[Federal Register Volume 61, Number 23 (Friday, February 2, 1996)]
[Proposed Rules]
[Pages 4030-4067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1942]




[[Page 4029]]

_______________________________________________________________________

Part III





Department of Labor





_______________________________________________________________________



Occupational Safety and Health Administration



_______________________________________________________________________



29 CFR Parts 1904 and 1952



Occupational Injury and Illness Recording and Reporting Requirements; 
Proposed Rule

  Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 / 
Proposed Rules   

[[Page 4030]]


DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1952

[Docket No. R-02]


Occupational Injury and Illness Recording and Reporting 
Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), 
Department of Labor.

ACTION: Notice of Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Occupational Safety and Health Administration (OSHA) 
proposes to revise Title 29 of the Code of Federal Regulations Part 
1904, Recording and Reporting Occupational Injuries and Illnesses, the 
supplemental recordkeeping instructions, and replace the recordkeeping 
forms. This revision is expected to result in: a greatly simplified 
injury and illness recordkeeping system for employers, improved 
information concerning occupational injuries and illnesses, increased 
utility of the injury and illness records at the establishment/site 
level, increased use of modern technology, including computers and 
telecommunications equipment, and improved employee awareness and 
involvement.
    This rulemaking is part of the overall effort to simplify and 
revise Part 1904. One section, Reporting of Fatality or Multiple 
Hospitalization Incidents, was revised in a separate rulemaking. The 
text of the revised Sec. 1904.8, which became effective May 2, 1994, is 
included in this proposal as section 1904.12 due to reorganization of 
the various sections of Part 1904. However, Sec. 1904.12 in this 
proposal includes three additional changes which are intended to 
further clarify the earlier revision.
    Also included in this rulemaking is the revision of 29 CFR 1952.4. 
Sec. 1952.4 establishes the recordkeeping and reporting requirements 
for States that have their own occupational safety and health programs 
and have been approved by OSHA to enforce safety and health regulations 
in their State. The revision of this section is a clarification of the 
requirements based on the existing interpretation of the current 
Sec. 1952.4.

DATES: 1. Written comments on the proposed regulation must be 
postmarked on or before May 2, 1996.
    2. A public meeting will be held in Washington, D.C. in the U.S. 
Department of Labor auditorium at 200 Constitution Avenue NW beginning 
at 8:30 am on March 26, 1996 and extending through March 28th, if 
necessary.

ADDRESSES: Comments are to be submitted in writing in quadruplicate, or 
1 original (hard copy) and 1 disk (5\1/4\'' or 3\1/2\'') in WP 5.0, 
5.1, 5.2, 6.0 or ASCII. Note: Any information not contained on disk; 
e.g., studies, articles, etc. must be submitted in quadruplicate. All 
comments shall be submitted to: Docket Officer, Docket No. R-02, 
Occupational Safety and Health Administration, Room N-2625, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, 
telephone (202) 219-7894. Comments of 10 pages or less may be 
transmitted by facsimile to (202) 219-5046 provided the original and 4 
copies of the comment are sent to the Docket Officer thereafter. Notice 
of intention to appear at the meeting is to be sent to Mr. Tom Hall, 
OSHA Division of Consumer Affairs, Docket No. R-02, Room N-3647, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: Ms. Anne Cyr, OSHA, U.S. Department of 
Labor, Office of Information and Consumer Affairs, Room N-3647, 200 
Constitution Ave., NW., Washington DC 20210. Telephone (202) 219-8148.

SUPPLEMENTARY INFORMATION

I. Background

Administrative History

    Following the passage of the Occupational Safety and Health (OSH) 
Act of 1970, the Occupational Safety and Health Administration (OSHA) 
was formed to promulgate and enforce safety and health regulations and 
standards. In 1971, OSHA published the occupational injury and illness 
recording and reporting regulation, 29 CFR Part 1904. During that same 
year, the Secretary of Labor delegated responsibility for the 
occupational injury and illness statistical program to the Bureau of 
Labor Statistics (BLS).
    Since 1971, OSHA and BLS have operated the injury and illness 
recordkeeping system as a cooperative effort. OSHA promulgated and 
enforced the recordkeeping regulations while BLS prepared survey forms, 
published recordkeeping forms and supplemental instructions, provided 
outreach, and conducted the Annual Survey Of Occupational Injuries And 
Illnesses. In 1990 the agencies decided to reorganize these duties, and 
the Department of Labor announced that the recordkeeping function was 
being transferred to OSHA. Pursuant to a memorandum of understanding 
(MOU), BLS retained responsibility for conducting the Annual Survey Of 
Occupational Injuries And Illnesses, while responsibility for 
administering the recordkeeping system was transferred to OSHA (ex. 6). 
OSHA's responsibility includes developing, publishing, and providing 
outreach for recordkeeping regulations and instructions. In 1991, OSHA 
created the Office of Statistics to assume these responsibilities and 
to meet the data needs of the agency.

Purpose of the Records

    The injury and illness records are intended to have multiple 
purposes. One purpose is to provide information for employers and 
employees, raising their awareness of the kinds of injuries and 
illnesses occurring in the workplace and their related hazards. 
Increased employer awareness should result in the identification and 
voluntary correction of hazardous workplace conditions. In this role, 
the records serve as a ``management tool'' for the administration of 
company safety and health programs. Likewise, employees who are 
provided information on injuries and illnesses will be more aware of 
hazards in the work environment, and therefore more likely to follow 
safe work practices, and report workplace hazards. This would generally 
raise the overall level of safety and health in the workplace.
    Another purpose for keeping these records is to provide OSHA 
compliance staff with information which can facilitate safety and 
health inspections. During the initial stages of an inspection, the 
inspector reviews the injury and illness data for the establishment and 
subsequently focuses his or her inspection efforts on the safety and 
health hazards revealed by the injury and illness records.
    Another use of the injury and illness records is to produce 
statistical data on the incidence of workplace injuries and illnesses, 
thereby measuring the magnitude of the injury and illness problem 
across the country. BLS and participating States make the survey data 
available at an aggregate level by industry group for research purposes 
and for public information. OSHA also will use employer specific 
information to help focus its intervention efforts on the most 
dangerous worksites and the worst safety and health hazards.

Regulatory/Interpretation History

    When Part 1904 was first implemented, industry safety experts were 
concerned that the regulations and the instructions on the forms did 
not provide adequate guidance for 

[[Page 4031]]
employers. They requested that the Department of Labor provide 
additional instructions on employer recordkeeping obligations to 
clarify several recordkeeping issues. The Bureau of Labor Statistics 
responded in 1972 by publishing supplemental instructions to the 
recordkeeping forms, BLS Report 412, What Every Employer Needs To Know 
About OSHA Recordkeeping (ex. 1). These supplemental instructions were 
designed to meet the needs of employers by providing detailed 
information on when and how to record injury and illness cases on the 
recordkeeping forms.
    A major concept established in the supplemental instructions was 
the definition of work relationship. Although the Act and regulations 
required ``occupational'' or ``work-related'' injuries and illnesses to 
be recorded, neither provided a detailed definition of the terms. The 
412 booklet defined work relationship as follows: 1) cases that 
occurred at the employer's establishment (on premises) were considered 
work-related; and 2) cases that occurred off the employer's premises 
were considered work-related if the employee was engaged in a work 
activity or was present as a condition of employment.
    The BLS 412 booklet was updated in 1973 and 1975. In 1978, the 
booklet was again updated to reflect changes in the regulations 
exempting small employers from the recordkeeping requirements, and to 
allow employers to computerize their records. The updated versions of 
the instructions included lists of first aid and medical treatments, 
flow charts to describe the recordkeeping decision-making process, and 
answers to many of the questions most frequently asked by employers.
    In response to requests from labor and industry, and after 
publication in the Federal Register and a formal comment period, the 
BLS 412 report series was replaced in April of 1986 by the 
Recordkeeping Guidelines For Occupational Injuries And Illnesses (ex. 
2). The revised version of the supplemental instructions contained an 
expanded question and answer format similar to the BLS 412 report, but 
provided additional information on the legal basis of the requirements 
for recordkeeping under Part 1904. The Guidelines provided clearer 
definitions of the types of cases to be recorded, discussed employer 
recordkeeping obligations in greater detail, introduced exceptions to 
the on-premises presumption of work relationship for instances where 
the application of the general rule was considered inappropriate or 
overly burdensome, updated the medical treatment/first aid lists, and 
addressed new recordkeeping issues. A short version of the Guidelines, 
A Brief Guide to Recordkeeping Requirements for Occupational Injuries 
and Illnesses (ex. 7), was also produced.
    While the 1986 guidelines clarified the existing requirements, 
concerns still persisted about the quality and utility of the injury 
and illness data. Some employers believed that the guidelines were too 
long and that some of the recordkeeping concepts were too complex and 
difficult to understand.
    These continued concerns about the injury and illness records and 
the related statistics led to the 1987 Keystone National Policy 
Dialogue on Work-related Illness and Injury Recordkeeping (described in 
the Reports Section below). The Keystone dialogue group identified many 
problems with the recordkeeping system and provided numerous 
suggestions for improving the recordkeeping definitions.
    Under a Memorandum of Understanding (MOU) dated July 11, 1990 (ex. 
6), the responsibility for administering the national injury and 
illness recordkeeping system was transferred from the Bureau of Labor 
Statistics to OSHA. As a result, OSHA developed and is now proposing 
this revision of the regulations, forms, and supplemental instructions.

Compliance Activities

    In 1981 OSHA changed its use of employers' injury and illness 
records in its programmed inspection activity. At the beginning of a 
planned programmed inspection, the compliance safety and health officer 
would do a ``records-only check'' to determine the lost workday injury 
incidence rate for the establishment. If the establishment had a rate 
below the national average, the compliance officer would end the 
inspection.
    Beginning in 1986, OSHA discovered numerous instances of 
significant underreporting of injuries and illnesses. The Agency began 
issuing large penalties for recordkeeping violations. These highly 
publicized recordkeeping cases resulted in an even greater awareness 
of, and sensitivity to, the injury and illness recordkeeping 
requirements among the safety and health community. In 1989, OSHA 
discontinued its ``records-only check'' policy of terminating 
inspections because of concerns that this policy might have been an 
incentive to underrecord injuries and illnesses.

Other Criticisms

    OSHA enforcement policies of the 1980s led to increased awareness 
of recordkeeping requirements which resulted in renewed criticisms of 
the existing recordkeeping system. One persistent objection has been 
that the current injury and illness recordkeeping guidelines are too 
lengthy and complex. Another objection is that the current definition 
of work relationship captures some cases which employers believe should 
not be considered work-related. Examples include employees injured 
while participating in voluntary wellness programs, cases related to 
the consumption of food and drink, and cases involving workers 
performing personal tasks at the workplace during non-work hours.

Reports

    Since the middle 1980s, several studies have evaluated the utility 
of the current OSHA injury and illness recordkeeping system. The 
National Research Council (NRC), the Keystone Center, and the General 
Accounting Office (GAO) each published reports which evaluated the 
recordkeeping system and generated proposals for improvement.
    NRC Report: In 1984, because of concern over the possible 
underreporting of occupational injuries and illnesses and other issues 
related to the accuracy of the national data collected by the Bureau of 
Labor Statistics (BLS), Congress appropriated funds for BLS to conduct 
a quality assurance study of its Annual Survey on Occupational Injuries 
and Illnesses. BLS requested the National Research Council to convene 
an expert panel to address the issue of the validity of employer 
records and the BLS annual survey, problems related to determining and 
reporting occupational diseases, and other issues related to the 
collection and use of data on health and safety in the workplace.
    In 1987, the National Research Council issued a report, Counting 
Injuries and Illnesses in the Workplace: Proposals for a Better System 
(ex. 4), which contains the panel's recommendations. Twenty-four 
specific recommendations were made (see Ch.8 of ex. 4), which generally 
were intended to accomplish the following: (1) modify the BLS Annual 
Survey to provide increased information about the injuries and 
illnesses recorded; (2) discontinue the supplementary data system and 
replace it with a grant program for States and individual researchers 
and include criteria for the detail and quality of data collected; (3) 
conduct an 

[[Page 4032]]
ongoing quality assurance program to identify underreporting on the BLS 
Annual Survey by comparing the information on employers' logs with 
independent sources; (4) implement occupational disease surveillance, 
including collection of exposure data; (5) improve the collection of 
national occupational fatality data; (6) implement an administrative 
data system which would allow OSHA to be able to obtain individual 
establishment data to conduct an ``effective program for the prevention 
of workplace injuries and illnesses * * *'' (p.10); and (7) implement a 
thorough evaluation of recordkeeping practices in individual 
establishments, using additional resources requested from Congress for 
that purpose so as to avoid reducing the number of OSHA inspections of 
workplace hazards.
    Keystone: In 1987, The Keystone Center, an independent non-profit 
organization that facilitates national policy consensus-building 
dialogues, convened 46 representatives from labor unions, corporations, 
health professions, government agencies, Congressional staff and 
academia for a year-long dialogue to discuss occupational injury and 
illness recordkeeping.
    In 1989, Keystone issued its final report, Keystone National Policy 
Dialogue on Work-related Illness and Injury Recordkeeping, 1989 (ex.5). 
The report focused on four major topics: (1) recordkeeping criteria; 
(2) OSHA enforcement procedures; (3) injury and illness data systems; 
and (4) occupational illnesses. The report detailed issues within each 
topic and made specific recommendations. By topic and in summary, the 
Keystone report recommended: (1) revision of various aspects of the 
recording criteria; (2) use of injury and illness data by OSHA for 
targeting enforcement and revision of the guidelines to make them 
easily and uniformly understood; (3) development of a national system 
for the collection and dissemination of occupational injury and illness 
information; and (4) broadening the type of information collected 
concerning occupational illness and making the information available to 
employees and government agencies for appropriate purposes such as 
research and study.
    In 1995, Keystone reassembled a group of business, labor, and 
government representatives to discuss draft proposed changes to the 
recordkeeping system. OSHA shared its draft proposed revision with the 
participants. The draft was also reprinted in several national safety 
and health publications. OSHA received feedback on the draft. This 
document reflects many of the issues and concerns raised. Written 
comments generated by the on-going dialogue have been entered in the 
docket (ex. 12).
    GAO: An August 1990 report by the United States General Accounting 
Office, Options for Improving Safety and Health in the Workplace (ex. 
3), discussed the importance of the employer injury and illness 
records, including: (1) for many entities, the general descriptive 
value to better understand the nature and extent of occupational safety 
and health problems; (2) identification by employers and employees of 
safety and health problems in the workplace which will enable them to 
correct the problems; (3) use by OSHA to conduct research, evaluate 
programs, allocate resources, and set and enforce standards. The report 
focused on the use of the records in OSHA enforcement, particularly in 
targeting industries and worksites for inspections and determining the 
scope of inspections.
    The GAO report found ``possibly significant injury and illness 
underrecording and subsequent underreporting'' (p.3). Reasons for 
inaccurate recordkeeping include: (1) intentional underrecording in 
response to OSHA inspection policies or employer safety competitions; 
(2) unintentional underrecording because of a lack of understanding of 
the recording and reporting system; and (3) inaccurate recordkeeping 
because of the lack of priority placed on recordkeeping by employers 
which results in lack of appropriate supervision of recordkeepers. The 
GAO noted that OSHA's revised enforcement procedures, which included 
increasing the size of the fines for recordkeeping violations and 
modifying its records-review procedures, should help improve the 
accuracy of recordkeeping. The GAO recommended that the Department of 
Labor conduct studies to assess the accuracy of the records using 
independent data sources, evaluate how well employers understand the 
revised guidelines [revisions could be tested pre-publication], and 
utilize a recordkeeping audit program in selected enforcement 
activities.
    Advisory Committee on Construction Safety and Health (ACCSH): OSHA 
provided the Advisory Committee on Construction Safety and Health 
(ACCSH) with a written briefing on the draft proposal to revise 29 CFR 
Part 1904 and made an oral presentation to the Committee on October 13, 
1994. During its meeting on December 9, 1994, the Committee presented 
its recommendations to Assistant Secretary Joseph Dear. The Committee 
recommended that OSHA ``immediately publish the NPRM on recordkeeping 
for public comment.'' The Committee reiterated its recommendation in 
its May, 1995 meeting. In addition, the ACCSH presented OSHA with 
specific recommendations on particular provisions of the revision which 
are of significance to the construction industry. OSHA has given the 
ACCSH recommendations careful consideration and modified the proposal 
in several areas.
    The ACCSH recommendations, OSHA's written briefing, and the 
relevant portions of the transcripts of the October and December 1994 
ACCSH meetings, are part of the public record (ex. 10).
    OSHA would like to have the benefit of public comment on the ACCSH 
recommendations, as well as the specific issues for comment and the 
provisions of the proposed rule.

Outline

    The following is an outline of the remainder of this preamble. The 
regulatory text and appendices follow the preamble.

II. Summary and Explanation
1. Reorganize sections
2. Definitions (Proposed Sec. 1904.3)
    a. lost workday
    b. employee
    c. establishment
    d. first aid
    e. health care provider
    f. medical treatment
    g. responsible company official
    h. restricted work activity
    i. site controlling employer
    j. subcontractor employee
    k. work environment
    l. work related
3. Recording criteria--(Proposed Sec. 1904.4)
4. New case--(Proposed Sec. 1904.4)
5. 7 days to complete--(Proposed Sec. 1904.4)
6. Computerize/centralize Log--(Proposed Sec. 1904.4)
7. Computerize/centralize Incident Records--(Proposed Sec. 1904.5)
8. Year-end summary--(Proposed Sec. 1904.6)
9. Centralize records--(Proposed Sec. 1904.7)
10. Retention--(Proposed Sec. 1904.9)
11. Access--(Proposed Sec. 1904.11)
12. Fatality/multiple hospitalization reporting--(Proposed 
Sec. 1904.12)
13. Reports--(Proposed Sec. 1904.13)
14. Exceptions/variance--(Proposed Sec. 1904.15)
15. Subcontractor records--(Proposed Sec. 1904.17)
16. Mandatory Appendix B
    a. Blood lead
    b. Cadmium
    c. Hearing loss
    d. Skin disorders
    e. Asthma
    f. Asbestos
    g. Bloodborne 
    
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    h. Tuberculosis
    i. All other
III. Specific Issues for Comment
    Issue 1--Exemptions--(Proposed Sec. 1904.2)
    Issue 2--Work relationship/severity--(Mandatory Appendix A)
    Issue 3--First aid/medical treatment--(Proposed Sec. 1904.3)
    Issue 4--Restricted work activity--(Proposed Sec. 1904.3)
    Issue 5--Musculoskeletal disorders--(Mandatory Appendix B)
    Issue 6--Reluctance to record
    Issue 7--Employee involvement
    Issue 8--Access/privacy--(Proposed Sec. 1904.11)
    Issue 9--Software
IV. Forms
    OSHA 300
    OSHA 301
V. Legal Authority
VI. State Plans
VII. Regulatory Impact Assessment
VIII. Regulatory Flexibility Certification
IX. Environmental Impact Assessment
X. Federalism
XI. Public Participation
XII. Paperwork Reduction Act of 1995
XIII. List of Subjects
XIV. Authority

II. Summary and Explanation of the Proposed Rule, Supplemental 
Instructions

    The changes to the recordkeeping system are being proposed as 
regulatory changes in Part 1904. This proposed rule would make 18 
significant changes in the requirements of Part 1904:
    1. Reorganize the sections within the rule to place the purpose, 
coverage and definitions for the rule at the beginning, in keeping with 
the commonly accepted regulatory format. The change would also improve 
the logical placement of the various sections, provide more meaningful 
titles for the sections, and combine sections where appropriate. The 
following table summarizes the proposed reorganization of the rule:

                           Redesignation Table                          
------------------------------------------------------------------------
              New section                          Old section          
------------------------------------------------------------------------
1904.1  Purpose........................  1904.1  Purpose and scope.     
1904.2  Coverage and exemptions........  1904.15  Small employers and   
                                          1904.16 Establishments        
                                          classified in Standard        
                                          Industrial Classification     
                                          codes (SIC) 52-89, (except 52-
                                          54, 70, 75, 76, 79, and 80).  
1904.3  Definitions....................  1904.12  Definitions.          
1904.4  OSHA Injury and Illness Log and  1904.2  Log and summary of     
 Summary (OSHA Form 300 or equivalent).   occupational injuries and     
                                          illnesses.                    
1904.5  OSHA Injury and Illness          1904.4  Supplementary record.  
 Incident Record (OSHA Form 301 or                                      
 equivalent).                                                           
1904.6  Preparation, certification and   1904.5  Annual summary.        
 posting of the year-end summary.                                       
1904.7  Location of records............  1904.14  Employees not in fixed
                                          establishments.               
1904.8  Period covered.................  1904.3  Period covered.        
1904.9  Retention and updating of        1904.6  Retention of records.  
 occupational injury and illness                                        
 records.                                                               
1904.10  Change of ownership...........  1904.11  Change of ownership.  
1904.11  Access to records.............  1904.7  Access to records.     
1904.12  Reporting of fatality or        1904.8  Reporting of fatality  
 multiple hospitalization incidents.      or multiple hospitalization   
                                          incidents.                    
1904.13  Reports by Employers..........  1904.20  Description of        
                                          statistical program, 1904.21  
                                          Duties of employers and       
                                          1904.22 Effect of State plans.
1904.14  Recordkeeping under approved    1904.10 Recordkeeping under    
 State plans.                             approved State plans.         
1904.15  Petitions for recordkeeping     1904.13  Petitions for         
 exceptions.                              recordkeeping exceptions.     
1904.16  Falsification of, or failure    1904.9  Falsification, or      
 to keep records or reports.              failure to keep records or    
                                          reports.                      
1904.17  Subcontractor records for       New Section.                   
 major construction projects..                                          
Mandatory Appendix A. Work-relatedness.  New appendix.                  
Mandatory Appendix B. Recording of       New appendix.                  
 specific conditions.                                                   
Appendix C. Decision tree for recording  New appendix.                  
 occupational injuries and illnesses.                                   
------------------------------------------------------------------------

    2. Changes in recordkeeping definitions. The recordkeeping system 
is very dependent on the definitions used to determine the recording of 
specific cases. Some specific modifications included in the proposed 
Sec. 1904.3 are to redefine ``restricted work activity'', 
``establishment'', and ``medical treatment''; and provide new 
definitions for an ``employee'', ``subcontractor employees'', ``health 
care provider'', and ``work environment''. The following addresses each 
proposed change to the definitions:
    a. Eliminate the term ``lost workdays'', by replacing it with a 
definition of ``days away from work''. The OSHA recordkeeping system 
has historically defined lost workdays as involving both days away from 
work and days of restricted work activity. The proposal would change 
the system to eliminate the counting of days of restricted work 
activity altogether and only count the number of days away from work. 
OSHA has found no evidence that the current restricted work activity 
day counts are being used in safety and health program evaluation. It 
therefore sees no purpose in continuing the restricted work activity 
day count requirement.
    Employers will not be required to count days away from work that 
extend beyond 180 days (six months). OSHA believes day counts greater 
than 180 days add negligible information for injury and illness case 
analysis while entailing significant burden when updating the OSHA 
records. OSHA solicits comment on the appropriateness of the 180 day 
criteria. Should the days away from work count be capped? Is 180 days 
too short or long of a period? If so, should the count be capped at 60 
days? 90 days? 365 days? or some other time period?
    Although not in the proposed rule, OSHA is considering a 
modification to the concept of days away from work to include days the 
employee would normally not have worked (e.g. weekends, holidays, 
etc.). OSHA believes this change to calendar days would greatly 
simplify the method of counting days away by eliminating the need to 
keep track of, and subtract out, scheduled days off from the total time 
between the employee's first day away and the time the employee was 
able to return to full duty. OSHA asks for 

[[Page 4034]]
comment on whether the reduction of burden associated with this 
approach justifies the change in the type of information that will be 
collected.
    Another potential benefit of changing to calendar days would be 
that the day count would more accurately reflect the severity of the 
injury or illness. The day count would capture all the days the 
employee would not have been able to work at full capacity regardless 
of work schedules. For example, if an employee, who normally does not 
work weekends, is injured on a Friday and is unable to work until the 
following Tuesday, the ``days away from work'' would be three (3), 
using calendar days, rather than one (1) day, using work days. If the 
same injury occurred on a Monday, the day count would be three (3) 
using either calendar or workdays. Changing the day count to calendar 
days would eliminate discrepancies based upon work schedules. Thus, the 
day counts would be easier to calculate and potentially more 
meaningful.
    One of the potential problems with this change would be that 
economic information on lost work time as a measure of the impact of 
job related injuries and illnesses on work life would no longer be 
available. Employers could, however, estimate work time lost by 
applying a work day/calendar day factor to the recorded day counts. 
OSHA solicits comment on the idea of counting calendar days rather than 
work days, in particular, what potential do these methods have for 
overstating (i.e., counting calendar days) or understating (i.e. 
counting work days) the severity of injuries and illnesses?
    b. Clarify ``employee''. ``Employee'' is defined in Section 3(6) of 
the Act. A regulatory note is included within the definition to clarify 
that for OSHA recordkeeping purposes ``employees'' include those 
workers whom the employer supervises on a day-to-day basis. These 
workers may include workers provided by a temporary help service, a 
contractor, or a personnel leasing service. This is consistent with 
case law and the interpretation currently used by OSHA.
    c. Redefine ``establishment''. The definition of an establishment 
describes the location the records cover. To be most useful the records 
must be specific to a particular location. ``Establishment'' means a 
single physical location that is in operation for 60 calendar days or 
longer where business is conducted or where services or industrial 
operations are performed. This definition is a minor modification of 
the definition of establishment found in the Standard Industrial 
Classification Manual, 1987. The definition was modified by introducing 
the 60 day provision. The current injury and illness recordkeeping 
system defines an establishment as a single physical location that is 
in operation for 1 year or longer. OSHA believes the proposed shorter 
time period (60 days) will facilitate the use of information at more 
transient workplaces, such as construction sites. OSHA requests comment 
on the costs and benefits of this change.
    The proposed definition of establishment includes the primary work 
facility and other areas such as recreational and storage facilities, 
restrooms, hallways, etc. The current system excludes both parking lots 
and recreational facilities from the definition of establishment. OSHA 
is proposing that the current practice of excluding the company parking 
lot from the establishment be continued, but is including recreational 
facilities in the definition (see section below for discussion of 
exemptions to work-relatedness). OSHA believes that, by including 
related geographic areas, such as recreational facilities, the 
recordkeeping system will be simplified. OSHA requests comment on this 
change.
    The concept of separate establishments for separate activities 
found in the current supplemental instructions will be incorporated 
into the regulations. When distinct and separate economic activities 
are performed at a single physical location, each activity may 
represent a separate establishment. For example, contract construction 
activities conducted at the same physical location as a lumber yard may 
be treated as separate establishments. Each distinct and separate 
activity should be considered an establishment when (1) no one industry 
description (Standard Industrial Classification, 1987) includes such 
combined activities, and (2) the employment in each such economic 
activity is significant, and (3) separate reports can be prepared on 
the number of employees, their wages and salaries, sales or receipts, 
or other types of establishment information. This approach is based on 
the definition of an establishment found in the Standard Industrial 
Classification Manual, 1987.
    d. Redefine ``first aid''. The definition of first aid has been 
modified to consist of a comprehensive list of treatments considered 
first aid. OSHA has attempted to include those treatments that are, in 
and of themselves, associated with only minor cases. Any treatment or 
care other than those found on the first aid list would be considered 
medical treatment for recordkeeping purposes. OSHA believes injuries 
and illnesses requiring only the treatments listed as first aid would 
be minor in nature and the recording of them would not be consistent 
with the intent of the Act. OSHA also believes a finite list will 
reduce confusion, lead to consistent recordkeeping decisions and 
greatly simplify the decision-making process.
    A treatment may be considered preventive only when there is no 
work-related injury or illness prior to its use. A treatment may not be 
defined as preventive when given to stop an existing work-related 
condition from becoming worse. The only exception to this rule is 
tetanus/diphtheria shots/boosters. Tetanus/diphtheria shots/boosters 
will continue to be included as first aid treatment. OSHA seeks comment 
on whether this approach to recording tetanus/diphtheria shots is 
appropriate, or whether they should be considered medical treatment.
    For further discussion of first aid and medical treatment, see 
Issue 3 in the Issues for Comment section of this preamble.
    e. Define ``health care provider''. This is a person operating 
within the scope of his or her health care license, registration or 
certification. OSHA recognizes that this definition differs from 
definitions of health care provider found in other government 
regulations and requests comment on its appropriateness for OSHA injury 
and illness recordkeeping purposes. OSHA is considering qualifying this 
definition, for example by limiting it to personnel with specific 
training. OSHA requests comment on this limitation.
    f. Redefine ``medical treatment''. Medical treatment is defined to 
include any treatment other than first aid treatment. The definition 
focuses on the nature of the treatment given and not on the person 
administering the treatment (e.g. physician, registered health 
professional, etc.). Any treatment not included in the definition of 
first aid is considered medical treatment, making the two groups 
mutually exclusive. This approach provides clear guidance for employers 
and thus eliminates any ``grey areas'' that must be interpreted by 
employers. For further discussion of first aid and medical treatment, 
see Issue 3 in the Issues for Comment section of this preamble.
    g. Define ``Responsible Company Official''. The definition of 
responsible company official is central to directing the accountability 
for the accuracy and completeness of the OSHA records for an 
establishment to the upper management level of the firm. The proposed 
definition will place the responsibility to certify the accuracy and 
completeness of the Log and 

[[Page 4035]]
Summary with an owner of the company, an officer of the corporation, 
the highest ranking company official at the establishment or his or her 
supervisor.
    OSHA believes that by requiring a higher level employee of the firm 
to certify the Log, companies will have a greater incentive to take 
appropriate measures to assure the accuracy and completeness of the 
information.
    h. Define ``Restricted Work Activity''. The definition of 
restricted work activity will be modified to include injuries and 
illnesses where the worker is not capable of performing at full 
capacity for a full shift (1) the task he or she was engaged in at the 
time of injury or onset of illness; (2) any activity that he or she 
performed or was expected to perform on the day of injury or onset of 
illness. OSHA believes this definition will focus on the hazardous 
tasks that lead to serious injuries and illnesses and lead to greater 
consistency in the recording of these more severe cases. For further 
discussion of restricted work activity, see Issue 4 in the Issues for 
Comment section of this preamble.
    I. Define ``site controlling employer''. A site controlling 
employer is an employer in the construction industry (SIC codes 15, 16 
and 17) with contractual, legal and/or practical control over the 
performance, timing, or coordination of other employers' work on the 
construction project. An employer (such as a general contractor) that 
retains another employer to work on the project is presumed to have 
sufficient control over the subcontractor's performance to be 
considered a site controlling employer. In addition, an employer (such 
as a construction manager) is a site controlling employer if it has 
managerial or supervisory authority with respect to employers engaged 
on the project, regardless of whether it has a contractual relationship 
with those employers. For further discussion of subcontractor records, 
see number 15 of this section.
    j. Define ``subcontractor employees''. This proposal requires site 
controlling employers in the construction industry, for construction 
projects with an initial total contract value of $1 million or more, to 
maintain separate injury and illness records for certain on-site 
employees other than their own, as described in number 15 of this 
section. Separate records must be kept for those ``subcontractor 
employees'' who are present at a construction project in connection 
with their construction job, and are not employees of the site 
controlling employer at that construction project.
    k. Define ``work environment''. The definition of work environment 
is central to determining work-relatedness. The proposed definition is 
compatible with the definition traditionally used in the supplemental 
instructions. The work environment is defined as the employer's 
establishment and other locations where employees are engaged in work-
related activities or are present as a condition of their employment.
    l. Define ``work-related''. Although employers are required to 
record occupational, or work-related injuries and illnesses, the 
current regulations do not provide a definition of work-related. This 
proposal includes ``work-related'' in the definition section of the 
regulatory text and further clarifies the concept in Mandatory Appendix 
A. The proposed definition is based on the definition in the current 
supplemental instructions, but is modified to create several new 
exceptions to the presumption of work-relatedness, which are explained 
below. Additionally, for injury and illness recordkeeping purposes, if 
an event in the work environment either caused or contributed to the 
case or aggravated a pre-existing condition, then it is considered 
work-related.
    It has also been suggested that work-relationship should be limited 
to where it is demonstrated that the work environment contributed 
substantially (fifty percent or more) to the condition. OSHA requests 
input on the proper level of work-relationship that should be used. 
OSHA requests input on how work contribution can be objectively 
measured for such a purpose.
    For OSHA injury and illness recordkeeping purposes, the concept of 
``work-related'' has traditionally been based on a geographic concept 
of the work environment. The presumption has been made that if injuries 
or illnesses occur at the employer's establishment, then the case is 
work-related. This includes cases occurring while the employee is on 
break, in the rest room or in storage areas when located on the 
employer's premises. Many employers have criticized this policy, citing 
cases that occur at the establishment that they believe have a limited 
workplace relationship. As a result, the 1986 guidelines provided for 
several exceptions to this rule: removing employee parking lots and 
recreational facilities from the definition of the premises under 
certain conditions; excluding those cases where symptoms arise at work, 
but are caused by accidents or exposures away from work; excluding 
cases where the employee was at the establishment as a member of the 
general public rather than as an employee; and excluding cases arising 
solely from pre-existing conditions.
    As recommended in the Keystone report, the proposed revision 
continues to use the geography based presumption of work-relatedness. 
Parking lots will continue to be excluded from the proposed definition 
of establishment. Company access roads will be added to the exclusion. 
By excluding parking lots and access roads, some injuries and illnesses 
will be excluded while employees are arriving to or leaving from work. 
OSHA seeks input on whether the exception for parking lots should be 
continued, and/or whether OSHA should continue to exclude injuries and 
illnesses that occur while employees are commuting to and from work.
    While recreational facilities are being included in the definition 
of establishment, injuries or illnesses occurring on company 
recreational facilities may still be excluded by the proposed 
``voluntary participation in wellness programs'' exception explained 
below. The exception will be based on the activity the employee was 
engaged in rather than the physical location itself to preserve and 
simplify the geography based presumption of work-relatedness.
    Several new and/or revised activity-based exceptions to the 
presumption of work-relatedness are being proposed. OSHA requests 
comment on any and all of the following proposed exceptions:
     Cases resulting solely from voluntary participation in 
wellness programs, fitness activities, recreational activities, and 
medical programs. This would include cases occurring during exercise 
activities, blood donations, physicals, flu vaccination programs, etc. 
unless the employee was participating as a condition of employment.
     Cases involving eating, drinking, or preparing one's own 
food when unrelated to occupational factors. This exception would 
eliminate the recording of cases such as an employee who cuts a finger 
opening a can of food for lunch or is burned while drinking coffee.
     Cases that are solely the result of employees doing 
personal tasks (totally unrelated to their job) at the establishment 
outside of normal working hours. This would exclude those cases where 
the employee is injured because the employer was allowing the worker to 
use employer equipment at the establishment for personal uses outside 
of normal working hours. OSHA requests comment on the appropriateness 
of this approach, 

[[Page 4036]]
especially on the limitation that these events occur ``outside of 
normal work hours''.
     Cases resulting solely from acts of violence committed by 
family members, a former spouse, or self-inflicted when unrelated to 
the employee's work situation. This exemption is based on the 
Keystone's recommendation that injuries and illnesses involving an 
intentional act of violence in the work environment should be 
considered work-related unless it can be clearly established that the 
act was not related to the employee's work situation. The intent of the 
Keystone group was to exclude those cases that are clearly related to a 
domestic dispute that leads to subsequent violence in the workplace, 
such as a worker who is assaulted by a spouse or ex-spouse.
    For situations involving violence committed by individuals other 
than family members or a former spouse, OSHA believes it would be 
difficult, if not impossible, to determine if the case was related to 
work or to a domestic situation. For this reason, the exemption to 
work-relatedness has been limited to violence committed by family 
members or former spouses. Personal acts of violence perpetrated by 
employees, co-workers, customers, or others would not be excluded. OSHA 
requests comment on whether this exemption should be expanded to other 
kinds of personal relationships. If so, how should it be defined? Also, 
should the definition of family be limited or defined? If so, how?
     Cases involving workers who were never engaged in any duty 
at work that could have placed stress on the affected body part. This 
would exclude those cases where symptoms arise at work, but are caused 
by accidents or exposures away from work.
     Cases involving workers who were never exposed to any 
chemical or physical agent at work that would be associated with the 
observed injury or illness. This would also exclude those cases where 
symptoms arise at work, but are caused by accidents or exposures away 
from work.
     Cases resulting solely from activity in voluntary 
community or civic projects away from the employer's establishment. 
This reflects and clarifies the work-relationship criteria of injuries 
and illnesses occurring away from the employer's establishment. Cases 
occurring away from the employer's establishment are considered work-
related if the employee is engaged in a work activity or is there as a 
condition of employment.
     Cases that result solely from normal body movements, 
including walking unencumbered, talking, tying a shoe, sneezing, or 
coughing, provided the activity does not involve a job-related motion 
and the work environment does not contribute to the injury or illness. 
The Keystone report recommended this exemption. The report suggested 
that injuries and illnesses related to a pre-existing condition should 
not be recorded if they are not related to an identifiable work 
activity. The exclusion would not apply if it involved repetitive 
motion or if the work environment either caused or contributed to the 
injury/illness.
     A mental illness will not be considered work related, 
except mental illnesses associated with post-traumatic stress. OSHA 
seeks input on the following questions:
    (A) How should OSHA define mental health conditions for 
recordkeeping purposes, and when and how should the conditions be 
entered into the injury and illness records?
    (B) How should employers determine the work-relatedness of mental 
health conditions?
    (C) How would employers gain knowledge of mental health conditions, 
given the issue of patient/doctor confidentiality?
    For injury and illness recordkeeping purposes, OSHA has 
historically evaluated injuries and illnesses experienced by employees 
working in their homes as cases occurring off the employer's premises. 
Because alternative work place policies (allowing employees to work out 
of their homes) are becoming more commonplace, OSHA is incorporating a 
section within Mandatory Appendix A to address the issue of ``work- 
relatedness'' for employees who work at home. An injury or illness will 
be considered work-related if it occurs while the employee is 
performing work for pay or compensation in the home, if the injury or 
illness is directly related to the performance of work rather than the 
general home environment or setting. OSHA is considering whether this 
policy should be maintained, or whether work-relatedness should be 
presumed for injuries and illnesses of these employees. OSHA solicits 
comment on this issue.
    For further discussion of work relatedness, see Issue 2 in the 
Issues for Comment section of this preamble.
    3. Modify the meaning of ``recordable occupational injury or 
illness'' (see proposed section 1904.4 in the regulatory text). At the 
present time certain injuries are to be recorded, namely those which 
result in death, and injuries other than minor injuries requiring only 
first aid and which do not involve loss of consciousness, restriction 
of work or motion, medical treatment, or transfer to another job. 
Currently, all diagnosed (recognized) occupational illnesses are to be 
recorded, regardless of severity. The distinction between illnesses and 
injuries is currently based on the nature of the precipitating event or 
exposure. Cases which result from instantaneous events are considered 
injuries, and cases which result from non-instantaneous events are 
considered illnesses. This current distinction between injuries and 
illnesses often results in confusion and arbitrary and counter-
intuitive decisions on how to record a case. For example, a small cut 
resulting in an infection would be recorded as an injury, even though 
infection is commonly considered an illness.
    The proposed change would eliminate the need for employers to make 
a distinction between injuries and illnesses. One set of criteria would 
be used to evaluate all cases thereby minimizing confusion and 
inconsistent recording. This proposal represents a major simplification 
of the recordkeeping system, which would result in more accurate injury 
and illness data, and reduce the recordkeeping burden for employers who 
are required to maintain records.
    Currently, detailed data for coding cases is collected by BLS only 
for injuries and illnesses that involve days away from work. If 
recordkeeping changes are made and no changes are made to the current 
BLS survey methodology, separate information for injuries and illnesses 
will no longer be published by BLS for cases that do not result in days 
away from work. Published information would continue to be available 
for combined injuries and illnesses, combined injuries and illnesses 
resulting in days away from work and combined injuries and illnesses 
without days away from work. In addition, if the survey methodology 
were modified to collect and code a sample of case characteristics for 
cases which do not involve days away from work, separate injury and 
illness information could be published for all cases.
    The proposed criteria for recordable occupational injuries and 
illnesses would require employers to record any case where (1) an 
injury or illness exists; and (2) is work-related; and (3) meets one or 
more of the following criteria: (a) involves medical treatment; OR (b) 
involves death, loss of consciousness, or in-patient hospitalization 
for treatment; OR (c) involves a day(s) away from work, restricted work 
activity, or job transfer; OR (d) includes any condition as listed in 
Mandatory Appendix B. 

[[Page 4037]]

    4. Provide clear guidance for determining when an injury or illness 
case is resolved. Determination of case resolution is particularly 
important because employers may be dealing with a reinjury or 
recurrence of a previous case and must decide whether the recurrence is 
a ``new case'' or a continuation of the original case. Historically, 
the supplemental instructions to the recordkeeping regulations required 
employers to evaluate previously recorded injuries and illnesses as new 
cases if they were aggravated by additional work-related events or 
exposures. OSHA developed and included new guidance for evaluating 
cumulative trauma disorders as new cases in the Ergonomics Program 
Management Guidelines For Meatpacking Plants (ex. 11) which were 
published in 1990. The ``Meatpacking Guidelines'' provide: If and when 
an employee who has experienced a recordable CTD becomes symptom free 
(including both subjective symptoms and physical findings), any 
recurrence of symptoms establishes a new case. Furthermore, if the 
worker fails to return for medical care within 30 days, the case is 
presumed to be resolved. Any visit to a health care provider for 
similar complaints after the 30-day interval ``implies reinjury or 
reexposure to a workplace hazard and would represent a new case.''
    OSHA is now proposing to expand the use of the criteria found in 
the ``Meatpacking Guidelines'' to all cases (including injuries and 
illnesses of the back and lower extremities), while increasing the 
number of days to 45. A recurrence of a previous work-related injury or 
illness will be presumed to be a new case when it either (1) results 
from a new work accident, or (2) 45 days have elapsed since medical 
treatment, restricted work activity and days away were discontinued and 
the last signs or symptoms were experienced. This presumption is 
rebuttable by medical evidence indicating that the prior case had not 
been resolved. In doing so, OSHA believes it will simplify the 
decision-making process for determination of a ``new case'' and result 
in more complete and consistent data. This method of defining case 
resolution/duration should provide better data on the incidence of 
illness cases that frequently last only 2-3 weeks (e.g. dermatitis, 
some CTDs, etc.) and recur on a regular basis.
    OSHA solicits comment on the appropriateness of the 45-day 
interval. Is 45 days too short or long of a period? If so, should the 
period be 30 days? 60 days? 90 days? or some other time period? Should 
different conditions (e.g., back cases, asthma cases, etc.) have 
different time intervals for evaluating new cases?
    OSHA is also seeking input for an improved way to evaluate new 
cases. Should a new category of cases be created to capture information 
on recurring injuries and illnesses? One option is to add an additional 
``check box'' column to the proposed OSHA Form 300 for identifying 
those cases that are recurrences of previously recorded injuries and 
illnesses. This would allow employers, employees and OSHA inspectors to 
differentiate between one time cases and those that are recurrent, 
chronic conditions. This approach may help to remove some of the stigma 
of recording these types of disorders and lead to more complete 
records. OSHA solicits input on this approach. Will a recurrence column 
reduce the stigma of recording these types of cases? Should recurrences 
be included in the annual summaries? Should a time limit be used to 
limit the use of a recurrence column?
    5. The proposal will also require that the proposed forms (OSHA 300 
and 301) be completed within 7 calendar days, rather than the currently 
required 6 workdays. OSHA believes this will simplify the requirements 
by replacing a varying amount of time (depending on the establishment's 
work schedule) with a standard week.
    6. Enhance the ability to computerize/centralize the OSHA 300 Log 
in proposed Sec. 1904.4. The current regulations and instructions 
provide for computerization of the OSHA 200 Log, providing that the 
employer has available at the establishment a paper copy of the Log 
current within 45 calendar days. This proposal would allow employers to 
keep their OSHA Log on computer, provided that the employer is able to 
produce a copy of the Log within 4 hours of a request by an authorized 
government representative who is permitted access to the Log under 
proposed Sec. 1904.11. This proposal will reduce the employer's cost of 
recordkeeping and allows for maximum flexibility when employers choose 
to computerize their records, without decreasing the access to those 
records by authorized personnel.
    7. Allow for the computerization of Incident Records in proposed 
Sec. 1904.5. At the present time, the regulations provide for the 
computerization of the OSHA 200 Log, but not for the computerization of 
the supplementary record, the OSHA 101. This proposal would allow 
employers to computerize both of the forms, which may result in less 
paperwork burden for employers without compromising the quality of 
those records. The provisions for computerization parallel the proposed 
changes for computerization of the OSHA 300 Log found in proposed 
Sec. 1904.4.
    8. Modify the proposed Sec. 1904.6 (formerly 1904.5) to provide a 
new title, require annual average number of employees and total hours 
worked by all employees to be included in the year-end summary, and 
require a responsible company official to certify the accuracy and 
completeness of the records. The section would be titled ``Preparation, 
Certification and Posting of the Year-End Summary''. The proposal to 
require an estimate of the employees' total hours worked to be listed 
on the year-end summary would facilitate hazard analysis and incidence 
rate calculation. An injury and illness incidence rate is the number of 
injuries and/or illnesses related to a common exposure base of 100 
full-time workers. The common exposure base enables meaningful 
comparisons of the data regardless of industry, firm size and time 
period. Information on annual average employment and total hours worked 
can be obtained from payroll or other company records, and is often 
available from other reports required by the government, such as 
unemployment insurance or workers' compensation reports. For some 
employers, the added burden will be negligible because of their 
participation in the BLS Annual Survey of Occupational Injuries and 
Illnesses which already requires a compilation of this information. 
Approximately 10 percent of employers who regularly are required to 
keep records are selected each year to participate in the BLS survey. 
OSHA requests comment on the costs and benefits associated with this 
requirement and suggestions for alternative methods for collecting the 
information necessary to calculate these incidence rates.
    The proposal will require the employer to post the year-end summary 
for the entire year, from February 1 to January 31 of the following 
year. Because the records are kept on a calendar year basis, OSHA 
believes one month (January) is a reasonable time period for completing 
the summary section of the form. The year long posting requirement will 
impose no additional burden on the employer while presenting employees 
with the opportunity to examine the totals throughout the year. This 
requirement will also allow employees hired during any time of the year 
to gain knowledge 

[[Page 4038]]
about the safety and health environment of the workplace.
    9. Modify the location requirements to provide for enhanced 
centralization of records. This proposal would combine the current 
Sec. 1904.14, Employees not in fixed establishments, and some of the 
provisions for centralization of records found in the current 
Sec. 1904.2, Log and summary of occupational injury and illness, into 
the proposed Sec. 1904.7, Location of records. The new section contains 
criteria for records pertaining to employees who either work at an 
establishment, or who report to an establishment but work elsewhere, or 
who are engaged in physically dispersed work activities. Under the 
current system; (1) records pertaining to employees that report to an 
establishment must be kept at the establishment, (2) for employees that 
report to an establishment but work elsewhere, the records must be kept 
at the establishment where they report, and (3) when employees do not 
report to a fixed establishment on a regular basis, the records must be 
kept in a central location with telephone access.
    The location requirements will be modified to allow for the 
maintenance of records at an alternate, centralized location. The 
current regulations do not provide for centralization of the 
supplementary records, but do allow centralization of the OSHA 200 Log, 
providing that the employer has available at the establishment a paper 
copy of the Log current within 45 calendar days. This proposal would 
eliminate the need for a current copy of the required records at the 
establishment, provided the employer is able to produce copies of the 
records within 4 hours of a request by an authorized government 
representative who is permitted access to the records under the 
proposed Sec. 1904.11. The employer can either transmit a copy of the 
records to the worksite or to the government representative's office. 
This proposal allows for greater flexibility when employers choose to 
centralize and/or computerize their records without decreasing the 
access to those records by authorized individuals and provides for 
recent and future technological developments. OSHA requests comment on 
situations where the 4 hour requirement may be infeasible. Should the 
requirement be restricted to business hours, and if so, to the business 
hours of the establishment to which the records pertain or the 
establishment where the records are maintained?
    The current system requires a separate set of records for each 
single physical location of a multi-establishment firm, regardless of 
employment size of the location. The proposal modifies this requirement 
by allowing an employer to consolidate its records for all 
establishments with less than 20 employees as long as the establishment 
location is specified in the Department column on the proposed OSHA 
Form 300.
    10. Modify the retention of records section (Sec. 1904.6) by 
renumbering and retitling it to Sec. 1904.9 Retention and updating of 
work-related injury and illness records, reducing the retention period 
from five to three years, and requiring employers to update the injury 
and illness records during the three year retention period to include 
newly discovered injuries and illnesses. The employer will be required 
to revise the Log to reflect changes which occur in previously recorded 
injuries and illnesses, including changes in the count of days away 
from work. Employers must also update totals or summaries at least 
quarterly. OSHA asks whether the summary update should be more or less 
frequent? Employers will not be required to update the OSHA Form 301 to 
reflect changes in previously recorded cases.
    The current Sec. 1904.2 states that employers shall maintain a Log 
and summary of injuries and illnesses, which has been interpreted to 
require the updating of the Log, but not the updating of supplementary 
records or annual summary, to reflect newly discovered cases or to 
reflect newly discovered information concerning a case.
    The proposed change would clarify the employers' obligations to 
update these records during the three year retention period, if and 
when they receive additional or updated information concerning a case.
    11. Modify the access to records section, currently Sec. 1904.7 and 
proposed Sec. 1904.11, to require employers to provide copies of 
records to government representatives. The current section states that 
``Each employer shall provide, upon request, records provided for in 
Secs. 1904.2, 1904.4 and 1904.5 for inspection and copying * * *''. In 
some instances, instead of providing copies of the records, some 
employers have attempted to provide OSHA compliance personnel only with 
access to the records, with the copying to be done by hand. The 
proposed change would clearly require employers to provide copies of 
the records to government personnel authorized to access injury and 
illness records.
    The section, compatible with section 1910.20 Access to Employee 
Exposure and Medical Records, will also be modified to clarify that the 
request for access by authorized government representatives can be made 
in person or in writing. This, in conjunction with proposed 
Sec. 1904.13, will allow for collection of the records through the 
mail.
    Currently, only government representatives are authorized access to 
the injury and illness supplementary forms (OSHA No. 101). This 
proposal will expand the access authorization to employees, former 
employees, and their designated representatives. OSHA believes this 
will increase employee and/or labor groups' ability to perform 
meaningful safety and health program analysis.
    The section will also be modified to require employers to provide 
copies of the OSHA Log to authorized individuals at no cost. This will 
remove existing barriers to easy access to the forms by employees, 
former employees and their designated representatives.
    The proposal will specify time limits the employer must meet in 
providing the injury and illness records once a request of access is 
made. Employers must provide: 1) copies of the OSHA Forms 300 and 301 
within 4 hours of a request made in person by an authorized government 
representative; 2) access to the OSHA Forms 300 and 301 for review by 
the close of business on the next scheduled workday when a request is 
made by an employee, former employee or their designated 
representative(s); 3) copies of the OSHA Forms 300 and 301 within seven 
calendar days when a request is made by an employee, former employee or 
their designated representative(s); or 4) within 21 calendar days of a 
written request received from an authorized government agency. OSHA 
solicits input on these time limitations. Are they reasonable? Should 
they be shortened or extended?
    12. Clarify the requirements of reporting fatalities and multiple 
hospitalization incidents, currently Sec. 1904.8 and proposed 
Sec. 1904.12. As can be seen in Section III. of the preamble to the 
April 1, 1994 final rule of the reporting requirements (FR Vol. 59, No. 
63, 15599), it was OSHA's intent to require employers to make their 
reports in a manner which allows OSHA immediate access to the 
information. However, because the regulatory text reads, ``shall orally 
report'', there is the possibility that some employers may leave a 
message on an answering machine during non business hours to satisfy 
the requirement. Therefore, for clarification purposes, the regulatory 
text will be changed to read ``* * * shall, report the fatality/
multiple 

[[Page 4039]]
hospitalization by telephone or in person to the Area Office of the 
Occupational Safety and Health Administration (OSHA), U. S. Department 
of Labor, that is nearest to the site of the incident during regular 
business hours, or by using the OSHA emergency toll-free central 
telephone number (1-800-321-OSHA [6742]) during non business hours.''
    OSHA will also clarify the requirement to report three or more in- 
patient hospitalizations which occur at a single site. The site 
controlling employer or designee will be responsible for making the 
report if no more than two employees of a single employer were 
hospitalized but, collectively, three or more workers were hospitalized 
as in-patients.
    The OSHA toll-free telephone number will also be added to the 
regulatory text for clarification purposes.
    13. Clarify an employer's responsibility to report injury and 
illness information to the Secretary of Labor and the Secretary of 
Health and Human Services. The proposed Sec. 1904.13 consolidates 
current Secs. 1904.20, 1904.21, and 1904.22 and reflects the transfer 
of some responsibilities from the BLS to OSHA. Injury and illness data 
required to be maintained by employers may be collected periodically by 
mail or other means. Data could be collected for a variety of purposes, 
including but not limited to, injury/illness surveillance; development 
of information for promulgating or revising safety and health 
standards; evaluating the effectiveness of OSHA's enforcement, training 
and voluntary programs; public information; and for directing OSHA's 
program activities, including workplace inspections.
    14. Change the procedure for petitioning recordkeeping exceptions. 
The current variance section will be deleted. Instead, all requests for 
recording exceptions or variances will be made pursuant to the 
procedures in 29 CFR 1905. This change eliminates duplicate sets of 
rules/procedures found in Title 29 of the Code of Federal Regulations. 
The ability to request an exception or variance to the requirements 
under Part 1904 will continue using the procedures outlined under Part 
1905.
    Under the current recordkeeping requirements, one variance has been 
granted to AT&T, and subsequently expanded to the Bell companies. The 
variance allows AT&T to keep records of its ``field force'' by 
division, rather than by establishment. The centralization of records 
provision contained in this proposal will eliminate the continued need 
for this variance. All exemptions granted prior to the publication date 
of the final rule of revised Part 1904 will be null and void.
    15. Require comprehensive records for ``subcontractor employees'' 
in the construction industry in proposed Sec. 1904.17. The Keystone 
report originally proposed the use of ``site logs'' or comprehensive 
injury and illness records for major construction activities. The 
report noted that construction sites are normally composed of multiple 
contractors and subcontractors, each of which may be present at the 
site for a relatively short period of time. Under the current 
regulations there are no records readily available to represent the 
injury and illness experience for the entire site.
    Accordingly, the proposal would require site-controlling employers 
(or their designees) in the construction industry to maintain a 
separate record reflecting the injury and illness experience of 
employees working for construction firms other than their own, working 
at the construction site when the initial construction contract value 
exceeds $1,000,000. In addition to the normal OSHA Log entry and 
Incident Record (OSHA Forms 300 and 301) which must be completed for 
all injuries and illnesses involving the site controlling employer's 
own ``employees'', a separate, additional record requiring an 
abbreviated entry shall be completed for injuries and illnesses of 
``Subcontractor employees''. (``Subcontractor employees'' are defined 
as employees of construction firms (in SICs 15,16, and 17) who are 
present at a construction project in connection with their job(s) who 
are not employees of the site controlling employer at that construction 
project.) The site controlling employer would only have to record 
injuries and illnesses of ``subcontractor employees'' who are employed 
by construction employers with 11 or more employees at any time during 
the previous calendar year. The site-controlling employer would only be 
required to enter the name of the injured ``subcontractor employee'', 
his or her company, date, and a brief description of the injury or 
illness. The site controlling employer has the option of using a 
separate OSHA Form 300, an equivalent form, or a collection of records 
obtained from the subcontractor employers (e.g. photocopies of 
subcontractors' Logs) to satisfy this requirement. The increase in 
burden for employers is offset for those employers who already maintain 
information on these cases for liability and other purposes. OSHA 
invites comment on limiting the requirement to injuries and illnesses 
experienced by ``subcontractor employees'' whose employers, because of 
their size, are covered by the OSHA injury and illness recordkeeping 
requirements. Should this requirement be expanded to record the 
injuries and illnesses experienced by all ``subcontractor employees'' 
on site, regardless of the employer's status under the recordkeeping 
requirements coverage?
    The site-controlling employer would not be responsible for updating 
the records or entering counts of days away from work or restricted 
workdays for these ``subcontractor employees''. The ``actual'' employer 
of the worker (if not otherwise exempt from OSHA recordkeeping 
requirements) would be responsible for completing in detail any entries 
on their own OSHA records. Employers covered by the standard for the 
Process Safety Management of Highly Hazardous Chemicals; Explosives and 
Blasting Agents, 29 CFR 1910.119, are currently required to keep 
similar records.
    The injuries and illnesses recorded for ``subcontractor employees'' 
under this requirement would not be included in the national statistics 
generated by the BLS Annual Survey. Records for ``subcontractor 
employees'' will be kept separately from the OSHA 300 Log; therefore, 
while site controlling employers and subcontractors with 11 or more 
employees will both maintain the injury and illness records, there will 
be no double counting of injuries and illness in the statistical 
system.
    An alternative to this section has been suggested: Each contractor 
with 11 or more employees in an individual project, shall yearly or 
upon completion of their work on the project, provide the project 
owner, or agent for the owner, with a copy of their project specific 
OSHA 300 Log. The project owner would have the responsibility to 
collect the data and send it to OSHA, as required. OSHA invites public 
comment on this alternative.
    16. Provide special guidance in a mandatory appendix for the 
recording of specific types of injuries and illnesses (see proposed 
Mandatory Appendix B). OSHA believes all of these conditions are 
recordable under the current recordkeeping requirements. However, in 
order to capture significant non-fatal cases that may not meet the 
other general criteria contained in this proposal, OSHA has developed a 
listing of specific conditions and corresponding recording criteria for 
each condition, and has incorporated the listing into the proposed 
regulations as a mandatory appendix. The application of this list will 
assist in 

[[Page 4040]]
collecting more timely and complete data on non-minor occupational 
illnesses and injuries which are serious, significant or disabling but 
otherwise would not be captured consistently by the other recording 
criteria discussed in change number 3 above. The application of the 
list will also provide clear direction that is needed by employers to 
determine the proper recording of these conditions, and will 
incorporate the recordkeeping guidance that OSHA has developed in 
various guidelines, directives and letters of interpretation.
    The current recordkeeping system requires ``all'' occupational 
illnesses to be recorded. An occupational illness is currently defined 
as ``any abnormal condition or disorder'' arising from a non-
instantaneous work-related event or exposure. This definition is 
intended to collect comprehensive information on occupational illnesses 
as soon as they are detected or recognized. Detection or recognition 
can result from a clinical diagnosis, or through lab tests, x-rays, or 
other diagnostic techniques. The language of the current general 
illness recording criteria is so broad and inclusive that, in theory, 
it should encompass all illnesses, regardless of severity or duration. 
However, because there is no specific guidance for individual 
conditions, employers are often unsure of which diagnostic results 
constitute detection or recognition of an illness that should be 
entered into the records.
    OSHA believes that by providing specific guidance for specific 
conditions, even though that guidance may be less inclusive than the 
general definitions currently in use, employers will be more likely to 
understand and comply with the recordkeeping requirements and the data 
will be improved.
    In many instances, OSHA standards require employers to conduct 
certain tests or medical evaluations. In most cases, the lowest test 
results or medical criteria used as action thresholds within the 
standards are being proposed as the recording criteria for injury and 
illness recordkeeping purposes. OSHA does not believe that the 
recordkeeping criteria are restricted by these action thresholds 
prescribed in specific standards, but believes that using the same 
criteria for different standards and regulations improves the 
simplicity of the overall regulatory system. For example, the lowest 
biological and other monitoring test results used as threshold levels 
in the lead and cadmium standards will be used as the recording 
criteria. Under such circumstances, employers are required to use a 
single set of criteria to meet the obligations of both rules. The 
burden on employers may be reduced when parallel requirements exist.
    OSHA believes that early recognition and recording of injuries and 
illnesses promote more timely resolution of the hazardous conditions 
causing them. The recording of injuries and illnesses in their early 
stages provides information that would allow the employer to correct 
hazardous conditions before they result in material impairment or do 
more serious damage to the employee. For this reason, the proposed 
criteria for recordable conditions are not limited to clinical 
diagnosis of an illness or injury by a physician. Recording of 
conditions listed in the Mandatory Appendix B when the applicable 
criteria are met will enhance the utility of the log as an information 
source and management tool.
    OSHA selected the conditions listed in Appendix B using multiple 
criteria, as follows: 1) The condition would not be recorded, or would 
not be recorded accurately or consistently, using the general criteria, 
2) The condition occurs commonly and large numbers of employers need 
specific guidance, and/or 3) The condition has a history of controversy 
that warrants specific guidance. If any of these conditions were met, 
OSHA also considered 1) existing standards covering the condition or 
hazard, 2) existing interpretations covering the proper recording of 
the condition, and/or 3) threshold recording criteria that could be 
developed using objective methods for determining the proper recording 
of an injury or illness. OSHA asks for input on whether these criteria 
are appropriate, or whether other criteria should be used for 
determining which conditions are listed in Appendix B. OSHA also asks 
for input on the specific criteria that have been chosen for each 
condition, including the effects of adopting these criteria, possible 
alternatives, and the potential benefits and costs associated with 
various alternatives.
    The listed conditions must be recorded and entered into the injury 
and illness records when the proposed criteria are met. Some of these 
conditions are:
    (a.) Elevated blood lead levels. The current recordkeeping system 
requires employers to record cases where an employee's blood lead level 
is in excess of 50 micrograms (g) per 100 grams of whole 
blood. This has been the criteria in the recordkeeping guidelines since 
1986. OSHA is proposing to revise this criteria to 40 micrograms 
(g) per 100 grams of whole blood to match the lowest 
biological monitoring test result used as an action threshold within 
the lead standard (29 CFR 1910.1025(j)(2)(B)). Employers would record 
cases where an employee's blood lead level is in excess of 40 
micrograms (g) per 100 grams of whole blood.
    OSHA asks for input on what level should be used and any other 
criteria which could be used to record lead related illnesses.
    (b.) Cadmium. Employers would record cases where an employee's 
cadmium levels are as follows: level of cadmium in urine (CdU) 
exceeding 3 micrograms per gram of creatinine (g/g Cr); level 
beta-2 microglobulin in urine (2-M) exceeding 300 micrograms 
per gram of creatinine (g/g Cr); or level of cadmium in blood 
(CdB) exceeding 5 micrograms per liter of whole blood (g/lwb). 
These criteria are based upon the surveillance levels found in the 
Cadmium Standard, 1910.1027.
    (c.) Hearing loss. Employers would record any work-related case 
resulting in an average shift of 15 decibels or more at 2000, 3000 and 
4000 hertz in one or both ears as measured from the employee's original 
baseline established under 29 CFR Part 1910.95 Occupational Noise 
Exposure. The hearing test may be adjusted for aging and the recorded 
case may be removed if a retest performed within 30 days does not 
confirm the original shift. A presumption of work-relatedness is used 
for hearing loss occurring to employees covered by the Occupational 
Noise Exposure standard, i.e. those who are exposed to noise levels in 
excess of an 85 dB 8 hour time weighted average.
    The lowest action level in the noise standard is an average shift 
of 10 decibels or more at 2000, 3000 and 4000 hertz. OSHA is proposing 
the 15 decibel criteria for recordkeeping purposes to account for 
variations in the reliability of individual audiometric testing 
results.
    OSHA asks for input on which level of a shift in hearing should be 
used as a recording criteria; 10 decibels? 20 decibels? 25 decibels? 
For each level, what baseline should be used? Preemployment (original) 
baseline? Audiometric zero? Is adjusting for presbycusis appropriate?
    (d.) Skin disorders. Employers would record skin disorders lasting 
beyond 48 hours, including, but not limited to, allergic or irritant 
dermatitis. OSHA asks if there are significant skin disorders, such as 
urticaria, which may not be captured by this criterion coupled with the 
general recording criteria (i.e. medical treatment, restricted work 
activity, days away from work, etc.)?
    (e.) Asthma and other obstructive airway disease. Employers would 
record 

[[Page 4041]]
an initial episode of work-related asthma diagnosed by a health care 
professional. Employers would also record subsequent work-related 
episodes that result in the administration of prescription drugs and/or 
diagnosis by a health care provider. There are an estimated 200,000 
cases of occupational asthma every year according to the National 
Institutes of Health. There are over 250 identified agents found in a 
diverse range of materials and industrial processes that can cause 
occupational asthma. OSHA believes it is essential to collect 
information on episodes of work-related asthma in order to identify and 
abate workplace conditions which lead to this illness. OSHA is, 
however, concerned that its proposed policy may result in the over-
recording of occupational asthma when employees have chronic, recurrent 
cases of the disease. OSHA asks for input on possible ways to reduce or 
eliminate over-recording that will not result in the loss of 
significant asthma cases. OSHA also requests information on how to 
differentiate between episodes of asthma that are induced by the work 
environment and those which are not.
    (f.) Asbestos-related disorders. Employers would record any case 
resulting in a diagnosis by a health care provider of asbestosis or 
mesothelioma, or the recognition of any other parenchymal or pleural 
abnormality (e.g. radiograph profusion category of 1/1 or greater by 
the ILO classification system, pleural plaques and/or pleural 
thickening). These criteria are based on information found in Appendix 
D of the asbestos standard (29 CFR Part 1010.1001) which discusses the 
signs and symptoms of exposure-related disease.
    (g.) Bloodborne pathogens diseases (AIDS, HIV infection, Hepatitis 
B., etc.). OSHA is proposing to require employers to record exposure 
incidents which result in disease (e.g., HIV, hepatitis B, hepatitis 
C). Furthermore, OSHA is proposing that employers be required to record 
lacerations or puncture wounds involving contact with another person's 
blood or other potentially infectious materials since these are clearly 
non-minor ``injuries''. OSHA believes that these criteria meet the 
Agency's mandate to collect information related to the death, illness, 
and injury of workers. OSHA requests comment on whether it is 
appropriate to record these small puncture wounds and lacerations if 
they do not lead to disease.
    The above criteria limit the number of ``exposure incidents'', as 
defined in the Bloodborne Pathogens standard, which are to be recorded. 
Incidents which result in exposures to blood or other potentially 
infectious materials to the eyes, mouth, other mucous membrane, or non- 
intact skin would not be OSHA recordable.
    OSHA is aware that some health care facilities already collect data 
on all bloodborne pathogens exposure incidents because these events are 
believed to be of serious magnitude. For example, many employers 
collect information about needle punctures, blood splashes to the eyes, 
and exposures on non-intact skin. In light of this, OSHA is considering 
other options for the recordability criteria of bloodborne pathogens 
diseases. One option would require employers to record all ``exposure 
incidents''. An ``exposure incident'', as defined in the Bloodborne 
Pathogens standard, paragraph (b) of 29 CFR 1910.1030, means ``a 
specific eye, mouth, other mucous membrane, non-intact skin, or 
parenteral contact with blood or other potentially infectious materials 
that results from the performance of an employee's duties''. Using this 
same definition for the recordability criteria may simplify the task of 
identifying what events need to be recorded for OSHA recordkeeping.
    OSHA believes that the collection of information about ``exposure 
incidents'' is useful to employers in the control of bloodborne 
pathogens hazards. OSHA recognizes, however, that this second option 
requires the recording of ``exposures'' rather than strictly illnesses 
or injuries.
    OSHA is seeking comments on this issue. What data is useful to 
collect? Are there other criteria for the recording of bloodborne 
infectious diseases which should be considered? What experience do 
employers have in data collection systems for this hazard?
    In an attempt to address the concerns of personal privacy OSHA is 
additionally proposing that the exposure incidents described above be 
recorded simply as the type of bloodborne pathogen exposure incident, 
regardless of the outcome of the incident. In other words, employers 
shall record occupationally acquired bloodborne pathogen disease, such 
as Hepatitis B or C, simply as the initial bloodborne exposure incident 
and note the type of exposure (e.g. needlestick). The seroconversion 
status and specific type of bloodborne disease need not be entered. 
This strategy would enable employers to consider data about needle 
punctures or lacerations (or other bloodborne pathogens exposure 
incidents) while protecting the privacy of individual employee's 
medical information. (Please refer to the Issues for Comment section 
regarding confidentiality for further discussion of the employee 
privacy concerns.) These recording criteria apply to all employees 
covered by the Act and are not limited to those covered by the 
Bloodborne Pathogens Standard.
    (h.) Tuberculosis infection or disease. OSHA is proposing that 
newly detected tuberculosis infections and cases of active tuberculosis 
in workers with occupational exposure be recorded. The criteria 
proposed is consistent with that published by previous OSHA directives 
to the field (Memorandum from Leo Carey to Regional Administrators, 
February 26, 1993).
    Work-relatedness is presumed in work sites where the Centers for 
Disease Control and Prevention (CDC) has published reports of epidemics 
among workers resulting from workplace exposures, i.e., correctional 
facilities; health care facilities; homeless shelters; long-term care 
facilities for the elderly; and drug treatment centers. The employer 
can rebut this presumption of work relationship by providing evidence 
that the employee is known to have had a non-work exposure to active 
TB. Examples include situations in which (1) an employee is living in a 
household with a person diagnosed with active TB or (2) the Public 
Health Department lists the employee as a contact to a case of active 
TB.
    All other industries would record tuberculosis infections or 
disease only if the employee was exposed to tuberculosis in the 
worksite. For example, in industries where tuberculosis is not a 
recognized hazard resulting from work duties, tuberculosis infections 
or disease would not routinely be recorded. However, if a worker with 
infectious tuberculosis disease infected their co-workers, the co-
workers' infection/disease would be recordable.
    OSHA is seeking to learn if there are other industries, aside from 
those listed in the proposal, where reasonably anticipated occupational 
exposure to tuberculosis is occurring. Are there other types of 
worksites where the presumption of work-relatedness should be applied?
    (I.) In addition to these conditions, Mandatory Appendix B provides 
guidance for cases resulting in carbon monoxide poisoning, mercury 
poisoning, benzene poisoning, UV burning of the eye, lacerations, 
hepatitis A, mesothelioma, byssinosis, hypersensitivity pneumonitis, 
toxic inhalation injuries, pneumoconiosis, eye injuries, 
musculoskeletal disorders, fractures of bones or teeth, and burns.

[[Page 4042]]

    OSHA asks for input on possible additions, deletions, and revisions 
to the list, different or additional criteria (e.g. diagnostic test 
results) or any other information that might be used for establishing 
the existence of, and lead to the accurate, consistent recording of 
injuries and illnesses.

III. Specific Issues for Comment

    OSHA invites comment on the proposed changes in the regulations, 
forms and supplemental instructions. OSHA has identified the following 
nine issues. For some issues, the agency is considering using 
alternative regulatory text which is included in this ``Specific Issues 
for Comment'' section. OSHA would like to receive specific comment on 
these issues, including any cost and benefit estimates on the various 
options discussed below:
    Issue 1. Exemptions from OSHA injury and illness recordkeeping 
requirements. The current regulations include exemptions from most of 
the recordkeeping requirements for small employers (no more than 10 
employees) and establishments in specific services and retail standard 
industrial classifications (SICs 52-89). Industries traditionally 
targeted for OSHA enforcement, which are those in SICs 01 through 51, 
are not exempted. (Note the ``exemption'' is really a partial one 
because ``exempt'' employers must still comply with the provisions of 
the current Sec. 1904.8, Reporting of fatality and multiple 
hospitalization accidents (proposed Sec. 1904.12) and Sec. 1904.21, 
Duties of employers (proposed Sec. 1904.13). Because the exemption is a 
partial one, affected employers are referred to as ``partially 
exempt'').
    SIC Exemption. In 1983, the industries selected for the partial 
exemption were chosen from major industry groups within SICs 52-89, at 
the two 2-digit level, whose average lost workday case injury rate for 
1978-80 was at or below 75% of the private sector average. Industries 
traditionally targeted for OSHA enforcement, which are those in SICs 01 
through 51, are not exempted. Application of this formula resulted in 
the current list of partially exempted industries:

------------------------------------------------------------------------
  SIC                                Industry                           
------------------------------------------------------------------------
55.....  Automotive dealers and gasoline service stations.              
56.....  Apparel and accessory stores.                                  
57.....  Furniture, home furnishings, and equipment stores.             
58.....  Eating and drinking places.                                    
59.....  Miscellaneous retail.                                          
60.....  Depository institutions.                                       
61.....  Nondepository institutions.                                    
62.....  Security and commodity brokers.                                
63.....  Insurance carriers.                                            
64.....  Insurance agents, brokers and service.                         
65.....  Real estate.                                                   
67.....  Holdings and other investment offices.                         
72.....  Personal services.                                             
73.....  Business services.                                             
78.....  Motion pictures.                                               
81.....  Legal services.                                                
82.....  Educational services.                                          
83.....  Social services.                                               
84.....  Museums, art galleries and botanical & zoological gardens.     
86.....  Membership organizations.                                      
87.....  Engineering, accounting, research, management and related      
          services.                                                     
88.....  Private Households.                                            
89.....  Miscellaneous services not elsewhere classified.               
------------------------------------------------------------------------

    Since the partial recordkeeping exemption based on SIC codes was 
implemented, the injury and illness rates of the major industry groups 
have changed. If the same formula were applied to the 1990-92 lost 
workday injury rate statistics for SICs 52-89, at the 2-digit level, no 
additional industries would be added to the partial exemption. Two 
industries would lose their partial exemption and be required to keep 
records: eating and drinking places (SIC 58), and museums, art 
galleries and botanical & zoological gardens (SIC 84).
    Within certain major industry groups (2-digit SICs), there exist 
high hazard industries and industry groups (4 and 3-digit SICs) (ex.8). 
To address this ``nesting'' problem, OSHA applied the 1983 evaluation 
criteria to the 1990 through 1992 BLS lost workday injury data at the 
3-digit SIC level. Where no information was available at the 3-digit 
level, OSHA used information at the 2-digit level.
    The proposed text in this NPRM modifies the partial exemption for 
industries in Standard Industrial Classifications (SICs) 52 through 89 
to reflect this refinement to address the ``nesting'' problem. Current 
partially exempt industries which would have to comply are:

SIC 553  Auto and Home Supply Stores,
SIC 555  Boat Dealers,
SIC 571  Home Furniture and Furnishings Stores,
SIC 581  Eating Places,
SIC 582  Drinking Places,
SIC 596  Nonstore Retailers,
SIC 598  Fuel Dealers,
SIC 651  Real Estate Operators and Lessors,
SIC 655  Land Subdividers and Developers,
SIC 721  Laundry, Cleaning, and Garment Services,
SIC 734  Services to Dwellings and Other Buildings,
SIC 735  Miscellaneous Equipment Rental and Leasing,
SIC 736  Personnel Supply Services,
SIC 833  Job Training and Vocational Rehabilitation Services,
SIC 836  Residential Care,
SIC 842  Arboreta and Botanical or Zoological Gardens, and
SIC 869  Membership Organizations Not Elsewhere Classified.

    The following industries, currently required to comply with the 
injury and illness recordkeeping regulation, will be partially exempt:

SIC 525  Hardware Stores,
SIC 752  Automobile Parking,
SIC 764  Reupholstery and Furniture Repair,
SIC 793  Bowling Centers,
SIC 801  Offices and Clinics of Doctors of Medicine,
SIC 807  Medical and Dental Laboratories, and
SIC 809  Miscellaneous Health and Allied Services, Not Elsewhere 
Classified.

    If the same analysis, using data at the 3-digit level where 
available, were applied to those industries in SICs 01 through 51 
(industries not historically exempted from OSHA recordkeeping), the 
following industries would have lost workday case rates less than 75% 
of the private sector average:

SIC 074  Veterinary Services,
SIC 131  Crude Petroleum and Natural Gas,
SIC 211  Cigarettes,
SIC 233  Women's and Misses' Outerwear,
SIC 234  Women's and Children's Undergarments,
SIC 272  Periodicals,
SIC 273  Books,
SIC 274  Miscellaneous Publishing,
SIC 281  Industrial Inorganic Chemicals,
SIC 282  Plastics Materials and Synthetics,
SIC 283  Drugs,
SIC 286  Industrial Organic Chemicals,
SIC 291  Petroleum Refining,
SIC 319  Leather Goods, NEC,
SIC 357  Computer and Office Equipment,
SIC 366  Communications Equipment,
SIC 367  Electronic Components and Accessories,
SIC 376  Guided Missiles, Space Vehicles, Parts,
SIC 381  Search and Navigation Equipment,
SIC 382  Measuring and Controlling Devises, 

[[Page 4043]]

SIC 384  Medical Instruments and Supplies,
SIC 385  Ophthalmic Goods,
SIC 386  Photographic Equipment and Supplies,
SIC 387  Watches, Clocks, Watchcases and Parts,
SIC 391  Jewelry, Silverware, and Plated Ware,
SIC 448  Water Transportation of Passengers,
SIC 461  Pipelines, Except Natural Gas,
SIC 472  Passenger Transportation Arrangement,
SIC 481  Telephone Communications,
SIC 483  Radio and Television Broadcasting,
SIC 489  Communications Services, NEC,
SIC 491  Electric Services,
SIC 504  Professional and Commercial Equipment,
SIC 506  Electrical Goods,
SIC 507  Hardware, Plumbing and Heating Equipment,
SIC 513  Apparel, Piece Goods, and Notions, and
SIC 516  Chemicals and Allied Products.

    OSHA solicits comment on the appropriateness of its exemption 
procedure, expanding it to SICs 01 through 51, or alternative 
approaches that would reduce employer paperwork burden while retaining 
needed injury and illness information. Specifically OSHA requests 
comment on whether to expand the partial exemption to some, all, or 
none of these industries as classified by SIC code. Please include any 
estimates of costs and benefits associated with these exemptions.
    Small Employer Exemption. The proposed text in this NPRM also 
modifies the partial exemption for small employers. Employers in the 
construction industry with 10 or fewer employees, and non-construction 
employers with 19 or fewer employees will now be exempted from all 
requirements except the Reporting of Fatality and Multiple 
Hospitalization Incidents (proposed Sec. 1904.12) and Duties of 
Employers (proposed Sec. 1904.13). The BLS Annual Survey data show that 
small employers generally experience much lower patterns of injuries 
and illnesses than medium and larger size firms. However, the BLS 
Annual Survey also shows that small employers in the construction 
industry account for a significant percentage of recordable injuries 
and illnesses. In 1991, over 66,000 recordable cases occurred in 
construction firms with 11 to 19 employees. These cases accounted for 
13% of the total recordable cases in the construction industry. In 
contrast, in the manufacturing industry, only 2.4% of the recordable 
cases were found in firms with 11 to 19 employees. OSHA believes, given 
these numbers and the transient nature of the construction industry, 
that employers in the construction industry with 11 or more employees 
should be required to keep OSHA injury and illness records.
    Discussion. The modification of both the small employer and SIC 
partial exemptions is designed to ensure that OSHA's recordkeeping 
requirements cover those employers with the highest rates of 
occupational injuries and illnesses. These changes shift the 
recordkeeping responsibilities from historically low hazard employers 
to employers experiencing higher rates of injuries and illnesses. The 
net effect of these changes in scope will be the recording of more 
injuries and illnesses, but fewer establishments will be covered by the 
regulation.
    Employers in the proposed partially exempt industries and small 
employers will be required to maintain the OSHA Injury and Illness Log 
and Summary (proposed Form 300) when they are notified that they have 
been selected for the BLS Survey of Occupational Injuries and Illnesses 
for a given year. Partially exempt employers may also be required to 
provide reports related to occupational safety and health, as required 
by the proposed Sec. 1904.13. Additionally, these employers will be 
required to comply with reporting requirements for Fatality and 
Multiple Hospitalization Incidents (proposed Sec. 1904.12).
    OSHA asks for specific input on the following items:
    (1) Should the list of partially exempt industries based on SIC 
codes remain the same, be eliminated, or be expanded?
    (2) How often should the SIC exemption be updated using current 
data?
    (3) What are other options for addressing the SIC exemption issues?
    (4) Should the small employer partial exemption remain the same, be 
eliminated, or be expanded?
    (5) What would the cost be (time and money) for keeping the records 
to employers currently exempt from the recordkeeping requirements but 
proposed to be covered? and
    (6) What benefits would accrue from the proposed changes (monetize 
or quantify where feasible)?
    Issue 2. Case recordability criteria--injury/illness severity and 
work-relationship. Section 8(c)(2) of the Act, which deals with injury 
and illness recordkeeping, mandates the maintenance of accurate records 
of ``work-related deaths, illnesses and injuries other than minor 
injuries requiring only first aid treatment and which do not involve 
medical treatment, loss of consciousness, restriction of work or 
motion, or transfer to another job.'' Section 24(a), which deals with 
statistics, mandates the collection of statistics on ``work injuries 
and illnesses which shall include all disabling, serious or significant 
injuries and illnesses, whether or not involving loss of time from 
work, other than minor injuries requiring only first aid treatment and 
which do not involve medical treatment, loss of consciousness, 
restriction of work or motion, or transfer to another job.''
    The current recordkeeping system, and the system that is being 
proposed, consider conditions work-related if the work environment 
either caused or contributed to the conditions or aggravated a pre-
existing condition to the extent that it becomes recordable. This 
proposal, however, includes the exemption of certain activities to 
avoid recording cases which OSHA believes add no useful information to 
the records for surveillance purposes. Appendix A. of this proposal 
describes these exemptions. For example, employers will consider a case 
non work-related if ``the case results solely from normal body 
movements, i.e. walking unencumbered, talking, tying a shoe, sneezing, 
or coughing, provided the activity does not involve a job-related 
motion and the work environment does not contribute to the injury or 
illness.''
    The proposed system requires the recording of all injuries and 
illnesses with the exclusion of minor injuries and illnesses. OSHA 
believes that potentially debilitating illnesses should be recorded as 
early in their development as possible, to promote the early 
recognition and resolution of problems that could halt the progression 
of the illnesses. OSHA believes that the records should capture most 
injuries and illnesses, in order to provide an effective surveillance 
system for occupational safety and health program development, but 
exclude minor injuries and illnesses.
    Within the occupational safety and health community, there is a 
variety of views concerning the interpretation of these Sections of the 
Act and the types of cases the records should capture. The discussion 
revolves around two questions: (1) What constitutes work-relationship? 
(2) What is the level of injury/illness seriousness that should be used 
to determine the proper recording of a case? OSHA has identified the 
following three alternative views on both work-relatedness and 
seriousness 

[[Page 4044]]
that differ from the positions OSHA proposes in this document:

Work-Relatedness

    This issue is especially relevant when dealing with conditions 
where the specific event or exposure that caused the injury or illness 
cannot be easily identified, or the condition is the result of both 
work-related and non work-related causes (such as off-the-job 
activities, aging, prior medical history or work aggravation of off-
the-job injuries). Common examples include lower back pain, hearing 
loss, and asthma.

Alternative 1: Exclude Cases With Any Non-Work Linkage

    Those holding this view believe that the work environment should be 
the sole, obvious cause of the injury or illness before it is recorded. 
They believe that cases should only be considered work-related if there 
is concrete evidence that the causal event or exposure occurred while 
the employee was engaged in work activities. They believe that if there 
is any evidence of non work-related factors, the case should be 
excluded.

Alternative 2: Limit to Predominant Workplace Linkage

    Those holding this view believe that the work environment should be 
a major contributor to the injury or illness for the injury or illness 
to be considered work-related. They believe that OSHA's position is too 
harsh a test, amounting to zero tolerance for conditions where work is 
a minor contributor and non-work factors are the predominant cause of 
the injury or illness. Those holding this view believe that OSHA's 
current and proposed criteria for work-relationship cause companies to 
over-record cases, artificially inflate and overstate workplace 
injuries and illnesses, undermine the credibility of the system, and 
have led to general resistance to the recordkeeping system. Those 
holding this view believe the criteria should be modified so that a 
case would be considered work-related only if work activity(s) or 
exposure(s) causes or is the predominate contributor to the condition.
    Some of those holding this view have proposed an alternative that 
would allow a documented determination by a health care provider to 
decide work-relationship for the following types of cases: hernias, 
cardiovascular disorders, respiratory conditions, hearing loss, skin 
disorders or musculoskeletal disorders such as back pain, tendinitis 
and carpal tunnel syndrome. For this purpose, a check list has been 
suggested, as follows. (note: In the absence of evaluation by a health 
care provider, the case would be considered work-related if the work 
environment caused, contributed to or aggravated the condition in any 
way.)

1. Injury/illness type
    ______Hernia
    ______Musculoskeletal disorder
      ______back pain
      ______tendinitis
      ______other________________
    ______Respiratory condition
    ______Skin disorder
    ______Non-occupational disease
2. How was injury/illness discovered
    ______During occupational medical visit
    ______Routine physical examination
    ______Non-occupational medical visit
    ______Other: ________________
3. Applicable medical history

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------
4. Off-the-job activities which may have contributed

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------
5. Work relationship evaluation

a. Injury/illness characteristics
    ______ Degenerative condition due to aging or non-occupational 
disease
    ______ Congenital condition
    ______ Aggravation of on-the-job injury or illness
b. Possible work contribution
    ______ Workplace event or exposure? ______ yes ______ no
    ______ Workplace aggravation? ______ yes ______ no
    ______ Condition consistent with workplace event or exposure? 
______ yes ______ no
    ______ Condition would have occurred without regard to workplace 
duties or exposures? ______ yes ______ no
c. Exposure factors for this type of injury/illness

------------------------------------------------------------------------
          On-the-job             Comments      Off-the-job      Comments
------------------------------------------------------------------------
______ High...................              ______ High......           
______ Medium.................              ______ Medium....           
______ Low....................              ______ Low.......           
______ Not sure...............              ______ Not sure..           
------------------------------------------------------------------------

6. Work relationship determination
    ______ Work-related. On-the-job exposure factors more predominant 
than off-the-job exposure factors.
    ______ Not work-related. Off-the-job factors more predominant than 
on-the-job exposure factors.
    ______ Not sure. Assume work-relationship.

Alternative 3: Include Cases With Any Workplace Linkage

    Those holding this view believe that injuries and illnesses should 
be recorded if the worker ever experienced a workplace event or 
exposure that had any possibility of playing a role in the case. For 
example, a cancer case, where the worker had at some time in his or her 
career worked with a carcinogenic substance, would be considered work-
related, even though there is no positive link between the case and a 
workplace exposure.

Seriousness

    The concept of seriousness is particularly relevant when dealing 
with conditions where the worker is not obviously impaired, but is 
experiencing some subjective symptom (pain, dizziness, etc.) or has an 
abnormal health test result. For example, a blood test may indicate 
that a worker has a relatively high level of cadmium in his or her 
system, but the worker is not experiencing any symptoms that adversely 
affect either work or lifestyle. The worker has an abnormality, but 
should it be considered an injury or illness?

Alternative 1: Days Away From Work or Death

    Proponents of this view believe that employers should record only 
those cases that result in days away from work or death. They believe 
that this will result in the most meaningful and accurate information 
(because fatalities and days-away-from-work cases are hard to ``cover 
up'' and they are unquestionably serious). They also believe that this 
approach will minimize the burden on employers and focus safety and 
health efforts on the cases 

[[Page 4045]]
with the greatest impact on both employers and workers.

Alternative 2: Days Away From Work, Impairment, or Death

    Proponents of this view agree with across-the-board application of 
the basic criteria mentioned in Section 8 of the Act, (days away, 
medical treatment beyond first aid, etc.) but believe the purpose of 
proposed Mandatory Appendix B should be limited to capturing 
``serious'' cases which may be ``missed'' because they do not meet the 
basic criteria. Such cases would include disorders where no lost time 
occurs, or where medical treatment is not provided at the time the case 
is diagnosed or discovered because medical treatment would not help, 
but the case is serious nonetheless. Examples include the current 
criteria for recording hearing loss (25dB), asbestosis, mesothelioma, 
silicosis, byssinosis and other similarly serious work-related 
diseases.
    Potential guiding language for recording cases missed by the basic 
criteria would be ``any work-related condition that results in, or is 
likely to result in, a physical or mental impairment that substantially 
limits a major life activity.'' In addition to stating such guiding 
language in, and as a basis for a Mandatory Appendix, clarifying 
examples of specific known to be serious conditions such as, but not 
limited to, those mentioned in the paragraph above could be listed.
    Those who support this approach believe it meets the ``disabling, 
serious, or significant'' criteria prescribed in Section 24(a) of the 
Act and that these criteria must be considered carefully, especially if 
OSHA intends to collect OSHA Logs and use the data for inspection 
targeting and intervention purposes. Supporters of this approach also 
believe it will provide the most meaningful data to employers for 
improving workplace safety and health efforts by helping to allocate 
resources for preventing injuries and illnesses which are truly 
serious.

Alternative 3: No Limitations on Seriousness

    Proponents of this view believe that all work-related injuries and 
illnesses should be recorded. They interpret the Act to require the 
recording of all work-related illnesses, no matter how minor or how 
short lived they may be, and the recording of all non-minor injuries. 
They believe the recording criteria should be expanded to include all 
signs and symptoms experienced by workers, and perhaps even potentially 
hazardous exposure incidents and near misses. They believe that this 
alternative provides the employer and the workers at the worksite with 
the most effective surveillance tool that will lead to the most 
complete injury and illness prevention efforts. Proponents of this view 
have provided alternative language for recording cases where ``signs, 
symptoms, and/or laboratory abnormalities last longer than 48 hours 
(either persistently or intermittently)'' excluding minor injuries 
(minor injuries are minor scratches, abrasions, bruises and first 
degree burns).''

Implications

    The issues of work-relationship and case severity have major 
implications for all of the parties that use the injury and illness 
records, including employers, workers and the government. If the 
criteria are too inclusive, they may appear to overstate the injury and 
illness experience, undermine the credibility of the system, and fail 
to focus safety and health efforts on the most serious workplace 
hazards. If they are too exclusive, they may appear to understate the 
injury and illness experience, undermine the credibility of the system, 
and fail to reflect hazardous conditions that require attention. OSHA 
believes that the OSHA proposal in the NPRM is compatible with the 
language and intent of the Act, and provides the best way to resolve 
these issues. OSHA welcomes comment, ideas, and alternative suggestions 
from the public concerning these issues and the alternatives presented 
above.
    Specifically, OSHA requests input on A) The level of severity and 
criteria for establishing work-relationship and determining which cases 
are entered into the records; B) How ``significant/serious/disabling'' 
should be defined to result in consistent recording practices and data; 
C) How work contribution can be objectively measured for such a 
purpose; D) Does the checklist shown above meet these objectives? F) 
Should work-relationship be established only where work is the 
predominant causal factor? G) Should work-relationship be established 
if work was something less than the predominant cause? or H) If work 
contributed more than 50% to the injury or illness? 25%? 10%? J) How 
could any of these percentages be measured/determined?
    Issue 3. The definitions of first aid and medical treatment. The 
distinction between first aid and medical treatment is a critical 
component in determining whether to record a work-related injury or 
illness. One criterion in the proposed regulatory text requires any 
work-related injury or illness involving medical treatment beyond first 
aid to be recorded. A case which involves first aid only (and does not 
meet any of the other recording criteria) is not recordable. The intent 
of this distinction is to capture information on injuries and illnesses 
which are significant and would provide valuable information for safety 
and health analysis while excluding minor cases which would not provide 
necessary or useful information for analysis.
    The current recordkeeping system defines first aid as any one-time 
treatment, and any follow-up visit for the purpose of observation, of 
minor scratches, cuts, burns, and splinters, and so forth which do not 
ordinarily require medical care. Medical treatment is defined to 
include any treatment other than first aid treatment administered to 
injured employees. The definition focuses on the type of treatment 
given and not on the person administering the treatment (e.g. 
physician, registered health professional, etc.). These definitions are 
further clarified within the Recordkeeping Guidelines for Occupational 
Injuries and Illnesses by lists of examples of treatments which are 
considered either medical treatment or first aid. These lists are not 
comprehensive and confusion exists concerning the classification of 
unlisted treatments.
    This proposal attempts to clarify the distinction between first aid 
and medical treatment by defining the terms in a way that will make 
them mutually exclusive. The proposed regulatory text defines first aid 
with a finite list of treatments. Medical treatment is defined as any 
treatment other than those listed in the first aid definition.
    ``First aid'' means the following treatments for work-related 
injuries and illnesses:

1. Visit(s) to a health care provider limited to observation
2. Diagnostic procedures, including the use of prescription medications 
solely for diagnostic purposes
3. Use of nonprescription medications, including antiseptics
4. Simple administration of oxygen
5. Administration of tetanus/diphtheria shot(s) or booster(s)
6. Cleaning, flushing or soaking wounds on skin surface
7. Use of wound coverings such as bandages, gauze pads, etc.
8. Use of any hot/cold therapy (e.g. compresses, soaking, whirlpools 
non-prescription skin creams/lotions for local relief, etc.) except for 
musculoskeletal disorders (See Mandatory Appendix B)
9. Use of any totally non-rigid, non-immobilizing means of support 
(e.g. elastic bandages) 

[[Page 4046]]

10. Drilling of a nail to relieve pressure for subungual hematoma
11. Use of eye patches
12. Removal of foreign bodies not embedded in the eye if only 
irrigation or removal with a cotton swab is required
13. Removal of splinters or foreign material from areas other than the 
eyes by irrigation, tweezers, cotton swabs or other simple means

    OSHA asks for comment on the following issues:
    (A) Should any treatments on the proposed first aid list be 
excluded and should any treatments be added?
    (B) Should a list of medical treatments also be provided? Which 
treatments?
    (C) Should simple administration of oxygen be defined to exclude 
more severe procedures such as Intermittent Positive Pressure Breathing 
(IPPB)? If so, how?
    Issue 4. The definition of restricted work. The Keystone Report 
stated that the recording of restricted work is perhaps the least 
understood and least accepted concept in the recordkeeping system. 
Recording cases involving restricted work activity is important because 
injured or ill employees are unable either to perform all of their 
normal duties or perform a full day's work. The concept of restricted 
work activity was included in the Act due to concern that some 
employers might try to conceal significant injuries and illnesses by 
temporarily assigning injured or ill workers to other jobs with reduced 
requirements. This concern still exists today.
    The difficulty in determining restricted work lies in the need to 
determine the employee's ``normal duties''. In the past, OSHA has 
broadly defined the employee's normal duties to include any work 
activity included in the employee's job description, even if the 
activity is performed infrequently. According to the Keystone Report, 
this definition is problematic because ``(1) few in industry understand 
the scope of this interpretation; (2) many who do understand it 
disagree with it; and (3) to maximize productivity, workers are 
increasingly assigned a wider range of tasks, making it increasingly 
difficult to measure and/or verify the performance of these greatly 
divergent and infrequent duties.'' (ex. 5, p. 17)
    The Keystone Report recommended that restricted work activity 
should be recorded if the employee is 1) unable to perform the task he/
she was engaged in at the time of injury or onset of illness or 2) 
unable to perform any activity that he/she would have performed during 
the week. OSHA believes that the first criterion will focus on the 
hazardous tasks that lead to serious injuries and illnesses. OSHA 
believes, however, that the second criterion is not easily defined and 
could lead to the recording of inconsistent data. This criterion has 
been narrowed in the proposed text of the regulation to include 
activities the employee performed or was expected to perform on the day 
of injury or onset of illness. OSHA believes these activities will be 
well known and understood and use of this criterion will lead to 
greater consistency in the recording of these more severe work-related 
injuries and illnesses.
    This proposal also eliminates the requirement for employers to 
count the days of restricted work activity. The employer will be 
required to place a check in the restricted work column if the case 
involved restricted work activity but not days away from work.
    OSHA asks for input on whether the proposed language is too 
limiting or too broad, on alternative ways to define restricted work 
activity and/or the usual duties of an employee, along with suggested 
ways to improve employers' understanding and acceptance of the concept 
of restricted work activity. OSHA's goal is to have employers 
consistently record cases that involve restricted work by providing a 
concept which is widely accepted and easy to interpret.
    OSHA asks for input on the following questions: (A) Will the 
elimination of the restricted work activity day count provide an 
incentive for employers to temporarily assign injured or ill workers to 
jobs with little or no productive value to avoid recording a case as 
one involving days away from work? (B) Will the inclusion of question 
13 on the proposed OSHA Form 301, ``If the case involved days away from 
work or restricted work activity, enter the date the employee returned 
to work at full capacity'', help to reduce such an incentive?
    Issue 5. The proper recording of musculoskeletal disorders (MSDs). 
Over the last 10 years, there has been an increased awareness of work-
related disorders associated with ergonomic hazards, i.e. hazards 
associated with lifting, repeated motion, and repetitive strain and 
stress on the musculoskeletal systems of workers. OSHA labels these 
injuries and illnesses, which result from ergonomic hazards, 
``musculoskeletal disorders'' (MSDs). MSDs do not include broken bones, 
chipped teeth, contusions or sprains/strains resulting from falls or 
being struck.
    Although MSDs have always been recordable, OSHA and BLS had not 
published any specific guidance on how to record them until 1986. The 
1986 Recordkeeping Guidelines provided some limited specific guidance 
by requiring all back cases to be evaluated as injuries using the 
general injury criteria, and to record carpal tunnel syndrome as an 
illness. The 1986 Guidelines did not provide specific directions on 
which criteria to use for recording other types of musculoskeletal 
disorders.
    Historically, for recording purposes, disorders caused by repeated 
or cumulative trauma were covered by the general illness criteria 
because these disorders are caused by prolonged exposure to various 
risk factors, rather than being caused by a single instantaneous event. 
The existing definition of occupational illness (in place since 1971) 
is very inclusive: ``Any work related abnormal condition or disorder 
(other than an occupational injury)''. (1986 Recordkeeping Guidelines, 
P 39) Thus, the current criteria for recording illnesses requires the 
employer to record each and every occupational illness, including MSDs.
    Theoretically, all musculoskeletal disorders, even the less severe 
cases which do not meet the recording criteria for injuries, would be 
recordable as a result of applying the general illness recording 
criteria. Despite their recordability, OSHA observed that very few, if 
any, of these disorders were being recorded on employers' OSHA Logs. As 
a result, OSHA developed an enforcement policy limiting the issuance of 
citations and penalties for unrecorded MSDs to those cases which 
involve:
     a clinical diagnosis by a health care provider; or
     at least one physical finding, (i.e., an objective symptom 
such as redness or swelling); or
    * a subjective symptom, such as pain or numbness, coupled with 
either medical treatment or lost workdays, (i.e., days away from work 
and/or days of restricted work activity).
    In 1990, OSHA published specific criteria for the proper recording 
of MSDs in the Ergonomics Program Management Guidelines For Meatpacking 
Plants (Meatpacking Guideline). These criteria have been the basis for 
all of OSHA's interpretations involving the proper recording of 
musculoskeletal disorders to the upper extremities (shoulder, arms, 
wrist and hands) since that time.
    Even though the specific criteria in the Meatpacking Guidelines 
defined fewer recordable cases than the general illness criteria, the 
number of recorded cases has increased dramatically. While OSHA 
believes that these types of 

[[Page 4047]]
disorders are increasing in number, OSHA believes that the increase in 
recorded MSD cases is also the result of OSHA providing employers with 
specific guidance on the subject, in conjunction with enforcement of 
the requirements. Compliance with the recordkeeping requirements 
improved substantially and the resulting data and statistics have 
reflected that improvement.
    One purpose of this proposed revision of 29 CFR Part 1904 is to 
consolidate in the regulation various criteria, guidelines and 
interpretations policies which are currently found in a number of 
different documents. Another purpose is to simplify the recordkeeping 
requirements, in order to make the system more ``user friendly'' and to 
encourage more accurate and consistent recording of injuries and 
illnesses. Consistent with these purposes, OSHA is proposing to 
incorporate the criteria for recording MSDs found in the Meatpacking 
Guidelines in mandatory Appendix B of the proposed regulation, and to 
simplify the system by applying those criteria equally to cases 
involving the upper extremities, the back and the lower extremities.
    The criteria in proposed Mandatory Appendix B require employers to 
record new, work-related musculoskeletal disorders: (1) whenever they 
are diagnosed by a health care provider, or (2) if the employee has 
objective findings (redness indicative of inflammation, deformity, 
swelling, etc.). When either of these criteria, or when any of the 
general criteria for recording illnesses and injuries in Sec. 1904.4(b) 
(i.e. death, loss of consciousness, days away from work, restricted 
work activity, job transfer, or medical treatment beyond first aid) is 
met, the case is required to be recorded on the OSHA Form 300. OSHA's 
proposal represents a continuation of the current recording policy, and 
is intended to ensure the early recognition and recording of 
musculoskeletal disorders so appropriate actions may be taken.
    The current recording of these cases is also dependent on the 
definitions of first aid, medical treatment and restricted work. 
Because OSHA is proposing to change those definitions, the recording of 
musculoskeletal disorders will be affected. OSHA recognizes that hot 
and cold treatments for most injury and illness conditions should be 
considered first aid treatments, as indicated in the proposed 
definition of first aid. However, NIOSH (NIOSH, Cumulative trauma 
disorders: A manual for musculoskeletal diseases of the upper limbs, 
Taylor and Francis, 1988, p. 125) and other recognized authorities 
(Hales & Bertsche, ``Management of Upper Extremity Cumulative Trauma 
Disorders'', AAOHN Journal, March, 1992, Vol. 40, No. 3; Nanneman, D., 
``Thermal modalities: Heat and cold: Review of physiological effects 
with clinical applications'', AAOHN Journal, 1991, Vol. 39, No. 2) 
recognize hot and cold treatments as therapeutic modalities in the 
conservative, early treatment of MSDs. Because these treatments may 
cause negative effects if not properly administered, OSHA is proposing 
that two or more hot and cold treatments be considered medical 
treatment for MSDs only when directed by a health care professional.
    There is a concern that the proposed criteria will result in a 
situation where workers could be working with significant pain for an 
extended period of time, without their case being entered into the 
records. OSHA has been asked to consider an additional recording 
criterion for these cases: record when the employee reports symptoms 
(pain, tingling, numbness, etc.) persisting for at least 7 calendar 
days from the date of onset. OSHA asks for input on this criterion.
    OSHA recognizes that its proposed recording policy does not provide 
a mechanism for excluding cases that involve short term job transfers 
for minor soreness that commonly occurs to newly hired employees or 
employees on rehabilitation assignments during a ``break in'' stage. 
OSHA asks for input on whether a method for excluding these cases 
should be developed? If so, what method should be used?
    Issue 6. The reluctance of some employers to enter cases into the 
records. For a variety of reasons, some employers have historically 
shown a reluctance to enter injuries and illnesses into the OSHA 
records.
    Some employers mistakenly believe that recording a case implies 
fault on the part of the employer. Some fail to recognize that the 
requirements of OSHA recordkeeping have nothing to do with workers' 
compensation insurance or any other system outside of the OSHA 
requirements. While many OSHA recordable injuries and illnesses may be 
compensable under an insurance program, others are not. Furthermore, 
many employers use a workers' compensation or insurance form in lieu of 
the OSHA supplementary record. However, some employers who use these 
forms in lieu of the OSHA supplementary record mistakenly believe that 
completing the forms for OSHA recordkeeping purposes automatically 
makes the case compensable. While reducing the paperwork burden on 
employers, perhaps this equivalency option perpetuates this 
misunderstanding and should be eliminated.
    Many companies use the information from the OSHA records to 
establish ``accountability systems'' for management as well as their 
safety and health professionals. Often these systems are linked to 
performance evaluations of the affected individuals. These performance 
evaluations may be used to help determine bonuses, promotions, or 
compensation levels. Affected employees may be discouraged from fully 
and accurately recording injuries and illnesses in the OSHA records 
when they may be, or may perceive to be, personally penalized for 
complying with the OSHA recordkeeping requirements.
    The OSHA recordkeeping proposal includes several items intended to 
reduce the effects of these potential problems on the accuracy of the 
records. Certification of the accuracy and completeness of the OSHA Log 
by a responsible company official and disclaimers of a relationship 
between OSHA injury and illness recordkeeping and implications of fault 
for insurance systems are included in the regulatory text and on the 
proposed forms. The ``employer use column'' can be utilized by 
companies to indicate those cases that the firm does not wish to 
include in their internal safety statistics.
    OSHA asks for input on (A) ways to encourage accurate injury and 
illness records, (B) how the confusion between OSHA recordkeeping and 
workers' compensation/insurance requirements can be minimized, and (C) 
how the adverse effect of accountability systems on the OSHA records 
can be reduced.
    Issue 7. Improving employee involvement. The Keystone report stated 
that overall workplace safety and health would benefit if the 
information in the injury and illness records were more widely known. 
The report noted that employee involvement and awareness are minimal 
for three reasons: (1) Lack of knowledge that access is permitted, (2) 
fear of employer reprisal, and (3) employee apathy. The Keystone report 
concluded that employee notification could improve employee involvement 
in recordkeeping and enhance the quality of the data, increase 
employees' knowledge of hazards, promote better cooperation between 
employers and employees in reducing hazards, and contribute to safer, 
more healthful workplaces.
    OSHA asks for input on (A) whether employees should be notified 
that their individual injuries and illnesses have been entered into the 
records, (B) the 

[[Page 4048]]
possible mechanisms employers could use to meet such a requirement and 
the degree of flexibility employers should be given, (C) any other 
ideas on methods for improving employee involvement in the injury and 
illness recordkeeping system, and (D) cost (including burden) and 
benefit information on each alternative.
    Issue 8. Access to the OSHA forms and the privacy of injured or ill 
employees. The current regulation and the proposed regulatory text both 
require that employees, former employees, and their designated 
representatives have access to the entire OSHA injury and illness log, 
which includes personal identifiers. Furthermore, the current 
regulation does not provide employees or their designated 
representatives access to the OSHA injury and illness supplementary 
forms while the proposed regulatory text provides employees or 
representatives designated by employees access to all OSHA injury and 
illness supplementary records (proposed OSHA Form 301, Incident Record) 
of the establishment.
    OSHA's historical practice of allowing employee access to all of 
the information on the log permits employees and their designated 
representatives to be totally informed about the employer's 
recordkeeping practices, and the occupational injuries and illnesses 
recorded in the workplace. However, this total accessibility may 
infringe on an individual employee's privacy interest. At the same 
time, the need to access individuals' Incident Records to adequately 
evaluate the safety and health environment of the establishment has 
been expressed.
    These two interests--the privacy interests of the individual 
employee versus the interest in access to health and safety information 
concerning one's own workplace--are potentially at odds with one 
another. For injury and illness recordkeeping purposes, OSHA has taken 
the position that an employee's interest in access to health and safety 
information on the OSHA forms concerning one's own workplace carries 
greater weight than an individual's right to privacy. More complete 
access to the detailed injury and illness records has the potential for 
increasing employee involvement in workplace safety and health programs 
and therefore has the potential for improving working conditions. 
Analysis of injury and illness data provides a wealth of information 
for injury and illness prevention programs. Analyses by workers, in 
addition to analyses by the employer, lead to the potential of 
developing methods to diminish workplace hazards through additional or 
different perspectives.
    OSHA is considering alternatives to the existing and proposed 
regulatory text to address the conflict between the privacy interests 
of the individual and the interest in total access to health and safety 
information concerning one's own workplace. One alternative to the 
regulatory text would be to require the removal of personal identifiers 
for only certain types of cases that might have higher privacy concerns 
than others.
    The alternative described above raises additional questions to 
which the public is invited to respond. What other pieces of 
information, if any, on the currently proposed forms (proposed Forms 
300 and 301--see section IV of this preamble) ought to be considered 
personal identifiers and included on the side of the form which is not 
disclosed once it is folded over? If only certain types of cases should 
be shielded, which types of cases ought to be considered 
``confidential'' and subject to having the personal identifiers 
removed? Should a coding system be used for these cases to enable some 
people, but not others, to have access to the entry information, and if 
so, what type of system? Who should have access to the personal 
identifier information? Should the right to access an individual's 
Incident Record be limited to that individual?
    It is OSHA's intention to make the forms readily accessible to 
employees and employee representatives who can use the information to 
affect safety and health conditions at the workplace. OSHA does not 
intend to provide access to the general public. OSHA asks for input on 
possible methodologies for providing easy access to workers while 
restricting access to the general public. OSHA also asks for input on 
the possible benefits and costs of making the information accessible, 
and any negative results that could occur from such access. 
Specifically, for employers who use State workers compensation, 
insurance, or other forms as equivalents to the OSHA form, are there 
data elements contained on those forms which could not be released to 
employees or their designated representatives? If so, what are those 
data elements? How would this affect the employer's ability to use 
equivalent forms?
    OSHA invites the public to suggest other options or alternative 
regulatory language which would address this issue of confidentiality 
and access to information. Please include any information on costs and 
benefits that will result from these alternatives, including any ideas 
on how to quantify those costs and benefits.
    Issue 9. The development of computer software to assist employers 
in the task of recordkeeping. To make injury and illness recordkeeping 
easier for employers, OSHA is considering the development of 
recordkeeping computer software. Once developed, the program could have 
the following minimum features:
    (a) employ a decision-making logic for determining if an injury or 
illness is recordable, and if so the proper classification, and include 
questions to elicit the necessary information to complete and generate 
the OSHA required records;
    (b) automatic form(s) generation;
    (c) the ability to assist the employer in evaluating the entered 
data through several preset analytical tools (e.g. tables, charts, 
etc.);
    (d) contain a tutorial section to assist employers in training 
employees in proper recordkeeping procedures;
    (e) be in the public domain and/or be available at cost to the 
public.
    OSHA is requesting comments on all facets of this approach toward 
development of software. In addition, OSHA would like to know what 
percentage of employers have computers to assist them in their 
business? What percentage of employers currently use computers for 
tracking employee-related information (payroll, timekeeping, etc.)? 
Should the distribution be through the Government, public domain 
shareware distribution, or other channels? Should OSHA develop the 
software or only provide specifications of its requirements?

IV. Proposed OSHA Forms

    In conjunction with this proposed rulemaking, the OSHA 
recordkeeping forms are also being modified. OSHA is continuing to try 
to reduce the employer's paperwork burden through these modifications 
and reducing the number of duplicate questions on the forms. At this 
point, some duplicate questions remain and are needed for each form to 
``stand alone''. OSHA believes if the duplication were reduced further, 
employers would be required to refer frequently to both forms at the 
same time, which would add additional burden. OSHA requests comment on 
any of these modifications, the remaining duplications, or any other 
related issues to the proposed forms.
    The forms are being included in this preamble for informational 
purposes.
    The OSHA 200 Log will be replaced with the OSHA 300 Log which 
includes reformatted columns and an additional column for the 
employer's use. The 

[[Page 4049]]
proposed elimination of the requirement that employers distinguish 
between injuries and illnesses in order to record a case would 
eliminate the need for separate groups of columns for injuries and 
illnesses on the Log. The proposed elimination of the requirement to 
count days of restricted work activity also eliminates the need for the 
restricted day count columns found on the OSHA 200 Log. The result is a 
simplified form that fits on standard size paper which can easily be 
copied and kept on a personal computer. This also results in space to 
create an employer use column which can be utilized by employers to 
tailor the Log to meet the needs of their particular safety and health 
program. For example, this column could be used by employers to enter 
causation, or injury and illness codes, or other information useful to 
the company. This employer use column may provide employers with 
additional flexibility, reducing their need to maintain multiple sets 
of records for various purposes.
    Cases that end in permanent work restrictions, job transfer, or 
termination of employment will be noted by placing an asterisk next to 
the employee's name. This information could provide employers, 
employees, inspectors and researchers with another measure of severity 
for injuries and illnesses. A statement will be included on the summary 
portion informing employees, former employees, and their designated 
representatives of their right to access the entire Log.
    A disclaimer will be included on the Log which states ``Cases 
listed below are not necessarily eligible for Workers' Compensation or 
other insurance. Listing a case below does not necessarily mean that 
the employer or worker was at fault or that an OSHA standard was 
violated''. The intent of this disclaimer is to dispel the mistaken 
belief that recording a case on the Log affects workers' compensation 
or establishes a finding of fault.
    Some stakeholders have expressed the need for a column containing 
information on cases involving musculoskeletal disorders such as low 
back pain, tendinitis, and carpal tunnel syndrome. OSHA solicits 
comment on the inclusion of an MSD column on the form.
    The Supplementary Record of Occupational Injuries and Illnesses 
(OSHA No.101) will be replaced with the OSHA Injury and Illness 
Incident Record (OSHA Form 301) in order to collect more useful 
information. Additional questions will be added to gather data on the 
events leading up to the injury or illness; on the equipment, material, 
or substance involved; and on the activity taking place when the injury 
or illness occurred. An employer use section will be added to provide 
the employer with space to record any additional information that is 
desired. A statement will be included on the form notifying employees, 
former employees, and their designated representatives of their right 
to access all OSHA injury and illness records of the establishment.
    While the new OSHA 300 Log presents information on injuries and 
illnesses in a condensed format, an Incident Record provides more 
detailed information about the affected worker, the injury or illness, 
workplace factors associated with the accident, and a brief description 
of how the injury or illness occurred.
    Currently, many employers use their insurance or State workers' 
compensation forms in place of the supplementary record. This reduces 
the burden on employers by allowing them to fill out a single form for 
multiple purposes. Several States have notified OSHA that they intend 
to modify their forms to qualify as equivalents to the OSHA form. OSHA 
anticipates that many other States will also modify their forms to 
qualify as equivalents to the OSHA form so employers may continue to 
have the benefit of interchangeable forms. OSHA is currently working 
with the International Association of Industrial Accident Boards and 
Commissions (IAIABC) to standardize the recording forms for 
occupational injuries and illnesses.
    OSHA also requests comment on the concept of a single form which 
would meet all of the informational needs of the recordkeeping system. 
What items would be included? What format would be used? How would the 
use of a single form, as opposed to two forms, affect the employers 
ability to use State Workers Compensation forms as equivalents to the 
OSHA form?
    Information concerning the establishment name and address and the 
employee's social security number, regular job title, and the 
department in which the injured person is regularly employed will no 
longer be requested.

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V. Legal Authority

    The primary purpose of the Occupational Safety and Health Act (the 
Act), 29 U.S.C. 651 et seq., is to assure so far as possible, safe and 
healthful working conditions for every American worker over the period 
of his or her working lifetime. The Secretary's responsibilities under 
the Act are defined largely by its enumerated purposes, which include:
    Encouraging employers and employees in their efforts to reduce the 
number of occupational safety and health hazards at their places of 
employment, and to stimulate employers and employees to institute new 
and to perfect existing programs for providing safe and healthful 
working conditions. [29 U.S.C. 651(b)(1)]
    Building upon advances already made through employer and employee 
initiative for providing safe and healthful working conditions. [29 
U.S.C. 651(b)(4)]
    Providing for research in the field of occupational safety and 
health * * * developing innovative methods, techniques, and approaches 
for dealing with occupational safety and health problems. [29 U.S.C. 
651(b)(5)]
    Exploring ways to discover latent diseases, establishing causal 
connections between diseases and work in environmental conditions, and 
conducting other research relating to health problems * * * [29 U.S.C. 
651(b)6)]
    Providing medical criteria which will assure insofar as practicable 
that no employee will suffer diminished health, functional capacity, or 
life expectancy as a result of his [or her] work experience. [29 U.S.C. 
651(b)(7)]
    Providing for appropriate reporting procedures with respect to 
occupational safety and health which will help achieve the objectives 
of this Act and accurately describe the nature of the occupational 
safety and health problems. [29 U.S.C. 651(b)(12)]
    Encouraging joint labor-management efforts to reduce injuries and 
disease arising out of employment. [29 U.S.C. 651(b)(13)]
    Several sections of the Act provide legal authority for 
promulgation and enforcement of this regulation. A summary of relevant 
sections is provided below:
    Section 8(c)(1) of the Act, requires each employer to ``make, keep 
and preserve, and make available to the Secretary [of Labor] or the 
Secretary of Health and Human Services, such records regarding his 
activities relating to this Act as the Secretary, in cooperation with 
the Secretary of Health and Human Services, may prescribe by regulation 
as necessary or appropriate for the enforcement of this Act or for 
developing information regarding the causes and prevention of 
occupational accidents and illnesses.'' Section 8(c)(2) further 
provides that the ``Secretary, in cooperation with the Secretary of 
Health and Human Services, shall prescribe regulations requiring 
employers to maintain accurate records of, and to make periodic reports 
on, work-related deaths, injuries and illnesses other than minor 
injuries requiring only first aid treatment and which do not involve 
medical treatment, loss of consciousness, restriction of work or 
motion, or transfer to another job.'' Section 8(c)(3) empowers the 
Secretary to require employers to make, keep, and preserve records 
regarding activities related to the Act. In particular, section 8(c)(3) 
gives the Secretary authority to require employers to ``maintain 
accurate records of employee exposures to potentially toxic materials 
or harmful physical agents which are required to be monitored or 
measured under Section 6.'' [29 U.S.C. 657(c)]
    Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and 
publish, either in summary or detailed form, all reports or information 
obtained under this section.'' Section 8(g)(2) of the Act empowers the 
Secretary ``to prescribe such rules and regulations as he may deem 
necessary to carry out his responsibilities under the Act.'' [29 U.S.C. 
657(g)]
    Section 9 empowers the Secretary to issue a citation to an employer 
who the Secretary believes ``has violated a requirement * * * of any 
regulations prescribed pursuant to this Act'' and may, pursuant to 
Section 10, assess a penalty under Section 17. [29 U.S.C. 658 and 659]
    Section 20 empowers the Secretary of Labor and the Secretary of 
Health and Human Services to consult on research and related 
activities, ``including studies of psychological factors involved, and 
relating to innovative methods, techniques, and approaches for dealing 
with occupational safety and health problems.'' The Secretary of HHS, 
on the basis of such research, ``* * * and other information available 
to him, shall develop criteria dealing with toxic materials and harmful 
physical agents and substances which will describe exposure levels that 
are safe for various periods of employment, including but not limited 
to the exposure levels at which no employee will suffer impaired health 
or functional capacities or diminished life expectancy as a result of 
his work experience.'' Also, the Secretary of HHS shall conduct 
research ``to explore new problems, including those created by new 
technology in occupational safety and health, which may require 
ameliorative action beyond that which is otherwise provided for in the 
operating provisions of this Act.'' Section 20 empowers the Secretary 
of Labor to disseminate information obtained by the Secretaries of 
Labor and HHS under this section to employers, employees, and 
organizations thereof. [29 U.S.C. 669]
    Section 24 requires the Secretary to ``develop and maintain an 
effective program of collection, compilation, and analysis of 
occupational safety and health statistics * * * The Secretary shall 
compile accurate statistics on work injuries and illnesses which shall 
include all disabling, serious, or significant injuries and illnesses, 
whether or not involving loss of time from work, other than minor 
injuries requiring only first aid treatment and which do not involve 
medical treatment, loss of consciousness, restriction of work or 
motion, or transfer to another job.'' Section 24 also empowers the 
Secretary to ``promote, encourage, or directly engage in programs of 
studies, information and communication concerning occupational safety 
and health statistics.'' Finally, Section 24 requires employers to 
``file such reports with the Secretary as he shall prescribe by 
regulation, as necessary to carry out his functions under this 
chapter.'' [29 U.S.C. 673]

VI. State Plans

    The 25 States and territories with their own OSHA approved 
occupational safety and health plans must adopt a comparable rule. 
These 25 States are: Alaska, Arizona, California, Hawaii, Indiana, 
Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, 
North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, 
Vermont, Virginia, Virgin Islands, Washington, and Wyoming; and 
Connecticut and New York (for State and local Government employees 
only). The current 29 CFR 1952.4 requires that such States with 
approved State plans under section 18 of the OSH Act (29 U.S.C. 667), 
must adopt recordkeeping and reporting regulations which are 
``substantially identical'' to those set forth in 29 CFR Part 1904. 
Therefore, the definitions used must be identical to ensure the 
uniformity of collected information. In addition, Sec. 1952.4 provides 
that employer variances or exceptions to State recordkeeping or 
reporting requirements in a State plan State must be approved by the 
Bureau 

[[Page 4055]]
of Labor Statistics. Similarly, a State is permitted to require 
supplemental reporting or recordkeeping data, but that State must 
obtain approval from the Bureau of Labor Statistics to insure that the 
additional data will not interfere with ``the primary uniform reporting 
objectives.'' The proposed revision of 29 CFR 1952.4 keeps the same 
substantive requirements for the State Plan States, but reflects the 
organizational shift of some responsibilities of the Bureau of Labor 
Statistics to OSHA. See also the memorandum of understanding between 
OSHA and BLS effective January 1, 1991 (ex. 6).

VII. Regulatory Impact Assessment

    The average establishment affected by the proposed changes to the 
recordkeeping requirements would incur a net reduction in recordkeeping 
costs. Thus the proposed rule will not impose adverse economic impacts 
on firms in the regulated community. The proposed exemption from the 
regulation of all non-construction establishments with fewer than 20 
employees will mean that most small entities will experience an even 
larger cost savings. Nor is any significant international effect 
expected.

VIII. Regulatory Flexibility Certification

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
the Assistant Secretary certifies that the proposed rule will not have 
a significant adverse impact on a substantial number of small entities. 
The proposed rule exempts construction employers with less than eleven 
employees and non-construction employers with less than twenty 
employees from most of the requirements, and would not have a 
differential impact on small businesses.

IX. Environmental Impact Assessment

    In accordance with the requirements of the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), Council on Environmental 
Quality NEPA regulations (40 CFR Part 1500 et seq.), and the Department 
of Labor's NEPA regulations (29 CFR Part 11), the Assistant Secretary 
has determined that this proposed rule will not have a significant 
impact on the external environment.

X. Federalism

    This proposed rule has been reviewed in accordance with Executive 
Order 12612 (52 FR 41685), regarding Federalism. Because this 
rulemaking action involves a ``regulation'' issued under section 8 of 
the OSH Act, and not a ``standard'' issued under section 6 of the Act, 
the rule does not preempt State law, see 29 U.S.C. Sec. 667 (a). The 
effect of the proposed rule on States is discussed above in Section VI, 
State Plans.

XI. Public Participation

    Interested persons are requested to submit written comments on the 
issues raised in this proposal. Responses to the questions raised in 
the proposal are also encouraged. Whenever possible, solutions should 
be included where the comments are of a critical nature. Written 
submissions must clearly identify the provisions of the proposal which 
are addressed and the position taken on each issue.
    These comments must be postmarked by May 2, 1996. Comments are to 
be submitted in writing in quadruplicate, or 1 original (hard copy) and 
1 disk(5 \1/4\ or 3 \1/2\) in WP 5.0, 5.1, 5.2, 6.0 or ascii. Note: Any 
information not contained on disk; e.g., studies, articles, etc. must 
be submitted in quadruplicate. Comments of 10 pages or less may be 
transmitted by facsimile to (202) 219-5046 provided the original and 4 
copies of the comment are sent to the Docket Officer thereafter. All 
comments shall be submitted to: Docket Officer, Docket No. R-02, 
Occupational Safety and Health Administration, Room N-2625, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210, telephone (202) 219-7894.
    All written comments received within the specified comment period 
will be made a part of the record and will be available for inspection 
and copying at the above Docket Office address.
    A public meeting will be held in Washington, D.C. in the U.S. 
Department of Labor auditorium at 200 Constitution Avenue, N.W. 
beginning at 8:30 AM on March 26, 1996 and extending through March 
28th, if necessary. The purpose of the meeting is to give the public an 
opportunity to provide information to OSHA concerning the proposed 
rule. Notices of intention to appear at the public meeting should 
identify person and organization, the amount of time requested for 
presenting views, the subject matter, and a brief summary of the 
intended presentation. The amount of time available for each presenter 
may be limited by OSHA, if necessary. Notices to appear must be 
postmarked on or before March 5, 1996. Notice of intention to appear at 
the meeting is to be sent to Mr. Tom Hall, OSHA Division of Consumer 
Affairs, Docket No. R-02, Room N-3647, U.S. Department of Labor, 200 
Constitution Avenue, N.W., Washington, D.C., 20210.

XII. Paperwork Reduction Act of 1995

    The proposed regulation contains information collections which are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995. The title, summary, description of 
need, respondent description and estimated reporting and recordkeeping 
burden are shown below. Included in the estimate of burden is the time 
and effort for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, completing and reviewing the 
collection of information, and financial resources expended for 
developing, acquiring, installing, and utilizing technology and systems 
to meet the information collection requirements.
    Title: Recording and Reporting Occupational Injuries and Illnesses.
    Summary: OSHA is revising 29 CFR 1904 and the associated Forms 
(OSHA No. 200 and OSHA No. 101), and in addition to providing numerous 
clarifications and minor modifications, this revision makes several 
major changes as follows:

------------------------------------------------------------------------
           Concept                         Change/requirement           
------------------------------------------------------------------------
Exemptions...................  Expand the Small Employer exemption and  
                                modify the Low Hazard Industry (SIC)    
                                exemption.                              
Injury and Illness Records     Require site controlling employers in the
 for construction               construction industry to maintain       
 subcontractors.                additional records on workers other then
                                their own employees.                    
Computerization..............  Allow employers to maintain their OSHA   
                                injury and illness records on computer  
                                file without corresponding hard copies. 
Injury vs Illness............  Eliminate the employer responsibility to 
                                distinguish between injuries and        
                                illnesses.                              
Recordable condition.........  Redefine the criteria outlining what is a
                                recordable occupational injury or       
                                illness.                                
Forms........................  The forms will be requesting modified    
                                information and will be renumbered as   
                                the OSHA Form 300 (OSHA Injury and      
                                Illness Log and Summary) and the OSHA   
                                Form 301 (OSHA Injury and Illness       
                                Incident Record).                       
------------------------------------------------------------------------

 
[[Page 4056]]


    Description of need: The OSHA Form 300, Log and Summary; the OSHA 
Form 301, Incident Record; and the recordkeeping regulations will 
provide employers with the means and specific instructions needed to 
maintain records of work-related injuries and illnesses.
    Accurate records are necessary for the optimal prioritization of 
OSHA's scarce resources. For example, inspection priorities are largely 
based on estimates of occupational injury and illness data collected 
from employers. The data also play an important part in the 
administrative procedures mandated by the Supreme Court that allow OSHA 
to obtain search warrants to conduct safety and health inspections. 
Others using the data include State and local government agencies, 
academia, employers, trade associations, labor, and the general public.
    Efforts to the fulfill the Congressional mandate that the Federal 
government protect employees from safety and health dangers on the job 
would be severely hampered by incomplete, inconsistent, and inaccurate 
data. The revision of the recordkeeping requirements is an attempt to 
improve the accuracy, completeness and consistency of these records, 
while reducing the paperwork burden to the regulated community.
    Respondent description: Approximately 620,000 private sector 
employer establishments will be required to maintain the OSHA Injury 
and Illness Log and Summary and Incident Records, though a small number 
of them will not have a recordable case in any given year and will only 
have to post the summary part of the OSHA Form 300.
    Estimated Burden:

                             Employers' Burden for the Proposed Revised Requirements                            
----------------------------------------------------------------------------------------------------------------
                                                                                                        Total   
           Actions                          Number of cases                  Unit hours per case        burden  
                                                                                                        hours   
----------------------------------------------------------------------------------------------------------------
Complete OSHA 301 (Includes    508,895 Forms...........................  .28 (17 min/60 min).......      142,490
 research of instructions and                                                                                   
 case details to complete the                                                                                   
 form).                                                                                                         
Complete OSHA 300 (Includes    5,088,948 Line entries..................  .166 (10 min/60 min)......      844,765
 research of instructions and                                                                                   
 case details to complete the                                                                                   
 form).                                                                                                         
Injury and illness records     74,822 Line entries.....................  .166 (10 min/60 min)......       12,420
 for construction subcontract                                                                                   
 workers.                                                                                                       
Fixed burden (Set-up,          620,879 Establishments..................  .30 (18 min/60 min).......      186,264
 Summary, and Posting of OSHA                                                                                   
 300).                                                                                                          
Learning System--Turnover....  124,176 Establishments..................  .42 (25 min/60 min).......       52,153
Disclosure burden *..........  444,222 employee requests...............  .016 (1 min/60 min).......        7,107
                               40,000 Inspections......................  .033 (2 min/60 min).......        1,320
                                                                                                    ------------
      Total Annual Burden      ........................................  ..........................    1,246,519
       Hours.                                                                                                   
                                                                                                    ------------
Learning New System            458,518 Establishments..................  .25 (15 min/60 min).......      114,629
 Implementation year only.                                                                                      
                               162,361 Establishments..................  .42 (25 min/60 min).......       68,192
                                                                                                    ------------
      Total Burden Hours for   ........................................  ..........................   1,429,340 
       Implementation Year                                                                                      
       Only.                                                                                                    
----------------------------------------------------------------------------------------------------------------
 *Based on estimates of OSHA compliance inspections conducted during 1993.                                      

    This is an annual decrease in burden of 246,191 hours from the 
estimate of the current injury and illness recordkeeping requirements, 
after a smaller decrease of 63,370 hours in the initial year of 
implementation due to time required to learn the new system. The 
decrease in hours is primarily due to the simplification of definitions 
and the reduction of information required on the OSHA Log and 
supplementary forms.
    The agency has submitted a copy of the proposed rule to OMB in 
accordance with 44 U.S.C. Sec. 3507(d) of the Paperwork Reduction Act 
for its review of these information collections. Interested persons are 
invited to send comments regarding this burden estimate or any other 
aspect of this collection of information, including (1) an evaluation 
of whether the proposed collection of information ensures that the 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) an evaluation of the accuracy of the 
agency's estimate of burden of the proposed collection of information, 
including the validity of the methodology and assumptions used; (3) 
ways to enhance the quality, utility, and clarity of the information to 
be collected; and (4) how to minimize the burden of the collection of 
information, including through the use of appropriate automated, 
electronic, mechanical or other technological collection techniques or 
other forms of information technology, e.g. permitting electronic 
submission of responses. In addition, OSHA requests comment on the 
nature and extent of any cost burdens, (i.e., monetary costs) that 
employers would incur due to changes in paperwork requirements that 
would be necessitated by this proposal. Comments should be sent to OSHA 
Office of Statistics, 200 Constitution Avenue, N.W., Washington, DC 
20210 and to the Office of Information and Regulatory Affairs, OMB, 
Room 10235, New Executive Office Building, Washington, DC 20503, Attn. 
Desk Officer for OSHA. Comments on the issues covered by the Paperwork 
Reduction Act are most useful to OMB if received within 30 days of 
publication of the Notice of Proposed Rulemaking, and no later than 
within 60 days of publication.

List of Subjects

29 CFR Part 1904

    Recording and reporting of occupational injuries and illnesses, 
statistical surveys of occupational injuries and illnesses, 
occupational safety and health, State plans.

29 CFR Part 1952

    Recording and reporting of occupational injuries and illnesses, 
variances to State recording and reporting requirements, injury and 
illness statistics, State plans.

XIII. Authority

    This document was prepared under the direction of Joseph A. Dear, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Washington, DC 
20210.
    Accordingly, pursuant to sections 8(c), 8(g), 20 and 24 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), 
Secretary of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, it 

[[Page 4057]]
is proposed to revise 29 CFR Part 1904 and to amend part 1952 as set 
forth below.

    Signed in Washington, DC., this 26 day of January, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.

PART 1904--[AMENDED]

    1. 29 CFR Part 1904 would be revised to read as follows:

PART 1904--RECORDING AND REPORTING OCCUPATIONAL INJURIES AND 
ILLNESSES

Sec.
1904.1  Purpose.
1904.2  Coverage and exemptions.
1904.3  Definitions.
1904.4  OSHA Injury and Illness Log and Summary (OSHA Form 300 or 
Equivalent).
1904.5  OSHA Injury and Illness Incident Record (OSHA Form 301 or 
Equivalent).
1904.6  Preparation, certification and posting of the year-end 
summary.
1904.7  Location of records.
1904.8  Period covered.
1904.9  Retention and updating of occupational injury and illness 
records.
1904.10  Change of ownership.
1904.11  Access to records.
1904.12  Reporting of fatality or multiple hospitalization 
incidents.
1904.13  Reports by employers.
1904.14  Recordkeeping under approved State plans.
1904.15  Petitions for recordkeeping exceptions.
1904.16  Falsification of, or failure to keep records or provide 
reports.
1904.17  Subcontractor records for major construction projects.
Appendix A to Part 1904--Work-Relatedness.
Appendix B to Part 1904--Recording of Specific Conditions.
Appendix C to Part 1904--Decision Tree for Recording Occupational 
Injuries and Illnesses.

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553.


Sec. 1904.1  Purpose.

    (a) The purpose of this Part is to require employers to record and 
report work-related injuries, illnesses and fatalities. The records: 
assist employers and employees in their efforts to discover, evaluate 
and address workplace hazards; assist occupational safety and health 
officials in carrying out enforcement and consultation programs; aid in 
the development and evaluation of safety and health standards; are used 
to develop information and conduct research regarding the causes and 
prevention of occupational injuries and illnesses; and accurately 
describe the nature of occupational safety and health problems for the 
Nation, State or establishment.
    (b) The records required in this Part provide descriptive 
information concerning the incidence of occupational injuries and 
illnesses, regardless of fault or preventability. Recording an injury 
or illness does not necessarily mean that the employer or employee was 
at fault, that an OSHA standard was violated, or that the employee is 
eligible for workers' compensation or other insurance benefits. 
Recordable workplace injuries and illnesses result from a variety of 
workplace events or exposures, including but not limited to: accidents, 
exposure to toxic materials or harmful physical agents, intentional 
acts of violence, or naturally occurring events such as a tornado or 
earthquake.
    (c) The regulations in this Part were promulgated in consultation 
with the Secretary of Health and Human Services.


Sec. 1904.2  Coverage and exemptions.

    Coverage and exemptions are summarized below and specified in the 
following table. See table to determine coverage and exemptions.
    (a) Coverage. (1) All employers covered by the Act, regardless of 
size or Standard Industrial Classification (SIC), are required to:
    (i) Comply with the reporting requirements of Sec. 1904.12 of this 
Part, concerning fatalities or multiple hospitalizations; and
    (ii) Upon being notified in writing by an authorized government 
agency, maintain an OSHA Injury and Illness Log and Summary and make 
reports under Sec. 1904.13 of this Part.
    (2) Additionally, employers in specific industries listed in 
columns A and B on the following table are required to comply with 
other regulations in this Part 1904, except as provided in paragraph 
(b) of this section.
    (b) Exemptions. Exemptions from coverage are based upon size and 
the Standard Industrial Classification (SIC) of the employer:
    (1) Size. (i) Construction employers with 10 or fewer employees for 
the entire previous calendar year are exempt from the regulations of 
this Part 1904, except as noted in paragraph (a)(1) of this section. 
See column D of the Coverage and Exemption Table in paragraph (b)(2) of 
this section.
    (ii) Employers in industries other than construction with 19 or 
fewer employees for the entire previous calendar year are exempt from 
the regulations of this Part 1904, except as noted in paragraph (a)(1) 
of this section. See column D of the Coverage and Exemption Table in 
paragraph (b)(2) of this section.
    (2) Standard Industrial Classification (SIC) code. Within the 
covered industries (column B), certain specific industries (at the 3-
digit SIC level) are exempt from the regulations of this Part 1904, 
except as noted in paragraph (a)(1) of this section. See column C for 
the list of exempt SICs.

    Note to paragraph (b)(2): Standard Industrial Classification 
(SIC) shall be determined using the Standard Industrial 
Classification Manual, Executive Office of the President, Office of 
Management and Budget. All size thresholds or exemptions are based 
on the number of employees of the entire firm or corporation, not 
the number of employees in an individual establishment.

Coverage and Exemption Table

    Note 1 to Coverage and Exemption Table: All employers covered by 
the OSH Act, regardless of size or SIC code are required to comply 
with Secs. 1904.12 and 1904.13. The following table refers to 
coverage and exemptions to the other requirements of Part 1904.

----------------------------------------------------------------------------------------------------------------
                        Covered employers                           Exemptions to employers listed in column B  
----------------------------------------------------------------------------------------------------------------
     (A) Industry division            (B) Specific industry             (C) By SIC              (D) By size     
----------------------------------------------------------------------------------------------------------------
Construction..................  All Industries (SIC 15-17)......  ......................  10 or fewer employees 
                                                                                           for the entire       
                                                                                           previous calendar    
                                                                                           year.                
Mining........................  All Industries not covered by     ......................  19 or fewer employees 
                                 MSHA.                                                     for the entire       
                                                                                           previous calendar    
                                                                                           year.                
Agriculture...................  All Industries (SIC 01-09)                                                      
Manufacturing.................  All Industries (SIC 20-39)                                                      
Transportation & Utilities....  All Industries (SIC 40-49)                                                      
Wholesale.....................  All Industries (SIC 50-51)                                                      

[[Page 4058]]
                                                                                                                
Retail........................  SIC 52 Building Materials,        SIC 525 Hardware                              
                                 Hardware Garden Supply and        Stores.                                      
                                 Mobile Home Dealers,.                                                          
                                SIC 53 General Merchandise                                                      
                                 Stores,                                                                        
                                SIC 54 Food Stores,                                                             
                                SIC 553 Auto and Home Supply                                                    
                                 Stores,                                                                        
                                SIC 555 Boat Dealers,                                                           
                                SIC 571 Home Furniture and                                                      
                                 Furnishings Stores,                                                            
                                SIC 58 Eating and Drinking                                                      
                                 Places,                                                                        
                                SIC 596 Nonstore Retailers,                                                     
                                SIC 598 Fuel Dealers.                                                           
Finance, Insurance & Real       SIC 651 Real Estate Operators                                                   
 Estate.                         and Lessors and SIC 655 Land                                                   
                                 Subdividers and Developers.                                                    
Services......................  SIC 70 Hotels, Rooming Houses,    SIC 752 Automobile                            
                                 Camps and Other Lodging Places;.  Parking;                                     
                                SIC 721 Laundry, Cleaning, and    SIC 764 Reupholstery                          
                                 Garment Services;.                and Furniture Repair;                        
                                SIC 734 Services to Dwellings     SIC 793 Bowling                               
                                 and Other Buildings;.             Centers;                                     
                                SIC 735 Miscellaneous Equipment   SIC 801 Offices and                           
                                 Rental and Leasing;.              Clinics of Doctors of                        
                                                                   Medicine;                                    
                                SIC 736 Personnel Supply          SIC 807 Medical and                           
                                 Services;.                        Dental Laboratories;                         
                                                                   and                                          
                                SIC 75 Automotive Repair,         SIC 809 Miscellaneous                         
                                 Services, and Parking;.           Health and Allied                            
                                                                   Services, Not                                
                                                                   Elsewhere Classified.                        
                                SIC 76 Miscellaneous Repair                                                     
                                 Services;                                                                      
                                SIC 79 Amusement and Recreation                                                 
                                 Services;                                                                      
                                SIC 80 Health Services;                                                         
                                SIC 833 Job Training and                                                        
                                 Vocational Rehabilitation                                                      
                                 Services;                                                                      
                                SIC 836 Residential Care;                                                       
                                SIC 842 Arboreta and Botanical                                                  
                                 or Zoological Gardens; and                                                     
                                SIC 869 Membership Organizations                                                
                                 Not Elsewhere Classified.                                                      
----------------------------------------------------------------------------------------------------------------
Note 2 to Coverage and Exemption Table: Some States with their own occupational safety and health programs do   
  not recognize the Federal recordkeeping exemptions. Contact your nearest OSHA office or State agency to find  
  out if State requirements differ.                                                                             
Note 3 to Coverage and Exemption Table: SICs are from the Standard Industrial Classification Manual, 1987: U.S. 
  Office of Management and Budget. Contact your nearest OSHA office or State agency for help in determining your
  SIC.                                                                                                          
Note 4 to Coverage and Exemption Table: The size exemption is based on the employment of the entire firm, not of
  an individual establishment. Employees include part-time workers and corporate officers.                      
Note 5 to Coverage and Exemption Table: Employers normally exempt from the recordkeeping requirements must still
  comply with the following:                                                                                    
(1) Report any occupational fatality or event resulting in the hospitalization of 3 or more employees as        
  required by Section 1904.12; and                                                                              
(2) Maintain an OSHA Injury and Illness log and Summary and submit reports if directed in writing to do so by an
  authorized government agency as required by Section 1904.13.                                                  
Note 6 to Coverage and Exemption Table: Example of how to read the Coverage and Exemption Table: Employers in   
  SIC 52 (Building Materials, Hardware Garden Supply and Mobile Home Dealers) are covered by the regulation     
  except for employers with 19 or fewer employees in the previous calendar year and Hardware Stores (SIC 525) of
  any size.                                                                                                     




Sec. 1904.3  Definitions.

    The following definitions apply to employer recording and reporting 
of occupational fatalities, injuries and illnesses.
    Act means the Occupational Safety and Health Act of 1970 (84 Stat. 
1590 et seq., 29 U.S. 651 et seq.). The definitions contained in 
section (3) of the Act and related interpretations shall be applicable 
to such terms when used in this Part 1904.
    Days away from work means the number of days the employee would 
have worked but could not because of an occupational injury or illness. 
Days away from work do not include the day the employee was injured or 
became ill and days on which the employee would not have worked even 
though able to work (e.g. weekends, holidays, pre-scheduled vacation 
days, etc.). The count of days away from work ceases with the 
termination of employment if the termination is completely unrelated to 
the employee's injury or illness. If the termination is related to the 
employee's injury or illness, the employer must enter an estimate of 
the number of days that would have been missed had the employee not 
been terminated. For extended cases that result in 180 or more days 
away from work, an entry of ``180'' or ``180+'' in the days away from 
work column shall be considered an accurate count.
    Employee as defined in section 3 of the Act, means an employee of 
an employer who is employed in a business of his or her employer which 
affects commerce.

    Note to definition of ``Employee'': There are a variety of 
circumstances which result in an employee/employer relationship for 
OSHA recordkeeping purposes. The following is meant to be 
illustrative only, and not meant to be an exhaustive list. Employees 
include corporate officers as well as full- time, part-time, 
temporary and limited service workers who receive any form of 
compensation for their services. Employees include persons who may 
be labeled ``independent contractors'', or migrant workers, and 
persons who are provided by a temporary help service or personnel 
leasing agent when they are supervised on a day-to-

[[Page 4059]]
day basis by the employer utilizing their services. Day-to-day 
supervision occurs when, in addition to specifying the output, 
product or result to be accomplished by the person's work, the 
employer supervises the details, means, methods and processes by 
which the work is to be accomplished. Employees do not include sole 
proprietors, partners, family members of farm employers or domestic 
household workers when employed in the home (baby sitters, 
housekeepers, gardeners, etc.).

    Establishment means:
    (1) A single physical location that is in operation for 60 calendar 
days or longer where business is conducted or where services or 
industrial operations are performed. (For example: A factory, mill, 
grocery store, construction site, hotel, farm, ranch, hospital, central 
administrative office, or warehouse.) The establishment includes the 
primary work facility and other areas such as recreational and storage 
facilities, restrooms, hallways, etc. The establishment does not 
include company parking lots.
    (2) When distinct and separate economic activities are performed at 
a single physical location, each activity may represent a separate 
establishment. For example, contract construction activities conducted 
at the same physical location as a lumber yard may be treated as 
separate establishments. According to the Standard Industrial 
Classification (SIC) Manual, Executive Office of the President, Office 
of Management and Budget, (1987) each distinct and separate activity 
should be considered an establishment when no one industry description 
from the SIC manual includes such combined activities, and the 
employment in each such economic activity is significant, and separate 
reports can be prepared on the number of employees, their wages and 
salaries, sales or receipts, or other types of establishment 
information.
    First aid means the following treatments for work-related injuries 
and illnesses. This list is a comprehensive list of all treatments 
considered first aid for recordkeeping purposes. These treatments are 
considered ``first aid'', regardless of the provider, thus they may be 
provided by a physician, nurse, or other health care provider and are 
still considered first aid.
    (1) Visit(s) to a health care provider limited to observation
    (2) Diagnostic procedures, including the use of prescription 
medications solely for diagnostic purposes (e.g. eye drops to dilate 
pupils)
    (3) Use of nonprescription medications, including antiseptics
    (4) Simple administration of oxygen
    (5) Administration of tetanus or diphtheria shot(s) or booster(s)
    (6) Cleaning, flushing or soaking wounds on skin surface
    (7) Use of wound coverings such as bandages, gauze pads, etc.
    (8) Use of any hot/cold therapy (e.g. compresses, soaking, 
whirlpools, non-prescription skin creams/lotions for local relief, 
etc.) except for musculoskeletal disorders (See Mandatory Appendix B)
    (9) Use of any totally non-rigid, non-immobilizing means of support 
(e.g. elastic bandages)
    (10) Drilling of a nail to relieve pressure for subungual hematoma
    (11) Use of eye patches
    (12) Removal of foreign bodies not embedded in the eye if only 
irrigation or removal with a cotton swab is required
    (13) Removal of splinters or foreign material from areas other than 
the eyes by irrigation, tweezers, cotton swabs or other simple means
    Health care provider is a person operating within the scope of his 
or her license, registration or certification in health care.
    Injury or illness is any sign, symptom, or laboratory abnormality 
which indicates an adverse change in an employee's anatomical, 
biochemical, physiological, functional, or psychological condition.
    Medical treatment includes any medical care or treatment beyond 
``first aid''.
    Responsible Company Official is the person accountable for 
certifying the accuracy and completeness of the entries on the OSHA 
Injury and Illness Log and Summary. This person must be either an owner 
of the company, an officer of the corporation, the highest ranking 
company official working at the establishment, or the immediate 
supervisor of the highest ranking company official working at the 
establishment.
    Restricted work activity means the employee is not capable of 
performing at full capacity for a full shift:
    (1) The task he or she was engaged in at the time of injury or 
onset of illness (the task includes all facets of the assignment the 
employee was performing); OR
    (2) His or her daily work activity (daily work activity includes 
all assignments the employee was expected to perform on the day of 
injury or onset of illness).
    Site controlling employer is an employer in the construction 
industry (SIC codes 15, 16 and 17) with contractual, legal and/or 
practical control over the performance, timing, or coordination of 
other employers' work on a construction project with an initial total 
contract value of one million dollars ($1,000,000) or more. An employer 
(such as a general contractor) that retains another employer to work on 
the project is presumed to have sufficient control over the 
subcontractor's performance to be considered a site controlling 
employer. In addition, an employer (such as a construction manager) is 
a site controlling employer if it has managerial or supervisory 
authority with respect to employers engaged on the project, regardless 
of whether it has a contractual relationship with those employers.
    Subcontractor employees are employees of construction firms (in 
SICs 15, 16, and 17) who are present at a construction project in 
connection with their job(s) who are not employees of the site 
controlling employer at that construction project.
    Work environment means the establishment and other locations where 
employees are engaged in work or are present as a condition of their 
employment.
    Work-related. An injury or illness is work-related if an event or 
exposure in the work environment either caused or contributed to the 
resulting condition, or aggravated a pre-existing condition. Work-
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring at the employer's establishment. Work- 
relatedness is not presumed for injuries and illnesses resulting from 
events or exposures away from the employer's establishment; they are 
considered work-related only if the worker is engaged in a work 
activity or is present as a condition of employment. See Mandatory 
Appendix A to part 1904 for a discussion of work-relatedness and 
criteria for rebutting the presumption of work-relatedness.


Sec. 1904.4  OSHA Injury and Illness Log and Summary (OSHA Form 300 or 
Equivalent).

    (a) Each employer shall maintain for each establishment an OSHA 
Injury and Illness Log and Summary [OSHA Form 300 (formerly OSHA No. 
200)] or equivalent form for recordable injuries and illnesses 
experienced by his or her employees. Employers with multiple 
establishments may maintain a consolidated log for establishments 
employing no more than 20 employees. Employers who exercise this option 
must enter the address of the affected employee's establishment in the 
department column for each recorded injury or illness.
    (b) Each employer shall enter every recordable injury and illness 
within 7 calendar days of receiving information 

[[Page 4060]]
that a recordable injury or illness has occurred. A recordable injury 
or illness is one which meets all of the following four criteria:
    (1) An injury or illness exists (see the definition of injury or 
illness for additional information); and
    (2) The injury or illness is work-related (see the definition of 
work-related and Appendix A to part 1904 for additional information); 
and
    (3) The injury or illness is new. A new injury or illness does not 
result from the recurrence of a pre-existing condition if no new or 
additional workplace incident or exposure occurs. A recurrence of a 
previous work related injury or illness is presumed to be a new case 
when it either (1) results from a new work event or exposure, or (2) 45 
days have elapsed since medical treatment, restricted work or days away 
from work were discontinued and the last signs or symptoms were 
experienced;

    (Note: This presumption is rebuttable by medical evidence 
indicating that the prior case had not been resolved.)

and
    (4) The injury or illness meets one or more of the following:
    (i) results in death or loss of consciousness,
    (ii) results in day(s) away from work, restricted work activity or 
job transfer,
    (iii) requires medical treatment beyond first aid, or
    (iv) is a recordable condition listed in the Mandatory Appendix B 
to part 1904.
    (5) See Appendix C to part 1904 for a decision tree for recording 
occupational injuries and illnesses.
    (c) Any employer may maintain the OSHA Injury and Illness Log and 
Summary (OSHA Form 300) on an equivalent form, by means of data 
processing equipment, or both, when all of the following conditions are 
met:
    (1) The equivalent form or computer printout is as readable and 
understandable as the OSHA Form 300 to a person familiar with the OSHA 
Form 300.
    (2) The equivalent form or computer printout must contain, at a 
minimum, the same information as found on the OSHA Form 300.


Sec. 1904.5  OSHA Injury and Illness Incident Record (OSHA Form 301 or 
Equivalent).

    (a) In addition to the OSHA Injury and Illness Log and Summary 
(OSHA Form 300) provided for under Section Sec. 1904.4(a) of this Part, 
each employer, shall complete an OSHA Injury and Illness Incident 
Record [OSHA Form 301 (formerly OSHA Form 101)] for each recordable 
injury or illness experienced by employees of that establishment, 
within 7 calendar days of receiving information that a recordable 
injury or illness has occurred. Each OSHA Form 301 must contain the 
unique case or file number relating it to the corresponding case entry 
on the OSHA Form 300.
    (b) An employer may maintain the OSHA Form(s) 301 on an equivalent 
form(s), by means of data processing equipment, or both, when all of 
the following conditions are met:
    (1) The equivalent form or computer printout is as readable and 
understandable as the OSHA Form 301 to a person familiar with the OSHA 
Form 301.
    (2) The equivalent form or computer printout must contain, all of 
the information found on the OSHA Form 301, or must be supplemented by 
an OSHA Form 301 containing the missing information. The detailed 
information concerning the injury or illness (questions 16, 17 and 18) 
must be asked in the same order and using identical language from the 
Form 301. All other questions may be asked in any manner and in any 
order.


Sec. 1904.6  Preparation, certification and posting of the year-end 
summary.

    (a) Each employer shall post a year-end summary of occupational 
injuries and illnesses for each establishment. This summary shall 
consist of the year's injury and illness totals from the OSHA Form 300 
or equivalent, calendar year covered, company name, establishment name, 
establishment address, annual average number of employees, the total 
hours worked by all employees, and the employee access and employer 
penalty statements as found on the OSHA Form 300. If no injuries or 
illnesses occurred during the year: Zeroes must be entered on the 
totals line; annual average number of employees and total hours worked 
by all employees must be entered; and the form shall be posted. Note: 
The OSHA 300 Log may be used for the summary. The posting requirement 
may be met by simply copying and posting the portion of the 300 Log to 
the right of column A.
    (b) A responsible company official (see the definition of 
responsible company official for further information) shall sign the 
summary of occupational injuries and illnesses to certify that he or 
she has examined the OSHA Injury and Illness Log and Summary and that 
the entries on the form and the year-end summary are true, accurate and 
complete.
    (c)(1) Each employer shall post a copy of the establishment's year-
end summary in each establishment in the same manner that notices are 
required to be posted under 29 CFR 1903.2(a)(1). The summary shall be 
completed and posted no later than February 1 of the year following the 
calendar year covered by the summarized records, and shall remain in 
place until January 31 of the following year.
    (2) For employees who do not primarily report to or work at a 
single establishment, employers shall satisfy this posting requirement 
by presenting or mailing a copy of the summary to each employee who is 
on the payroll at any time during the month of January following the 
calendar year covered by the year-end summary.
    (3) For employers who maintain a consolidated log of small 
establishments under Sec. 1904.4(a), employers shall satisfy this 
posting requirement by posting a year-end summary based on the 
consolidated log in each establishment.
    (4) Multi-establishment employers do not have to post year-end 
summaries for establishments that have permanently closed during the 
calendar year.


Sec. 1904.7  Location of records.

    (a) The records required by Secs. 1904.4, 1904.5, 1904.6 and 
1904.17 for employees and ``subcontractor employees'' who report to or 
work at a single establishment, such as a factory, construction site, 
grocery store, hospital, warehouse, central administrative office, etc. 
shall be kept at the establishment.
    (b) Records for employees who report to a particular establishment 
but work elsewhere shall be kept at the establishment where the 
employees report each day.
    (c) For employees who normally report to one establishment but are 
injured or become ill at another establishment within the same company, 
a recordable injury or illness shall be entered on the Log of the 
establishment in which they were injured or became ill.
    (d) Records for employees who do not report to any establishment on 
a regular basis may be kept at the transient work site(s) for each 
operation or group of operations or they may be kept at an established 
central location by:
    (1) Having the address and telephone number of the central location 
available at each worksite; and
    (2) Having personnel available at the central location during 
normal business hours to provide information from the records kept 
there.
    (e) Any employer may keep the OSHA Form 300 or OSHA Form(s) 301 at 
a location other than the establishment, as long as the information is 
retrievable in 

[[Page 4061]]
accordance with the provisions defined in Sec. 1904.11, Access to 
records.


Sec. 1904.8  Period covered.

    Records shall be kept on a calendar year basis.


Sec. 1904.9  Retention and updating of work-related injury and illness 
records.

    (a) Retention. OSHA Forms 300 and 301 or equivalents, year-end 
summaries, and injury and illness records for ``subcontractor 
employees'' as required under Sec. 1904.17 of this Part shall be 
retained for 3 years following the end of the year to which they 
relate.
    (b) Updating. During the retention period, employers must revise 
the OSHA Form 300 or equivalent to include newly discovered recordable 
injuries or illnesses. Employers must revise the OSHA Form 300 to 
reflect changes which occur in previously recorded injuries and 
illnesses. If the description or outcome of a case changes, remove the 
original entry and enter the new information to reflect the more severe 
consequence. Employers must revise the year-end summary at least 
quarterly if such changes have occurred.

    Note to Sec. 1904.9: Employers are not required to update OSHA 
Form 301 to reflect changes in previously recorded cases.


Sec. 1904.10  Change of ownership.

    Where an establishment has changed ownership, each employer shall 
be responsible for recording and reporting occupational injuries and 
illnesses only for that period of the year during which he or she owned 
such establishment, but the new owner shall retain all records of the 
establishment kept by the prior owner, as required by Sec. 1904.9(a) of 
this Part.


Sec. 1904.11  Access to records.

    (a) Government Representatives. Each employer shall provide, upon a 
request made in person or in writing, copies of the OSHA Forms 300 and 
301 or equivalents, and year-end summaries for their own employees, and 
injury and illness records for ``subcontractor employees'' as required 
under this Part to any authorized representative of the Secretary of 
Labor or Secretary of Health and Human Services or to any authorized 
representative of a State accorded jurisdiction for occupational safety 
and health for the purposes of carrying out the Act.
    (1) When the request is made in person, the information must be 
provided in hard copy (paper printout) within 4 hours. If the 
information is being transmitted to the establishment from some other 
location, using telefax or other electronic transmission, the employer 
may provide a copy to the government representative present at the 
establishment or to the government representative's office.
    (2) When the request is made in writing, the information must be 
provided within 21 days of receipt of the written request, unless the 
Secretary requests otherwise.
    (b) Employee(s), former employee(s) and/or their designated 
representative(s). (1) Upon request, the employer shall make the OSHA 
Form 300 or equivalent available for viewing by an employee(s), former 
employee(s), and/or their designated representative(s) by the close of 
business on the next scheduled work day. The employee, former employee, 
and/or their designated representative(s) shall have access to the 
entire OSHA Form 300 (Log), including personal identifiers, for any 
establishment in which the employee is or has been employed. This 
includes access to the current Log and all Logs retained and maintained 
pursuant to Sec. 1904.9.
    (2) Upon request, the employer shall make available to an 
employee(s) or former employee(s) for viewing his or her OSHA Form(s) 
301 or equivalent for his or her own recordable injury or illness by 
the close of business on the next scheduled workday.
    (3) The employer shall also make copies available within 7 calendar 
days whenever an individual who has a right to view a record(s) listed 
in paragraphs (b) (1) and (2) of this section requests a copy, either 
in person or in writing. The employer shall not, in writing or 
otherwise, attempt to restrict the employees' use of such copies. The 
employer shall assure that either:
    (i) A copy of the record(s) is provided without cost to the 
individual;
    (ii) The necessary copying facilities (e.g., photocopying) are made 
available without cost to the individual for copying the record(s); or
    (iii) The record(s) is loaned to the individual for a reasonable 
time to enable a copy to be made.
    (4) Whenever a record has been previously provided without cost to 
an employee(s), former employee(s) and/or their designated 
representative(s), the employer may charge reasonable, non-
discriminatory administrative costs (i.e. search and copying expenses 
but not including overhead expenses) for a request by the same person 
for additional copies of the record, except that an employer shall not 
charge for an initial request of a copy of an updated or corrected 
record.
    (5) Upon request, the employer shall make available to an 
employee(s), former employee(s) or his or her designated representative 
access to all OSHA Form(s) 301 or equivalent. Access shall be provided 
in a reasonable time. The employer may charge a reasonable fee for 
searching and copying expenses.
    (c) Nothing in this section shall be deemed to preclude employees 
and their designated representatives from collectively bargaining to 
obtain access to information relating to occupational injuries and 
illnesses in addition to the information made available under this 
section.
    (d) In the case of a deceased or legally incapacitated employee, 
the employee's legal representative(s) may directly exercise all the 
employee's rights under this section.


Sec. 1904.12  Reporting of fatality or multiple hospitalization 
incidents.

    (a) Within 8 hours after the death of any employee from a work-
related incident or the in-patient hospitalization of three or more 
employees as a result of a work-related incident, the employer(s) of 
each employee so affected shall, report the fatality/multiple 
hospitalization by telephone or in person to the Area Office of the 
Occupational Safety and Health Administration (OSHA), U.S. Department 
of Labor, that is nearest to the site of the incident during regular 
business hours, or by using the OSHA emergency toll-free central 
telephone number (1-800-321-OSHA [6742]) during non business hours. 
Note: The site controlling employer or designee will be responsible for 
making the report if no more than two employees of a single employer 
were hospitalized but, collectively, three or more workers were 
hospitalized as in-patients.
    (b) This requirement applies to each such fatality or 
hospitalization of three or more employees which occurs within thirty 
(30) days of an incident.
    (c) Exception: If the employer does not learn of a reportable 
incident at the time it occurs and the incident would otherwise be 
reportable under paragraphs (a) and (b) of this section, the employer 
shall make the report within 8 hours of the time the incident is 
reported to any agent or employee of the employer.
    (d) Each report required by this section shall relate the following 
information: establishment name, location of incident, time of the 
incident, number of fatalities or hospitalized employees, contact 
person, phone number, and a brief description of the incident. 

[[Page 4062]]



Sec. 1904.13  Reports by employers.

    (a) Section 24 of the Act, 29 U.S.C. 673, directs the Secretary of 
Labor, in consultation with the Secretary of Health and Human Services, 
to develop and maintain a program of collection, compilation, and 
analysis of occupational safety and health statistics. Section 24 also 
requires employers to file reports with the Secretary on ``the basis of 
records made and kept pursuant to Section 8(c) of this Act.'' Section 
8(c), 29 U.S.C. 657(c), requires each employer to ``make, keep and 
preserve, and make available to the Secretary or the Secretary of 
Health and Human Services, such records regarding his activities 
relating to this Act'' as prescribed by regulation for enforcement of 
the Act or ``for developing information regarding the causes and 
prevention of occupational accidents and illnesses.'' Section 8(c) also 
directs the Secretary of Labor, in cooperation with the Secretary of 
Health and Human Services, to prescribe regulations requiring employers 
to maintain accurate records of, and to make periodic reports on work-
related deaths, injuries, and illnesses.
    (b) Pursuant to the statutory authority described above, the 
Secretary of Labor and Secretary of Health and Human Services may 
request reports from employers regarding the employers' activities 
relating to the Act. These requests for reports shall be in writing, 
shall describe what information must be reported, and may include a 
request for copies of records kept pursuant to 29 CFR Part 1904, 
information that the employer is required to maintain by regulations or 
standards promulgated pursuant to the Act, information required to 
participate in periodic surveys of occupational injuries and illnesses, 
and/or information necessary to determine rates of injury, illness or 
exposure, such as employment and hours of work. Note: Employers who are 
otherwise exempted under Sec. 1904.2 of this Part, shall upon 
notification by the Secretary of Labor or Secretary of Health and Human 
Services, maintain the OSHA Log and Summary on Injuries and Illnesses 
for any year in which they are notified that they have been selected 
for participation in a data collection program of occupational injuries 
and illnesses.
    (c) The employer shall file the requested reports with the 
Secretary within 21 calendar days of receipt of the request, unless the 
Secretary requests otherwise.
    (d) Nothing in any State plan approved under section 18(c) of the 
Act shall affect the duties of employers to submit required reports.


Sec. 1904.14  Recordkeeping under approved State plans.

    (a) Recordkeeping and reporting requirements promulgated by State 
plans are required to be substantially identical to this Part (see 29 
CFR 1902.3(k) and 29 CFR 1952.4). State plans shall promulgate 
recordkeeping and reporting requirements that are identical to the 
Federal requirements for determining the types of injuries and 
illnesses that will be entered into the records and the manner in which 
they are entered. All other recordkeeping and reporting requirements 
that are promulgated by State plans shall be at least as effective as 
the Federal requirements.
    (b) Records maintained by an employer and reports submitted, 
pursuant to and in accordance with the requirements of an approved 
State plan under section 18 of the Act, shall be regarded as compliance 
with this Part.
    (c) State and local government agencies are exempt from Federal 
OSHA recordkeeping in States under the jurisdiction of Federal OSHA. 
However, in States with their own OSHA approved safety and health 
programs, State and local government agencies must keep injury and 
illness records in accordance with State law and 29 CFR 1952.4.


Sec. 1904.15  Petitions for recordkeeping exceptions.

    All requests or variances for recordkeeping exceptions shall be 
made in accordance with the procedures set forth in 29 CFR 1905. Any 
exception granted prior to [Effective date of final rule] is null and 
void.


Sec. 1904.16  Falsification of, or failure to keep records or provide 
reports.

    (a) Section 17(g) of the Act provides that ``Whoever knowingly 
makes any false statement, representation, or certification in any 
application, record, report, plan or other document filed or required 
to be maintained pursuant to this Act shall, upon conviction, be 
punished by a fine of not more than $10,000, or by imprisonment, for 
not more than 6 months or both.''
    (b) Failure to maintain records or file reports as required by Part 
1904, or as required by the forms and instructions issued under Part 
1904, may result in the issuance of citations and assessment of 
penalties as provided for in sections 9, 10, and 17 of the Act.
    (c) An employee who is subject to retaliatory discrimination by his 
or her employer for filing a report of a work-related injury or illness 
is protected by Section 11(c) of the OSH Act and 29 CFR 1977 
Discrimination Against Employees Exercising Rights Under the Williams-
Steiger Occupational Safety and Health Act of 1970. An employer who 
violates section 11(c) may be required to reinstate or rehire a fired 
employee with back pay.


Sec. 1904.17  Subcontractor records for major construction projects.

    (a) Any site controlling employer in the construction industry 
(SICs 15, 16 and 17), for construction projects with an initial total 
contract value of one million dollars ($1,000,000) or more, shall 
maintain a separate occupational injury and illness record 
(subcontractor record) for recordable injuries and illnesses sustained 
by ``subcontractor employees'' (not considered employees of the site 
controlling employer) while working at the construction project. On the 
subcontractor record, the site controlling employer is only required to 
record occupational injuries and illnesses of ``subcontractor 
employees'' who are employed by a construction firm who had eleven (11) 
or more full and/or part-time employees at any one time during the 
calendar year immediately preceding the current calendar year. (Note: 
The size threshold is based on the number of employees of the entire 
firm or corporation, not of an individual establishment.)
    (b) The site controlling employer shall comply with the 
requirements of Sec. 1904.4(b) in determining which injuries and 
illnesses are recordable on the subcontractor record, and when to 
record them. The injury and illness information for each recordable 
case occurring to ``subcontractor employees'' shall include the 
person's name, company, date of the event which resulted in the injury 
or illness, and a brief description of the injury or illness. The site 
controlling employer shall also include the location of the site and 
the period of time covered on the record. The site controlling employer 
shall maintain all subcontractor records pertaining to one construction 
site in a consolidated file by calendar year. The site controlling 
employer has the option of using a separate OSHA Form 300, an 
equivalent form, or a collection of records to satisfy this 
requirement. Note: The employer of the ``subcontractor employee'' is 
not relieved of the responsibility of completing the OSHA Form 300 or 
equivalent as required by Sec. 1904.4(a).
    (c) For those construction projects where there is more than one 
site controlling employer, those employers may agree to assign the 
responsibility for maintaining the subcontractor records to one of the 
site controlling employers by means of a written 

[[Page 4063]]
agreement. When such a written agreement exists, the other site 
controlling employers on the project are not required to maintain the 
subcontractor record regardless of whether they may be deemed to be 
site controlling employers.
    (d) The site controlling employer is not required to complete an 
OSHA Form 301 for injuries or illnesses experienced by ``subcontractor 
employees''. Note: The employer of the ``subcontractor employee'' is 
not relieved of the responsibility of completing the OSHA Form 301 or 
equivalent as required by Sec. 1904.5(a).
    (e) The site controlling employer is not required to prepare a 
year-end summary for injuries and illnesses experienced by 
``subcontractor employees''. Note: The employer of the ``subcontractor 
employee'' is not relieved of the responsibility of completing the 
year-end summary as required by Sec. 1904.6(a).)
    (f) The site controlling employer is not required to update the 
injury and illness records for ``subcontractor employees''. Note: The 
employer of the ``subcontractor employee'' is not relieved of the 
responsibilities to update the injury and illness records as required 
by Sec. 1904.9(a).

Appendix A to Part 1904--Work-Relatedness (Mandatory)

    If an event or exposure in the work environment either caused or 
contributed to an injury or illness, or aggravated a pre-existing 
condition, then the case is considered work-related. Work-
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring at the employer's establishment. 
Injuries or illnesses occurring away from the establishment are 
considered work-related only if the worker is engaged in a work 
activity or is present as a condition of his or her employment.
    A. Work-Related Injuries and Illnesses--Special Situations: 
Injuries or illnesses are considered to be work-related if they 
occur in the following situations:
    1. While the employee is engaged in work activity or 
apprenticeship/vocational training required by the employer.
    2. While the employee is on break, in the rest room or in 
storage areas when located on the employer's premises.
    3. While the employee is performing work for pay or compensation 
at home, if the injury or illness is directly related to the 
performance of work rather than the general home environment or 
setting.
    4. While the employee is traveling on business, including to and 
from customer contacts.
    5. While the employee is engaged in work activity where a 
vehicle is considered the work environment (e.g. truck, taxi, etc.).
    B. Non Work-Related Injuries and Illnesses. The following 
injuries and illnesses are not considered work-related. Only the 
following may be used to rebut the presumption of work-relatedness 
that applies to injuries and illnesses occurring at the employers' 
establishment:
    1. Injuries or illnesses will not be considered work-related if 
they occur to individuals present at their employer's establishment 
as a member of the general public rather than as a worker.
    2. Injuries or illnesses will not be considered work-related if 
they involve symptoms that surface at work but solely result from a 
non-work-related event or exposure outside of the work environment.
    3. Injuries or illnesses will not be considered work-related if 
they result solely from voluntary participation in wellness 
programs, medical, fitness and recreational activities (e.g. 
exercise classes, blood donations, physicals, flu shots, 
racquetball, baseball, etc.).
    4. Injuries or illnesses will not be considered work-related if 
they solely result from a worker eating, drinking or preparing his 
or her own food when unrelated to occupational factors.
    5. Injuries or illnesses will not be considered work-related if 
they are solely the result of workers doing personal tasks 
(unrelated to their employment) at the establishment outside of 
normal working hours.
    6. Cases will not be considered work-related if they result 
solely from acts of violence committed by one's family or ex-spouse 
when unrelated to the worker's employment, including intentionally 
self-inflicted injuries.
    7. Injuries or illnesses will not be considered work-related if 
they occur on company parking lots and access roads while employees 
are arriving at or leaving work.
    8. An injury or illness will not be considered work-related if 
the worker was never engaged in any duty at work that could have 
placed stress on the affected body part or was never exposed to any 
chemical or physical agent at work that could be associated with the 
observed injury or illness.
    9. An injury or illness will not be considered work-related if 
the case results solely from activity in voluntary community or 
civic projects away from the employer's establishment.
    10. An injury or illness will not be considered work-related if 
the case results solely from normal body movements, i.e. walking 
unencumbered, talking, tying a shoe, sneezing, coughing, provided 
the activity does not involve a job-related motion and the work 
environment does not contribute to the injury or illness.
    11. Mental illness will not be considered work-related, except 
mental illnesses associated with post-traumatic stress.
    C. Travel Status.
    1. Employees in travel status (i.e. traveling on company 
business) should be considered engaged in work-related activities 
during all of their time spent in the ``interest of their company''. 
This includes, but is not limited to, travel to and from customer 
contacts, conducting job tasks, and entertaining or being 
entertained for the purpose of transacting, discussing, or promoting 
business.
    2. When traveling employees check into a hotel, motel or other 
lodging, they establish a ``home away from home''. Thereafter, their 
activities are evaluated in the same manner as for non-traveling 
employees. For example, injuries sustained when commuting from a 
hotel to a temporary work site are not work-related, just as 
injuries sustained during an employee's normal commute from a 
permanent residence to an office would not be considered work-
related.
    3. While an employee is in travel status, the following 
situations are not considered work-related:
    i. Normal commuting between the employee's temporary residence 
and his or her job; and
    ii. Situations where the employee departs from a reasonably 
direct route of work-related travel for personal reasons (e.g., a 
side trip for a vacation).
    D. Employees who work in their own home. An injury or illness 
will be considered work-related if it occurs while the employee is 
performing work for pay or compensation in the home, if the injury 
or illness is directly related to the performance of work rather 
than the general home environment or setting.
    E. Employees who live at the employer's establishment.
    1. Some workplaces provide living quarters for employees. Off-
shore oil rigs, ships and construction sites at remote locations 
commonly provide their employees with living accommodations.
    2. In these workplaces, injuries or illnesses are presumed to be 
work-related if the employee is on-duty or engaged in a work 
activity. The injury or illness is also considered work-related if 
the employee was harmed as a result of a serious workplace accident 
such as a chemical release, fire, explosion, shipwreck, steam 
release, or building collapse.
    3. All other injuries and illnesses occurring during off-duty 
hours are considered non-work-related.

Appendix B to Part 1904--Recording of Specific Conditions 
(Mandatory)

    The purpose of this appendix is to provide information for the 
recording of specific conditions which may not be captured by the 
other recordability criteria. For purposes of OSHA-mandated 
recordkeeping, the conditions listed in this appendix are considered 
Recordable Injuries and Illnesses when the condition listed is work-
related. The employer shall evaluate, for OSHA injury and illness 
recordkeeping purposes, all information received as a result of 
medical surveillance required by an OSHA standard.
    Conditions not included in this Appendix that otherwise meet the 
criteria in the Sec. 1904.4.(c) must be recorded.

[[Page 4064]]


                                          Table Of Specific Conditions                                          
----------------------------------------------------------------------------------------------------------------
                 System                          Condition                      Recording criteria              
----------------------------------------------------------------------------------------------------------------
 Multi-system...........................  Carbon monoxide         Elevated carboxyhemoglobin levels and/or      
                                           poisoning.              diagnosis by a health care provider.         
                                          Mercury...............  15 micrograms or greater per liter (g/
                                                                   L) of whole blood or 35 micrograms or greater
                                                                   per gram (g/g) creatinine in urine  
                                                                   and/or diagnosis of mercury poisoning by a   
                                                                   health care provider.                        
                                          Lead..................  40 micrograms or greater per 100 grams (g/100g) of whole blood and/or diagnosis of 
                                                                   lead poisoning by a health care provider.    
                                          Cadmium...............  --3 micrograms or greater per gram (g/
                                                                   g) creatinine in urine; or                   
                                                                  --B2-microglobulin 300 micrograms or greater  
                                                                   per gram (g/g) creatinine in urine; 
                                                                   or                                           
                                                                  --5 micrograms of cadmium or greater per liter
                                                                   (g/L) of whole blood.               
                                          Benzene...............  Phenol level of 75 milligrams or greater per  
                                                                   liter (mg/L) of urine or abnormal blood      
                                                                   counts.                                      
Musculo-skeletal system.................  Fractures of the bones  Positive X-ray and/or diagnosis by a health   
                                           or teeth.               care provider.                               
                                          Musculoskeletal         Diagnosis by a health care provider and/or    
                                           disorders.              objective finding(s) (e.g. positive Tinel's, 
                                                                   Phalen's or Finkelstein's test; or swelling, 
                                                                   redness indicative of inflammation,          
                                                                   deformity, loss of motion, etc.)             
                                                                  Musculoskeletal disorders may occur in the    
                                                                   neck, back, shoulder, arm, hand, fingers, leg
                                                                   and/or foot. Examples of musculoskeletal     
                                                                   disorders include but are not limited to     
                                                                   carpal tunnel syndrome, tendinitis,          
                                                                   epicondylitis, synovitis, thoracic root      
                                                                   lesions, Raynaud's syndrome, and tarsal      
                                                                   tunnel syndrome.                             
                                                                  For musculoskeletal disorders only, medical   
                                                                   treatment shall include two or more          
                                                                   applications of hot/cold therapy as directed 
                                                                   by a health care provider.                   
Sensory organs..........................  UV burning of the       Recognition/diagnosis of welder's flash or    
                                           cornea or retina.       flashburn.                                   
                                          Hearing loss..........  An average shift of 15 decibels (dB) or more  
                                                                   at 2000, 3000, and 4000 hertz in one or both 
                                                                   ears. The change in hearing may be adjusted  
                                                                   for presbycusis (age related hearing loss).  
                                                                   The record of the injury or illness may be   
                                                                   deleted if a retest performed with 30 days   
                                                                   disproves the original shift. Once a 15 dB   
                                                                   shift has occurred, the baseline (for        
                                                                   recordkeeping purposes) should be adjusted to
                                                                   reflect this result. A subsequent test       
                                                                   revealing an additional 15 dB shift from this
                                                                   new or revised baseline value is a new injury
                                                                   or illness. Work-relationship is presumed if 
                                                                   an employee is exposed to an 8 hour time     
                                                                   weighted average sound level of noise        
                                                                   equaling or exceeding 85 dB(A).              
Skin....................................  Burns (heat, chemical   Third degree burns (and first and second      
                                           and radiation burns).   degree burns requiring medical treatment     
                                                                   beyond first aid, restricted work activity,  
                                                                   days away from work, loss of consciousness or
                                                                   death).                                      
                                          Skin disorders........  Lasting beyond 48 hours, including but not    
                                                                   limited to allergic or irritant contact      
                                                                   dermatitis.                                  
                                          Lacerations...........  Requiring closure including but not limited to
                                                                   the use of sutures, adhesive closures and    
                                                                   staples.                                     
Respiratory system......................  Asthma and other        --Initial episode, regardless of duration,    
                                           obstructive airway      diagnosed by a health care provider. Or      
                                           diseases.                                                            
                                                                  --Any recurrent episode, regardless of        
                                                                   duration, that results in the administration 
                                                                   of prescription drugs and/or diagnosis by a  
                                                                   health care provider.                        
                                                                  Note: Obstructive airway diseases include but 
                                                                   are not limited to reactive airways          
                                                                   dysfunction syndrome (RADS), chronic         
                                                                   obstructive pulmonary disease (COPD), and    
                                                                   chronic obstructive bronchitis.              
                                          Pneumoconiosis (e.g.    Diagnosis by a health care provider,          
                                           asbestosis,             radiography profusion category of 1/1 or     
                                           silicosis, coal         greater by the International Labor           
                                           worker's                Organization (ILO) classification system.    
                                           pneumoconiosis,                                                      
                                           beryllium disease,                                                   
                                           etc.).                                                               
                                          Mesothelioma..........  Diagnosis by a health care provider, pleural  
                                                                   plaques and/or pleural thickening.           
                                          Byssinosis............  Diminished pulmonary function (an FEV1 of less
                                                                   than 80% of the predicted value)and/or       
                                                                   diagnosis by a health care provider when     
                                                                   worker has been exposed to dust from cotton  
                                                                   or flax which has not undergone wet          
                                                                   treatments.                                  
                                          Tuberculosis infection  First positive tuberculin skin test reaction  
                                           or disease.             indicative of new infection, except pre-     
                                                                   placement; Or                                
                                                                  Diagnosis of active tuberculosis by a health  
                                                                   care provider. A case of tuberculosis disease
                                                                   or tuberculosis infection is presumed to be  
                                                                   work-related in the following industries:    
                                                                   correctional facilities; health care         
                                                                   facilities; homeless shelters; long-term care
                                                                   facilities for the elderly; and drug         
                                                                   treatment centers. The employer may rebut    
                                                                   this presumption of work relationship by     
                                                                   providing evidence that the employee is known
                                                                   to have had a non-work exposure to active TB.
                                                                   Examples include situations in which (1) An  
                                                                   employee is living in a household with a     
                                                                   person diagnosed with active TB or (2) the   
                                                                   Public Health Department lists the employee  
                                                                   as a contact to a case of active TB.         
                                                                  For all other industries a case would be      
                                                                   considered work-related under the following  
                                                                   circumstance: An employee tests positive for 
                                                                   tuberculosis infection after being exposed to
                                                                   a person within the work environment known to
                                                                   have tuberculosis disease. The case of the   
                                                                   person with TB disease, however, would not be
                                                                   presumed work-related if there was no known  
                                                                   exposure within the work environment.        

[[Page 4065]]
                                                                                                                
Respiratory system......................  Hypersensitivity        Diagnosis by a health care provider of        
                                           pneumonitis (non-       woodworker's lung, farmer's lung, malt       
                                           asthmatic allergic      worker's lung, mushroom worker's lung, cheese
                                           breathing disorders     washer's lung, miller's lung, etc. when the  
                                           caused by organic       worker has been exposed to the relevant      
                                           dust and other          substance.                                   
                                           antigenic aerosols).                                                 
                                          Toxic inhalation        Diagnosis by a health care provider and/or    
                                           injury--breathing       respiratory distress requiring overnight     
                                           disorders (such as      hospitalization.                             
                                           Metal Fume Fever)due                                                 
                                           to inhaling chemicals.                                               
Miscellaneous...........................  Bloodborne pathogen     Any workplace bloodborne pathogen exposure    
                                           diseases.               incident (as defined in 1910.1030(b)) that   
                                                                   results in a positive blood test or diagnosis
                                                                   by a health care provider indicating AIDS,   
                                                                   HIV seroconversion, hepatitis B or hepatitis 
                                                                   C; Or                                        
                                                                  Any laceration or puncture wound that involves
                                                                   contact with another person's blood or other 
                                                                   potentially infectious materials.            
                                                                  Note: to protect employee confidentiality,    
                                                                   employers shall record occupationally        
                                                                   acquired bloodborne pathogen diseases, such  
                                                                   as hepatitis B, simply as the initial        
                                                                   bloodborne exposure incident and note the    
                                                                   exposure type (e.g. needlestick).            
                                                                   Seroconversion and specific type of          
                                                                   bloodborne disease shall not be recorded.    
                                          Hepatitis (toxic or     Positive blood test and/or diagnosis by a     
                                           infectious).            health care provider.                        
----------------------------------------------------------------------------------------------------------------
    Work-related injuries and illnesses are recorded if they result in death, loss of consciousness, days away  
  from work, restricted work activity, medical treatment beyond first aid, or the criteria in this table.       



BILLING CODE 4510-26-P

[[Page 4066]]


Appendix C to Part 1904--Decision Tree for Recording Occupational 
Injuries and Illnesses
[GRAPHIC] [TIFF OMMITTED] TP02FE96.004


BILLING CODE 4510-26-C

[[Page 4067]]


PART 1952--[AMENDED]

    2. The authority citation for Part 1952 continues to read as 
follows:

    Authority: 29 U.S.C. 667; 29 CFR Part 1902, Secretary of Labor's 
Order No. 1-90 (55 FR 9033).

    3. Section 1952.4 would be revised to read as follows:


Sec. 1952.4  Injury and illness recordkeeping and reporting 
requirements.

    (a) Injury and illness recordkeeping and reporting requirements 
promulgated by State plans are required to be substantially identical 
to 29 CFR Part 1904. State plans shall promulgate recordkeeping and 
reporting requirements that are identical to the Federal requirements 
for determining the types of injuries and illnesses that will be 
entered into the records and the manner in which they are entered. All 
other recordkeeping and reporting requirements that are promulgated by 
State plans shall be at least as effective as the Federal requirements.
    (b) A State is not prohibited from requiring supplementary 
reporting or recordkeeping data, but such additional data must be 
approved by the Occupational Safety and Health Administration to insure 
that there will be no interference with the uniform reporting 
objectives.
    (c) Variances to State injury and illness recordkeeping and 
reporting requirements under an approved plan must be obtained from the 
Occupational Safety and Health Administration of the U.S. Department of 
Labor. Therefore, a State may not grant a variance to recordkeeping and 
reporting requirements under their own procedures.
    (d) In order to insure the uniformity of the injury and illness 
statistics, a State must recognize all variances granted by the 
Occupational Safety and Health Administration.

[FR Doc. 96-1942 Filed 2-1-96; 8:45 am]
BILLING CODE 4510-26-P