuspected cause-and-effect relationships between occupational exposures and many of the so-called chronic diseases—cancer, respiratory ailments, allergies, heart disease, and others. In some instances, the relationship appears to be direct: asbestos, ionizing radiation, chromates, and certain dye intermediaries, among others, are directly involved in the genesis of cancer. In other cases, occupational exposures are implicated as contributory factors. The distinction between occupational and non-occupational illnesses is growing increasingly difficult to define.

S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970),

reprinted in

Subcommittee on Labor of the Senate Committee on Labor and Public Welfare,

Legislative History of the Occupational Safety and Health Act of 1970

(Committee Print 1971) at

142 (Leg. Hist.). With this background in mind, the committee stated that it “expects the Secretary of Labor and the Secretary of [HHS] will make every effort through the authority to issue regulations and other means, to obtain complete data regarding the occurrence of illnesses, including those resulting from occupational exposure which may not be manifested until after the termination of such exposure.” Leg. Hist. at 157.

Both the Senate and the House Committees expressed concern that the statute not be interpreted in a way that would result in under-reporting of injuries and illnesses. The Senate report states:

The committee recognizes that some work-related injuries or ailments may involve only a minimal loss of work time or perhaps none at all, and may not be of sufficient significance to the Government to require their being recorded or reported. However, the committee was also unwilling to adopt statutory language which, in practice might result in under-reporting. The committee believes that records and reports prescribed by the Secretary should include such occurrences as work-related injuries and illnesses requiring medical treatment or restriction or reassignment of work activity, as well as work-related loss of consciousness.

Leg. Hist. at 157. The House Report similarly noted that while some injuries and illnesses might not be of enough value to require recordation, “the greater peril” lay in allowing under reporting. Leg. Hist. at 860. Therefore, the report added, “[the] language ‘all work-related injuries, [and illnesses]’ should be treated as a minimum floor. * * *”

In light of these purposes, it is apparent that Congress did not, in Section 8, mean to limit recordable “work-related” injuries and illnesses only to those caused primarily or substantially by work. It is evident from the statute that Congress wanted employers to keep accurate records of non-minor injuries and illnesses, in part, to serve as a basis for research on the causes and prevention of industrial accidents and diseases. This research is needed, among other reasons, to further examine and understand those occupational factors implicated as contributory causes in injuries and diseases. To serve this purpose, the records should include cases in which there is a tangible connection between work and an injury or illness, even if the causal effect cannot be precisely quantified, or weighed against non-occupational factors.

The first two alternative quantification theories outlined in the preamble would exclude important information from the records. These theories would eliminate cases in which the work environment is believed to have played a definite role in the accident or the onset of disease, but not enough is known to quantify the effect of work factors or to assess the relative contribution of work and non-work factors. However, the information provided by cases having a tangible, yet unquantifiable, connection with the work environment is useful to employers, employees and researchers and thus serves the recordkeeping purposes envisioned by Congress.

On the other hand, the third alternative theory in the proposal would sweep too broadly. A work-relationship test that is met if work has “any possibility of playing a role in the case” would include virtually every injury or illness occurring in the work environment. 61 Fed. Reg. 4044. Recording cases in which the causal connection to work is so vague and indefinite as to exist only in theory would not meaningfully advance research, or serve the other purposes for requiring recordkeeping. For these reasons, OSHA has rejected the three alternative theories outlined in the proposal.

The “unique occupational activity” test, which some commenters favored instead of the geographic presumption, would limit recorded injuries and illnesses to those caused by an activity or process peculiarly occupational in nature. Supporters of this approach identified several types of cases that would be work-related under the geographic presumption, but not recordable under an activities-based approach. These include cases in which the injury or illness was not caused by the physical forces or hazards unique to industrial processes, cases in which the employee was not injured while performing an activity or task directly related to production, and cases in which the injury or illness was not preventable by the employer.

The “unique occupational activity” test is unsuitable for essentially the same reasons that militate against the first two alternatives described in the proposal. The statutory language and purpose do not reflect a Congressional intent to limit recording only to those cases resulting from uniquely occupational hazards or activities. Rather, the statute shows that Congress knew that employees were being injured and made ill in a variety of ways and under a variety of circumstances, and wanted employers to record all cases causally related to the work environment. The “but-for” theory underlying the geographic presumption is a widely accepted legal test for causation and is consistent with the statutory language and purpose.

The “unique occupational activities” test, like the “quantification” tests, would likely result in exclusion of important information from the records. An activity-based test for work-relationship could obscure the role of factors in the work environment not directly linked to production, such as violence perpetrated by employees and others or tuberculosis outbreaks. In addition, the precise causal mechanism by which an employee has been injured or made ill at work may not be known at the time of the accident, or may be misunderstood. To serve the statute's research purposes, the records must reflect not only those injuries and illnesses for which the precise causal mechanism is apparent at the time of recordation, but also those for which the mechanism is imperfectly understood. The alternative approaches to work-relationship would severely limit the usefulness of injury and illness data for research purposes, particularly research to uncover latent patterns of health impairment and disease and to establish causal connections between diseases and exposure to particular hazards.

The Occupational Safety and Health Review Commission has affirmed the approach to work-relationship taken in the former rule.

General Motors Corp., Inland Div.,

8 O.S.H. Cas. (BNA) 2036, 2039-2040 (August 29, 1980). The issue in

General Motors

was whether the employer was required to record respiratory ailments of three employees, based on notations from the employees' treating physicians that their ailments were probably related to exposure to a chemical substance at work. The Commission rejected the employer's argument that the recordkeeping rule required recording only of illnesses directly caused by work activities, stating:

To accept Respondent's interpretation would impose a static view of scientific knowledge. Only illnesses in which the known cause was the occupational environment would be recorded. Unknown medical correlations between disease and the workplace would be obscured by this inadequate recording obligation. Under this interpretation of the statute and regulations, OSHA and NIOSH would be significantly restrained from fulfilling their statutory obligation of making the workplace healthier. * * * [T]he primary purpose of the recording obligation is to develop information for future scientific use.

8 O.S.H. Cas. at 2040. Accordingly, OSHA believes that there is a sound legal basis for the definition of work-relationship in the final rule.

There are also sound policy justifications. The approach to “work-relationship” adopted in the final rule is more cost-effective than the alternative approaches and will result in more accurate injury and illness data. OSHA expects that for each reported injury or illness, employers generally will be able to apply the geographic presumption more easily and quickly than a test requiring an assessment of the relative contribution of employment and personal causes. The incremental reduction in the time necessary to complete each entry, when multiplied by the total number of entries per year, will result in a substantial cumulative saving in paperwork burden in comparison to the burden that would be imposed by the alternatives.

The geographic presumption will also produce more consistent and accurate reporting. OSHA believes that it would be difficult to measure the precise degree to which personal and occupational factors cause accidents or illnesses. Accordingly, any test requiring that job duties or tasks be “significant” or “predominant” causative factors would necessarily involve a high degree of subjective judgment. There is likely to be substantial inconsistency, both in the treatment of successive, similar cases by the same employer, and in the treatment of such cases among different employers. Moreover, such a test would fail to capture cases in which the workplace contribution to an injury or illness was imperfectly known or misunderstood at the time the case was reported. Recording all cases caused by events or exposures at work, with only limited exceptions, produces data that enables OSHA, employers and others to better understand the causal relationships present in the work environment. Although OSHA has not adopted a test for determining significant contribution by work, the final rule does include provisions to make sure that workplace aggravation of a pre-existing injury must be significant before work relationship is established (see discussion of 1904.5(b)(4)).

A number of commenters argued that because OSHA's mission is to eliminate preventable occupational injuries and illnesses, the determination of work-relatedness must turn upon whether the case could have been prevented by the employer's safety and health program. Dow expressed this view as follows:

[T]he goal of this recordkeeping system should be to accurately measure the effectiveness of safety and health programs in the workplace. Activities where safety and health programs could have no impact on preventing or mitigating the condition should not be logged and included in the Log and Summary nor used by OSHA to determine its inspection schedule. If the event was caused by something beyond the employer's control, it should not be considered a recordable event that calls into question a facility's safety and health program. * * * Credibility in this regulation rests on whether the recorded data accurately reflects the safety and health of the workplace. Including events where the workplace had virtually no involvement undermines the credibility of the system and results in continued resistance to this regulation.

Ex. 15-335B. The law firm of Constangy, Brooks and Smith, LLC, urged OSHA to adopt the second alternative definition in the proposal because cases that are “predominantly caused by workplace conditions” are the ones most likely to be preventable by workplace controls. They stated, “[s]ince OSHA's ultimate mission is the prevention of workplace injuries and illnesses, it is reasonably necessary to require recording only when the injury or illness can be prevented by the employer.” Ex. 15-345.

OSHA believes that these comments reflect too narrow a reading of the purposes served by injury and illness records. Certainly one important purpose for recordkeeping requirements is to enable employers, employees and OSHA to identify hazards that can be prevented by compliance with existing standards or recognized safety practices. However, the records serve other purposes as well, including facilitating the research necessary to support new occupational safety and health standards and to better understand causal connections between the work environment and the injuries and illnesses sustained by employees. As discussed above, these purposes militate in favor of a general presumption of work-relationship for injuries and illnesses that result from events or exposures at the worksite, with exceptions for specific types of cases that can be safely excluded without significantly impairing the usefulness of the database.

3. The Criteria for Determining the Significance of an Injury or Illness

Section 1904.7 of the final rule sets forth the criteria to be used by employers in determining whether work-related occupational injuries and illnesses are significant, and therefore recordable. Under § 1904.7, a work-related injury or illness is significant for recordkeeping purposes if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. Employers must also record any significant injury or illness diagnosed by a physician or other licensed health care professional even if it does not does not result in the one of the listed outcomes. OSHA's definition of a “significant” injury or illness in this context is based on two key principles discussed below. The first is that the requirement for recording only significant cases applies equally to “injuries” and “illnesses” for recordkeeping purposes. The second principle is that the criteria expressly mentioned in the Act, such as death, loss of consciousness or restriction of work, are mandatory but not exclusive indicia of significance; any significant injury or illness diagnosed by a physician or other licensed health care professional must also be recorded. These two principles are addressed below, while the definitions applicable to the specific criteria themselves, and related evidentiary issues, are discussed in the preamble explanation for section 1904.7.

a. The significant case requirement applies equally to injuries and illnesses; employers are no longer to report insignificant illnesses.

OSHA distinguishes between injuries and illnesses based on the nature of the precipitating event or exposure. Cases which result from instantaneous events are generally considered injuries, while cases which result from non-instantaneous events, such as a latent disease or cumulative trauma disorder, are considered illnesses.

Id.

Under the former recordkeeping regulations, occupational injuries had to be recorded if they were non-minor in nature; that is, if they resulted in loss of consciousness, or required medical treatment, time off work, restriction of work, lost time, or transfer to another job. 61 FR 4036. However, all occupational illnesses had to be reported, regardless of severity.

Id.

This difference in the severity threshold for recording injuries and illnesses had, in the past, been based upon the particular phrasing of section 8(c)(2) of the Act:

The Secretary * * * shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.”

29 U.S.C. 657(c)(2). Because the severity criteria appear in the clause defining “minor injuries,” OSHA had construed the section to require recordation of all work-related illnesses, even those that do not meet the severity

characteristics expressly applicable to “injuries.”

OSHA has reconsidered its position in this rulemaking, and has concluded that the former rule was inappropriate in several respects. First, although the severity characteristics listed in section 8(c)(2) of the Act apply expressly to “injuries,” the Act contains persuasive indications that Congress also meant to require recordation only of “significant” illnesses, as determined by reasonable criteria. Section 24(a) states that “[t]he Secretary shall compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses * * * other than minor injuries requiring only first aid treatment and which do not involve medical treatment * * * .” 29 U.S.C. 673 (a). The legislative history also supports this view. The statement of the House managers on the resolution of conflicting House and Senate bills states that:

A Senate bill provision without a counterpart in the House amendment permitted the Secretary to require an employer to keep records and make reports on “all work-related deaths, injuries and illnesses.” The House receded with an amendment limiting the reporting requirement to injuries and illnesses other than of a minor nature, with a specific definition of what is not of a minor nature.

Leg. Hist. at 1190 (emphasis supplied). The former rule did not appropriately implement this intent. In the first place, OSHA's prior interpretation that section 8(c)(2) limits the applicability of the listed severity criteria only to injuries does not necessarily mean that illnesses must be recorded without regard to their significance. As a textual matter, such a reading simply leaves open the question of what, if any, severity criteria apply to illnesses.

OSHA believes that the Act does not support a different severity threshold for injuries than for illnesses. OSHA is now persuaded that its prior reading of section 8(c)(2) placed too much emphasis on the fact that the severity criteria modify the word “injuries” in the clause, “other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion or transfer to another job.” 29 U.S.C. 657(c)(2). Congress' failure to list specific severity criteria for illnesses, as it did for injuries, does not, in itself, compel the inference that two different sets of criteria must apply. Congress meant to limit recordation to significant injuries and illnesses alike, and absent strong indications to the contrary, it is reasonable to presume that Congress meant the same severity threshold to apply to both conditions.

In addition, there are strong policy reasons for avoiding a distinction between injuries and illnesses based on severity. OSHA explained in the proposal that the current distinction between injuries and illnesses based on the nature of the precipitating event has caused some degree of confusion and uncertainty. Using one set of criteria for severity means that employers will not have to decide whether a case is an injury or an illness in determining its recordability. This simplifies the recordkeeping system, resulting in more accurate injury and illness data while reducing the recordkeeping burden for employers who are required to maintain records (61 FR 4036). Employers will continue to classify each recordable case as either an injury or an illness on the OSHA 300 Log, but the decision no longer has any effect on whether or not the case must be recorded.

b. The criteria listed in the Act are mandatory but not exclusive indicia of significance.

A final issue relating to significance is the effect to be given a finding that an injury or illness results in, or does not result in, one of the outcomes listed in the statute: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. The implication arising from the wording of section 8(c)(2) and section 24 is that if an injury or illness results in one of the listed outcomes, it must be deemed significant for recordkeeping purposes. This position, which reflects OSHA's longstanding, consistent interpretation of the statute, was not seriously questioned in the rulemaking. Accordingly, the final rule requires that a work-related injury or illness be recorded if it results in one of the outcomes mentioned in the statute.

The final rule also requires that a case be recorded, whether or not it results in one of the listed outcomes, if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional. 29 CFR 1904.10(b). Nothing in the statute compels the conclusion that the criteria mentioned in sections 8 and 24 are the exclusive indicia of severity for recordkeeping purposes. Congress directed the Secretary to collect data on “all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work,” other than minor injuries * * * which [do not result in one of the listed outcomes]. 29 U.S.C. 673(a). A reasonable reading of this language is that while an injury that meets one of the listed criteria is non-minor and must be recorded, the converse does not necessarily follow. An injury or illness may reasonably be viewed as significant, and therefore recordable, even if it is not immediately followed by death, loss of consciousness, or job-related disability. For example, an employee diagnosed with an unquestionably serious work-related disease, such as asbestosis or mesothelioma, may forego or postpone medical treatment and continue temporarily to perform his or her normal job duties. Focusing exclusively on the basic criteria listed in the statute in cases such as these could result in underrecording of serious cases. Accordingly, the final rule requires employers to record any significant injury or illness that is diagnosed. A thorough discussion of this requirement, including a definition of what constitutes a “significant” injury or illness for this purpose, is contained in the preamble discussion of section 1904.7.

Because the provisions of the final recordkeeping rule, as explained above and in the subsequent sections of this preamble, are reasonably related to the statutory purposes, the Secretary finds that the rule is necessary to carry out her responsibilities under the Act. The rule is therefore a valid exercise of the Secretary's general rulemaking authority under Section 8. Cf.

Mourning

v.

Family Publications Services

, 411 U.S. 356.

VII. Summary and Explanation

The following sections discuss the contents of the final 29 CFR Part 1904 and section 1952.4 regulations. OSHA has written these regulations using the plain language guidance set out in a Presidential Memo to the heads of executive departments and agencies on June 1, 1998. The Agency also used guidance from the Plain Language Action Network (PLAN), which is a government-wide group working to improve communications from the Federal government to the public, with the goals of increasing trust in government, reducing government costs, and reducing the burden on the public. For more information on PLAN, see their Internet site at http://www.plainlanguage.gov/.

The plain language concepts encourage government agencies to adopt a first person question and answer format, which OSHA used for the Part 1904 rule. The rule contains several types of provisions. Requirements are described using the “you must * * *” construction, prohibitions are described using “you may not * * *”, and optional actions that are not

requirements or prohibitions are preceded by “you may * * *.” OSHA has also included provisions to provide information to the public in the rule.

Subpart A. Purpose

The Purpose section of the final rule explains why OSHA is promulgating this rule. The Purpose section contains no regulatory requirements and is intended merely to provide information. A Note to this section informs employers and employees that recording a case on the OSHA recordkeeping forms does not indicate either that the employer or the employee was at fault in the incident or that an OSHA rule has been violated. Recording an injury or illness on the Log also does not, in and of itself, indicate that the case qualifies for workers' compensation or other benefits. Although any specific work-related injury or illness may involve some or all of these factors, the record made of that injury or illness on the OSHA recordkeeping forms only shows three things: (1) that an injury or illness has occurred; (2) that the employer has determined that the case is work-related (using OSHA's definition of that term); and (3) that the case is non-minor,

i.e.,

that it meets one or more of the OSHA injury and illness recording criteria. OSHA has added the Note to this first subpart of the rule because employers and employees have frequently requested clarification on these points.

The following paragraphs describe the changes OSHA has made to the Purpose provisions in Subpart A of the final rule, and discusses the Agency's reasons for these changes. Proposed section 1904.1 of Subpart A contained three separate paragraphs. Proposed paragraph (a) stated that the purpose of the recordkeeping rule (Part 1904) was “to require employers to record and report work-related injuries, illness and fatalities.” It also described several ways in which such records were useful to employers, employees, OSHA officials, and researchers evaluating and identifying occupational safety and health issues.

Proposed paragraph (b) noted that the recording of a job-related injury, illness or fatality did not necessarily impute fault to the employer or the employee, did not necessarily mean that an OSHA rule had been violated when the incident occurred, and did not mean that the case was one for which workers' compensation or any other insurance-related benefit was appropriate. The third paragraph in proposed section 1904.1, proposed paragraph (c), stated that the regulations in Part 1904 had been developed “in consultation with the Secretary of Health and Human Services” (HHS), as required by Section 24(a) of the Act.

In the final rule, OSHA has moved much of this material, which was explanatory in nature, from the regulatory text to the preamble. This move has simplified and clarified the regulatory text. The final rule's Purpose paragraph simply states that: “The purpose of this rule (Part 1904) is to require employers to record and report work-related fatalities, injuries and illnesses.” This final rule statement is essentially identical to the first sentence of the proposed Purpose section. It clearly and succinctly states OSHA's reasons for issuing the final rule.

A number of commenters (see,

e.g.

, Exs. 25; 15: 199, 305, 313, 346, 348, 352, 353, 375, 418, 420) specifically addressed proposed section 1904.1. The principal points raised by these commenters concerned: (1) Statements in proposed paragraph (a) about the quality of the data captured by the records; (2) proposed paragraph (b)'s discussion of the relationship between OSHA recordkeeping and employer/employee fault, violations of OSHA rules, and the workers' compensation system, and (3) the statement in proposed paragraph (c) that discussed OSHA's consultation with the Secretary of Health and Human Services in developing this rule. Each of these issues is discussed in detail below.

Most comments on proposed paragraph (a) took issue with the language that OSHA used to describe the statistical use of the records (see,

e.g.

, Exs. 25, 15: 305, 346, 348, 375, 420). Typical of these comments is one from the National Association of Manufacturers: “We urge OSHA to remove the following unverified and conclusory statement from § 1904.1(a): “The records: * * * accurately describe the nature of occupational safety and health problems for the Nation, State or establishment” (Exs. 25, 15: 305). OSHA did not intend this statement to attest with certainty to the validity of national occupational statistics. Proposed section 1904.1(a) merely paraphrased section 2(b) of the Act, which states that such records “will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem.” In response to commenters, OSHA has simplified the final rule by deleting the proposed listing of the functions of the records required by this rule.

As discussed earlier, proposed paragraph (b) stated that the recording of a case did not “necessarily mean that the employer or employee was at fault, that an OSHA standard was violated, or that the employee is eligible for workers' compensation or other insurance benefits.” The last sentence of proposed paragraph (b) described the various types of workplace events or exposures that may lead to a recordable injury or illness.

A number of commenters agreed with the proposed statements on fault, compliance, and the relationship between the recording of a case and workers' compensation or other insurance (see,

e.g.

, Exs. 25, 15: 305, 346, 420). Employers have frequently asked OSHA to explain the relationship between workers' compensation reporting systems and the OSHA injury and illness recording and reporting requirements. As NYNEX (Ex. 15: 199) noted,

[t]he issue of confusion between OSHA recordkeeping and workers' compensation/insurance requirements cannot be totally eliminated as the workers' compensation criteria vary somewhat from state to state. There will always be some differences between OSHA recordability and compensable injuries and illnesses. The potential consequences of these differences can be minimized, however, if all stakeholders in the recordkeeping process (i.e., employers, employees, labor unions, OSHA compliance officials) are well informed that OSHA recordability does not equate to compensation eligibility. This can be facilitated by printed reminders on all of the OSHA recordkeeping documents (

e.g.

, forms, instructions, pamphlets, compliance directives, etc.).

As NYNEX observed, employers must document work-related injuries and illnesses for both OSHA recordkeeping and workers' compensation purposes. Many cases that are recorded in the OSHA system are also compensable under the State workers' compensation system, but many others are not. However, the two systems have different purposes and scopes. The OSHA recordkeeping system is intended to collect, compile and analyze uniform and consistent nationwide data on occupational injuries and illnesses. The workers' compensation system, in contrast, is not designed primarily to generate and collect data but is intended primarily to provide medical coverage and compensation for workers who are killed, injured or made ill at work, and varies in coverage from one State to another.

Although the cases captured by the OSHA system and workers' compensation sometimes overlap, they often do not. For example, many injuries and illnesses covered by workers' compensation are not required to be recorded in the OSHA records. Such a situation would arise, for example, if an employee were injured on the job, sent to a hospital emergency

room, and was examined and x-rayed by a physician, but was then told that the injury was minor and required no treatment. In this case, the employee's medical bills would be covered by workers' compensation insurance, but the case would not be recordable under Part 1904.

Conversely, an injury may be recordable for OSHA's purposes but not be covered by workers' compensation. For example, in some states, workers' compensation does not cover certain types of injuries (

e.g.

, certain musculoskeletal disorders) and certain classes of workers (

e.g.

, farm workers, contingent workers). However, if the injury meets OSHA recordability criteria it must be recorded even if the particular injury would not be compensable or the worker not be covered. Similarly, some injuries, although technically compensable under the state compensation system, do not result in the payment of workers' compensation benefits. For example, a worker who is injured on the job, receives treatment from the company physician, and returns to work without loss of wages would generally not receive workers' compensation because the company would usually absorb the costs. However, if the case meets the OSHA recording criteria, the employer would nevertheless be required to record the injury on the OSHA forms.

As a result of these differences between the two systems, recording a case does not mean that the case is compensable, or vice versa. When an injury or illness occurs to an employee, the employer must independently analyze the case in light of both the OSHA recording criteria and the requirements of the State workers' compensation system to determine whether the case is recordable or compensable, or both.

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) urged OSHA to emphasize the no-fault philosophy of the Agency's recordkeeping system, stating:

The AFL-CIO is encouraged by some provisions currently in the proposed rulemaking which indirectly address underreporting. But, we believe the Agency must take it one step further. To adequately address this problem, the Agency must encourage employers to adopt a “no fault system” philosophy in the workplace and remove barriers which discourage the reporting of injuries and illnesses by employees. This philosophy will not only encourage workers to report injuries and illnesses, but also encourage those individuals (

e.g.

, supervisors, safety personnel) responsible for recording this data to report all recordable incidents (Ex. 15: 418).

OSHA believes that the note to the Purpose paragraph of the final rule will allay any fears employers and employees may have about recording injuries and illnesses, and thus will encourage more accurate reporting. Both the Note to Subpart A of the final rule and the new OSHA Form 300 expressly state that recording a case does not indicate fault, negligence, or compensability.

The Workplace Health and Safety Council, the American Coke and Coal Chemicals Institute, and the National Oilseed Processors Association (Exs. 15: 313, 352, 353) all urged OSHA to improve on this paragraph of the proposed rule in two ways. First, these commenters asked OSHA to remove the word “necessarily” from the language of proposed paragraph (b), which stated that recording did not “necessarily mean” that anyone was at fault, that a standard had been violated, or that the case was compensable:

The qualification “necessarily” robs the [proposed] sentences of their meaning and makes them inaccurate. Using the word erroneously implies that merely listing an injury sometimes does mean that the employer or employee was at fault, that an OSHA standard was violated, or that the employee is eligible for workers' compensation. Clearly, this is not what OSHA intended to convey. Indeed, the word “necessarily” may actually worsen the problem OSHA seeks to solve, for attorneys and consultants reading the proposed provision might well advise employers that the provision actually endorses some uses of a listing against an employer.

OSHA should, therefore, delete the word “necessarily. * * *” Alternatively, the sentence in the regulation should read: “That an injury or illness is recordable has no bearing on whether the employer or employee was at fault, an OSHA standard violated, or the employee is eligible for workers' compensation. * * *” The legend in the form would be similarly changed (Exs. 15: 313, 352, 353).

These three commenters (Exs. 15: 313, 352, 353) also suggested the following:

(a) much preferred additional solution, would be for OSHA to promulgate in the final version a provision that makes inadmissible in all proceedings, both those under the OSH Act and those under any state or federal law, the entries in Form OSHA 300 and 301 as evidence of fault or culpability. Such a regulation would give employers the necessary assurance that their recordkeeping forms would not be used against them. Injured employees would lose nothing by this, for they could still be permitted to prove the fact of injury, its work-relatedness, and its consequence, with normal proof. They would simply not be permitted to introduce the forms as evidence of culpability. Such a rule would implement, be consistent with, and be authorized by Section 4(b)(4) of the Act, which prohibits the Act from affecting workers' compensation and tort schemes.

OSHA agrees with the point made by these commenters about the proposed rule's use of the word “necessarily.” Accordingly, the word necessarily has been deleted from the Note to the Purpose paragraph of the final rule. However, OSHA has rejected the suggestion made by these commenters to limit the admissibility of the forms as evidence in a court proceeding. Such action is beyond the statutory authority of the agency, because OSHA has no authority over the courts, either Federal or State.

In the proposal, the no-fault statement was followed by a listing of the various causes of recordable injuries and illnesses: “Recordable workplace injuries and illnesses result from a variety of workplace events or exposures, including but not limited to: accidents, exposure to toxic materials or harmful physical agents, intentional acts of violence, or naturally occurring events such as a tornado or earthquake.” The American Petroleum Institute (API) (Ex. 15: 375) objected to this proposed sentence describing the various examples of injury and illness causality, stating:

To help the system have much-needed credibility, “regardless of fault or preventability” should not be applied beyond reasonable limits. Specifically, it shouldn't mean “tornado or earthquake” or other sudden, unforeseen catastrophic events over which the employer clearly could not have any control. Employers can, however, exercise control to prevent injury from some types of naturally occurring events. The terms “tornado or earthquake” should be replaced with more reasonable examples.

In the final rule, OSHA has decided to eliminate the sentence of examples to make the regulatory text clearer and more concise. However, OSHA notes that many circumstances that lead to a recordable work-related injury or illness are “beyond the employer's control,” at least as that phrase is commonly interpreted. Nevertheless, because such an injury or illness was caused, contributed to, or significantly aggravated by an event or exposure at work, it must be recorded on the OSHA form (assuming that it meets one or more of the recording criteria and does not qualify for an exemption to the geographic presumption). This approach is consistent with the no-fault recordkeeping system OSHA has adopted, which includes work-related injuries and illnesses, regardless of the level of employer control or non-control involved. The issue of whether different

types of cases are deemed work-related under the OSHA recordkeeping rule is discussed in the Legal Authority section, above, and in the work-relationship section (section 1904.5) of this preamble.

In a comment on proposed paragraph (a), the National Association of Manufacturers (NAM) (Exs. 25, 15: 305) argued that the OSHA recordkeeping system should only collect information on

“the most significant hazards, those that lead to the most significant injuries and illnesses * * *” and that the purpose paragraph of the final rule be revised to state “The purpose of this Part is to require employers to record and report disabling, serious and significant work-related injuries and illnesses, and work-related fatalities.”

OSHA does not agree with this interpretation of the OSH Act. As discussed in the Legal Authority section, above, Congress stated clearly that the OSHA recordkeeping system was intended to capture “work-related deaths, injuries and illnesses,

other than minor injuries

requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” (Sec. 8(c)(2)) (emphasis added). The words “disabling, serious, and significant,” suggested by NAM, are at variance with Congress' clear intent. OSHA concludes that the guidance given by Congress—that employers should record and report on work-related deaths, and on injuries and illnesses other than minor injuries, establishes the appropriate recording threshold for cases entered into the OSHA recordkeeping system.

A few commenters recommended that OSHA delete paragraph (c) of the proposed Purpose section (see,

e.g.

, Exs. 25, 15: 305, 346, 348, 420), and in the final rule, OSHA has done so because the paragraph merely attested to OSHA's cooperation with other agencies on this rule. Although the rule has, in fact, been developed in cooperation with the Department of Health and Human Services, and specifically with the National Institute for Occupational Safety and Health (NIOSH), there is no need to include this information in the regulatory text itself.

Subpart B. Scope

The coverage and partial exemption provisions in Subpart B of the final rule establish which employers must keep OSHA injury and illness records at all times, and which employers are generally exempt but must keep records under specific circumstances. This subpart contains sections 1904.1 through 1904.3 of the final rule.

OSHA's recordkeeping rule covers many employers in OSHA's jurisdiction but continues to exempt many employers from the need to keep occupational injury and illness records routinely. This approach to the scope of the rule is consistent with that taken in the former recordkeeping rule. Whether a particular employer must keep these records routinely depends on the number of employees in the firm and on the Standard Industrial Classification, or SIC code, of each of the employer's establishments. Employers with 10 or fewer employees are not required to keep OSHA records routinely. In addition, employers whose establishments are classified in certain industries are not required to keep OSHA records under most circumstances. OSHA refers to establishments exempted by reason of size or industry classification as “partially exempt,” for reasons explained below.

The final rule's size exemption and the industry exemptions listed in non-mandatory Appendix A to Subpart B of the final rule do not relieve employers with 10 or fewer employees or employers in these industries from

all

of their recordkeeping obligations under 29 CFR Part 1904. Employers qualifying for either the industry exemption or the employment size exemption are not routinely required to record work-related injuries and illnesses occurring to their employees, that is, they are not normally required to keep the OSHA Log or OSHA Form 301. However, as sections 1904.1(a)(1) and 1904.2 of this final recordkeeping rule make clear, these employers must still comply with three discrete provisions of Part 1904. First, all employers covered by the Act must report work-related fatalities or multiple hospitalizations to OSHA under § 1904.39. Second, under § 1904.41, any employer may be required to provide occupational injury and illness reports to OSHA or OSHA's designee upon written request. Finally, under § 1904.42, any employer may be required to respond to the Survey of Occupational Injuries and Illnesses conducted by the Bureau of Labor Statistics (BLS) if asked to do so. Each of these requirements is discussed in greater detail in the relevant portion of this summary and explanation.

Section 1904.1 Partial Exemption for Employers With 10 or Fewer Employees

In § 1904.1 of the final rule, OSHA has retained the former rule's size-based exemption, which exempts employers with 10 or fewer employees in all industries covered by OSHA from most recordkeeping requirements. Section 1904.1, “Partial exemption for employers with 10 or fewer employees,” states that:

(a) Basic requirement.

(1) If your company had ten (10) or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records unless OSHA or the BLS informs you in writing that you must keep records under § 1904.41 or § 1904.42. However, as required by § 1904.39, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees.

(2) If your company had more than ten (10) employees at any time during the last calendar year, you must keep OSHA injury and illness records unless your establishment is classified as a partially exempt industry under § 1904.2.

(b) Implementation.

(1) Is the partial exemption for size based on the size of my entire company or on the size of an individual business establishment?

The partial exemption for size is based on the number of employees in the entire company.

(2) How do I determine the size of my company to find out if I qualify for the partial exemption for size?

To determine if you are exempt because of size, you need to determine your company's peak employment during the last calendar year. If you had no more than 10 employees at any time in the last calendar year, your company qualifies for the partial exemption for size.

The Size-Based Exemption in the Former Rule

The original OSHA injury and illness recording and reporting rule issued in July 1971 required all employers covered by the OSH Act to maintain injury and illness records. In October 1972, an exemption from most of the recordkeeping requirements was put in place for employers with seven or fewer employees. In 1977, OSHA amended the rule to exempt employers with 10 or fewer employees, and that exemption has continued in effect to this day. All employers, however, have always been required to report fatalities and catastrophes to OSHA and to participate in the BLS survey, if requested to do so.

As discussed in the Legal Authority section of this preamble, the 10 or fewer employee threshold is consistent with Congressional intent: the 1977

Federal Register

notice announcing the new exemption cited the Department of Labor appropriations acts for fiscal years 1975 and 1976, which exempted employers having 10 or fewer employees from most routine recordkeeping requirements, and Section 8(d) of the Act, as the major reasons for raising the exemption size threshold from seven to 10 employees. The 1977 Notice stated that the new size

threshold appropriately balanced the interest of small businesses while preserving the essential purposes of the recordkeeping scheme:

The [exemption] has been carefully designed to carry out the mandate of section 8(d) without impairing the Act's basic purpose. Thus, the [exemption] will not diminish the protections afforded employees under the Act because all employers * * * remain subject to the enforcement provisions of the Act. The [exemption] will continue to require * * * small employers * * * to report fatalities and multiple hospitalizations and to participate in the BLS annual survey when selected to do so (42 FR 38568 (July 29, 1977)).

The Size-Based Exemption in the Final Rule

The final rule published today maintains the former rule's partial exemption for employers in all covered industries who have 10 or fewer employees. Under the final rule (and the former rule), an employer in any industry who employed no more than 10 employees at any time during the preceding calendar year is not required to maintain OSHA records of occupational illnesses and injuries during the current year unless requested to do so in writing by OSHA (under § 1904.41) or the BLS (under § 1904.42). If an employer employed 11 or more people at a given time during the year, however, that employer is not eligible for the size-based partial exemption.

The Size-Based Exemption in the Proposed Rule

In the 1996 proposal, OSHA contemplated raising the threshold for the size-based exemption to 19 employees for all employers except those in the construction industry. In proposing this more extensive exemption, OSHA stated that BLS Annual Survey data appeared to indicate that small businesses in this size category had proportionately fewer injuries and illnesses and were thus safer places to work. However, since the proposal, OSHA has analyzed the record evidence on this point and now believes that small businesses are not generally likely to be less hazardous than larger businesses and, in fact, are likely, as a general matter, to be more hazardous than large businesses. OSHA's reasoning is described below.

Comments to the record make clear that the recording of fewer injuries and illnesses by very small firms could have many causes other than a lower level of hazards. For example, the National Institute for Occupational Safety and Health (NIOSH) submitted a comment to the record that described numerous studies based on fatality and workers' compensation data that suggest that smaller businesses are at least as hazardous as larger businesses (Ex. 15: 407). NIOSH also argued that the BLS estimated injury and illness incidence rates for small employers may be erroneously low, i.e., may be the result of underreporting rather than a lower injury rate. The following comment from NIOSH explains these concerns:

From a public standpoint, NIOSH does not support a partial exemption from recordkeeping requirements for employers in the construction industry with 10 or fewer employees, and non-construction employers with 19 or fewer employees. Research indicates significant safety and health problems in “small” establishments which employ a substantial proportion of the workforce. One-quarter of the civilian, full-time workforce is employed in establishments with fewer than 25 employees (Oleinick et al. 1995).

The Occupational Safety and Health Administration (OSHA) notes [in the proposal to the recordkeeping rule] that “the Annual Survey data show that small employers generally experience much lower patterns of injuries and illnesses than medium size firms.” However, recent literature comparing Annual Survey data and workers compensation data questions the validity of the estimated rates for small employers obtained through the Bureau of Labor Statistics (BLS) Annual Survey. Moreover, fatal and nonfatal work injuries are a significant risk among small businesses in hazardous industries and many industries with high fatal and nonfatal injury rates are comprised primarily of small companies. In addition, NIOSH research indicates that small companies have less access to safety and health programs that might reduce injuries and illnesses than larger companies [NIOSH 1988a].

Though the Annual Survey of Occupational Injuries and Illnesses has consistently reported that employers with fewer than 20 employees have significantly lower rates of injuries and illnesses, there is concern that these low incidence rates are an artifact of the reporting system. Analysis of compensable injuries with >7 missed workdays in Michigan indicates that the pattern of lower injury rates among small employers is not consistent across industry divisions. Though the services and trade industry divisions show a marked decline in compensable injury rate for small size firms, the higher risk industries of construction and transportation/utilities show relatively little decline in the compensable injury rate for employers with fewer than 25 employees. Comparison of the demographic characteristics of the Michigan work force with the demographic characteristics of injured workers suggest that high risk groups (

e.g.

, males, younger workers [<35 years of age], construction, manufacturing, transportation, and blue collar workers) are over-represented among workers injured in small size firms (<25 workers). Using cumulative lost work time as a surrogate for severity of injury, the Michigan study also found that with one exception (construction), compensable injuries to workers in small firms were at least as serious as compensable injuries in larger firms [Oleinick et al. 1995] (Ex. 15: 407).

Since publication of the recordkeeping proposal, OSHA has done considerable research into the issue of fatality, injury, and illness rates in small companies. The results of this research also point to underreporting, rather than safer workplaces, as a likely reason for the lower-than-average injury and illness numbers reported by small employers. The most telling evidence that injury and illness underreporting is prevalent among small firms is the substantial discrepancy between the fatality rates in these firms and their injury and illness rates.

Most professionals agree that occupational fatality data are more reliable than occupational injury and illness data, primarily because fatalities are more likely to be reported than injuries. The work-related BLS fatality data appear to confirm this belief, showing that although businesses with fewer than 10 employees account for only 4% of the total workforce, they account for 28% of occupational fatalities. Furthermore, although businesses with fewer than 20 employees comprise only 26% of the total workforce, they account for 36% of all occupational fatalities (see Mendeloff, “Using OSHA Accident Investigations to Study Patterns in Work Fatalities,”

J. Occup. Med

32: 1117, 1119 (1990) (Ex. 15: 407 F)). These data strongly suggest that very small businesses are disproportionately hazardous places to work.

Many safety and health professionals also believe that injuries and illnesses are substantially underreported by small employers (see,

e.g.

, Exs. 4, 5, 15: 407). However, the occupational injury and illness data reported by employers to the BLS in connection with its Annual Survey of Occupational Injuries and Illnesses show lower rates of injuries and illnesses for firms in the smallest size classes than for those in larger classes. In an effort to understand why smaller firms might have lower injury and illness incidence rates, the authors of one study found that: (1) occupational fatality rates were highest in businesses with fewer than 50 employees; (2) businesses with fewer than 50 employees were least likely to have occupational health services available; and (3) lost workday injury rates in several major industry categories are highest (i.e., the injuries are most severe) in these facilities. From these findings, the authors concluded:

It is difficult to imagine a set of workplace conditions in small establishments that would lead simultaneously to lower injury rates, higher fatality rates, and equal, or greater, injury severity measured by missed work time, especially since these establishments were less likely to provide injury prevention and safety services (Oleinick

et al.,

“Establishment Size and Risk of Occupational Injury,”

Am. J. Med.

28(1): 2-3 (1995) (Ex. 15: 407 N)).

After considering a number of explanations that might explain this apparent incongruity, these authors rejected all explanations except one—underreporting by small firms:

With the rejection of alternative explanations, there is a strong likelihood of underreporting as the explanation, and we estimate that the annual [BLS] survey substantially undercounts injuries in small establishments (Oleinick et al., 1995 (Ex. 15: 407 N)).

NIOSH agrees, noting that “recent literature comparing Annual Survey data and workers compensation data questions the validity of the estimated rates for small employers obtained through the BLS Annual Survey” (Ex.15: 407). Thus, the apparent discrepancy between the high fatality rate in the smallest firms (i.e., those with fewer than 20 employees) and the low rates of injuries and illnesses reported by those same firms is likely to be the result of underreporting rather than lower relative hazards.

A

Wall Street Journal

(Feb. 3, 1994) computer analysis of more than 500,000 Federal and State safety-inspection records came to the same conclusions, i.e., that empl

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