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Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6437survey begins because that informationwill be made available to the publicunder a Federal Register notice pursuantto the PRA. Once a survey has receivedan OMB control number under the PRA,any substantive or material modificationwould require a new PRA clearance. Asindicated in Section IX of this preambleentitled ‘‘Paperwork Reduction Act of1995’’ the OMB control number for thecurrent annual survey form is 1218–0209. (Section 1904.17 defines the classof information and respondents subjectto survey under the rule. The set ofemployers and information (from withinthe covered class) to be targeted in eachyear is fixed as each survey is designed.)One commenter was concerned thatthe proposed rule could apply toinformation dating back ‘‘decades,’’creating substantial burdens foremployers. (Ex: 15:395, p. 67) Since thefinal rule establishes an annual surveyof information in Part 1904 records,which are required to be kept no morethan five years, plus employmentinformation, it presents no issues about‘‘decades-long’’ records.A number of commenters argued thatas proposed, section 1904.13 violatedFourth Amendment guarantees againstunreasonable searches. (Ex. 15:154, 174,193, 215, 258, 305, 318, 346, 375, 390,395, 397) Most of these commentersreferred 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 questionwhether OSHA must have a warrant toinspect a work site if the employer doesnot give consent. Kings Island andEmerson Electric concerned on-siterecords inspections by complianceofficers. Section 1904.17 is a reportingrequirement; no entry of premises orcompliance officer decision making isinvolved. Thus, these decisions providelittle if any support to the commenter’ssweeping Fourth Amendmentobjections. See, Donovan v. Lone Steer,Inc., 464 U.S. 408, 414 (1984)(reasonableness of a subpoena is not tobe determined on the basis of physicalentry law, because subpoena requestsfor information involve no entry intononpublic areas).Moreover, in its final form the rule isextremely narrow in scope and leavesthe agency with limited discretion.Section 1904.17 is restricted to a limitedclass of information. This information ishighly relevant to accomplishment ofOSHA’s mission. The reporting is doneby mail or other remote transmittal,without any intrusion into theemployer’s premises by OSHA, and isnot unduly burdensome. Much of theinjury and illness information to bereported is taken from recordsemployers are already required tocreate, maintain, post, and provide toworkers and government officials onrequest, which means that the employerhas a reduced expectation of privacy inthe information. Employment figures arecritical to OSHA’s ability to evaluate theinjury and illness data, whereas they arenot information that employers mayexpect to keep secret from thegovernment. In addition, as explainedearlier, there is no substitute for a largebody of site-specific informationgathered by the survey method. Theresults of the surveys will be uniquelyuseful to OSHA in meeting Congress’mandate to use reporting requirementsand build an effective statisticalprogram around them.Some commenters argued that theFourth Amendment requires OSHA touse a subpoena or warrant to getinformation from employers who do notprovide it voluntarily. Since theproposed reporting rule made noexplicit provision for enforcement viasubpoena or warrant, they contendedthat the rule was constitutionallydeficient. ‘‘Production may not becompelled without a search warrant,administrative subpoena or otherappropriate vehicle.’’ (National BeerWholesalers Association. Ex. 15:215.)‘‘The Fourth Amendment * * *requires OSHA to obtain a subpoena orwarrant prior to obtaining access to anyof the information identified inproposed * * * 1904.13.’’ (TheFertilizer Institute. Ex. 15: 154.) ‘‘Theproposed rules make no provision for asubpoena or warrant and appear tocontemplate that OSHA will useneither. * * * These provisions, to theextent they purport to authorizeinspections of records without a warrantor subpoena, violate the FourthAmendment.’’ (American Iron and SteelInstitute. Ex. 15:395.)Certainly, under many circumstancesemployers can force OSHA to secure awarrant or subpoena enforcement orderbefore giving OSHA access to workplaceinjury and illness data. Thesecommenters, however, appear to bearguing that including a subpoena orwarrant enforcement mechanism in thetext of the rule is necessary toadequately protect their FourthAmendment right to privacy. This is notso. The Fourth Amendment protectsagainst ‘‘unreasonable’’ intrusions bythe government into private places andthings. Reporting rules that do notincorporate subpoena or warrantprocedures are not ‘‘unreasonable’’ perse. See e.g., California Bankers Ass’n v.Shultz, 416 U.S. 21, 67 (1974)(upholding reporting regulation issuedunder the Bank Secrecy Act of 1970 thatdid not provide for subpoenas orwarrants where the ‘‘information wassufficiently described and limited innature and sufficiently related to atenable Congressional determination’’that the information would have a highdegree of usefulness in criminal, tax, orregulatory investigations orproceedings). For example, OSHA haslong required employers to reportpromptly all fatal workplace accidents.The totality of circumstancessurrounding a warrantless or‘‘subpoena-less’’ reporting requirementor administrative investigationdetermines its reasonableness. Forexample, in McLaughlin v. A.B. Chance,842 F.2d at 727 (4th Cir. 1988), theFourth Circuit upheld a records accesscitation against an employer whorefused an OSHA inspector access to itsOSHA Logs and Forms on the groundthat it had a right to insist on a warrantor subpoena. The court upheld thecitation because a summary of theinformation was posted annually on theemployee bulletin board, thusdiminishing the employer’s argumentthat it has a reasonable expectation ofprivacy in the information, and theinspector was lawfully on the premisesto investigate a safety complaint. In NewYork v. Burger, 482 U.S. 691, 702–703(1987), the Supreme Court noted thatagencies may gather informationwithout a warrant, subpoena, or consentif the information would serve asubstantial governmental interest, awarrantless (or subpoena-less)inspection is necessary to further theregulatory scheme, and the agency actspursuant to an inspection program thatis limited in time, place, and scope. TheBurger court went on to uphold awarrantless inspection of records duringan administrative inspection of businesspremises. Consider also the Kings Islandand Emerson Electric decisions’ concernabout the inspector’s broad fielddiscretion. Kings Island (noting thatunder Burger a warrantless or subpoenalessinspection of records might bereasonable, but concluding that the factsof the case did not satisfy Burgeranalysis); Emerson Electric (noting thatunder California Bankers an agency maygain access to information without asubpoena or warrant but concludingthat facts of that case were notcomparable to those reviewed inCalifornia Bankers).It is not OSHA’s intention to resolve,in this rulemaking, the question of theprocedures the Fourth Amendment mayrequire to enforce the regulatoryobligation. Not only are FourthAmmendment issues ultimately for