Reporting Occupational Injury and Illness Data to OSHA; Final Rule

SUMMARY: This final rule amends 29 CFR Part 1904 by adding section

1904.17. Section 1904.17 requires employers to report information to

OSHA contained in records that employers are required to create and

maintain pursuant to Part 1904, and the number of workers they employed

and hours their employees worked during designated periods.

Section 1904.17 will clarify OSHA's authority to collect

establishment-specific data by mail for use in agency self-evaluation,

deployment of agency resources, periodic reassessment of existing

regulations and standards, and rulemaking.

Section 1904.17 was proposed (as section 1904.13) as part of a

comprehensive proposal to revise Part 1904. 61 FR 4030 (Feb. 2, 1996).

OSHA has determined, however, to take final agency action with respect

to section 1904.17 at this time, and to take final action on the

remaining Part 1904 issues, including other records access issues, at a

later date.

DATES: This final regulation will become effective on March 13, 1997.

However, affected parties do not have to comply with the information

collection requirements until the Department publishes in the Federal

Register the control numbers assigned by the Office of Management and

Budget (OMB) to these information collection requirements. Publication

of the control numbers notifies the public that OMB has approved these

information collection requirements under the Paperwork Reduction Act

of 1995.

FOR FURTHER INFORMATION CONTACT: Bonne Friedman, U.S. Department of

Labor, Occupational Safety and Health Administration, Office of

Information and Consumer Affairs, Room N-3647, 200 Constitution Avenue,

NW., Washington, DC 20210, phone (202) 219-8148. For electronic copies

of documents, contact the Labor News Bulletin Board at (202) 219-4784,

or OSHA's WebPage on the Internet at http://www.osha.gov/. For news

releases, fact sheets, and other short documents, contact OSHA FAX at

(900) 555-3400 at $1.50 per minute.

SUPPLEMENTARY INFORMATION:

I. Background

In 1971, OSHA issued the occupational injury and illness recording

and reporting regulation, 29 CFR Part 1904. Part 1904 includes

regulations pertaining to criteria for determining whether an

occupational injury or illness should be recorded, and provisions that

require employers to give employees and OSHA access to such records. It

also provides for collection by the Bureau of Labor Statistics (BLS) of

data to be used in an occupational injury and illness statistical

program administered by BLS. 1904.20, 1904.21, and 1904.22.

In 1990, the Secretary of Labor transferred some of BLS's

statistic-gathering functions to OSHA. 55 FR 9033 (Mar. 9, 1990). BLS

retains responsibility for conducting its Annual Survey of Occupational

Injuries and Illnesses and will continue to issue data that is

aggregated by SIC group. But OSHA will also be responsible for

administering a national recordkeeping system for occupational injuries

and illnesses whose data will be site-specific.

OSHA's February 1996 proposal to revise Part 1904 sought, among

other things, to reflect OSHA's new statistics-gathering

responsibilities. OSHA proposed to replace sections 1904.20, 1904.21,

and 1904.22 with a single reporting provision at 1904.13, which would

apply to both BLS and OSHA collections of information by mail or other

remote transmittal.

OSHA received 449 written comments and held six days of public

meetings. Approximately 124 comments and two oral presentations

specifically addressed proposed section 1904.13.

On further consideration, OSHA determined that BLS and OSHA need

separate provisions for collection of data by mail. Thus, a single

provision applicable to both agencies would not be appropriate, and a

new provision specifically addressed to OSHA reporting requirements and

procedures should be developed. OSHA further determined to take final

action on proposed 1904.13 at this time, and to take final action with

respect to the remainder of the proposed revisions of Part 1904 at a

later date.

This final rule revises the proposed section 1904.13 and renumbers

it as section 1904.17, the next available number in Part 1904. This

final rule does not modify or delete the existing regulations at

1904.13, 1904.20, 1904.21, or 1904.22.

II. Explanation of the Final Rule

OSHA has long had in effect rules pertaining to OSHA access to

certain information. Section 1904.7 requires employers ``to provide,

upon request, records provided for in Secs. 1904.2, 1904.4, and 1904.5

[OSHA-required injury and illness logs and forms] for inspection and

copying by any representative of the Secretary of Labor. * * *''

Section 1910.1020 requires employers to give OSHA and employees the

right and opportunity to examine and copy exposure and medical records.

Some standards contain requirements for OSHA and employee access to

exposure and monitoring data required to be created and maintained by

those particular standards. E.g., 29 CFR 1910.1001(m)(5)(I) and (ii)

(requiring that OSHA and employee be given access to asbestos exposure

monitoring and medical surveillance records).

Section 1904.17 establishes a procedural mechanism for conduct of

an annual survey of ten or more employers by mail or other remote

transmittal. Information covered by section 1904.17 is information

contained in records required to be created and maintained pursuant to

Part 1904, the number of workers the respondent employed and the number

of hours worked by its employees during designated periods. The rule

also specifies that both the request and the response will be made by

mail or other remote transmittal. Thus, it is more limited than

existing records-access provisions that use terms such as ``permit

access to'' or ``make available'' and therefore permit OSHA to collect

information by on-site record reviews as well as via mail response. The

mail-in provision also permits OSHA to coordinate its annual survey

with the BLS annual survey. In conducting its 1995 and 1996 annual

surveys (1995 data was collected in 1996, 1996 data will be collected

in 1997) OSHA provided employers with a carbon-pack form that the

employer could complete, separate, and return--one copy to BLS and

another to OSHA. OSHA intends to continue this practice or an

equivalent means of avoiding duplicate reporting burdens for employers.

The requests for data reports may be made directly by OSHA, or may

be sent to employers by a designee of the Agency, such as a state

governmental agency, a government contractor, or another Federal agency

such as the National Institute for Occupational

[[Page 6435]]

Safety and Health (NIOSH). Designating others to exercise this

authority will permit a variety of collection methods to be used,

depending on which method is the most effective, efficient, and cost

effective for the government.

Employers who are normally exempt from keeping injury and illness

records under 29 CFR 1904.15 and 29 CFR 1904.16 may be notified by OSHA

that they will be required to participate in a particular information

collection under 1904.17(a). OSHA will notify these employers in

writing in advance of the year for which injury and illness records

will be required. OSHA does not expect, in the near term, to take

action against Sec. 1904.15 and 16 exempt employers based on survey

non-response under Sec. 1904.17.

III. Issues

1. Use of Data

As explained above and in the proposal, site-specific data reported

pursuant to section 1904.13 (now section 1904.17) will be used for a

variety of purposes: injury/illness surveillance; development of

information for promulgating, revising or evaluating OSHA's safety and

health standards; evaluating the effectiveness of OSHA's enforcement,

training and voluntary programs; public information; and for directing

OSHA's program activities, including scheduled workplace inspections

and non-enforcement programs, such as targeted mailings of safety and

health information to employers.

Many commenters acknowledged OSHA's need for a reporting

requirement or affirmatively stated they had no objections to it. (Ex.

15: 80, 184, 239, 313, 341, 359, 384, 418, 449)

However, some commenters who had no objection to the principle of a

reporting requirement, expressed concern about the uses to which the

data would be put. (Ex. 15: 117, 181, 304) The National Federation of

Independent Business argued, for example, that the data should be used

for compliance efforts only:

NFIB strongly objects to this provision unless it is expanded to

provide adequate safeguards to prevent abuses of written requests,

especially for reasons other than OSHA compliance--i.e., research,

surveillance, or public information. In fact, NFIB questions the

need for OSHA to have access to data for non-compliance reasons at

all. This is another instance where it appears as if OSHA has

overstepped its legislative bounds and is attempting to transform a

recordkeeping/compliance system into a comprehensive research system

of occupational safety and health statistics.

(Ex. 15: 304, p. 25)

Others contended that the data should be used for statistical

purposes only. See e.g., Heat Transfer Equipment Company (Ex. 15:

117)(``rules must be in place that the information will be used for

statistical purposes only and not as a method for determining

individual audits and retribution'').

The OSH Act directs OSHA to operate a broad program to assure safe

and healthy workplace conditions in the majority of America's

workplaces, nearly 6,000,000 individual workplace establishments

employing approximately 100,000,000 workers. A vital component of this

broad program involves the effective use of information to provide for

the purposes discussed in the introduction to the OSH Act: for

workplace safety and health enforcement, research, information,

education, and training. 29 U.S.C. 651.

Section 24 of the Act, 29 U.S.C. 673, directs the Secretary of

Labor, in consultation with the Secretary of Health and Human Services,

to develop and maintain a program of collection, compilation, and

analysis of occupational safety and health statistics. Section 8(c)

also directs the Secretary of Labor, in cooperation with the Secretary

of Health and Human Services, to prescribe regulations requiring

employers to maintain accurate records of, and to make periodic reports

on, work-related deaths, injuries, and illnesses.

Additionally, the Government Performance and Results Act of

1993(GPRA)(31 U.S.C. 1101) requires Federal agencies to implement a

program of strategic planning, develop systematic measures of

performance to assess the impact of individual government programs, and

produce annual performance reports.

OSHA believes that collecting injury, illness and employment data

from employers to meet these responsibilities represents the most

appropriate policy. OSHA also needs establishment-specific data to

better target its program activities, including workplace inspections

and non-enforcement information and incentive programs, to the more

hazardous workplaces. Given budget and personnel constraints, OSHA and

the 23 states with OSHA-approved workplace safety and health plans are

unable to work directly with all of these workplaces. In fiscal year

1996, OSHA and the States conducted enforcement inspections at

approximately 80,000 workplaces (unpublished OSHA analysis of FY 1996

inspection data). At this rate, 75 years would be needed to inspect all

of America's workplaces.

Several independent reports concerning occupational injury and

illness recordkeeping and occupational safety and health policy have

documented and supported OSHA's need for establishment-specific data.

In a 1987 report, Counting Injuries and Illnesses in the Workplace:

Proposals for a Better System, published by the National Research

Council (NRC), the Panel on Occupational Safety and Health Statistics

recognized OSHA's need for access to individual establishment data:

The Occupational Safety and Health Administration should be able

to obtain individual establishment data and that this might be

achieved through the development of an administrative data system,

such as that maintained, for example, by the Internal Revenue

Service.

(Ex. 4, p. 10)

The panel believed that this data could be used to improve OSHA's

enforcement program:

It could provide systematic detailed data that the current

program does not now provide; it could give OSHA more effective ways

of using its inspection resources to reduce workplace injuries; and

it could provide a more systematic bases for monitoring the quality

of recordkeeping and reporting.

(Ex. 4, p. 113)

The NRC Panel further suggested that an administrative data system

based on the OSHA 200 logs could provide a valuable database for other

uses as well, including standard setting, enforcement, program

evaluation, and research. (Ex. 4, p. 113)

In a 1989 report, the Keystone National Policy Dialogue on Work-

Related Illness and Injury Recordkeeping, a group of industry, labor,

government and academic representatives with an interest in

occupational injury and illness data stated:

The Dialogue group agreed that injury and illness statistics

from recordkeeping can and should be used to target (prioritize)

enforcement/compliance activity at OSHA.

* * * * *

The data should be usable for macro purposes by SIC codes (high

risk--low risk) as well as in a performance oriented micro targeting

of workplace visits. OSHA needs to conserve its resources and should

be able to decide upon which industries and workplaces should

receive the most attention. However, statistics alone should not be

used to exempt any site from inspection. The records and rates at

the site level should be used in decision making in conjunction with

a review of site programs and spot check inspections.

(Ex. 5, p. 35)

In a 1990 report, Options for Improving Safety and Health in the

[[Page 6436]]

Workplace, the General Accounting Office (GAO) discussed an option for

improving the use of inspection resources by targeting inspection

activity with the use of establishment-specific injury and illness

data:

OSHA could focus its enforcement, as well as education and

training efforts, on employers with high injury and illness rates in

industries known to be hazardous.

(Ex. 36, p. 32)

OSHA believes that it can improve the effectiveness and efficiency

of its programs by focusing its resources on employers and workplaces

that are experiencing serious, ongoing workplace safety and health

problems reflected by high rates of workplace injuries and illnesses.

At the same time, data that shows workplaces with good safety and

health records reflected by low injury and illness rates would allow

OSHA to have greater flexibility in working cooperatively and in

partnership with safer workplaces. These programs include enforcement

programs as well as non-enforcement programs that encourage employers

to voluntarily implement effective safety and health programs that

protect workers from death, injury and illness.

2. 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 collecting

information from employers. (Ex. 15: 2, 28, 58, 63, 97, 184, 195, 289,

327, 341, 374, 444) For example, Mr. Alex F. Gimble, CSP 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 workers' compensation systems. The comments of the American Health

Care Association (AHCA) are representative:

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 data from treatment

facilities:

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)

OSHA believes that injury and illness information compiled pursuant

to Part 1904, plus employment figures, will be much more reliable and

suited to OSHA's needs than any available alternative. While many State

workers' compensation programs voluntarily provide injury and illness

data to OSHA for various purposes, others do not. And the data vary

widely from state to state. Differing workers' compensation laws and

administrative systems result in large variations in content, format,

accessibility and computerization. Often, workers' compensation

databases 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, and incidence rates of

occupational injury and illness cannot be computed. Workers'

compensation data are also based on insurance accounts, and not on the

safety and health experience of individual workplaces. As a result, an

individual account often reflects the experience of several workplaces

involved in differing business activities.

Only a survey of every member of a selected set of employers about

a selected set of data gathered in a relatively short time can tell

OSHA which members of the group have the highest or lowest illness and

injury rates, how the injury and illness rates are distributed over the

field, and the types of injuries and illnesses being experienced in

that field, etc. As more surveys are conducted over time, a reliable

historical record will emerge.

While OSHA does not believe that alternate source data are

satisfactory substitutes for the information covered by 1904.17, the

agency does recognize they have value. To the extent information from

workers' compensation programs, BLS, 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 assess the quality of its own data. However, consistent with the

Congressional mandate of the OSH Act, OSHA needs to maintain its own

recordkeeping system and to gather the data for it through a reporting

requirement.

3. Scope Issues

Many commenters objected to the breadth of the proposed regulatory

text, arguing that it would give the Secretary unfettered discretion to

demand any information related to the Act's purposes, at any time, for

virtually any reason. (Ex. 25, 58X, 15: 55, 80, 102, 124, 135, 144,

158, 162, 165, 193, 206, 207, 209, 211, 212, 220, 228, 239, 240, 243,

252, 255, 257, 258, 261, 264, 267, 274, 275, 276, 286, 293, 305, 306,

309, 313, 341, 348, 351, 368, 375, 389, 397, 406, 420, 427) A comment

by the National Association of Manufacturers sums up the point of view

expressed by many others:

It is one thing to have an objectively identified set of

employers that must make an annual filing of a census-type survey on

a non-discriminatory basis; it is another to give an enforcement

agency the authority--at its sole whim or discretion--to selectively

require one or more employers to file reports that an entire class

of employers is required to maintain. It is one thing to have an

objectively identified set of information or records that must be

included in an annual filing; it is another to give an enforcement

agency the authority--at its sole whim or discretion--to selectively

require one or more employers to generate and file reports

containing whatever information the agency identifies so long as it

can be described as ``regarding [the employer's] activities relating

to this [OSH] Act.''

(Ex. 25, 15: 305)

It was not OSHA's intention to exercise unfettered discretion to

collect any data related to the Act. It was, however, OSHA's intention

to create a reliable mechanism for routinized collections, by mail or

other remote transmittal, of a limited class of information without

unduly burdening employers. Consistent with that goal, and in light of

the comments of record, the final reporting rule is carefully

circumscribed. The rule authorizes an annual survey--which, because it

will go to more than ten employers, will be subject to the Paperwork

Reduction Act (PRA) (See 42 U.S.C. 3502 et seq. and 5 CFR part 1320)--

concerning information contained in records required to be created and

maintained by Part 1904 plus employment figures. The rule specifies the

time within which responses are to be provided to OSHA. Employers will

be able to determine which employers are within the survey group and

what information will be collected each year before the

[[Page 6437]]

survey begins because that information will be made available to the

public under a Federal Register notice pursuant to the PRA. Once a

survey has received an OMB control number under the PRA, any

substantive or material modification would require a new PRA clearance.

As indicated in Section IX of this preamble entitled ``Paperwork

Reduction Act of 1995'' the OMB control number for the current annual

survey form is 1218-0209. (Section 1904.17 defines the class of

information and respondents subject to survey under the rule. The set

of employers and information (from within the covered class) to be

targeted in each year is fixed as each survey is designed.)

One commenter was concerned that the proposed rule could apply to

information dating back ``decades,'' creating substantial burdens for

employers. (Ex: 15:395, p. 67) Since the final rule establishes an

annual survey of information in Part 1904 records, which are required

to be kept no more than five years, plus employment information, it

presents no issues about ``decades-long'' records.

A number of commenters argued that as proposed, section 1904.13

violated Fourth Amendment guarantees against unreasonable searches.

(Ex. 15:154, 174, 193, 215, 258, 305, 318, 346, 375, 390, 395, 397)

Most of these commenters referred to Marshall v. Barlow's, Inc., 436

U.S. 305 (1978), McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir.

1988), and Brock v. Emerson Electric Co, 834 F.2d 994 (11th Cir. 1987).

Barlow's concerned the question whether OSHA must have a warrant to

inspect a work site if the employer does not give consent. Kings Island

and Emerson Electric concerned on-site records inspections by

compliance officers. Section 1904.17 is a reporting requirement; no

entry of premises or compliance officer decision making is involved.

Thus, these decisions provide little if any support to the commenter's

sweeping Fourth Amendment objections. See, Donovan v. Lone Steer, Inc.,

464 U.S. 408, 414 (1984) (reasonableness of a subpoena is not to be

determined on the basis of physical entry law, because subpoena

requests for information involve no entry into nonpublic areas).

Moreover, in its final form the rule is extremely narrow in scope

and leaves the agency with limited discretion. Section 1904.17 is

restricted to a limited class of information. This information is

highly relevant to accomplishment of OSHA's mission. The reporting is

done by mail or other remote transmittal, without any intrusion into

the employer's premises by OSHA, and is not unduly burdensome. Much of

the injury and illness information to be reported is taken from records

employers are already required to create, maintain, post, and provide

to workers and government officials on request, which means that the

employer has a reduced expectation of privacy in the information.

Employment figures are critical to OSHA's ability to evaluate the

injury and illness data, whereas they are not information that

employers may expect to keep secret from the government. In addition,

as explained earlier, there is no substitute for a large body of site-

specific information gathered by the survey method. The results of the

surveys will be uniquely useful to OSHA in meeting Congress' mandate to

use reporting requirements and build an effective statistical program

around them.

Some commenters argued that the Fourth Amendment requires OSHA to

use a subpoena or warrant to get information from employers who do not

provide it voluntarily. Since the proposed reporting rule made no

explicit provision for enforcement via subpoena or warrant, they

contended that the rule was constitutionally deficient. ``Production

may not be compelled without a search warrant, administrative subpoena

or other appropriate vehicle.'' (National Beer Wholesalers Association.

Ex. 15:215.) ``The Fourth Amendment * * * requires OSHA to obtain a

subpoena or warrant prior to obtaining access to any of the information

identified in proposed * * * 1904.13.'' (The Fertilizer Institute. Ex.

15: 154.) ``The proposed rules make no provision for a subpoena or

warrant and appear to contemplate that OSHA will use neither. * * *

These provisions, to the extent they purport to authorize inspections

of records without a warrant or subpoena, violate the Fourth

Amendment.'' (American Iron and Steel Institute. Ex. 15:395.)

Certainly, under many circumstances employers can force OSHA to

secure a warrant or subpoena enforcement order before giving OSHA

access to workplace injury and illness data. These commenters, however,

appear to be arguing that including a subpoena or warrant enforcement

mechanism in the text of the rule is necessary to adequately protect

their Fourth Amendment right to privacy. This is not so. The Fourth

Amendment protects against ``unreasonable'' intrusions by the

government into private places and things. Reporting rules that do not

incorporate subpoena or warrant procedures are not ``unreasonable'' per

se. See e.g., California Bankers Ass'n v. Shultz, 416 U.S. 21, 67

(1974) (upholding reporting regulation issued under the Bank Secrecy

Act of 1970 that did not provide for subpoenas or warrants where the

``information was sufficiently described and limited in nature and

sufficiently related to a tenable Congressional determination'' that

the information would have a high degree of usefulness in criminal,

tax, or regulatory investigations or proceedings). For example, OSHA

has long required employers to report promptly all fatal workplace

accidents.

The totality of circumstances surrounding a warrantless or

``subpoena-less'' reporting requirement or administrative investigation

determines its reasonableness. For example, in McLaughlin v. A.B.

Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a

records access citation against an employer who refused an OSHA

inspector access to its OSHA Logs and Forms on the ground that it had a

right to insist on a warrant or subpoena. The court upheld the citation

because a summary of the information was posted annually on the

employee bulletin board, thus diminishing the employer's argument that

it has a reasonable expectation of privacy in the information, and the

inspector was lawfully on the premises to investigate a safety

complaint. In New York v. Burger, 482 U.S. 691, 702-703 (1987), the

Supreme Court noted that agencies may gather information without a

warrant, subpoena, or consent if the information would serve a

substantial governmental interest, a warrantless (or subpoena-less)

inspection is necessary to further the regulatory scheme, and the

agency acts pursuant to an inspection program that is limited in time,

place, and scope. The Burger court went on to uphold a warrantless

inspection of records during an administrative inspection of business

premises. Consider also the Kings Island and Emerson Electric

decisions' concern about the inspector's broad field discretion. Kings

Island (noting that under Burger a warrantless or subpoena-less

inspection of records might be reasonable, but concluding that the

facts of the case did not satisfy Burger analysis); Emerson Electric

(noting that under California Bankers an agency may gain access to

information without a subpoena or warrant but concluding that facts of

that case were not comparable to those reviewed in California Bankers).

It is not OSHA's intention to resolve, in this rulemaking, the

question of the procedures the Fourth Amendment may require to enforce

the regulatory obligation. Not only are Fourth Ammendment issues

ultimately for

[[Page 6438]]

courts, not agencies to resolve, such issues are rarely suitable for

judgement in the abstract. If for example, OSHA were at some future

time to issue a citation for nonresponse to a survey questionaire, the

Fourth Amendment evaluation would depend on all the particulars of the

case. (While the participation in the OSHA Data Collection Initiative

is mandatory, OSHA has made a policy decision that it will not issue

citations for the failure to respond to the first survey conducted

under authority of this rule, which will collect data for calendar year

1996; nor does OSHA intend to issue citations for the 1995 survey

already conducted. OSHA will take into consideration its experience

with the Data Collection Initiatives when developing policy for future

years. However, the nonrespondents to the 1995 and 1996 survey

instrument may be subject to an on-site records inspection by an OSHA

compliance officer or issued an administrative subpoena.)

Further analysis under the principles set forth in the Burger

decision must await a specific application of 1904.17 when the

particulars of the information request are known. OSHA has, however,

structured the final rule to respond to concerns expressed in the case

law and to limit its own discretion and eliminate discretion of

officials in the field. Section 1904.17 surveys are constrained first

by the regulatory text--the surveys occur no more than once per year,

they involve ten or more employers covered by the Act, they are limited

to injury and illness information contained in records created and

maintained pursuant to Part 1904 and to employment and hours worked,

they are accomplished by mail or other remote transmittal, and

respondents have at least thirty days to respond. The data from within

the covered field and the set of employers or establishments to be

canvassed for each survey are definitively fixed during the Paperwork

Reduction Act clearance process and are available to the public in

connection with Federal Register notices published during the clearance

process.

Employers will have ample opportunity to test the Fourth Amendment

reasonableness of any survey with which they are faced. Under any

follow-up scenario--warrant records inspection, subpoena demand or

notice of a 1904.17 violation--employers would have advance notice that

a response was required, and would have an opportunity to provide the

survey data in order to avoid legal process. Employers faced with a

survey that they consider an infringement of Fourth Amendment rights of

privacy may refuse to respond and raise objections in a warrant

enforcement or subpoena proceeding or as a defense if they are issued

citations by OSHA. Under the Act, employers are entitled to contest

citations and receive an administrative hearing, administrative review

of the hearing officer's decision, and federal court of appeals review.

29 U.S.C. 659(c), 660(a).

Some commenters asserted that using reported information for

enforcement targeting would violate their privilege against self-

incrimination. (Ex. 15:203, 397) These commenters did not explain how

the privilege against self-incrimination would be implicated in the

reporting requirement or cite any supporting authorities. OSHA would

point out, that the privilege against self-incrimination derives from

the Fifth Amendment and pertains to criminal proceedings. It has long

been settled that the privilege cannot be invoked to resist the

disclosure needed for a regulatory purpose unrelated to the enforcement

of criminal laws even if a criminal proceeding is a possible

consequence of an administrative investigation. See, for example,

Shapiro v. United States, 335 U.S. 1, 32-33 (1948) (Fifth Amendment not

violated by regulation requiring individuals to keep and produce

records ``of transactions which are the appropriate subjects of

governmental regulation'').

4. OSHA's Statutory Authority To Collect Data With a Reporting Rule

Some commenters argued that the proposed reporting rule was not

consistent with Sections 8(c) and 24(e) of the Act. Sections 8(c)(2)

directs that ``the Secretary of Labor * * * 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 * * *.'' 29 U.S.C. 657(c)(2). Section 24(e)

provides that ``[o]n the basis of the records made and kept pursuant to

section 8(c) of this Act, employers shall file such reports with the

Secretary as he shall prescribe by regulation * * *.'' 29 U.S.C.

673(e).

These commenters argued that the proposed rule merely reiterated

the Secretary's entire range of statutory authority to collect

information and did not itself prescribe anything, much less limit

itself to the injury and illness records mentioned in section 8(c)(2).

Moreover, some claimed, it left the compliance officer in the field

with unfettered discretion to decide what information to demand. (Ex.

15: 154, 313, 352, 353, 358, 375, 397.)

There are several responses to be made on this point. First, OSHA

has had the ability to access injury and illness records for many years

and is simply clarifying its authority to collect the information

through the mail. Second is the fact that the final rule is extremely

narrow and specific about the information it covers and how that

information is to be gathered. Third, compliance officers do not

implement the rule; the agency implements it by conducting large annual

surveys, by mail, requesting information within the scope of the rule

from employer or establishment groups whose responses the agency judges

to be necessary in meeting its multiple responsibilities. Finally, the

final rule fits within the terms of Section 8(c).

5. Time Allowed for Employers To File Reports

The proposed rule would have required employers to submit data to

OSHA, when OSHA sends them a written request for records, within 21

calendar days of receiving the request. Several commenters provided

remarks on the 21 calendar day limitation. (Ex. 15: 65, 127, 347, 405)

Some comments supported the 21 day time frame as a reasonable time

for employers to comply with a request for information. (Ex. 15: 347,

405) For example, the Westinghouse Company (Ex. 15: 405, P. 4) stated:

``This change is acceptable and the time limitations appear

reasonable.'

OSHA also received comments stating that 21 calendar days is too

short a time frame for reporting, and that longer times should be

adopted in the final rule. (Ex. 15: 65, 127) For example, the Aluminum

Company of America (Alcoa) remarked:

Alcoa believes this is too short and restrictive a time frame

given current staff levels and resource demands on employers and

their health and safety professionals. * * * OSHA should provide 30

days advanced notification (for planning purposes) and 21 days for

response following the advanced notification to the specific

employers to be surveyed.

(Ex. 15: 65)

The Laboratory Corporation of America stated:

Reports to be required of employers mentioned in 29 CFR 1904.13

should be handled in one of two ways. The content of the reports

needs to be established in advance and a specific date for a

deadline for submission provided. Alternatively, if the report

content has not yet been established, then a period of time longer

than 21 days is needed for response. A period of 45 to 60 days is

suggested. Unless the information requested is known in advance to

employers, it will take time to communicate and collect

[[Page 6439]]

this data in a multi-state, multi-location operation. Either of

these two options would give more appropriate time for more accurate

information to be compiled for these types of employers.

(Ex. 15:127 P. 2)

Other comments supported the 21 day requirement, but suggested that

the Secretary maintain some flexibility and discretion to provide more

than 21 days for a specific request.

The American Petroleum Institute (API), for example, observed:

Twenty-one days should be the minimum time allowed for employers

to respond to such requests.

Recommended language: The employer shall file the requested

reports with the Secretary within 21 calendar days of receipt of the

request, unless the Secretary allows more than 21 days.

(Ex. 15:375 P. b25)

In light of these comments, OSHA has increased the reporting time

to 30 calendar days in this final rule. OSHA believes that the 21 day

time frame may be too short for some employers to comply with the

request, but believes that 45 or 60 days is too long a time frame for a

relatively simple request for summary information contained in existing

records. A longer deadline would make it more difficult for OSHA to

collect data in a timely fashion, or to conduct quality control

measures such as follow-up mailings and phone calls to verify

questionable or erroneous data.

Additionally, OSHA agrees that the time frame in the rule should be

a minimum time that can be lengthened at the discretion of OSHA. In

other words, the final rule requires employers to file reports within

30 calendar days of receipt of the request, unless the written

instructions contained in the request specifically allow more than 30

calendar days.

6. Reporting With Computers

OSHA received several comments on the potential role of computers

in reporting data to OSHA. (Ex. 15: 011, 163, 184, 390, 402) The OSHA

Data Company (Ex. 15: 011) suggested that computer reporting should be

a mandatory feature of the data collection system, remarking: ``We

suggest that recordkeeping in computer readable format should be

mandatory and data should be submitted to OSHA in that format.''

Other commenters suggested that computer reporting be allowed and

encouraged (Ex. 15: 163, 184, 390, 402). The comments of US West Inc.

are representative of these comments:

US West requests that OSHA move to implement systems that will

allow employers to electronically provide data, such as the data

requested in the BLS Survey of Occupational Injuries and Illnesses.

Such a method will be more effective, in terms of receiving

consistently formatted data, and will be more cost efficient for

both employers and the Department of Labor.

(Ex. 15-184)

OSHA believes that there is enormous potential for reducing

collection burden on both employers and the government, while improving

data quality and consistency, by allowing employers to submit data

through computerized reporting systems. However, OSHA does not believe

that computerized reporting systems should be mandatory for all

employers. Mandatory computer systems could actually increase the

burden on those employers who do not have computer systems and on those

employers who have computer systems that do not provide simple

electronic communications options.

OSHA intends to implement, as soon as possible, options for

individual data collection projects that will allow employers to submit

data either electronically or through paper forms. For those data

collections where computerized submission of data is an option, OSHA

will include instructions for computerized submissions in the

instructions accompanying the request for information.

7. Miscellaneous Issues

OSHA also received comments on a variety of issues that the Agency

believes are worthy of discussion, as follows.

A. The Ability of OSHA To Designate its Collection Authority to Another

Entity. The Proposed Rule Did Not Indicate That a Designee Could

Collect Information for the Agency

Often, OSHA and the Bureau of Labor Statistics have used grants to

the states and independent government contractors to collect data on

behalf of the Department of Labor. These arrangements allow the

Department to collect information using a variety of administrative

options that are advantageous to the Federal government and do not

increase the burden on respondents. One commenter suggested: ``Data

should continue to be collected through state agencies.'' (Ex. 15: 41)

In order to maintain the Agency's flexibility to collect data via

grants to the states, or to use government contractors, and to be able

to collect data through cooperative interagency efforts with the

Department of Health and Human Services, OSHA has modified the final

rule to require employers to submit information to either OSHA or

OSHA's designee.

B. Unfair Effect on Specific Industry Sectors

Several commenters raised concerns over what they regarded as

potentially unfair effects of the data collection on smaller employers,

small establishments, and employers who rely heavily on part time

employees (Ex. 15: 304, 384, 424, 449). Another commenter was concerned

that OSHA would attempt to compare data from the longshoring industry

to that of other industries and argued that such comparisons would be

invalid because longshoring is subject to a different workers'

compensation insurance system than other industry sectors (Ex. 15: 95).

Several commenters expressed concern over a perceived and

potentially unfair effect of data collections on smaller employers,

arguing that the same small number of cases would result in a higher

incidence rate for a smaller employer than for a larger employer, or

that a small employer may have a high rate for only one year and may

have had no cases for many years before and after the year for which

the information is collected. (Ex. 15: 304, 384, 449) For example, the

Akzo Nobel Corporation observed:

We support this concept, but caution OSHA about using data from

only one year, especially for small sites where a single medical

case in a plant of 20 employees will give a total recordable rate of

about 5. We would consider that a ``high'' rate, possibly targetable

by OSHA, but it might be the first OSHA recordable incident in 3 or

5 years. Caution is advised.

(Ex. 15: 384)

United Parcel Service (UPS) (Ex. 15: 424, p. 9) expressed a concern

about the possible effect on firms who rely heavily on part-time labor,

stating:

The agency's current practice of determining injury rates as a

ratio to hours worked, rather than to employees, has the consequence

of inflating injury and illness rates for companies with more

workers per hour worked: at least when an outside limit of an 8-hour

workday is established, the likelihood, per hour, of injury

decreases when more hours are worked. To put it another way, the

more workers who work per 8-hour day, the more likely those hours

will generate discrete employee complaints. Therefore, OSHA's

current practices already distort the apparent safety of workplaces

relying heavily on part-time labor.

The Pacific Maritime Association (Ex. 15: 95, p. 10) expressed a

concern that injury and illness reports would not provide an accurate

comparison with other industries because the longshoring industry is

covered by a separate workers' compensation system, stating:

[[Page 6440]]

Another very important recommendation concerns the inequities of

comparing an industry covered by the Long Shore and Harbor Workers Act

compensation program with those covered by Workers' Compensation.

Compensation provided by the Long shore program is much more generous

than Workers' Compensation and may encourage individuals to remain on

compensation longer. This disparity between the two systems is not

often acknowledged particularly when injury incident and severity rates

are used to identify high hazard industries. It is recommended that

OSHA recognize the impact of the Long shore compensation by

establishing a specific category for employees who are covered by the

Long shore Act. For an example, SIC 4491, Long shoring, may be used as

a specific category where employer incident and severity rates may be

compared.

These objections are premature, as they relate to certain possible

uses of data, not to usefulness for all purposes, and not to the

Agency's authority to collect the data in the first instance. Moreover,

as the comments themselves made clear, when the time comes for using

survey data, it will be possible to factor in special circumstances for

subgroups of employers. For example, small employer data could be

adjusted to omit smaller employers with only one injury from any

analysis of the data.

In regards to the longshoring industry, OSHA has traditionally

performed separate analyses of broader databases to prepare employer

lists specific to the longshoring industry. OSHA recognizes the unique

qualities of this industry, has developed separate standards for

maritime industries, including longshoring, and normally performs

specialized investigations for longshoring facilities. The problems

with data from the longshoring industry can be solved by continuing to

look at this industry in a way that does not compare these employers to

employers in other industries.

In general, OSHA believes that different approaches to the use of

data can effectively deal with differences among different

subpopulations of employers, depending on the unique qualities of those

subpopulations. OSHA will continue to tailor its analysis of data when

these unique situations are encountered.

C. Data Quality Issues

Several commenters discussed the possible adverse impacts on the

quality of the data if reporting is required. (Ex. 15: 50, 122, 176,

273, 301, 310, 374, 401, 414). Mr. George R. Cook, CCC-A (Ex. 15: 50)

remarked:

If the OSHA Form 300 is to be used to prioritize compliance

visits, it is felt this policy will add undue pressure for companies

to keep entries off the Form.

The Laborers' Health & Safety Fund of North America (Ex. 15: 310)

observed:

The premise of employers self-reporting injuries and illnesses

to an agency which may inspect them based on that data is a

prescription for mis-reporting.

The Chemical Manufacturers Association (CMA) remarked:

CMA supports targeting of inspections in order for OSHA to

better use its resources, but cautions OSHA to carefully consider

its approach. CMA is concerned that OSHA carefully consider the

relationship between targeting and OSHA's ability to collect

accurate and credible data. Valid data collection and analysis are

the cornerstone of effective targeting.

CMA recognizes that currently OSHA is not collecting adequate

data to target effectively. It is important that OSHA review

existing data sources, examine existing targeting programs (e.g.

Maine 200) and revise its data collection mechanisms. However, the

Administration must carefully evaluate the context in which that

data has been collected, as well as identify characteristic flaws in

such programs.

(Ex. 15: 301, p. 16)

The quality of any data collected from employers is an ongoing

concern for the Agency. OSHA agrees that misreporting, whether

intentional or unintentional, can affect the value of the collected

data and any conclusions drawn from that data. Misreporting is not,

however, an insoluble problem. Controls are available for assuring a

reasonable quality of data for use by OSHA, as well as employers and

workers. For example, OSHA is implementing a quality control initiative

for the current collection of injury and illness records data required

by Part 1904 that will include three components; outreach and training

for the regulated community to reduce unintentional errors, error

screening and follow-back procedures to correct or verify questionable

data reported to the agency, and, under certain circumstances, on-site

records inspections. OSHA is also planning to use other sources of

data, e.g., workers' compensation records and inspection histories,

when available, for comparison purposes as an external check on records

validity.

D. Effect on Existing Authority

Nothing in Section 1904.17 affects the Secretary's general

investigatory authority under Section 8 of the Act or his broad

rulemaking authority under Section 8(g)(2).

IV. Economic Analysis

Section 1904.17 applies to all employers within OSHA jurisdiction,

including those in general industry, construction, shipyard employment,

long shoring, marine terminals, and agriculture. OSHA has determined

that the Section 1904.17 regulation does not require the Agency to

develop a Final Economic Analysis because it is not a ``significant

regulatory action'' as defined by section 3(f)(1) of Executive Order

(E.O.) 12866. This provision of the E.O. covers a regulatory action

that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities.

Pursuant to this section 1904.17 individual data collections

conducted under this regulation will require employers to assemble data

and file reports to OSHA. To provide employers with examples

illustrative of the kinds of costs and paperwork burdens potentially

associated with such data collections, the following paragraphs

describe the costs and burden hours associated with two recent Agency

data collection efforts. The examples chosen include the two recent

data collection initiatives undertaken by OSHA in 1995 and 1996.

The impact analyses developed for the 1995 and 1996 data

collections initiatives were published in the Federal Register (60 FR

35231; 61 FR 38227, respectively). OSHA estimated that employers

responding to those data collection efforts would be required to spend

an estimated $6.95 per response, based on 30 minutes of clerical time

at $13.90 per hour. OSHA believes that most firms will assign the

survey form to a personnel or payroll clerk with an average wage of

$13.90 per hour. This figure is based on a wage rate with benefits for

a secretary-typist from Employment and Earnings, January 1996, U.S.

Department of Labor, Bureau of Labor Statistics (OSHA has recently

updated its wage rate data with more current statistics). The

information collected from employers in the 1995 and 1996 data

collection initiatives was summary information from the establishment's

OSHA Log and Form 200, in addition to information on the number of

workers employed and the number of hours worked by these employees in

the applicable calendar year. Approximately 70,000 employers were

targeted in each of these data

[[Page 6441]]

collection initiatives, for a total burden estimate of 35,000 hours, or

$486,500. OSHA anticipates that future data collection initiatives

conducted under section 1904.17 will impose similar burdens--

approximately 30 minutes of clerical time per respondent--and will

therefore not impose a substantial burden on any employer.

The record contains many comments about the burden of recording

employment and hours worked information on the OSHA Log--some favorable

but more unfavorable. However, the negative commenters provided no

empirical basis by which their burden claims could be quantified. In

the absence of such data, OSHA turned to the long experience BLS has

accumulated while collecting these same types of data for statistical

purposes. For over 25 years, until the BLS injury and illness survey

was revised to collect additional data from employers, the BLS

collected data identical to the data collected by OSHA in 1996. BLS

estimated that completion of its pre-1992 surveys required one half

hour of time. A 1992 BLS test conducted on 92 respondents completing

only part 1 of the BLS survey form (equivalent to the OSHA form)

measured the average respondents completion time at 30.55 minutes.

The occupational injury and illness information from the OSHA

records is required by regulation and is easily transferred to the OSHA

survey form. The information on employment and hours worked by

employees is generally easy to obtain from payroll systems for

employees who are paid on an hourly basis, and can be estimated for

salaried employees. The survey forms used by OSHA provide the employer

with instructions and worksheets to make the calculations as easy as

possible. In many cases, the employment and hours worked data are

already being reported to unemployment insurance and workers'

compensation agencies and can easily be transferred to the OSHA survey

form.

As discussed above, OSHA has concluded that promulgation of this

regulation, in and of itself, imposes few if any economic costs on

potentially affected firms. Individual data collections conducted under

this regulation will be subject to OMB review under the procedures

specified by the Paperwork Reduction Act of 1995. Employers will thus

have an opportunity to comment on any burdens imposed by such data

collections when they are carried out in the future.

OSHA has determined that this rule is a significant regulatory

action as defined by 3(f)(4) of E.O. 12866. This provision of the E.O.

covers a regulatory action that is likely to result in a rule that may:

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

V. Regulatory Flexibility Act

OSHA is required by the Regulatory Flexibility Act, as amended in

1996, to assess whether its regulations will have a significant impact

on a substantial number of small entities. As explained in the Economic

Analysis section of this preamble, above, this regulation (section

1904.17, Annual OSHA Injury and Illness Survey of Ten or More

Employers) imposes few, if any costs on affected employers, although

future data collection efforts conducted under this regulation may

impose minimal cost and paperwork burdens on those employers affected

by a given data collection effort. OSHA will carefully assess the

impacts of individual data collections on employers, including small

employers, at the time such efforts are initiated. Pursuant to the

Regulatory Flexibility Act, OSHA thus certifies that section 1904.17

will not have a significant impact on a substantial number of small

entities.

VI. Environmental Impacts

The provisions of this final regulation have been reviewed in

accordance with the requirements of the National Environmental Policy

Act (NEPA) of 1969 (42 U.S.C. 432, et seq.), the Council on

Environmental Quality (CEQ) NEPA regulations [40 CFR part 1500], and

OSHA's DOL Procedures [29 CFR part 11]. As a result of this review,

OSHA has determined that this final rule will have no significant

effect on air, water, or soil quality, plant or animal life, use of

land, or other aspects of the environment.

VII. Federalism

This rule has been reviewed in accordance with Executive Order

12612 (52 FR 41685), regarding Federalism. Because this rulemaking

action involves a ``regulation'' issued under Sec. 8 of the OSH Act,

and not a ``standard'' issued under Sec. 6 of the Act, the rule does

not preempt State law, see 29 U.S.C. 667 (a).

VIII. State Plans

The 25 States and territories with their own OSHA approved

occupational safety and health plans are: Alaska, Arizona, California,

Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,

New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,

Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and

Wyoming; Connecticut and New York have state plans covering state and

local Government employees only.

Section 18(c)(7) of the OSH Act requires employers in state plan

states to ``make reports to the Secretary in the same manner and to the

same extent as if the plan were not in effect.'' Today's amendment to

29 CFR part 1904 relates to periodic data surveys which federal OSHA

will conduct in all states, including those which administer approved

state plans; accordingly, states with state plans are not required to

adopt a comparable regulation. In state plan states, the data collected

by the federal OSHA survey will be shared with the states for use in

administering their plans, and also provide relevant information for

OSHA's use in monitoring the state plan as required by section 18(f).

Because OSHA's nationwide data survey is not an issue currently

addressed by any of the state plans, OSHA's authority to implement the

survey is not affected either by operational agreements with state plan

states or by the granting of final approval under section 18(e). OSHA's

authority under the Act, to take appropriate enforcement action when

necessary to compel responses to the survey and to assure the accuracy

of the data submitted by employers, will be exercised in consultation

with the state in state plan states. The states may also exercise such

authority under state law or regulation.

IX. Paperwork Reduction Act of 1995

This final regulation contains information collection requirements.

As required by the Paperwork Reduction Act of 1995, the U.S. Department

of Labor has submitted a copy of these sections to OMB for its review.

(44 U.S.C. 3501 et seq., and 5 CFR part 1320.

Separately, the Department of Labor has received renewed approval

for the Annual Survey Form under the Paperwork Reduction Act (OMB

number 1218-0209)

List of Subjects in 29 CFR Part 1904

Reports by employers, occupational injuries and illnesses,

Occupational Safety and Health, Occupational Safety and Health

Administration, Recordkeeping, Reporting.

Authority

This document was prepared under the direction of Greg Watchman,

Acting Assistant Secretary of Labor for Occupational Safety and Health,

U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC

20210.

[[Page 6442]]

Accordingly, pursuant to sections 8 and 24 of the Occupational

Safety and Health Act of 1970 (29 U.S.C. 657, 673), Secretary of

Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, 29 CFR part 1904

is hereby amended by adding Sec. 1904.17 as set forth below.

Signed in Washington, D.C., this 7th day of 1997.

Greg Watchman,

Acting Assistant Secretary of Labor.

PART 1904--[AMENDED]

1. The authority citation for Part 1904 is revised to read as

follows:

Authority: Secs. 8, 24, Occupational Safety and Health Act of

1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 12-71 (36

FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033)

or 6-96 (62 FR 111), as applicable.

Section 1904.7, 1904.8 and 1904.17 are also issued under 5

U.S.C. 553.

2. Section 1904.17 immediately following 1904.16 is added to read

as follows:

Sec. 1904.17 Annual OSHA Injury and Illness Survey of Ten or More

Employers.

(a) Each employer shall, upon receipt of OSHA's Annual Survey Form,

report to OSHA or OSHA's designee the number of workers it employed and

number of hours worked by its employees for periods designated in the

Survey Form and such information as OSHA may request from records

required to be created and maintained pursuant to 29 CFR part 1904.

(b) Survey reports shall be sent to OSHA by mail or other means

described in the Survey Form within 30 calendar days, or the time

stated in the Survey Form, whichever is longer.

(c) Employers exempted from keeping injury and illness records

under Secs. 1904.15 and 1904.16 shall maintain injury and illness

records required by Secs. 1904.2 and 1904.4, and make Survey Reports

pursuant to this Section, upon being notified in writing by OSHA, in

advance of the year for which injury and illness records will be

required, that the employer has been selected to participate in an

information collection.

(d) Nothing in any State plan approved under Section 18 of the Act

shall affect the duties of employers to comply with this section.

(e) Nothing in this section shall affect OSHA's exercise of its

statutory authorities to investigate conditions related to occupational

safety and health.

[FR Doc. 97-3495 Filed 2-10-97; 8:45 am]

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