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6434 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and RegulationsDEPARTMENT OF LABOROccupational Safety and HealthAdministration29 CFR Part 1904[Docket No. R–02]RIN 1218–AB24Reporting Occupational Injury andIllness Data to OSHA; Final RuleAGENCY: Occupational Safety and HealthAdministration (OSHA), U.S.Department of Labor.ACTION: Final rule.SUMMARY: This final rule amends 29CFR Part 1904 by adding section1904.17. Section 1904.17 requiresemployers to report information toOSHA contained in records thatemployers are required to create andmaintain pursuant to Part 1904, and thenumber of workers they employed andhours their employees worked duringdesignated periods.Section 1904.17 will clarify OSHA’sauthority to collect establishmentspecificdata by mail for use in agencyself-evaluation, deployment of agencyresources, periodic reassessment ofexisting regulations and standards, andrulemaking.Section 1904.17 was proposed (assection 1904.13) as part of acomprehensive proposal to revise Part1904. 61 FR 4030 (Feb. 2, 1996). OSHAhas determined, however, to take finalagency action with respect to section1904.17 at this time, and to take finalaction on the remaining Part 1904issues, including other records accessissues, at a later date.DATES: This final regulation will becomeeffective on March 13, 1997. However,affected parties do not have to complywith the information collectionrequirements until the Departmentpublishes in the Federal Register thecontrol numbers assigned by the Officeof Management and Budget (OMB) tothese information collectionrequirements. Publication of the controlnumbers notifies the public that OMBhas approved these informationcollection requirements under thePaperwork Reduction Act of 1995.FOR FURTHER INFORMATION CONTACT:Bonne Friedman, U.S. Department ofLabor, Occupational Safety and HealthAdministration, Office of Informationand Consumer Affairs, Room N–3647,200 Constitution Avenue, NW.,Washington, DC 20210, phone (202)219–8148. For electronic copies ofdocuments, contact the Labor NewsBulletin Board at (202) 219–4784, orOSHA’s WebPage on the Internet athttp://www.osha.gov/. For newsreleases, fact sheets, and other shortdocuments, contact OSHA FAX at (900)555–3400 at $1.50 per minute.SUPPLEMENTARY INFORMATION:I. BackgroundIn 1971, OSHA issued theoccupational injury and illnessrecording and reporting regulation, 29CFR Part 1904. Part 1904 includesregulations pertaining to criteria fordetermining whether an occupationalinjury or illness should be recorded, andprovisions that require employers togive employees and OSHA access tosuch records. It also provides forcollection by the Bureau of LaborStatistics (BLS) of data to be used in anoccupational injury and illnessstatistical program administered by BLS.1904.20, 1904.21, and 1904.22.In 1990, the Secretary of Labortransferred some of BLS’s statisticgatheringfunctions to OSHA. 55 FR9033 (Mar. 9, 1990). BLS retainsresponsibility for conducting its AnnualSurvey of Occupational Injuries andIllnesses and will continue to issue datathat is aggregated by SIC group. ButOSHA will also be responsible foradministering a national recordkeepingsystem for occupational injuries andillnesses whose data will be sitespecific.OSHA’s February 1996 proposal torevise Part 1904 sought, among otherthings, to reflect OSHA’s new statisticsgatheringresponsibilities. OSHAproposed to replace sections 1904.20,1904.21, and 1904.22 with a singlereporting provision at 1904.13, whichwould apply to both BLS and OSHAcollections of information by mail orother remote transmittal.OSHA received 449 written commentsand held six days of public meetings.Approximately 124 comments and twooral presentations specifically addressedproposed section 1904.13.On further consideration, OSHAdetermined that BLS and OSHA needseparate provisions for collection of databy mail. Thus, a single provisionapplicable to both agencies would notbe appropriate, and a new provisionspecifically addressed to OSHAreporting requirements and proceduresshould be developed. OSHA furtherdetermined to take final action onproposed 1904.13 at this time, and totake final action with respect to theremainder of the proposed revisions ofPart 1904 at a later date.This final rule revises the proposedsection 1904.13 and renumbers it assection 1904.17, the next availablenumber in Part 1904. This final ruledoes not modify or delete the existingregulations at 1904.13, 1904.20,1904.21, or 1904.22.II. Explanation of the Final RuleOSHA has long had in effect rulespertaining to OSHA access to certaininformation. Section 1904.7 requiresemployers ‘‘to provide, upon request,records provided for in §§ 1904.2,1904.4, and 1904.5 [OSHA-requiredinjury and illness logs and forms] forinspection and copying by anyrepresentative of the Secretary of Labor.* * *’’ Section 1910.1020 requiresemployers to give OSHA and employeesthe right and opportunity to examineand copy exposure and medical records.Some standards contain requirementsfor OSHA and employee access toexposure and monitoring data requiredto be created and maintained by thoseparticular standards. E.g., 29 CFR1910.1001(m)(5)(I) and (ii) (requiringthat OSHA and employee be givenaccess to asbestos exposure monitoringand medical surveillance records).Section 1904.17 establishes aprocedural mechanism for conduct of anannual survey of ten or more employersby mail or other remote transmittal.Information covered by section 1904.17is information contained in recordsrequired to be created and maintainedpursuant to Part 1904, the number ofworkers the respondent employed andthe number of hours worked by itsemployees during designated periods.The rule also specifies that both therequest and the response will be madeby mail or other remote transmittal.Thus, it is more limited than existingrecords-access provisions that use termssuch as ‘‘permit access to’’ or ‘‘makeavailable’’ and therefore permit OSHAto collect information by on-site recordreviews as well as via mail response.The mail-in provision also permitsOSHA to coordinate its annual surveywith the BLS annual survey. Inconducting its 1995 and 1996 annualsurveys (1995 data was collected in1996, 1996 data will be collected in1997) OSHA provided employers with acarbon-pack form that the employercould complete, separate, and return—one copy to BLS and another to OSHA.OSHA intends to continue this practiceor an equivalent means of avoidingduplicate reporting burdens foremployers.The requests for data reports may bemade directly by OSHA, or may be sentto employers by a designee of theAgency, such as a state governmentalagency, a government contractor, oranother Federal agency such as theNational Institute for Occupational
Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6435Safety and Health (NIOSH). Designatingothers to exercise this authority willpermit a variety of collection methods tobe used, depending on which method isthe most effective, efficient, and costeffective for the government.Employers who are normally exemptfrom keeping injury and illness recordsunder 29 CFR 1904.15 and 29 CFR1904.16 may be notified by OSHA thatthey will be required to participate in aparticular information collection under1904.17(a). OSHA will notify theseemployers in writing in advance of theyear for which injury and illness recordswill be required. OSHA does not expect,in the near term, to take action against§ 1904.15 and 16 exempt employersbased on survey non-response under§ 1904.17.III. Issues1. Use of DataAs explained above and in theproposal, site-specific data reportedpursuant to section 1904.13 (nowsection 1904.17) will be used for avariety of purposes: injury/illnesssurveillance; development ofinformation for promulgating, revisingor evaluating OSHA’s safety and healthstandards; evaluating the effectivenessof OSHA’s enforcement, training andvoluntary programs; public information;and for directing OSHA’s programactivities, including scheduledworkplace inspections and nonenforcementprograms, such as targetedmailings of safety and healthinformation to employers.Many commenters acknowledgedOSHA’s need for a reportingrequirement or affirmatively stated theyhad no objections to it. (Ex. 15: 80, 184,239, 313, 341, 359, 384, 418, 449)However, some commenters who hadno objection to the principle of areporting requirement, expressedconcern about the uses to which thedata would be put. (Ex. 15: 117, 181,304) The National Federation ofIndependent Business argued, forexample, that the data should be usedfor compliance efforts only:NFIB strongly objects to this provisionunless it is expanded to provide adequatesafeguards to prevent abuses of writtenrequests, especially for reasons other thanOSHA compliance—i.e., research,surveillance, or public information. In fact,NFIB questions the need for OSHA to haveaccess to data for non-compliance reasons atall. This is another instance where it appearsas if OSHA has overstepped its legislativebounds and is attempting to transform arecordkeeping/compliance system into acomprehensive research system ofoccupational safety and health statistics.(Ex. 15: 304, p. 25)Others contended that the data shouldbe used for statistical purposes only. Seee.g., Heat Transfer Equipment Company(Ex. 15: 117)(‘‘rules must be in placethat the information will be used forstatistical purposes only and not as amethod for determining individualaudits and retribution’’).The OSH Act directs OSHA to operatea broad program to assure safe andhealthy workplace conditions in themajority of America’s workplaces,nearly 6,000,000 individual workplaceestablishments employingapproximately 100,000,000 workers. Avital component of this broad programinvolves the effective use of informationto provide for the purposes discussed inthe introduction to the OSH Act: forworkplace safety and healthenforcement, 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, inconsultation with the Secretary ofHealth and Human Services, to developand maintain a program of collection,compilation, and analysis ofoccupational safety and health statistics.Section 8(c) also directs the Secretary ofLabor, in cooperation with the Secretaryof Health and Human Services, toprescribe regulations requiringemployers to maintain accurate recordsof, and to make periodic reports on,work-related deaths, injuries, andillnesses.Additionally, the GovernmentPerformance and Results Act of1993(GPRA)(31 U.S.C. 1101) requiresFederal agencies to implement aprogram of strategic planning, developsystematic measures of performance toassess the impact of individualgovernment programs, and produceannual performance reports.OSHA believes that collecting injury,illness and employment data fromemployers to meet these responsibilitiesrepresents the most appropriate policy.OSHA also needs establishment-specificdata to better target its programactivities, including workplaceinspections and non-enforcementinformation and incentive programs, tothe more hazardous workplaces. Givenbudget and personnel constraints,OSHA and the 23 states with OSHAapprovedworkplace safety and healthplans are unable to work directly withall of these workplaces. In fiscal year1996, OSHA and the States conductedenforcement inspections atapproximately 80,000 workplaces(unpublished OSHA analysis of FY 1996inspection data). At this rate, 75 yearswould be needed to inspect all ofAmerica’s workplaces.Several independent reportsconcerning occupational injury andillness recordkeeping and occupationalsafety and health policy havedocumented and supported OSHA’sneed for establishment-specific data. Ina 1987 report, Counting Injuries andIllnesses in the Workplace: Proposals fora Better System, published by theNational Research Council (NRC), thePanel on Occupational Safety andHealth Statistics recognized OSHA’sneed for access to individualestablishment data:The Occupational Safety and HealthAdministration should be able to obtainindividual establishment data and that thismight be achieved through the developmentof an administrative data system, such as thatmaintained, for example, by the InternalRevenue Service.(Ex. 4, p. 10)The panel believed that this datacould be used to improve OSHA’senforcement program:It could provide systematic detailed datathat the current program does not nowprovide; it could give OSHA more effectiveways of using its inspection resources toreduce workplace injuries; and it couldprovide a more systematic bases formonitoring the quality of recordkeeping andreporting.(Ex. 4, p. 113)The NRC Panel further suggested thatan administrative data system based onthe OSHA 200 logs could provide avaluable database for other uses as well,including standard setting, enforcement,program evaluation, and research. (Ex.4, p. 113)In a 1989 report, the KeystoneNational Policy Dialogue on Work-Related Illness and InjuryRecordkeeping, a group of industry,labor, government and academicrepresentatives with an interest inoccupational injury and illness datastated:The Dialogue group agreed that injury andillness statistics from recordkeeping can andshould be used to target (prioritize)enforcement/compliance activity at OSHA.* * * * *The data should be usable for macropurposes by SIC codes (high risk—low risk)as well as in a performance oriented microtargeting of workplace visits. OSHA needs toconserve its resources and should be able todecide upon which industries andworkplaces should receive the mostattention. However, statistics alone shouldnot be used to exempt any site frominspection. The records and rates at the sitelevel should be used in decision making inconjunction with a review of site programsand spot check inspections.(Ex. 5, p. 35)In a 1990 report, Options forImproving Safety and Health in the
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