[Federal Register Volume 62, Number 28 (Tuesday, February 11, 1997)]
[Rules and Regulations]
[Pages 6434-6442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3495]

[[Page 6433]]


Part V

Department of Labor


Occupational Safety and Health Administration

29 CFR Part 1904

Reporting Occupational Injury and Illness Data to OSHA; Final Rule

Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / 
Rules and Regulations

[[Page 6434]]


Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. R-02]
RIN 1218-AB24

Reporting Occupational Injury and Illness Data to OSHA; Final 

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

ACTION: Final rule.


SUMMARY: This final rule amends 29 CFR Part 1904 by adding section 
1904.17. Section 1904.17 requires employers to report information to 
OSHA contained in records that employers are required to create and 
maintain pursuant to Part 1904, and the number of workers they employed 
and hours their employees worked during designated periods.
    Section 1904.17 will clarify OSHA's authority to collect 
establishment-specific data by mail for use in agency self-evaluation, 
deployment of agency resources, periodic reassessment of existing 
regulations and standards, and rulemaking.
    Section 1904.17 was proposed (as section 1904.13) as part of a 
comprehensive proposal to revise Part 1904. 61 FR 4030 (Feb. 2, 1996). 
OSHA has determined, however, to take final agency action with respect 
to section 1904.17 at this time, and to take final action on the 
remaining Part 1904 issues, including other records access issues, at a 
later date.

DATES: This final regulation will become effective on March 13, 1997. 
However, affected parties do not have to comply with the information 
collection requirements until the Department publishes in the Federal 
Register the control numbers assigned by the Office of Management and 
Budget (OMB) to these information collection requirements. Publication 
of the control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.

FOR FURTHER INFORMATION CONTACT: Bonne Friedman, U.S. Department of 
Labor, Occupational Safety and Health Administration, Office of 
Information and Consumer Affairs, Room N-3647, 200 Constitution Avenue, 
NW., Washington, DC 20210, phone (202) 219-8148. For electronic copies 
of documents, contact the Labor News Bulletin Board at (202) 219-4784, 
or OSHA's WebPage on the Internet at http://www.osha.gov/. For news 
releases, fact sheets, and other short documents, contact OSHA FAX at 
(900) 555-3400 at $1.50 per minute.


I. Background

    In 1971, OSHA issued the occupational injury and illness recording 
and reporting regulation, 29 CFR Part 1904. Part 1904 includes 
regulations pertaining to criteria for determining whether an 
occupational injury or illness should be recorded, and provisions that 
require employers to give employees and OSHA access to such records. It 
also provides for collection by the Bureau of Labor Statistics (BLS) of 
data to be used in an occupational injury and illness statistical 
program administered by BLS. 1904.20, 1904.21, and 1904.22.
    In 1990, the Secretary of Labor transferred some of BLS's 
statistic-gathering functions to OSHA. 55 FR 9033 (Mar. 9, 1990). BLS 
retains responsibility for conducting its Annual Survey of Occupational 
Injuries and Illnesses and will continue to issue data that is 
aggregated by SIC group. But OSHA will also be responsible for 
administering a national recordkeeping system for occupational injuries 
and illnesses whose data will be site-specific.
    OSHA's February 1996 proposal to revise Part 1904 sought, among 
other things, to reflect OSHA's new statistics-gathering 
responsibilities. OSHA proposed to replace sections 1904.20, 1904.21, 
and 1904.22 with a single reporting provision at 1904.13, which would 
apply to both BLS and OSHA collections of information by mail or other 
remote transmittal.
    OSHA received 449 written comments and held six days of public 
meetings. Approximately 124 comments and two oral presentations 
specifically addressed proposed section 1904.13.
    On further consideration, OSHA determined that BLS and OSHA need 
separate provisions for collection of data by mail. Thus, a single 
provision applicable to both agencies would not be appropriate, and a 
new provision specifically addressed to OSHA reporting requirements and 
procedures should be developed. OSHA further determined to take final 
action on proposed 1904.13 at this time, and to take final action with 
respect to the remainder of the proposed revisions of Part 1904 at a 
later date.
    This final rule revises the proposed section 1904.13 and renumbers 
it as section 1904.17, the next available number in Part 1904. This 
final rule does not modify or delete the existing regulations at 
1904.13, 1904.20, 1904.21, or 1904.22.

II. Explanation of the Final Rule

    OSHA has long had in effect rules pertaining to OSHA access to 
certain information. Section 1904.7 requires employers ``to provide, 
upon request, records provided for in Secs. 1904.2, 1904.4, and 1904.5 
[OSHA-required injury and illness logs and forms] for inspection and 
copying by any representative of the Secretary of Labor. * * *'' 
Section 1910.1020 requires employers to give OSHA and employees the 
right and opportunity to examine and copy exposure and medical records. 
Some standards contain requirements for OSHA and employee access to 
exposure and monitoring data required to be created and maintained by 
those particular standards. E.g., 29 CFR 1910.1001(m)(5)(I) and (ii) 
(requiring that OSHA and employee be given access to asbestos exposure 
monitoring and medical surveillance records).
    Section 1904.17 establishes a procedural mechanism for conduct of 
an annual survey of ten or more employers by mail or other remote 
transmittal. Information covered by section 1904.17 is information 
contained in records required to be created and maintained pursuant to 
Part 1904, the number of workers the respondent employed and the number 
of hours worked by its employees during designated periods. The rule 
also specifies that both the request and the response will be made by 
mail or other remote transmittal. Thus, it is more limited than 
existing records-access provisions that use terms such as ``permit 
access to'' or ``make available'' and therefore permit OSHA to collect 
information by on-site record reviews as well as via mail response. The 
mail-in provision also permits OSHA to coordinate its annual survey 
with the BLS annual survey. In conducting its 1995 and 1996 annual 
surveys (1995 data was collected in 1996, 1996 data will be collected 
in 1997) OSHA provided employers with a carbon-pack form that the 
employer could complete, separate, and return--one copy to BLS and 
another to OSHA. OSHA intends to continue this practice or an 
equivalent means of avoiding duplicate reporting burdens for employers.
    The requests for data reports may be made directly by OSHA, or may 
be sent to employers by a designee of the Agency, such as a state 
governmental agency, a government contractor, or another Federal agency 
such as the National Institute for Occupational

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Safety and Health (NIOSH). Designating others to exercise this 
authority will permit a variety of collection methods to be used, 
depending on which method is the most effective, efficient, and cost 
effective for the government.
    Employers who are normally exempt from keeping injury and illness 
records under 29 CFR 1904.15 and 29 CFR 1904.16 may be notified by OSHA 
that they will be required to participate in a particular information 
collection under 1904.17(a). OSHA will notify these employers in 
writing in advance of the year for which injury and illness records 
will be required. OSHA does not expect, in the near term, to take 
action against Sec. 1904.15 and 16 exempt employers based on survey 
non-response under Sec. 1904.17.

III. Issues

1. Use of Data

    As explained above and in the proposal, site-specific data reported 
pursuant to section 1904.13 (now section 1904.17) will be used for a 
variety of purposes: injury/illness surveillance; development of 
information for promulgating, revising or evaluating OSHA's 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 scheduled workplace inspections 
and non-enforcement programs, such as targeted mailings of safety and 
health information to employers.
    Many commenters acknowledged OSHA's need for a reporting 
requirement or affirmatively stated they had no objections to it. (Ex. 
15: 80, 184, 239, 313, 341, 359, 384, 418, 449)
    However, some commenters who had no objection to the principle of a 
reporting requirement, expressed concern about the uses to which the 
data would be put. (Ex. 15: 117, 181, 304) The National Federation of 
Independent Business argued, for example, that the data should be used 
for compliance efforts only:

    NFIB strongly objects to this provision unless it is expanded to 
provide adequate safeguards to prevent abuses of written requests, 
especially for reasons other than OSHA compliance--i.e., research, 
surveillance, or public information. In fact, NFIB questions the 
need for OSHA to have access to data for non-compliance reasons at 
all. This is another instance where it appears as if OSHA has 
overstepped its legislative bounds and is attempting to transform a 
recordkeeping/compliance system into a comprehensive research system 
of occupational safety and health statistics.

(Ex. 15: 304, p. 25)
    Others contended that the data should be used for statistical 
purposes only. See e.g., Heat Transfer Equipment Company (Ex. 15: 
117)(``rules must be in place that the information will be used for 
statistical purposes only and not as a method for determining 
individual audits and retribution'').
    The OSH Act directs OSHA to operate a broad program to assure safe 
and healthy workplace conditions in the majority of America's 
workplaces, nearly 6,000,000 individual workplace establishments 
employing approximately 100,000,000 workers. A vital component of this 
broad program involves the effective use of information to provide for 
the purposes discussed in the introduction to the OSH Act: for 
workplace safety and health enforcement, research, information, 
education, and training. 29 U.S.C. 651.
    Section 24 of the Act, 29 U.S.C. 673, directs the Secretary of 
Labor, 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 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.
    Additionally, the Government Performance and Results Act of 
1993(GPRA)(31 U.S.C. 1101) requires Federal agencies to implement a 
program of strategic planning, develop systematic measures of 
performance to assess the impact of individual government programs, and 
produce annual performance reports.
    OSHA believes that collecting injury, illness and employment data 
from employers to meet these responsibilities represents the most 
appropriate policy. OSHA also needs establishment-specific data to 
better target its program activities, including workplace inspections 
and non-enforcement information and incentive programs, to the more 
hazardous workplaces. Given budget and personnel constraints, OSHA and 
the 23 states with OSHA-approved workplace safety and health plans are 
unable to work directly with all of these workplaces. In fiscal year 
1996, OSHA and the States conducted enforcement inspections at 
approximately 80,000 workplaces (unpublished OSHA analysis of FY 1996 
inspection data). At this rate, 75 years would be needed to inspect all 
of America's workplaces.
    Several independent reports concerning occupational injury and 
illness recordkeeping and occupational safety and health policy have 
documented and supported OSHA's need for establishment-specific data. 
In a 1987 report, Counting Injuries and Illnesses in the Workplace: 
Proposals for a Better System, published by the National Research 
Council (NRC), the Panel on Occupational Safety and Health Statistics 
recognized OSHA's need for access to individual establishment data:

    The Occupational Safety and Health Administration should be able 
to obtain individual establishment data and that this might be 
achieved through the development of an administrative data system, 
such as that maintained, for example, by the Internal Revenue 

(Ex. 4, p. 10)
    The panel believed that this data could be used to improve OSHA's 
enforcement program:

    It could provide systematic detailed data that the current 
program does not now provide; it could give OSHA more effective ways 
of using its inspection resources to reduce workplace injuries; and 
it could provide a more systematic bases for monitoring the quality 
of recordkeeping and reporting.

(Ex. 4, p. 113)
    The NRC Panel further suggested that an administrative data system 
based on the OSHA 200 logs could provide a valuable database for other 
uses as well, including standard setting, enforcement, program 
evaluation, and research. (Ex. 4, p. 113)
    In a 1989 report, the Keystone National Policy Dialogue on Work-
Related Illness and Injury Recordkeeping, a group of industry, labor, 
government and academic representatives with an interest in 
occupational injury and illness data stated:

    The Dialogue group agreed that injury and illness statistics 
from recordkeeping can and should be used to target (prioritize) 
enforcement/compliance activity at OSHA.
* * * * *
    The data should be usable for macro purposes by SIC codes (high 
risk--low risk) as well as in a performance oriented micro targeting 
of workplace visits. OSHA needs to conserve its resources and should 
be able to decide upon which industries and workplaces should 
receive the most attention. However, statistics alone should not be 
used to exempt any site from inspection. The records and rates at 
the site level should be used in decision making in conjunction with 
a review of site programs and spot check inspections.

(Ex. 5, p. 35)
    In a 1990 report, Options for Improving Safety and Health in the

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Workplace, the General Accounting Office (GAO) discussed an option for 
improving the use of inspection resources by targeting inspection 
activity with the use of establishment-specific injury and illness 

    OSHA could focus its enforcement, as well as education and 
training efforts, on employers with high injury and illness rates in 
industries known to be hazardous.

(Ex. 36, p. 32)
    OSHA believes that it can improve the effectiveness and efficiency 
of its programs by focusing its resources on employers and workplaces 
that are experiencing serious, ongoing workplace safety and health 
problems reflected by high rates of workplace injuries and illnesses. 
At the same time, data that shows workplaces with good safety and 
health records reflected by low injury and illness rates would allow 
OSHA to have greater flexibility in working cooperatively and in 
partnership with safer workplaces. These programs include enforcement 
programs as well as non-enforcement programs that encourage employers 
to voluntarily implement effective safety and health programs that 
protect workers from death, injury and illness.

2. The Use of Alternative Data Sources

    Several commenters suggested that the Agency use data from existing 
data sources, such as state workers' compensation agencies, insurance 
companies, hospitals or OSHA inspection files instead of collecting 
information from employers. (Ex. 15: 2, 28, 58, 63, 97, 184, 195, 289, 
327, 341, 374, 444) For example, Mr. Alex F. Gimble, CSP observed:

    Since similar data are readily available from other sources, 
such as the National Safety Council, insurance carriers, etc., why 
not use these statistics, rather than go through this duplication of 
effort at taxpayer expense? Another approach would be to utilize 
data collected by OSHA and State Plan compliance officers during 
site visits over the past 25 years.

(Ex. 15: 28)
    Several commenters suggested that OSHA use injury and illness data 
from workers' compensation systems. The comments of the American Health 
Care Association (AHCA) are representative:

    AHCA encourages OSHA to consider the use of workers' 
compensation data in lieu of proposed OSHA 300 and 301 forms. 
Pursuing the enactment of legislation that would allow OSHA access 
to every state's workers' compensation data would eliminate the need 
for employers to maintain two sets of records, provide OSHA with 
necessary safety and health data, and ease administrative and cost 
burdens now associated with recordkeeping for employers in every 
industry across the country.

(Ex. 15: 341)
    Ms. Diantha M. Goo recommended the use of data from treatment 

    The accuracy and usefulness of OSHA's reporting system would be 
vastly improved if it were to shift responsibility from employers 
(who have a vested interest in concealment) to the emergency rooms 
of hospitals and clinics. Hospitals are accustomed to reporting 
requirements, use the correct terminology in describing the accident 
and its subsequent treatment and are computerized.

(Ex. 15: 327)
    OSHA believes that injury and illness information compiled pursuant 
to Part 1904, plus employment figures, will be much more reliable and 
suited to OSHA's needs than any available alternative. While many State 
workers' compensation programs voluntarily provide injury and illness 
data to OSHA for various purposes, others do not. And the data vary 
widely from state to state. Differing workers' compensation laws and 
administrative systems result in large variations in content, format, 
accessibility and computerization. Often, workers' compensation 
databases do not include injury and illness data from employers who 
elect to self-insure. Additionally, most workers' compensation 
databases do not include information on the number of workers employed 
or the number of hours worked by employees, and incidence rates of 
occupational injury and illness cannot be computed. Workers' 
compensation data are also based on insurance accounts, and not on the 
safety and health experience of individual workplaces. As a result, an 
individual account often reflects the experience of several workplaces 
involved in differing business activities.
    Only a survey of every member of a selected set of employers about 
a selected set of data gathered in a relatively short time can tell 
OSHA which members of the group have the highest or lowest illness and 
injury rates, how the injury and illness rates are distributed over the 
field, and the types of injuries and illnesses being experienced in 
that field, etc. As more surveys are conducted over time, a reliable 
historical record will emerge.
    While OSHA does not believe that alternate source data are 
satisfactory substitutes for the information covered by 1904.17, the 
agency does recognize they have value. To the extent information from 
workers' compensation programs, BLS, insurance companies, trade 
associations, etc., are available and appropriate for OSHA's purposes, 
OSHA intends to continue to use them to supplement its own data systems 
and assess the quality of its own data. However, consistent with the 
Congressional mandate of the OSH Act, OSHA needs to maintain its own 
recordkeeping system and to gather the data for it through a reporting 

3. Scope Issues

    Many commenters objected to the breadth of the proposed regulatory 
text, arguing that it would give the Secretary unfettered discretion to 
demand any information related to the Act's purposes, at any time, for 
virtually any reason. (Ex. 25, 58X, 15: 55, 80, 102, 124, 135, 144, 
158, 162, 165, 193, 206, 207, 209, 211, 212, 220, 228, 239, 240, 243, 
252, 255, 257, 258, 261, 264, 267, 274, 275, 276, 286, 293, 305, 306, 
309, 313, 341, 348, 351, 368, 375, 389, 397, 406, 420, 427) A comment 
by the National Association of Manufacturers sums up the point of view 
expressed by many others:

    It is one thing to have an objectively identified set of 
employers that must make an annual filing of a census-type survey on 
a non-discriminatory basis; it is another to give an enforcement 
agency the authority--at its sole whim or discretion--to selectively 
require one or more employers to file reports that an entire class 
of employers is required to maintain. It is one thing to have an 
objectively identified set of information or records that must be 
included in an annual filing; it is another to give an enforcement 
agency the authority--at its sole whim or discretion--to selectively 
require one or more employers to generate and file reports 
containing whatever information the agency identifies so long as it 
can be described as ``regarding [the employer's] activities relating 
to this [OSH] Act.''

(Ex. 25, 15: 305)
    It was not OSHA's intention to exercise unfettered discretion to 
collect any data related to the Act. It was, however, OSHA's intention 
to create a reliable mechanism for routinized collections, by mail or 
other remote transmittal, of a limited class of information without 
unduly burdening employers. Consistent with that goal, and in light of 
the comments of record, the final reporting rule is carefully 
circumscribed. The rule authorizes an annual survey--which, because it 
will go to more than ten employers, will be subject to the Paperwork 
Reduction Act (PRA) (See 42 U.S.C. 3502 et seq. and 5 CFR part 1320)--
concerning information contained in records required to be created and 
maintained by Part 1904 plus employment figures. The rule specifies the 
time within which responses are to be provided to OSHA. Employers will 
be able to determine which employers are within the survey group and 
what information will be collected each year before the

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survey begins because that information will be made available to the 
public under a Federal Register notice pursuant to the PRA. Once a 
survey has received an OMB control number under the PRA, any 
substantive or material modification would require a new PRA clearance. 
As indicated in Section IX of this preamble entitled ``Paperwork 
Reduction Act of 1995'' the OMB control number for the current annual 
survey form is 1218-0209. (Section 1904.17 defines the class of 
information and respondents subject to survey under the rule. The set 
of employers and information (from within the covered class) to be 
targeted in each year is fixed as each survey is designed.)
    One commenter was concerned that the proposed rule could apply to 
information dating back ``decades,'' creating substantial burdens for 
employers. (Ex: 15:395, p. 67) Since the final rule establishes an 
annual survey of information in Part 1904 records, which are required 
to be kept no more than five years, plus employment information, it 
presents no issues about ``decades-long'' records.
    A number of commenters argued that as proposed, section 1904.13 
violated Fourth Amendment guarantees against unreasonable searches. 
(Ex. 15:154, 174, 193, 215, 258, 305, 318, 346, 375, 390, 395, 397) 
Most of these commenters referred to Marshall v. Barlow's, Inc., 436 
U.S. 305 (1978), McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 
1988), and Brock v. Emerson Electric Co, 834 F.2d 994 (11th Cir. 1987).
    Barlow's concerned the question whether OSHA must have a warrant to 
inspect a work site if the employer does not give consent. Kings Island 
and Emerson Electric concerned on-site records inspections by 
compliance officers. Section 1904.17 is a reporting requirement; no 
entry of premises or compliance officer decision making is involved. 
Thus, these decisions provide little if any support to the commenter's 
sweeping Fourth Amendment objections. See, Donovan v. Lone Steer, Inc., 
464 U.S. 408, 414 (1984) (reasonableness of a subpoena is not to be 
determined on the basis of physical entry law, because subpoena 
requests for information involve no entry into nonpublic areas).
    Moreover, in its final form the rule is extremely narrow in scope 
and leaves the agency with limited discretion. Section 1904.17 is 
restricted to a limited class of information. This information is 
highly relevant to accomplishment of OSHA's mission. The reporting is 
done by mail or other remote transmittal, without any intrusion into 
the employer's premises by OSHA, and is not unduly burdensome. Much of 
the injury and illness information to be reported is taken from records 
employers are already required to create, maintain, post, and provide 
to workers and government officials on request, which means that the 
employer has a reduced expectation of privacy in the information. 
Employment figures are critical to OSHA's ability to evaluate the 
injury and illness data, whereas they are not information that 
employers may expect to keep secret from the government. In addition, 
as explained earlier, there is no substitute for a large body of site-
specific information gathered by the survey method. The results of the 
surveys will be uniquely useful to OSHA in meeting Congress' mandate to 
use reporting requirements and build an effective statistical program 
around them.
    Some commenters argued that the Fourth Amendment requires OSHA to 
use a subpoena or warrant to get information from employers who do not 
provide it voluntarily. Since the proposed reporting rule made no 
explicit provision for enforcement via subpoena or warrant, they 
contended that the rule was constitutionally deficient. ``Production 
may not be compelled without a search warrant, administrative subpoena 
or other appropriate vehicle.'' (National Beer Wholesalers Association. 
Ex. 15:215.) ``The Fourth Amendment * * * requires OSHA to obtain a 
subpoena or warrant prior to obtaining access to any of the information 
identified in proposed * * * 1904.13.'' (The Fertilizer Institute. Ex. 
15: 154.) ``The proposed rules make no provision for a subpoena or 
warrant and appear to contemplate that OSHA will use neither. * * * 
These provisions, to the extent they purport to authorize inspections 
of records without a warrant or subpoena, violate the Fourth 
Amendment.'' (American Iron and Steel Institute. Ex. 15:395.)
    Certainly, under many circumstances employers can force OSHA to 
secure a warrant or subpoena enforcement order before giving OSHA 
access to workplace injury and illness data. These commenters, however, 
appear to be arguing that including a subpoena or warrant enforcement 
mechanism in the text of the rule is necessary to adequately protect 
their Fourth Amendment right to privacy. This is not so. The Fourth 
Amendment protects against ``unreasonable'' intrusions by the 
government into private places and things. Reporting rules that do not 
incorporate subpoena or warrant procedures are not ``unreasonable'' per 
se. See e.g., California Bankers Ass'n v. Shultz, 416 U.S. 21, 67 
(1974) (upholding reporting regulation issued under the Bank Secrecy 
Act of 1970 that did not provide for subpoenas or warrants where the 
``information was sufficiently described and limited in nature and 
sufficiently related to a tenable Congressional determination'' that 
the information would have a high degree of usefulness in criminal, 
tax, or regulatory investigations or proceedings). For example, OSHA 
has long required employers to report promptly all fatal workplace 
    The totality of circumstances surrounding a warrantless or 
``subpoena-less'' reporting requirement or administrative investigation 
determines its reasonableness. For example, in McLaughlin v. A.B. 
Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a 
records access citation against an employer who refused an OSHA 
inspector access to its OSHA Logs and Forms on the ground that it had a 
right to insist on a warrant or subpoena. The court upheld the citation 
because a summary of the information was posted annually on the 
employee bulletin board, thus diminishing the employer's argument that 
it has a reasonable expectation of privacy in the information, and the 
inspector was lawfully on the premises to investigate a safety 
complaint. In New York v. Burger, 482 U.S. 691, 702-703 (1987), the 
Supreme Court noted that agencies may gather information without a 
warrant, subpoena, or consent if the information would serve a 
substantial governmental interest, a warrantless (or subpoena-less) 
inspection is necessary to further the regulatory scheme, and the 
agency acts pursuant to an inspection program that is limited in time, 
place, and scope. The Burger court went on to uphold a warrantless 
inspection of records during an administrative inspection of business 
premises. Consider also the Kings Island and Emerson Electric 
decisions' concern about the inspector's broad field discretion. Kings 
Island (noting that under Burger a warrantless or subpoena-less 
inspection of records might be reasonable, but concluding that the 
facts of the case did not satisfy Burger analysis); Emerson Electric 
(noting that under California Bankers an agency may gain access to 
information without a subpoena or warrant but concluding that facts of 
that case were not comparable to those reviewed in California Bankers).
    It is not OSHA's intention to resolve, in this rulemaking, the 
question of the procedures the Fourth Amendment may require to enforce 
the regulatory obligation. Not only are Fourth Ammendment issues 
ultimately for

[[Page 6438]]

courts, not agencies to resolve, such issues are rarely suitable for 
judgement in the abstract. If for example, OSHA were at some future 
time to issue a citation for nonresponse to a survey questionaire, the 
Fourth Amendment evaluation would depend on all the particulars of the 
case. (While the participation in the OSHA Data Collection Initiative 
is mandatory, OSHA has made a policy decision that it will not issue 
citations for the failure to respond to the first survey conducted 
under authority of this rule, which will collect data for calendar year 
1996; nor does OSHA intend to issue citations for the 1995 survey 
already conducted. OSHA will take into consideration its experience 
with the Data Collection Initiatives when developing policy for future 
years. However, the nonrespondents to the 1995 and 1996 survey 
instrument may be subject to an on-site records inspection by an OSHA 
compliance officer or issued an administrative subpoena.)
    Further analysis under the principles set forth in the Burger 
decision must await a specific application of 1904.17 when the 
particulars of the information request are known. OSHA has, however, 
structured the final rule to respond to concerns expressed in the case 
law and to limit its own discretion and eliminate discretion of 
officials in the field. Section 1904.17 surveys are constrained first 
by the regulatory text--the surveys occur no more than once per year, 
they involve ten or more employers covered by the Act, they are limited 
to injury and illness information contained in records created and 
maintained pursuant to Part 1904 and to employment and hours worked, 
they are accomplished by mail or other remote transmittal, and 
respondents have at least thirty days to respond. The data from within 
the covered field and the set of employers or establishments to be 
canvassed for each survey are definitively fixed during the Paperwork 
Reduction Act clearance process and are available to the public in 
connection with Federal Register notices published during the clearance 
    Employers will have ample opportunity to test the Fourth Amendment 
reasonableness of any survey with which they are faced. Under any 
follow-up scenario--warrant records inspection, subpoena demand or 
notice of a 1904.17 violation--employers would have advance notice that 
a response was required, and would have an opportunity to provide the 
survey data in order to avoid legal process. Employers faced with a 
survey that they consider an infringement of Fourth Amendment rights of 
privacy may refuse to respond and raise objections in a warrant 
enforcement or subpoena proceeding or as a defense if they are issued 
citations by OSHA. Under the Act, employers are entitled to contest 
citations and receive an administrative hearing, administrative review 
of the hearing officer's decision, and federal court of appeals review. 
29 U.S.C. 659(c), 660(a).
    Some commenters asserted that using reported information for 
enforcement targeting would violate their privilege against self-
incrimination. (Ex. 15:203, 397) These commenters did not explain how 
the privilege against self-incrimination would be implicated in the 
reporting requirement or cite any supporting authorities. OSHA would 
point out, that the privilege against self-incrimination derives from 
the Fifth Amendment and pertains to criminal proceedings. It has long 
been settled that the privilege cannot be invoked to resist the 
disclosure needed for a regulatory purpose unrelated to the enforcement 
of criminal laws even if a criminal proceeding is a possible 
consequence of an administrative investigation. See, for example, 
Shapiro v. United States, 335 U.S. 1, 32-33 (1948) (Fifth Amendment not 
violated by regulation requiring individuals to keep and produce 
records ``of transactions which are the appropriate subjects of 
governmental regulation'').

4. OSHA's Statutory Authority To Collect Data With a Reporting Rule

    Some commenters argued that the proposed reporting rule was not 
consistent with Sections 8(c) and 24(e) of the Act. Sections 8(c)(2) 
directs that ``the Secretary of Labor * * * 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 * * *.'' 29 U.S.C. 657(c)(2). Section 24(e) 
provides that ``[o]n the basis of the records made and kept pursuant to 
section 8(c) of this Act, employers shall file such reports with the 
Secretary as he shall prescribe by regulation * * *.'' 29 U.S.C. 
    These commenters argued that the proposed rule merely reiterated 
the Secretary's entire range of statutory authority to collect 
information and did not itself prescribe anything, much less limit 
itself to the injury and illness records mentioned in section 8(c)(2). 
Moreover, some claimed, it left the compliance officer in the field 
with unfettered discretion to decide what information to demand. (Ex. 
15: 154, 313, 352, 353, 358, 375, 397.)
    There are several responses to be made on this point. First, OSHA 
has had the ability to access injury and illness records for many years 
and is simply clarifying its authority to collect the information 
through the mail. Second is the fact that the final rule is extremely 
narrow and specific about the information it covers and how that 
information is to be gathered. Third, compliance officers do not 
implement the rule; the agency implements it by conducting large annual 
surveys, by mail, requesting information within the scope of the rule 
from employer or establishment groups whose responses the agency judges 
to be necessary in meeting its multiple responsibilities. Finally, the 
final rule fits within the terms of Section 8(c).

5. Time Allowed for Employers To File Reports

    The proposed rule would have required employers to submit data to 
OSHA, when OSHA sends them a written request for records, within 21 
calendar days of receiving the request. Several commenters provided 
remarks on the 21 calendar day limitation. (Ex. 15: 65, 127, 347, 405)
    Some comments supported the 21 day time frame as a reasonable time 
for employers to comply with a request for information. (Ex. 15: 347, 
405) For example, the Westinghouse Company (Ex. 15: 405, P. 4) stated: 
``This change is acceptable and the time limitations appear 
    OSHA also received comments stating that 21 calendar days is too 
short a time frame for reporting, and that longer times should be 
adopted in the final rule. (Ex. 15: 65, 127) For example, the Aluminum 
Company of America (Alcoa) remarked:

    Alcoa believes this is too short and restrictive a time frame 
given current staff levels and resource demands on employers and 
their health and safety professionals. * * * OSHA should provide 30 
days advanced notification (for planning purposes) and 21 days for 
response following the advanced notification to the specific 
employers to be surveyed.

(Ex. 15: 65)
    The Laboratory Corporation of America stated:

    Reports to be required of employers mentioned in 29 CFR 1904.13 
should be handled in one of two ways. The content of the reports 
needs to be established in advance and a specific date for a 
deadline for submission provided. Alternatively, if the report 
content has not yet been established, then a period of time longer 
than 21 days is needed for response. A period of 45 to 60 days is 
suggested. Unless the information requested is known in advance to 
employers, it will take time to communicate and collect

[[Page 6439]]

this data in a multi-state, multi-location operation. Either of 
these two options would give more appropriate time for more accurate 
information to be compiled for these types of employers.

(Ex. 15:127 P. 2)
    Other comments supported the 21 day requirement, but suggested that 
the Secretary maintain some flexibility and discretion to provide more 
than 21 days for a specific request.
    The American Petroleum Institute (API), for example, observed:

    Twenty-one days should be the minimum time allowed for employers 
to respond to such requests.
    Recommended language: The employer shall file the requested 
reports with the Secretary within 21 calendar days of receipt of the 
request, unless the Secretary allows more than 21 days.

(Ex. 15:375 P. b25)
    In light of these comments, OSHA has increased the reporting time 
to 30 calendar days in this final rule. OSHA believes that the 21 day 
time frame may be too short for some employers to comply with the 
request, but believes that 45 or 60 days is too long a time frame for a 
relatively simple request for summary information contained in existing 
records. A longer deadline would make it more difficult for OSHA to 
collect data in a timely fashion, or to conduct quality control 
measures such as follow-up mailings and phone calls to verify 
questionable or erroneous data.
    Additionally, OSHA agrees that the time frame in the rule should be 
a minimum time that can be lengthened at the discretion of OSHA. In 
other words, the final rule requires employers to file reports within 
30 calendar days of receipt of the request, unless the written 
instructions contained in the request specifically allow more than 30 
calendar days.

6. Reporting With Computers

    OSHA received several comments on the potential role of computers 
in reporting data to OSHA. (Ex. 15: 011, 163, 184, 390, 402) The OSHA 
Data Company (Ex. 15: 011) suggested that computer reporting should be 
a mandatory feature of the data collection system, remarking: ``We 
suggest that recordkeeping in computer readable format should be 
mandatory and data should be submitted to OSHA in that format.''
    Other commenters suggested that computer reporting be allowed and 
encouraged (Ex. 15: 163, 184, 390, 402). The comments of US West Inc. 
are representative of these comments:

    US West requests that OSHA move to implement systems that will 
allow employers to electronically provide data, such as the data 
requested in the BLS Survey of Occupational Injuries and Illnesses. 
Such a method will be more effective, in terms of receiving 
consistently formatted data, and will be more cost efficient for 
both employers and the Department of Labor.

(Ex. 15-184)
    OSHA believes that there is enormous potential for reducing 
collection burden on both employers and the government, while improving 
data quality and consistency, by allowing employers to submit data 
through computerized reporting systems. However, OSHA does not believe 
that computerized reporting systems should be mandatory for all 
employers. Mandatory computer systems could actually increase the 
burden on those employers who do not have computer systems and on those 
employers who have computer systems that do not provide simple 
electronic communications options.
    OSHA intends to implement, as soon as possible, options for 
individual data collection projects that will allow employers to submit 
data either electronically or through paper forms. For those data 
collections where computerized submission of data is an option, OSHA 
will include instructions for computerized submissions in the 
instructions accompanying the request for information.

7. Miscellaneous Issues

    OSHA also received comments on a variety of issues that the Agency 
believes are worthy of discussion, as follows.
A. The Ability of OSHA To Designate its Collection Authority to Another 
Entity. The Proposed Rule Did Not Indicate That a Designee Could 
Collect Information for the Agency
    Often, OSHA and the Bureau of Labor Statistics have used grants to 
the states and independent government contractors to collect data on 
behalf of the Department of Labor. These arrangements allow the 
Department to collect information using a variety of administrative 
options that are advantageous to the Federal government and do not 
increase the burden on respondents. One commenter suggested: ``Data 
should continue to be collected through state agencies.'' (Ex. 15: 41)
    In order to maintain the Agency's flexibility to collect data via 
grants to the states, or to use government contractors, and to be able 
to collect data through cooperative interagency efforts with the 
Department of Health and Human Services, OSHA has modified the final 
rule to require employers to submit information to either OSHA or 
OSHA's designee.
B. Unfair Effect on Specific Industry Sectors
    Several commenters raised concerns over what they regarded as 
potentially unfair effects of the data collection on smaller employers, 
small establishments, and employers who rely heavily on part time 
employees (Ex. 15: 304, 384, 424, 449). Another commenter was concerned 
that OSHA would attempt to compare data from the longshoring industry 
to that of other industries and argued that such comparisons would be 
invalid because longshoring is subject to a different workers' 
compensation insurance system than other industry sectors (Ex. 15: 95).
    Several commenters expressed concern over a perceived and 
potentially unfair effect of data collections on smaller employers, 
arguing that the same small number of cases would result in a higher 
incidence rate for a smaller employer than for a larger employer, or 
that a small employer may have a high rate for only one year and may 
have had no cases for many years before and after the year for which 
the information is collected. (Ex. 15: 304, 384, 449) For example, the 
Akzo Nobel Corporation observed:

    We support this concept, but caution OSHA about using data from 
only one year, especially for small sites where a single medical 
case in a plant of 20 employees will give a total recordable rate of 
about 5. We would consider that a ``high'' rate, possibly targetable 
by OSHA, but it might be the first OSHA recordable incident in 3 or 
5 years. Caution is advised.

(Ex. 15: 384)
    United Parcel Service (UPS) (Ex. 15: 424, p. 9) expressed a concern 
about the possible effect on firms who rely heavily on part-time labor, 

    The agency's current practice of determining injury rates as a 
ratio to hours worked, rather than to employees, has the consequence 
of inflating injury and illness rates for companies with more 
workers per hour worked: at least when an outside limit of an 8-hour 
workday is established, the likelihood, per hour, of injury 
decreases when more hours are worked. To put it another way, the 
more workers who work per 8-hour day, the more likely those hours 
will generate discrete employee complaints. Therefore, OSHA's 
current practices already distort the apparent safety of workplaces 
relying heavily on part-time labor.

    The Pacific Maritime Association (Ex. 15: 95, p. 10) expressed a 
concern that injury and illness reports would not provide an accurate 
comparison with other industries because the longshoring industry is 
covered by a separate workers' compensation system, stating:

[[Page 6440]]

    Another very important recommendation concerns the inequities of 
comparing an industry covered by the Long Shore and Harbor Workers Act 
compensation program with those covered by Workers' Compensation. 
Compensation provided by the Long shore program is much more generous 
than Workers' Compensation and may encourage individuals to remain on 
compensation longer. This disparity between the two systems is not 
often acknowledged particularly when injury incident and severity rates 
are used to identify high hazard industries. It is recommended that 
OSHA recognize the impact of the Long shore compensation by 
establishing a specific category for employees who are covered by the 
Long shore Act. For an example, SIC 4491, Long shoring, may be used as 
a specific category where employer incident and severity rates may be 

    These objections are premature, as they relate to certain possible 
uses of data, not to usefulness for all purposes, and not to the 
Agency's authority to collect the data in the first instance. Moreover, 
as the comments themselves made clear, when the time comes for using 
survey data, it will be possible to factor in special circumstances for 
subgroups of employers. For example, small employer data could be 
adjusted to omit smaller employers with only one injury from any 
analysis of the data.
    In regards to the longshoring industry, OSHA has traditionally 
performed separate analyses of broader databases to prepare employer 
lists specific to the longshoring industry. OSHA recognizes the unique 
qualities of this industry, has developed separate standards for 
maritime industries, including longshoring, and normally performs 
specialized investigations for longshoring facilities. The problems 
with data from the longshoring industry can be solved by continuing to 
look at this industry in a way that does not compare these employers to 
employers in other industries.
    In general, OSHA believes that different approaches to the use of 
data can effectively deal with differences among different 
subpopulations of employers, depending on the unique qualities of those 
subpopulations. OSHA will continue to tailor its analysis of data when 
these unique situations are encountered.
C. Data Quality Issues
    Several commenters discussed the possible adverse impacts on the 
quality of the data if reporting is required. (Ex. 15: 50, 122, 176, 
273, 301, 310, 374, 401, 414). Mr. George R. Cook, CCC-A (Ex. 15: 50) 

    If the OSHA Form 300 is to be used to prioritize compliance 
visits, it is felt this policy will add undue pressure for companies 
to keep entries off the Form.

    The Laborers' Health & Safety Fund of North America (Ex. 15: 310) 

    The premise of employers self-reporting injuries and illnesses 
to an agency which may inspect them based on that data is a 
prescription for mis-reporting.

    The Chemical Manufacturers Association (CMA) remarked:

    CMA supports targeting of inspections in order for OSHA to 
better use its resources, but cautions OSHA to carefully consider 
its approach. CMA is concerned that OSHA carefully consider the 
relationship between targeting and OSHA's ability to collect 
accurate and credible data. Valid data collection and analysis are 
the cornerstone of effective targeting.
    CMA recognizes that currently OSHA is not collecting adequate 
data to target effectively. It is important that OSHA review 
existing data sources, examine existing targeting programs (e.g. 
Maine 200) and revise its data collection mechanisms. However, the 
Administration must carefully evaluate the context in which that 
data has been collected, as well as identify characteristic flaws in 
such programs.

(Ex. 15: 301, p. 16)
    The quality of any data collected from employers is an ongoing 
concern for the Agency. OSHA agrees that misreporting, whether 
intentional or unintentional, can affect the value of the collected 
data and any conclusions drawn from that data. Misreporting is not, 
however, an insoluble problem. Controls are available for assuring a 
reasonable quality of data for use by OSHA, as well as employers and 
workers. For example, OSHA is implementing a quality control initiative 
for the current collection of injury and illness records data required 
by Part 1904 that will include three components; outreach and training 
for the regulated community to reduce unintentional errors, error 
screening and follow-back procedures to correct or verify questionable 
data reported to the agency, and, under certain circumstances, on-site 
records inspections. OSHA is also planning to use other sources of 
data, e.g., workers' compensation records and inspection histories, 
when available, for comparison purposes as an external check on records 
D. Effect on Existing Authority
    Nothing in Section 1904.17 affects the Secretary's general 
investigatory authority under Section 8 of the Act or his broad 
rulemaking authority under Section 8(g)(2).

IV. Economic Analysis

    Section 1904.17 applies to all employers within OSHA jurisdiction, 
including those in general industry, construction, shipyard employment, 
long shoring, marine terminals, and agriculture. OSHA has determined 
that the Section 1904.17 regulation does not require the Agency to 
develop a Final Economic Analysis because it is not a ``significant 
regulatory action'' as defined by section 3(f)(1) of Executive Order 
(E.O.) 12866. This provision of the E.O. covers a regulatory action 
that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
    Pursuant to this section 1904.17 individual data collections 
conducted under this regulation will require employers to assemble data 
and file reports to OSHA. To provide employers with examples 
illustrative of the kinds of costs and paperwork burdens potentially 
associated with such data collections, the following paragraphs 
describe the costs and burden hours associated with two recent Agency 
data collection efforts. The examples chosen include the two recent 
data collection initiatives undertaken by OSHA in 1995 and 1996.
    The impact analyses developed for the 1995 and 1996 data 
collections initiatives were published in the Federal Register (60 FR 
35231; 61 FR 38227, respectively). OSHA estimated that employers 
responding to those data collection efforts would be required to spend 
an estimated $6.95 per response, based on 30 minutes of clerical time 
at $13.90 per hour. OSHA believes that most firms will assign the 
survey form to a personnel or payroll clerk with an average wage of 
$13.90 per hour. This figure is based on a wage rate with benefits for 
a secretary-typist from Employment and Earnings, January 1996, U.S. 
Department of Labor, Bureau of Labor Statistics (OSHA has recently 
updated its wage rate data with more current statistics). The 
information collected from employers in the 1995 and 1996 data 
collection initiatives was summary information from the establishment's 
OSHA Log and Form 200, in addition to information on the number of 
workers employed and the number of hours worked by these employees in 
the applicable calendar year. Approximately 70,000 employers were 
targeted in each of these data

[[Page 6441]]

collection initiatives, for a total burden estimate of 35,000 hours, or 
$486,500. OSHA anticipates that future data collection initiatives 
conducted under section 1904.17 will impose similar burdens--
approximately 30 minutes of clerical time per respondent--and will 
therefore not impose a substantial burden on any employer.
    The record contains many comments about the burden of recording 
employment and hours worked information on the OSHA Log--some favorable 
but more unfavorable. However, the negative commenters provided no 
empirical basis by which their burden claims could be quantified. In 
the absence of such data, OSHA turned to the long experience BLS has 
accumulated while collecting these same types of data for statistical 
purposes. For over 25 years, until the BLS injury and illness survey 
was revised to collect additional data from employers, the BLS 
collected data identical to the data collected by OSHA in 1996. BLS 
estimated that completion of its pre-1992 surveys required one half 
hour of time. A 1992 BLS test conducted on 92 respondents completing 
only part 1 of the BLS survey form (equivalent to the OSHA form) 
measured the average respondents completion time at 30.55 minutes.
    The occupational injury and illness information from the OSHA 
records is required by regulation and is easily transferred to the OSHA 
survey form. The information on employment and hours worked by 
employees is generally easy to obtain from payroll systems for 
employees who are paid on an hourly basis, and can be estimated for 
salaried employees. The survey forms used by OSHA provide the employer 
with instructions and worksheets to make the calculations as easy as 
possible. In many cases, the employment and hours worked data are 
already being reported to unemployment insurance and workers' 
compensation agencies and can easily be transferred to the OSHA survey 
    As discussed above, OSHA has concluded that promulgation of this 
regulation, in and of itself, imposes few if any economic costs on 
potentially affected firms. Individual data collections conducted under 
this regulation will be subject to OMB review under the procedures 
specified by the Paperwork Reduction Act of 1995. Employers will thus 
have an opportunity to comment on any burdens imposed by such data 
collections when they are carried out in the future.
    OSHA has determined that this rule is a significant regulatory 
action as defined by 3(f)(4) of E.O. 12866. This provision of the E.O. 
covers a regulatory action that is likely to result in a rule that may:
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

V. Regulatory Flexibility Act

    OSHA is required by the Regulatory Flexibility Act, as amended in 
1996, to assess whether its regulations will have a significant impact 
on a substantial number of small entities. As explained in the Economic 
Analysis section of this preamble, above, this regulation (section 
1904.17, Annual OSHA Injury and Illness Survey of Ten or More 
Employers) imposes few, if any costs on affected employers, although 
future data collection efforts conducted under this regulation may 
impose minimal cost and paperwork burdens on those employers affected 
by a given data collection effort. OSHA will carefully assess the 
impacts of individual data collections on employers, including small 
employers, at the time such efforts are initiated. Pursuant to the 
Regulatory Flexibility Act, OSHA thus certifies that section 1904.17 
will not have a significant impact on a substantial number of small 

VI. Environmental Impacts

    The provisions of this final regulation have been reviewed in 
accordance with the requirements of the National Environmental Policy 
Act (NEPA) of 1969 (42 U.S.C. 432, et seq.), the Council on 
Environmental Quality (CEQ) NEPA regulations [40 CFR part 1500], and 
OSHA's DOL Procedures [29 CFR part 11]. As a result of this review, 
OSHA has determined that this final rule will have no significant 
effect on air, water, or soil quality, plant or animal life, use of 
land, or other aspects of the environment.

VII. Federalism

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

VIII. State Plans

    The 25 States and territories with their own OSHA approved 
occupational safety and health plans 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; Connecticut and New York have state plans covering state and 
local Government employees only.
    Section 18(c)(7) of the OSH Act requires employers in state plan 
states to ``make reports to the Secretary in the same manner and to the 
same extent as if the plan were not in effect.'' Today's amendment to 
29 CFR part 1904 relates to periodic data surveys which federal OSHA 
will conduct in all states, including those which administer approved 
state plans; accordingly, states with state plans are not required to 
adopt a comparable regulation. In state plan states, the data collected 
by the federal OSHA survey will be shared with the states for use in 
administering their plans, and also provide relevant information for 
OSHA's use in monitoring the state plan as required by section 18(f). 
Because OSHA's nationwide data survey is not an issue currently 
addressed by any of the state plans, OSHA's authority to implement the 
survey is not affected either by operational agreements with state plan 
states or by the granting of final approval under section 18(e). OSHA's 
authority under the Act, to take appropriate enforcement action when 
necessary to compel responses to the survey and to assure the accuracy 
of the data submitted by employers, will be exercised in consultation 
with the state in state plan states. The states may also exercise such 
authority under state law or regulation.

IX. Paperwork Reduction Act of 1995

    This final regulation contains information collection requirements. 
As required by the Paperwork Reduction Act of 1995, the U.S. Department 
of Labor has submitted a copy of these sections to OMB for its review. 
(44 U.S.C. 3501 et seq., and 5 CFR part 1320.
    Separately, the Department of Labor has received renewed approval 
for the Annual Survey Form under the Paperwork Reduction Act (OMB 
number 1218-0209)

List of Subjects in 29 CFR Part 1904

    Reports by employers, occupational injuries and illnesses, 
Occupational Safety and Health, Occupational Safety and Health 
Administration, Recordkeeping, Reporting.


    This document was prepared under the direction of Greg Watchman, 
Acting Assistant Secretary of Labor for Occupational Safety and Health, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 

[[Page 6442]]

    Accordingly, pursuant to sections 8 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, 29 CFR part 1904 
is hereby amended by adding Sec. 1904.17 as set forth below.

    Signed in Washington, D.C., this 7th day of 1997.
Greg Watchman,
Acting Assistant Secretary of Labor.


    1. The authority citation for Part 1904 is revised to read as 

    Authority: Secs. 8, 24, Occupational Safety and Health Act of 
1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 12-71 (36 
FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033) 
or 6-96 (62 FR 111), as applicable.
    Section 1904.7, 1904.8 and 1904.17 are also issued under 5 
U.S.C. 553.

    2. Section 1904.17 immediately following 1904.16 is added to read 
as follows:

Sec. 1904.17  Annual OSHA Injury and Illness Survey of Ten or More 

    (a) Each employer shall, upon receipt of OSHA's Annual Survey Form, 
report to OSHA or OSHA's designee the number of workers it employed and 
number of hours worked by its employees for periods designated in the 
Survey Form and such information as OSHA may request from records 
required to be created and maintained pursuant to 29 CFR part 1904.
    (b) Survey reports shall be sent to OSHA by mail or other means 
described in the Survey Form within 30 calendar days, or the time 
stated in the Survey Form, whichever is longer.
    (c) Employers exempted from keeping injury and illness records 
under Secs. 1904.15 and 1904.16 shall maintain injury and illness 
records required by Secs. 1904.2 and 1904.4, and make Survey Reports 
pursuant to this Section, upon being notified in writing by OSHA, in 
advance of the year for which injury and illness records will be 
required, that the employer has been selected to participate in an 
information collection.
    (d) Nothing in any State plan approved under Section 18 of the Act 
shall affect the duties of employers to comply with this section.
    (e) Nothing in this section shall affect OSHA's exercise of its 
statutory authorities to investigate conditions related to occupational 
safety and health.

[FR Doc. 97-3495 Filed 2-10-97; 8:45 am]