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6438 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulationscourts, not agencies to resolve, suchissues are rarely suitable for judgementin the abstract. If for example, OSHAwere at some future time to issue acitation for nonresponse to a surveyquestionaire, the Fourth Amendmentevaluation would depend on all theparticulars of the case. (While theparticipation in the OSHA DataCollection Initiative is mandatory,OSHA has made a policy decision thatit will not issue citations for the failureto respond to the first survey conductedunder authority of this rule, which willcollect data for calendar year 1996; nordoes OSHA intend to issue citations forthe 1995 survey already conducted.OSHA will take into consideration itsexperience with the Data CollectionInitiatives when developing policy forfuture years. However, thenonrespondents to the 1995 and 1996survey instrument may be subject to anon-site records inspection by an OSHAcompliance officer or issued anadministrative subpoena.)Further analysis under the principlesset forth in the Burger decision mustawait a specific application of 1904.17when the particulars of the informationrequest are known. OSHA has, however,structured the final rule to respond toconcerns expressed in the case law andto limit its own discretion and eliminatediscretion of officials in the field.Section 1904.17 surveys are constrainedfirst by the regulatory text—the surveysoccur no more than once per year, theyinvolve ten or more employers coveredby the Act, they are limited to injuryand illness information contained inrecords created and maintainedpursuant to Part 1904 and toemployment and hours worked, they areaccomplished by mail or other remotetransmittal, and respondents have atleast thirty days to respond. The datafrom within the covered field and theset of employers or establishments to becanvassed for each survey aredefinitively fixed during the PaperworkReduction Act clearance process and areavailable to the public in connectionwith Federal Register notices publishedduring the clearance process.Employers will have ampleopportunity to test the FourthAmendment reasonableness of anysurvey with which they are faced.Under any follow-up scenario—warrantrecords inspection, subpoena demand ornotice of a 1904.17 violation—employers would have advance noticethat a response was required, and wouldhave an opportunity to provide thesurvey data in order to avoid legalprocess. Employers faced with a surveythat they consider an infringement ofFourth Amendment rights of privacymay refuse to respond and raiseobjections in a warrant enforcement orsubpoena proceeding or as a defense ifthey are issued citations by OSHA.Under the Act, employers are entitled tocontest citations and receive anadministrative hearing, administrativereview of the hearing officer’s decision,and federal court of appeals review. 29U.S.C. 659(c), 660(a).Some commenters asserted that usingreported information for enforcementtargeting would violate their privilegeagainst self-incrimination. (Ex. 15:203,397) These commenters did not explainhow the privilege against selfincriminationwould be implicated inthe reporting requirement or cite anysupporting authorities. OSHA wouldpoint out, that the privilege against selfincriminationderives from the FifthAmendment and pertains to criminalproceedings. It has long been settledthat the privilege cannot be invoked toresist the disclosure needed for aregulatory purpose unrelated to theenforcement of criminal laws even if acriminal proceeding is a possibleconsequence of an administrativeinvestigation. See, for example, Shapirov. United States, 335 U.S. 1, 32–33(1948) (Fifth Amendment not violatedby regulation requiring individuals tokeep and produce records ‘‘oftransactions which are the appropriatesubjects of governmental regulation’’).4. OSHA’s Statutory Authority ToCollect Data With a Reporting RuleSome commenters argued that theproposed reporting rule was notconsistent with Sections 8(c) and 24(e)of the Act. Sections 8(c)(2) directs that‘‘the Secretary of Labor * * * shallprescribe regulations requiringemployers to maintain accurate recordsof, and to make periodic reports on,work-related deaths, injuries andillnesses other than minor injuries* * *.’’ 29 U.S.C. 657(c)(2). Section24(e) provides that ‘‘[o]n the basis of therecords made and kept pursuant tosection 8(c) of this Act, employers shallfile such reports with the Secretary ashe shall prescribe by regulation * * *.’’29 U.S.C. 673(e).These commenters argued that theproposed rule merely reiterated theSecretary’s entire range of statutoryauthority to collect information and didnot itself prescribe anything, much lesslimit itself to the injury and illnessrecords mentioned in section 8(c)(2).Moreover, some claimed, it left thecompliance officer in the field withunfettered discretion to decide whatinformation to demand. (Ex. 15: 154,313, 352, 353, 358, 375, 397.)There are several responses to bemade on this point. First, OSHA has hadthe ability to access injury and illnessrecords for many years and is simplyclarifying its authority to collect theinformation through the mail. Second isthe fact that the final rule is extremelynarrow and specific about theinformation it covers and how thatinformation is to be gathered. Third,compliance officers do not implementthe rule; the agency implements it byconducting large annual surveys, bymail, requesting information within thescope of the rule from employer orestablishment groups whose responsesthe agency judges to be necessary inmeeting its multiple responsibilities.Finally, the final rule fits within theterms of Section 8(c).5. Time Allowed for Employers To FileReportsThe proposed rule would haverequired employers to submit data toOSHA, when OSHA sends them awritten request for records, within 21calendar days of receiving the request.Several commenters provided remarkson the 21 calendar day limitation. (Ex.15: 65, 127, 347, 405)Some comments supported the 21 daytime frame as a reasonable time foremployers to comply with a request forinformation. (Ex. 15: 347, 405) Forexample, the Westinghouse Company(Ex. 15: 405, P. 4) stated: ‘‘This changeis acceptable and the time limitationsappear reasonable.’OSHA also received comments statingthat 21 calendar days is too short a timeframe for reporting, and that longertimes should be adopted in the finalrule. (Ex. 15: 65, 127) For example, theAluminum Company of America (Alcoa)remarked:Alcoa believes this is too short andrestrictive a time frame given current stafflevels and resource demands on employersand their health and safety professionals.* * * OSHA should provide 30 daysadvanced notification (for planningpurposes) and 21 days for response followingthe advanced notification to the specificemployers to be surveyed.(Ex. 15: 65)The Laboratory Corporation ofAmerica stated:Reports to be required of employersmentioned in 29 CFR 1904.13 should behandled in one of two ways. The content ofthe reports needs to be established inadvance and a specific date for a deadline forsubmission provided. Alternatively, if thereport content has not yet been established,then a period of time longer than 21 days isneeded for response. A period of 45 to 60days is suggested. Unless the informationrequested is known in advance to employers,it will take time to communicate and collect