6434 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

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 establishmentspecific 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 statisticgathering 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 sitespecific.

OSHA’s February 1996 proposal to

revise Part 1904 sought, among other

things, to reflect OSHA’s new statisticsgathering 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 §§ 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
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 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

§ 1904.15 and 16 exempt employers

based on survey non-response under

§ 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 nonenforcement 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 OSHAapproved 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 WorkRelated 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
6436 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

Workplace, the General Accounting

Office (GAO) discussed an option for

improving the use of inspection

resources by targeting inspection

activity with the use of establishmentspecific 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
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 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 subpoenaless 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
6438 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

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 selfincrimination would be implicated in

the reporting requirement or cite any

supporting authorities. OSHA would

point out, that the privilege against selfincrimination 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
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 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:
6440 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations 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 § 8 of the

OSH Act, and not a ‘‘standard’’ issued

under § 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.
6442 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations

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

§ 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:

§ 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

§§ 1904.15 and 1904.16 shall maintain

injury and illness records required by

§§ 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]

BILLING CODE 4510–26–P