Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Notices 66943

Councils or Agencies, Tribal

Government.

ETA Form 671

Total Respondents: 238,929.

Frequency: 1-time basis.

Total Responses: 238,929.

Average Time per Response: See

Chart.

Estimated Total Burden Hours:

47,556.

SUMMARY OF BURDEN FOR 29 CFR PART 29

Sec. Total respondents Frequency Total responses Average time per responses Burden hours

29.3 ... 127,421 1-time basis ............................................. 127,421 1⁄4 hr./app. ............................................... 31,855

29.6 ... 108,124 1-time basis ............................................. 108,124 1⁄12 hr./app. .............................................. 9,010

29.5 ... 1,674 1-time basis ............................................. 1,674 2 hrs./spon. ............................................. 3,348

1,640 1-time basis ............................................. 1,640 2 hrs./SAC ............................................... 3,280

29.7 ... 40 1-time basis ............................................. 40 1⁄12 hr./spon. ............................................ 3

29.12 (30) 1-time basis ............................................. (30) 0 .............................................................. 0

29.12 (accomplished in 1977; no new state agency expected in 2002)

29.12 30 1-time basis ............................................. 30 2 hrs. SAC .............................................. 60

29.13 0 0 .............................................................. 0 0 .............................................................. 0

Totals 238,929 ................................................................. 238,929 ................................................................. 47,556

Totals Burden Cost (capital/startup):

0.

Total Burden Cost (operating/

maintaining): 0.

Comments submitted in response to

this comment request will be

summarized and/or included in the

request for office of Management and

Budge approval of the information

collection request; they will also

become a matter of public record.

Dated: December 20, 2001.

Anthony Swoope,

Administrator, Office of Apprenticeship

Training, Employer and Labor Services.

[FR Doc. 01–31777 Filed 12–26–01; 8:45 am]

BILLING CODE 4510–30–P

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

Settlement Agreement: Occupational

Injury and Illness Recording and

Reporting

AGENCY: Occupational Safety and Health

Administration (OSHA), Department of

Labor.

ACTION: Notice of settlement agreement.

SUMMARY: The Occupational Safety and

Health Administration (OSHA) has

entered into a settlement agreement

with the National Association of

Manufacturers (NAM) to resolve NAM’s

legal challenge to OSHA’s revised

regulations in 29 CFR part 1904,

Recording and Reporting Occupational

Injuries and Illnesses. As part of the

agreement, OSHA agreed to publish a

copy of the OSHA–NAM settlement

agreement in the Federal Register

within 30 days.

DATES: The settlement agreement was

completed on November 16, 2001.

FOR FURTHER INFORMATION CONTACT: Jim

Maddux, Occupational Safety and

Health Administration, U.S. Department

of Labor, Directorate of Safety Standards

Programs, Room N–3609, 200

Constitution Avenue, NW., Washington,

DC 20210. Telephone (202) 693–2222.

SUPPLEMENTARY INFORMATION:

Background

On January 19, 2001, (66 FR 5916),

OSHA published a final rule, revising

its Occupational Injury and Illness

Recording and Reporting Requirements

in 29 CFR Part 1904. The Agency

subsequently published an amendment

to the final rule on October 12, 2001 (66

FR 35113). After the final rule was

published in January, NAM filed a legal

challenge to the final rule in the United

States District Court for the District of

Columbia. On November 16, 2001,

OSHA and NAM entered into a

settlement agreement to resolve NAM’s

legal challenge. The parties entered into

a revised settlement agreement on

November 29, 2001. As part of this

revised agreement, OSHA agreed to

publish a copy of the revised settlement

agreement in the Federal Register

within 30 days.

Accordingly, the following section of

this notice contains the text of the

OSHA–NAM revised settlement

agreement:

Settlement Agreement

United States District Court for the District of

Columbia

National Association of Manufacturers,

Plaintiff, v. Elaine L. Chao, Secretary, U.S.

Department of Labor, and John Henshaw,

Assistant Secretary of Labor for Occupational

Safety and Health, Defendants.

[Case No: 1:01CV00575 (GK)]

Revised Settlement Agreement

The Federal Defendants and the

National Association of Manufacturers,

by and through counsel, hereby agree as

follows:

1. On January 19, 2001, the

Occupational Safety and Health

Administration issued a Final Rule on

Occupational Injury and Illness

Recording and Reporting Requirements,

29 CFR parts 1904 and 1952 (the Final

Rule). 66 FR 5916–6135 (January 19,

2001). On March 23, 2001, the National

Association of Manufacturers filed a

First Amended Complaint in this Court

challenging portions of the Final Rule.

The Federal Defendants and the

National Association of Manufacturers

have settled their differences as

provided herein.

2. Secretary of Labor will include the

following language in the initial

Compliance Directive to be issued on

the Final Rule.

A. During the initial period the new

recordkeeping rule is in effect, OSHA

compliance officers conducting

inspections will focus on assisting

employers to comply with the new rule

rather than on enforcement. OSHA will

not issue citations for violations of the

recordkeeping rule during the first 120

days after January 1, 2002, provided the

employer is attempting in good faith to

meet its recordkeeping obligation and

agrees to make corrections necessary to

bring the records into compliance.

B. Section 1904.5(a) states that ‘‘[the

employer] must consider an injury or

illness to be work-related if an event or

exposure in the work environment

either caused or contributed to resulting

condition or significantly aggravated a

pre-existing condition. Workrelatedness is presumed for injuries and

66944 Federal Register / Vol. 66, No. 248 / Thursday, December 27, 2001 / Notices

illnesses resulting from events or

exposures occurring in the work

environment * * *’’ Under this

language, a case is presumed workrelated if, and only if, an event or

exposure in the work environment is a

discernable cause of the injury or illness

or of a significant aggravation to preexisting condition. The work event or

exposure need only be one of the

discernable causes; it need not be the

sole or predominant cause.

Section 1904.5(b)(2) states that a case

is not recordable if it ‘‘involves signs or

symptoms that surface at work but

result solely from a non-work-related

event or exposure that occurs outside

the work environment.’’ This language

is intended as a restatement of the

principle expressed in 1904.5(a),

described above. Regardless of where

signs or symptoms surface, a case is

recordable only if a work event or

exposure is a discernable cause of the

injury or illness or of a significant

aggravation to a pre-existing condition.

Section 1904.5(b)(3) states that if it is

not obvious whether the precipitating

event or exposure occurred in the work

environment or elsewhere, the employer

‘‘must evaluate the employee’s work

duties and environment to decide

whether or not one or more events or

exposures in the work environment

caused or contributed to the resulting

condition or significantly aggravated a

pre-existing condition.’’ This means that

the employer must make a

determination whether it is more likely

than not that work events or exposures

were a cause of the injury or illness, or

a significant aggravation to a preexisting condition. If the employer

decides the case is not work-related, and

OSHA subsequently issues a citation for

failure to record, the Government would

have the burden of proving that the

injury or illness was work-related.

C. A case is not recordable under

1904.7(b)(4) as a restricted work case if

the employee experiences minor

musculoskeletal discomfort, a health

care professional determines that the

employee is fully able to perform all of

his or her routine job functions, and the

employer assigns a work restriction to

that employee for the purpose of

preventing a more serious condition

from developing.

D. Question. Is the employer subject

to a citation for violating section

1904.7(b)(4)(viii) if an employee fails to

follow a recommended work restriction?

Answer: Section 1904.7(b)(4)(viii)

deals with the recordability of cases in

which a physician or other health care

professional has recommended a work

restriction. The section also states that

the employer ‘‘should ensure that the

employee complies with [the

recommended] restriction.’’ This

language is purely advisory and does

not impose an enforceable duty upon

employers to ensure that employees

comply with the recommended

restriction. [Note: in the absence of

conflicting opinions from two or more

health care professionals, the employer

ordinarily must record the case if a

health professional recommends a work

restriction involving the employee’s

routine job functions].

E. Question. Does an employee report

of an injury or illness establish the

existence of the injury or illness for

recordkeeping purposes?

Answer: No. In determining whether a

case is recordable, the employer must

first decide whether an injury or illness,

as defined by the rule, has occurred. If

the employer is uncertain about whether

an injury or illness has occurred, the

employer may refer the employee to a

physician or other health care

professional for evaluation and may

consider the health care professional’s

opinion in determining whether an

injury or illness exists. [Note: if a

physician or other licensed health care

professional diagnoses a significant

injury or illness within the meaning of

section 1904.7(b)(7) and the employer

determines that the case is work-related,

the case must be recorded.]

F. Question. If an employee is

exposed to chlorine or some other

substance at work and oxygen is

administered as a purely precautionary

measure, is the case recordable?

Answer: If oxygen is administered as

a purely precautionary measure to an

employee who does not exhibit any

symptoms of an injury or illness, the

case is not recordable. If an employee

exposed to a substance at work exhibits

symptoms of an injury or illness, the

administration of oxygen makes the case

recordable.

3. Within 3 business days following

issuance of the Compliance Directive

containing the language in Paragraph 2

of this agreement, the National

Association of Manufacturers (NAM)

will file a notice of dismissal of its

lawsuit under Fed. R. Civ. P. 41(a)(1)(ii).

The notice of dismissal shall state that

dismissal is with prejudice, except only

that NAM may re-file its complaint if a

court of competent jurisdiction

determines that any of the provisions of

this agreement or of the Department of

Labor’s October 12, 2001 Federal

Register Notice (66 FF 52031) are

invalid or if any of the provisions of this

agreement are withdrawn or revised in

a manner inconsistent with the language

in this agreement. The Federal

Defendants shall not object to the

timeliness of such a complaint by NAM

on statute of limitations, laches, or other

grounds, provided that the complaint is

filed within 90 days of the occurrence

of an event listed in the preceding

sentence. Nothing contained herein

shall be construed as affecting Federal

Defendants’ right to modify or interpret

its regulations in the future.

4. The Federal Defendants and the

National Association of Manufacturers

agree to bear their own fees and

expenses incurred at any stage in this

litigation.

5. The Federal Defendants agree to

publish a copy of this revised settlement

agreement, in lieu of the settlement

agreement signed on November 16, in

the Federal Register within thirty days

of its effective date.

6. This revised settlement agreement

is effective on November 29, 2001.

Respectfully submitted,

Of Counsel:

Jan S. Amundson,

General Counsel,

Quentin Riegel,

Deputy General Counsel, National

Association of Manufacturers, 1331

Pennsylvania Avenue, NW., Washington, DC

20004.

Baruch A. Fellner,

D.C. Bar No. 061630,

Jason C. Schwartz,

D.C. Bar No. 465837, Gibson, Dunn &

Crutcher, LLP, 1050 Connecticut Avenue,

NW., Washington, DC 20036. Counsel for

Plaintiff National Association of

Manufacturers.

Roscoe C. Howard, Jr.,

D.C. Bar No. 246470, United States Attorney.

Mark E. Nagle,

D.C. Bar. No. 416364, Assistant United States

Attorney.

Brian J. Sonfield,

D.C. Bar No. 449098, Assistant United States

Attorney, Judiciary Center Bldg. Civil

Division, 555 Fourth Street, NW.,

Washington, D.C. 20001, (202) 514–7143.

Counsel for Defendants Elaine L. Chao and

John Henshaw.

Authority

This document was prepared under

the direction of John L. Henshaw,

Assistant Secretary for Occupational

Safety and Health, U.S. Department of

Labor, 200 Constitution Avenue, NW.,

Washington, DC 20210. It is issued

pursuant to section 8 of the

Occupational Safety and Health Act of

1970 (29 U.S.C. 657).

Signed at Washington, D.C., this 20th day

of December, 2001.

John L. Henshaw,

Assistant Secretary of Labor.

[FR Doc. 01–31808 Filed 12–26–01; 8:45 am]

BILLING CODE 4510–26–M