On February 11th, the U.S. Occupational Safety and Health Administration issued a final rule, effective March 13th, that authorizes the agency to conduct annual mail or electronic surveys of ten or more employers in order to collect information which facilities are required to maintain pursuant to current OSHA rules.
Citing the agency's need to gather facility-specific data in order to assure workplace safety and health, the agency issued a regulatory provision that will allow OSHA to collect facility-specific data by mail from ten or more employers on an annual basis. The agency intends to use the data for agency self-evaluation, deployment of agency resources, periodici reassessment of existing regulations and standards, and rulemaking.
The information covered by the new reporting provision is information that employers are already required to maintain as well as the number of workers they employed and the number of hours those employees worked during designated periods.
I am attaching the final rule for your information.
Holly Lynch
Director of EHS Programs, IPC
[Federal Register: February 11, 1997 (Volume 62, Number 28)]
[Rules and Regulations]
[Page 6433-6442]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 6433]]
_______________________________________________________________________
Part V
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
29 CFR Part 1904
Reporting Occupational Injury and Illness Data to OSHA; Final Rule
[[Page 6434]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. R-02]
RIN 1218-AB24
Reporting Occupational Injury and Illness Data to OSHA; Final
Rule
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: 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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