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6436 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and RegulationsWorkplace, the General AccountingOffice (GAO) discussed an option forimproving the use of inspectionresources by targeting inspectionactivity with the use of establishmentspecificinjury and illness data:OSHA could focus its enforcement, as wellas education and training efforts, onemployers with high injury and illness ratesin industries known to be hazardous.(Ex. 36, p. 32)OSHA believes that it can improve theeffectiveness and efficiency of itsprograms by focusing its resources onemployers and workplaces that areexperiencing serious, ongoingworkplace safety and health problemsreflected by high rates of workplaceinjuries and illnesses. At the same time,data that shows workplaces with goodsafety and health records reflected bylow injury and illness rates would allowOSHA to have greater flexibility inworking cooperatively and inpartnership with safer workplaces.These programs include enforcementprograms as well as non-enforcementprograms that encourage employers tovoluntarily implement effective safetyand health programs that protectworkers from death, injury and illness.2. The Use of Alternative Data SourcesSeveral commenters suggested thatthe Agency use data from existing datasources, such as state workers’compensation agencies, insurancecompanies, hospitals or OSHAinspection files instead of collectinginformation 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 availablefrom other sources, such as the NationalSafety Council, insurance carriers, etc., whynot use these statistics, rather than gothrough this duplication of effort at taxpayerexpense? Another approach would be toutilize data collected by OSHA and StatePlan compliance officers during site visitsover the past 25 years.(Ex. 15: 28)Several commenters suggested thatOSHA use injury and illness data fromworkers’ compensation systems. Thecomments of the American Health CareAssociation (AHCA) are representative:AHCA encourages OSHA to consider theuse of workers’ compensation data in lieu ofproposed OSHA 300 and 301 forms. Pursuingthe enactment of legislation that would allowOSHA access to every state’s workers’compensation data would eliminate the needfor employers to maintain two sets of records,provide OSHA with necessary safety andhealth data, and ease administrative and costburdens now associated with recordkeepingfor employers in every industry across thecountry.(Ex. 15: 341)Ms. Diantha M. Goo recommendedthe use of data from treatment facilities:The accuracy and usefulness of OSHA’sreporting system would be vastly improvedif it were to shift responsibility fromemployers (who have a vested interest inconcealment) to the emergency rooms ofhospitals and clinics. Hospitals areaccustomed to reporting requirements, usethe correct terminology in describing theaccident and its subsequent treatment andare computerized.(Ex. 15: 327)OSHA believes that injury and illnessinformation compiled pursuant to Part1904, plus employment figures, will bemuch more reliable and suited toOSHA’s needs than any availablealternative. While many State workers’compensation programs voluntarilyprovide injury and illness data to OSHAfor various purposes, others do not. Andthe data vary widely from state to state.Differing workers’ compensation lawsand administrative systems result inlarge variations in content, format,accessibility and computerization.Often, workers’ compensation databasesdo not include injury and illness datafrom employers who elect to self-insure.Additionally, most workers’compensation databases do not includeinformation on the number of workersemployed or the number of hoursworked by employees, and incidencerates of occupational injury and illnesscannot be computed. Workers’compensation data are also based oninsurance accounts, and not on thesafety and health experience ofindividual workplaces. As a result, anindividual account often reflects theexperience of several workplacesinvolved in differing business activities.Only a survey of every member of aselected set of employers about aselected set of data gathered in arelatively short time can tell OSHAwhich members of the group have thehighest or lowest illness and injuryrates, how the injury and illness ratesare distributed over the field, and thetypes of injuries and illnesses beingexperienced in that field, etc. As moresurveys are conducted over time, areliable historical record will emerge.While OSHA does not believe thatalternate source data are satisfactorysubstitutes for the information coveredby 1904.17, the agency does recognizethey have value. To the extentinformation from workers’compensation programs, BLS, insurancecompanies, trade associations, etc., areavailable and appropriate for OSHA’spurposes, OSHA intends to continue touse them to supplement its own datasystems and assess the quality of itsown data. However, consistent with theCongressional mandate of the OSH Act,OSHA needs to maintain its ownrecordkeeping system and to gather thedata for it through a reportingrequirement.3. Scope IssuesMany commenters objected to thebreadth of the proposed regulatory text,arguing that it would give the Secretaryunfettered discretion to demand anyinformation related to the Act’spurposes, at any time, for virtually anyreason. (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 theNational Association of Manufacturerssums up the point of view expressed bymany others:It is one thing to have an objectivelyidentified set of employers that must make anannual filing of a census-type survey on anon-discriminatory basis; it is another to givean enforcement agency the authority—at itssole whim or discretion—to selectivelyrequire one or more employers to file reportsthat an entire class of employers is requiredto maintain. It is one thing to have anobjectively identified set of information orrecords that must be included in an annualfiling; it is another to give an enforcementagency the authority—at its sole whim ordiscretion—to selectively require one or moreemployers to generate and file reportscontaining whatever information the agencyidentifies so long as it can be described as‘‘regarding [the employer’s] activities relatingto this [OSH] Act.’’(Ex. 25, 15: 305)It was not OSHA’s intention toexercise unfettered discretion to collectany data related to the Act. It was,however, OSHA’s intention to create areliable mechanism for routinizedcollections, by mail or other remotetransmittal, of a limited class ofinformation without unduly burdeningemployers. Consistent with that goal,and in light of the comments of record,the final reporting rule is carefullycircumscribed. The rule authorizes anannual survey—which, because it willgo to more than ten employers, will besubject to the Paperwork Reduction Act(PRA) (See 42 U.S.C. 3502 et seq. and5 CFR part 1320)—concerninginformation contained in recordsrequired to be created and maintainedby Part 1904 plus employment figures.The rule specifies the time withinwhich responses are to be provided toOSHA. Employers will be able todetermine which employers are withinthe survey group and what informationwill be collected each year before the