[Federal Register Volume 66, Number 13 (Friday, January 19, 2001)]
[Rules and Regulations]
[Pages 5916-6135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-725]



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Part IV





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Parts 1904 and 1952



Occupational Injury and Illness Recording and Reporting Requirements; 
Final Rule

Federal Register / Vol. 66, No. 13 / Friday, January 19, 2001 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1952

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


Occupational Injury and Illness Recording and Reporting 
Requirements

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

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) is 
revising its rule addressing the recording and reporting of 
occupational injuries and illnesses (29 CFR parts 1904 and 1952), 
including the forms employers use to record those injuries and 
illnesses. The revisions to the final rule will produce more useful 
injury and illness records, collect better information about the 
incidence of occupational injuries and illnesses on a national basis, 
promote improved employee awareness and involvement in the recording 
and reporting of job-related injuries and illnesses, simplify the 
injury and illness recordkeeping system for employers, and permit 
increased use of computers and telecommunications technology for OSHA 
recordkeeping purposes.
    This rulemaking completes a larger overall effort to revise Part 
1904 of Title 29 of the Code of Federal Regulations. Two sections of 
Part 1904 have already been revised in earlier rulemakings. A rule 
titled Reporting fatalities and multiple hospitalization incidents to 
OSHA, became effective May 2, 1994 and has been incorporated into this 
final rule as Sec. 1904.39. A second rule entitled Annual OSHA injury 
and illness survey of ten or more employers became effective on March 
13, 1997 and has been incorporated into this final rule as 
Sec. 1904.41.
    The final rule being published today also revises 29 CFR 1952.4, 
Injury and Illness Recording and Reporting Requirements, which 
prescribes the recordkeeping and reporting requirements for States that 
have an occupational safety and health program approved by OSHA under 
Sec. 18 of the Occupational Safety and Health Act (the ``Act'' or ``OSH 
Act'').

DATES: This final rule becomes effective January 1, 2002.

FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and 
Health Administration, U.S. Department of Labor, Directorate of Safety 
Standards Programs, Room N-3609, 200 Constitution Ave., NW, Washington, 
DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

    The following is a table of contents for this preamble. The 
regulatory text and appendices follow the preamble. Documents and 
testimony submitted to the docket (Docket R-02) of this rulemaking 
are cited throughout this preamble by the number that has been 
assigned to each such docket entry, preceded by the abbreviation 
``Ex.,'' for exhibit.

II. The Occupational Safety and Health Act and the Functions of the 
Recordkeeping System
III. Overview of the Former OSHA Recordkeeping System
IV. OSHA's Reasons for Revising the Recordkeeping Rule
V. The Present Rulemaking
VI. Legal Authority
VII. Summary and Explanation of the Final Rule
A. Subpart A. Purpose
B. Subpart B. Scope
C. Subpart C. Recordkeeping Forms and Recording Criteria
D. Subpart D. Other OSHA Injury and Illness Recordkeeping 
Requirements
E. Subpart E. Reporting Fatality, Injury and Illness Information to 
the Government.
F. Subpart F. Transition From the Former Rule
G. Subpart G. Definitions
VIII. Forms
A. OSHA 300
B. OSHA 300 A
C. OSHA 301
IX. State Plans
X. Final Economic Analysis
XI. Regulatory Flexibility Certification
XII. Environmental Impact Assessment
XIII. Federalism
XIV. Paperwork Reduction Act of 1995
XV. Authority
Regulatory Text of 29 CFR Part 1904 and 29 CFR Section 1952.4

II. The Occupational Safety and Health Act and the Functions of the 
Recordkeeping System

Statutory Background

    The Occupational Safety and Health Act (the ``OSH Act'' or ``Act'') 
requires the Secretary of Labor to adopt regulations pertaining to two 
areas of recordkeeping. First, section 8(c)(2) of the Act requires the 
Secretary to issue 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)(1) of the Act also authorizes the Secretary of 
Labor to develop regulations requiring employers to keep and maintain 
records regarding the causes and prevention of occupational injuries 
and illnesses. Section (2)(b)(12) of the Act states Congress' findings 
with regard to achieving the goals of the Act and specifically notes 
that appropriate reporting procedures will help achieve the objectives 
of the Act.
    Second, section 24(a) of the Act requires the Secretary to develop 
and maintain an effective program of collection, compilation, and 
analysis of occupational safety and health statistics. This section 
also directs the Secretary to ``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.''
    After passage of the Act, OSHA issued the required occupational 
injury and illness recording and reporting regulations as 29 CFR part 
1904. Since 1971, OSHA and the Bureau of Labor Statistics (BLS) have 
operated the injury and illness recordkeeping system as a cooperative 
effort. Under a Memorandum of Understanding dated July 11, 1990 (Ex. 
6), BLS is now responsible for conducting the nationwide statistical 
compilation of occupational illnesses and injuries (called the Annual 
Survey of Occupational Injuries and Illnesses), while OSHA administers 
the regulatory components of the recordkeeping system.

Functions of the Recordkeeping System

    This revision of the Agency's recordkeeping rule is firmly rooted 
in the statutory requirements of the OSH Act (see the Legal Authority 
section of the preamble, below). OSHA's reasons for revising this 
regulation to better achieve the goals of the Act are discussed in the 
following paragraphs.
    Occupational injury and illness records have several distinct 
functions or uses. One use is to provide information to employers whose 
employees are being injured or made ill by hazards in their workplace. 
The information in OSHA records makes employers more aware of the kinds 
of injuries and illnesses occurring in the workplace and the hazards 
that cause or contribute to them. When employers analyze and review the 
information in their records, they can identify and

[[Page 5917]]

correct hazardous workplace conditions on their own. Injury and illness 
records are also an essential tool to help employers manage their 
company safety and health programs effectively.
    Employees who have information about the occupational injuries and 
illnesses occurring in their workplace are also better informed about 
the hazards they face. They are therefore more likely to follow safe 
work practices and to report workplace hazards to their employers. When 
employees are aware of workplace hazards and participate in the 
identification and control of those hazards, the overall level of 
safety and health in the workplace improves.
    The records required by the recordkeeping rule are also an 
important source of information for OSHA. During the initial stages of 
an inspection, an OSHA representative reviews the injury and illness 
data for the establishment as an aid to focusing the inspection effort 
on the safety and health hazards suggested by the injury and illness 
records. OSHA also uses establishment-specific injury and illness 
information to help target its intervention efforts on the most 
dangerous worksites and the worst safety and health hazards. Injury and 
illness statistics help OSHA identify the scope of occupational safety 
and health problems and decide whether regulatory intervention, 
compliance assistance, or other measures are warranted.
    Finally, the injury and illness records required by the OSHA 
recordkeeping rule are the source of the BLS-generated national 
statistics on workplace injuries and illnesses, as well as on the 
source, nature, and type of these injuries and illnesses. To obtain the 
data to develop national statistics, the BLS and participating State 
agencies conduct an annual survey of employers in almost all sectors of 
private industry. The BLS makes the aggregate survey results available 
both for research purposes and for public information. The BLS has 
published occupational safety and health statistics since 1971. These 
statistics chart the magnitude and nature of the occupational injury 
and illness problem across the country. Congress, OSHA, and safety and 
health policy makers in Federal, State and local governments use the 
BLS statistics to make decisions concerning safety and health 
legislation, programs, and standards. Employers and employees use them 
to compare their own injury and illness experience with the performance 
of other establishments within their industry and in other industries.

III. Overview of the Former OSHA Recordkeeping System

    The OSH Act authorizes OSHA to require employers to keep records 
and to report the recorded information to OSHA. However, the Agency 
only requires some employers to create and maintain occupational injury 
and illness records. Those employers who are required to keep records 
must report on those records only when the government specifically asks 
for the information, which occurs exclusively under limited 
circumstances that are described below.
    Employers covered by the recordkeeping regulations must keep 
records of the occupational injuries and illnesses that occur among 
their employees. To do so, covered employers must complete two forms. 
First, the employer must maintain a summary form (OSHA Form 200, 
commonly referred to as the ``OSHA Log,'' or an equivalent form) that 
lists each injury and illness that occurred in each establishment 
during the year. For each case on the Log, the employer also prepares a 
supplementary record (OSHA Form 101, or an equivalent), that provides 
additional details about the injury or illness. Most employers use a 
workers' compensation First Report of Injury in place of the 101 form. 
The Log is available to employees, former employees, and their 
representatives. A Summary of the Log is posted in the workplace from 
February 1 to March 1 of the year following the year to which the 
records pertain. The Log and summary, as well as the more detailed 
supplementary record, are available to OSHA inspectors who visit the 
establishment.
    The employer is only obligated to record work-related injuries and 
illnesses that meet one or more of certain recording criteria. In 
accordance with the OSH Act, OSHA does not require employers to record 
cases that only involve ``minor'' injuries or illnesses, i.e., do not 
involve death, loss of consciousness, days away from work, restriction 
of work or motion, transfer to another job, medical treatment other 
than first aid, or diagnosis of a significant injury or illness by a 
physician or other licensed health care professional.
    The language of the OSH Act also limits the recording requirements 
to injuries or illnesses that are ``work-related.'' The Act uses, but 
does not define, this term. OSHA has interpreted the Act to mean that 
injuries and illnesses are work-related if events or exposures at work 
either caused or contributed to the problem. Work-related injuries or 
illnesses may (1) occur at the employer's premises, or (2) occur off 
the employer's premises when the employee was engaged in a work 
activity or was present as a condition of employment. Certain limited 
exceptions to this overriding geographic presumption were permitted by 
the former rule.
    Although the Act gives OSHA the authority to require all employers 
covered by the OSH Act to keep records, two major classes of employers 
are not currently required regularly to keep records of the injuries 
and illnesses of their employees: employers with no more than 10 
employees at any time during the previous calendar year, and employers 
in certain industries in the retail and service sectors.
    Although the Act authorizes OSHA to require employers to submit 
reports on any or all injuries and illnesses occurring to their 
employees, there are currently only three situations where OSHA 
requires an employer to report occupational injury and illness records 
to the government. First, an employer must report to OSHA within eight 
hours any case involving a work-related fatality or the in-patient 
hospitalization of three or more employees as the result of a work-
related incident (former 29 CFR 1904.8, final rule 1904.39). These 
provisions were revised in 1994 to reduce the reporting time for these 
incidents from 48 hours to 8 hours and reduce the number of 
hospitalized employees triggering a report from five workers to three 
workers (59 FR 15594 (April 1, 1994)). Changes made to this section in 
1994 have largely been carried forward in the final rule being 
published today.
    Second, an employer who receives an annual survey form from the 
Bureau of Labor Statistics must submit its annual injury and illness 
data to the BLS. The BLS conducts an annual survey of occupational 
injuries and illnesses under 29 CFR 1904.20-22 of the former rule 
(1904.41 of the final rule). Using a stratified sample, the BLS sends 
survey forms to randomly selected employers, including employers who, 
under Part 1904, would otherwise be exempt from the duty to keep the 
OSHA Log and Summary. These otherwise exempt employers are required to 
keep an annual record of the injuries and illnesses occurring among 
their employees that are recordable under Part 1904 if the BLS contacts 
them as part of the annual survey. At the end of the year, these 
employers must send the results of recordkeeping to the BLS. The BLS 
then tabulates the data and uses them to prepare national statistics on 
occupational injuries and illnesses. The

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BLS survey thus ensures that the injury and illness experience of 
employers otherwise exempted from the requirement to keep OSHA 
records--such as employers with 10 or fewer employees in the previous 
year and employers in certain Standard Industrial Classification (SIC) 
codes--is reflected in the national statistics. In accordance with its 
statistical confidentiality policy, the BLS does not make public the 
identities of individual employers.
    Finally, OSHA may require employers to send occupational injury and 
illness data directly to OSHA under a regulation issued in 1997. That 
section of this regulation is entitled Annual OSHA Injury and Illness 
Survey of Ten or More Employers. It allows OSHA or the National 
Institute for Occupational Safety and Health (NIOSH) to collect data 
directly from employers. This section was published in the Federal 
Register on February 11, 1997 (62 FR 6434) and became effective on 
March 13, 1997. It has been included in this final rule as section 
1904.41 without substantive change; however, this section has been 
rewritten in plain language for consistency with the remainder of Part 
1904.

IV. OSHA's Reasons for Revising the Recordkeeping Rule

    OSHA had several interrelated reasons for revising its 
recordkeeping rule. The overarching goal of this rulemaking has been to 
improve the quality of workplace injury and illness records. The 
records have several important purposes, and higher quality records 
will better serve those purposes. OSHA also believes that an improved 
recordkeeping system will raise employer awareness of workplace hazards 
and help employers and employees use and analyze these records more 
effectively. In revising its recordkeeping rule, the Agency also hopes 
to reduce underreporting and to remove obstacles to complete and 
accurate reporting by employers and employees.
    A major goal of the revision has been to make the system simpler 
and easier to use and understand and to update the data on which the 
system is based. For example, OSHA has updated the list of partially 
exempt industries to reflect the most recent data available. The 
revisions to the final rule will also create more consistent statistics 
from employer to employer. Further, by providing more details about the 
system in the regulation itself and writing the rule in plain language, 
fewer unintentional errors will be made and the records will be more 
consistent. More consistent records will improve the quality of 
analyses comparing the injury and illness experience of establishments 
and companies with industry and national averages and of analyses 
looking for trends over several years.
    Another objective of the rulemaking has been to lessen the 
recordkeeping burden on employers, reduce unnecessary paperwork, and 
enhance the cost-effectiveness of the rule. The final rule achieves 
this objective in several ways. It updates the partially exempt 
industry list, reduces the requirement to keep track of lengthy 
employee absences and work restrictions caused by work-related injuries 
and illnesses and, above all, greatly simplifies the forms, regulatory 
requirements, and instructions to make the system easier for employers 
and employees to manage and use.
    In this rulemaking, OSHA has also addressed some of the objections 
employers have raised in the years since OSHA first implemented the 
injury and illness recordkeeping system. For example, the final rule 
includes a number of changes that will allow employers to exclude 
certain cases, eliminate the recording of minor illness cases, and 
allow employers maximum flexibility to use computer equipment to meet 
their OSHA recordkeeping obligations.
    OSHA is also complying with the President's Executive Memorandum on 
plain language (issued June 1, 1998) by writing the rule's requirements 
in plain language and using the question-and-answer format to speak 
directly to the user. OSHA believes that employers, employees and 
others who compile and maintain OSHA records will find that the plain 
language of the final rule helps compliance and understanding.
    Many of OSHA's goals and objectives in developing this final rule 
work together and reinforce each other. For example, writing the 
regulation in plain language makes the rule easier for employers and 
employees to use and improves the quality of the records by reducing 
the number of errors caused by ambiguity. In some cases, however, one 
objective had to be balanced against another. For example, the enhanced 
certification requirements in the final rule will improve the quality 
of the records, but they also slightly increase employer burden. 
Nevertheless, OSHA is confident that the final rule generally achieves 
the Agency's goals and objectives for this rulemaking and will result 
in a substantially strengthened and simplified recordkeeping and 
reporting system.

The Need To Improve the Quality of the Records

    The quality of the records OSHA requires employers to keep is of 
crucial importance for anyone who uses the resulting data. Problems 
with completeness, accuracy, or consistency can compromise the data and 
reduce the quality of the decisions made on the basis of those data. 
Several government studies, as well as OSHA's own enforcement history, 
have revealed problems with employers' injury and illness recordkeeping 
practices and with the validity of the data based on those records.
    A study conducted by the National Institute for Occupational Safety 
and Health (NIOSH) between 1981 and 1983 revealed that 25 percent of 
the 4,185 employers surveyed did not keep OSHA injury and illness 
records at all, although they were required by regulation to do so (Ex. 
15:407-P).
    A study of 192 employers in Massachusetts and Missouri conducted by 
the BLS in 1987 reported that an estimated 10 percent of covered 
employers did not maintain OSHA records at all, total injuries were 
underrecorded by approximately 10 percent (even though both 
overrecording and underrecording were discovered), lost workday 
injuries were undercounted by 25 percent, and lost workdays were 
undercounted by nearly 25 percent. Approximately half of the uncounted 
lost workdays were days of restricted work activity, and the other half 
were days away from work. Some of the underrecording was due to 
employers entering lost time cases on their records as no-lost-time 
cases (Exs. 72-1, 72-2).
    Through its inspections of workplaces, OSHA has also discovered 
that some employers seriously underrecord injuries and illnesses. In 
cases where the inspector has found evidence that the employer 
willfully understated the establishment's injury and illness 
experience, OSHA has levied large penalties and fines under its special 
citation policy for egregious violations. OSHA has issued 48 egregious 
injury and illness recordkeeping citations since 1986 (Ex. 74).
    As part of the OSHA Data Initiative (ODI), a survey allowing OSHA 
to collect injury and illness data from employers to direct OSHA's 
program activities, the Agency conducts Part 1904 records audits of 250 
establishments each year. The following table shows the results of the 
audits conducted to date.

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                              1996 Through 1998 OSHA Recordkeeping Audit Results *
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                                                                                  Data reference year  (percent)
                                   Error type                                   --------------------------------
                                                                                    1996       1997       1998
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Cases not entered on employers Log.............................................      13.56      10.49      12.91
Lost workday cases recorded as non-lost workday cases..........................       8.39       6.53       6.21
Non-lost workday cases recorded as lost workday cases..........................       (**)       2.10       1.94
                                                                                --------------------------------
    Total major recording errors...............................................      21.95      19.11      21.07
                                                                                --------------------------------
    Total cases recorded without major errors..................................      78.05      80.89     78.93
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* The results were tabulated using unweighted data and should not be used to draw broad conclusions about the
  recordkeeping universe.
** Data not calculated for 1996.
Source: OSHA Data Initiative Collection Quality Control: Analysis of Audits on 1996-1998 Employer Injury and
  Illness Recordkeeping.

Explicit Rules Are Needed To Ensure Consistent Recording

    When OSHA's recordkeeping regulation was first promulgated in 1971, 
many industry safety experts were concerned that the regulations and 
the instructions on the forms did not provide adequate guidance for 
employers. They requested that the Department of Labor provide 
additional instructions on employers' recordkeeping obligations and 
clarify several recordkeeping issues. The BLS 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 help 
employers by providing detailed information on when and how to record 
injury and illness cases on the recordkeeping forms. The supplemental 
instructions clarified numerous aspects of the rule, including the 
important recordability criteria that outline which injuries and 
illnesses are work-related and thus recordable. This BLS Report was 
revised and reissued in 1973, 1975, and 1978.
    In response to requests from labor and industry, and after 
publication in the Federal Register and a public comment period, the 
BLS 412 report series was replaced in April of 1986 by the 
Recordkeeping Guidelines For Occupational Injuries And Illnesses (the 
Guidelines) (Ex. 2). The Guidelines contained an expanded question-and-
answer format similar to that of the BLS 412 report and provided 
additional information on the legal basis for the requirements for 
recordkeeping under Part 1904. The Guidelines provided clearer 
definitions of the types of cases to be recorded and discussed employer 
recordkeeping obligations in greater detail. The Guidelines also 
introduced a number of exceptions to the general geographic presumption 
that injuries and illnesses that occurred ``on-premises'' were work-
related to cover situations where the application of the geographic 
presumption was considered inappropriate. Further, the Guidelines 
updated the lists that distinguished medical treatment from first aid 
and addressed new recordkeeping issues. The BLS also published a 
shortened version of the Guidelines, entitled A Brief Guide to 
Recordkeeping Requirements for Occupational Injuries and Illnesses (Ex. 
7).
    Although the 1986 edition of the Guidelines clarified many aspects 
of the recordkeeping regulation, concerns persisted about the quality 
and utility of the injury and illness data. In response to inquiries 
from employers, unions, employees, BLS, and OSHA staff, the Agency 
issued many letters of interpretation. These letters restated the 
former rule's regulatory requirements, interpreted the rules as they 
applied to specific injury and illness cases, and clarified the 
application of those requirements. A number of these letters of 
interpretation have been compiled and entered into the docket of this 
rulemaking (Ex. 70). OSHA has incorporated many of the prior 
interpretations directly into the implementation questions and answers 
in the regulatory text of the final rule, so that all affected 
employers will be aware of these provisions.

External Critiques of the Former Recordkeeping System

    Because of concern about the injury and illness records and the 
statistics derived from them, several organizations outside OSHA have 
studied the recordkeeping system. The National Research Council (NRC), 
the Keystone Center, and the General Accounting Office (GAO) each 
published reports that evaluated the recordkeeping system and made 
recommendations for improvements. OSHA has relied on these studies 
extensively in developing this final rule.
The NRC Report
    In response to concern over the underreporting of occupational 
injuries and illnesses and inconsistencies in the national data 
collected by the BLS, Congress appropriated funds in 1984 for the BLS 
to conduct a quality assurance study of its Annual Survey of 
Occupational Injuries and Illnesses. The BLS asked the National 
Research Council (NRC) to convene an expert panel to analyze the 
validity of employer records and the BLS annual survey, to address any 
problems related to determining and reporting occupational diseases, 
and to consider other issues related to the collection and use of data 
on health and safety in the workplace.
    In 1987, NRC issued its report, Counting Injuries and Illnesses in 
the Workplace: Proposals for a Better System (Ex. 4). The report 
contained 24 specific recommendations (Ex. 4, Ch. 8). In sum, the NRC 
panel recommended that BLS take the following steps to improve the 
recordkeeping system: (1) Modify the BLS Annual Survey to provide more 
information about the injuries and illnesses recorded; (2) discontinue 
the Supplementary Data System, replace it with a grant program for 
States and individual researchers, and develop criteria for the detail 
and quality of the data collected by the replacement system; (3) 
conduct an ongoing quality assurance program for the Annual Survey to 
identify underreporting by comparing the information on employers' logs 
with data from independent sources; (4) implement a system of 
surveillance for occupational disease, including the collection of data 
on exposure to workplace hazards; (5) improve the collection of 
national occupational fatality data; (6) implement an administrative 
data system that would allow OSHA to obtain individual establishment 
data to conduct an ``effective program for the prevention of

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workplace injuries and illnesses * * *''; and (7) thoroughly evaluate 
recordkeeping practices in individual establishments, using additional 
resources requested from Congress for that purpose to avoid diverting 
resources from OSHA inspections of workplace hazards (Ex. 4, p. 10).
The Keystone Report
    In 1987, The Keystone Center convened 46 representatives from labor 
unions, corporations, the health professions, government agencies, 
Congressional staff, and academia for a year-long dialogue to discuss 
occupational injury and illness recordkeeping. Two years later, 
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 Keystone report recommended that: (1) OSHA 
and the BLS should revise various aspects of the recording criteria; 
(2) OSHA should use injury and illness data to target enforcement 
efforts; (3) the BLS should revise the Guidelines to make them easily 
and uniformly understood; (4) the BLS should develop a national system 
to collect and disseminate occupational injury and illness information; 
and (5) OSHA and the BLS should broaden the type of information 
collected concerning occupational illness and make the information 
available to employees and government agencies for appropriate purposes 
such as research and study.
The General Accounting Office (GAO) Study
    An August 1990 report by the GAO, Options for Improving Safety and 
Health in the Workplace (Ex. 3), discussed the importance of employer 
injury and illness records. The GAO noted that these records have 
several major uses. They help employers, employees and others 
understand the nature and extent of occupational safety and health 
problems. They help employers and employees identify safety and health 
problems in their workplaces so that they can correct the problems. 
They also enable 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 that there was ``possibly significant injury 
and illness underrecording and subsequent underreporting'' (Ex. 3, p. 
3). The GAO report gave three main reasons for inaccurate recording and 
reporting: (1) Employers intentionally underrecord injuries and 
illnesses in response to OSHA inspection policies or management safety 
competitions; (2) employers unintentionally underrecord injuries and 
illnesses because they do not understand the recording and reporting 
system; and (3) employers record injuries and illnesses inaccurately 
because they do not place a high priority on recordkeeping and do not 
supervise their recordkeepers properly. The GAO report noted that 
OSHA's revised enforcement procedures, which included increasing its 
fines for recordkeeping violations and modifying its records-review 
procedures, would likely help to improve the accuracy of recordkeeping. 
The GAO recommended that the Department of Labor study the accuracy of 
employers' records using independent data sources, evaluate how well 
employers understand the revised Guidelines, and audit employers' 
records in selected enforcement activities.
OSHA's Strategy for Improving the Quality of Records
    OSHA has developed a four-part strategy to improve the quality of 
the injury and illness records maintained by employers. The first 
component is to provide information, outreach and training to employers 
to make them more aware of the recordkeeping requirements, thereby 
improving their compliance with these requirements. For example, 
information on injury and illness recordkeeping is included in many of 
OSHA's publications and pamphlets, on the OSHA CD-ROM, and on OSHA's 
Internet site. OSHA personnel answer thousands of recordkeeping 
questions each year in response to phone calls and letters. OSHA also 
trains employers at the OSHA Training Institute in recordkeeping 
procedures and provides speakers on this topic for numerous safety and 
health events.
    The second component is improved enforcement of the recordkeeping 
requirements. OSHA continues to review employer records during many of 
its workplace inspections. OSHA also audits the records of some 
employers who submit data to OSHA under former section 1904.17 
(recodified as section 1904.41 Requests from OSHA for Data in the final 
rule). Although OSHA does not issue citations for minor reporting and 
recording violations, the Agency does cite and fine employers when it 
encounters serious or willful injury and illness recordkeeping 
problems.
    The third component of OSHA's overall plan is this revision of the 
injury and illness recordkeeping rule. The revised final rule will 
streamline the recordkeeping system by simplifying the forms and the 
logic used to record an individual case. It will also consolidate the 
instructions that were formerly contained in the rule itself, in the 
Guidelines, and in many interpretative letters and memoranda. In 
addition, the final rule will improve the quality of the injury and 
illness records by changing several requirements to ensure that data 
are entered correctly. OSHA has simplified and streamlined the 
recordkeeping forms and processes to reduce errors. Other changes 
include: (1) Simplifying and clarifying the definitions of terms such 
as ``medical treatment,'' ``first aid,'' and ``restricted work'' to 
reduce recording errors; (2) providing specific recordkeeping guidance 
for specific types of injuries and illnesses; (3) including a detailed 
discussion of the process of determining whether an injury or illness 
is work-related; (4) giving employees greater involvement by improving 
their access to records and providing a longer posting period for the 
annual summary; (5) requiring higher level management officials to 
certify the records; (6) adding a falsification/penalty statement to 
the Summary; (7) adding a disclaimer to the Log to clarify that an 
employer who records an injury or illness is not admitting fault, 
negligence or liability for workers' compensation or insurance 
purposes; and (8) requiring the employer to establish a process for 
employees to report injuries and illnesses and to tell employees about 
it, and explicitly prohibiting the employer from discriminating against 
employees who report injuries and illnesses.

V. The Present Rulemaking

    In 1995, the Keystone Center reassembled a group of business, 
labor, and government representatives to discuss draft proposed changes 
to the recordkeeping rule. OSHA shared its draft proposed revision of 
the rule with the participants and the public. The draft was also 
reprinted in several national safety and health publications. Written 
comments generated by the on-going dialogue were used to help develop 
the proposal and the final rule, and they are in the rulemaking record 
(Ex. 12).
    OSHA consulted with the Advisory Committee on Construction Safety 
and Health (ACCSH) before issuing the

[[Page 5921]]

proposed rule. ACCSH made specific recommendations to OSHA for 
improving the recordkeeping system as it applied to the construction 
industry. OSHA gave the ACCSH recommendations careful consideration and 
responded by modifying 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 
also part of the public record (Ex. 10).
    OSHA published a Notice of Proposed Rulemaking (NPRM) on February 
2, 1996 (61 FR 23), giving formal notice that the Agency proposed to 
revise the injury and illness recording and reporting regulations, 
forms, and supplemental instructions (Ex. 14). The proposed rule 
reflected a number of suggestions made by the Keystone participants and 
ACCSH.
    The NPRM invited all interested parties to submit comments on the 
proposal to the docket by May 2, 1996. In response to requests from 
members of the public, OSHA held two public meetings during the comment 
period and extended the comment period to July 1, 1996.
    OSHA received 449 written comments in response to the NPRM and 
compiled 1200 pages of transcripts from 60 presentations made at the 
public meeting. Comments and testimony were received from a broad range 
of interested parties, including corporations, small business entities, 
trade associations, unions, state and local governments, professional 
associations, citizens groups, and safety and health organizations. 
OSHA has carefully reviewed all of the comments and testimony in its 
preparation of the final rule.
    As described in greater detail below, the final rule revises OSHA's 
regulation for the recording and reporting of work-related deaths, 
injuries and illnesses. The rule is part of a comprehensive revision of 
the OSHA injury and illness recordkeeping system.
    The final rule becomes effective, on January 1, 2002. At that time, 
the following recordkeeping actions will occur:
    (1) 29 CFR Part 1904, entitled Recording and Reporting Occupational 
Injuries and Illnesses, will be in effect.
    (2) The State plan provisions in 29 CFR Part 1952, Section 1952.4, 
entitled Injury and Illness Recording and Reporting Requirements will 
be in effect.
    (3) Three new recordkeeping forms will come into use:
    (A) OSHA Form 300, OSHA Injury and Illness Log, and OSHA Form 300 A 
Summary, which will replace the former OSHA Form 200, Log and Summary 
of Occupational Injuries and Illnesses; and
    (B) OSHA Form 301, OSHA Injury and Illness Incident Record, which 
will replace the former OSHA Form 101, Supplementary Record of 
Occupational Injuries and Illnesses.
    (4) The following BLS/OSHA publications will be withdrawn:
    (A) Recordkeeping Guidelines for Occupational Injuries and 
Illnesses, 1986; and
    (B) A Brief Guide to Recordkeeping Requirements for Occupational 
Injuries and Illnesses, 1986.
    (5) All letters of interpretation regarding the former rule's 
injury and illness recordkeeping requirements will be withdrawn and 
removed from the OSHA CD-ROM and the OSHA Internet site.

Provisions Not Carried Forward From the Proposal

    Two proposed regulatory sections in OSHA's 1996 Notice of Proposed 
Rulemaking (NPRM) have not been carried forward in this rulemaking. 
They are: (1) Falsification of, or failure to keep records or provide 
reports (Proposed section 1904.16), and (2) Subcontractor records for 
major construction projects (Proposed section 1904.17).
    Paragraphs (a) and (b) of proposed section 1904.16, ``Falsification 
of, or failure to keep records or provide reports,'' were included in 
the proposal because they had been included in the former rule. The 
proposed section included a provision stating that employers may be 
subject to criminal fines under section 17(g) of the Act for falsifying 
injury and illness logs and may be cited and fined under sections 9, 
10, and 17 of the Act for failure to comply with the recordkeeping 
rule. Several commenters favored retention of this proposed provision 
in the final rule because, in their view, OSHA needs strong enforcement 
of the recordkeeping rule to make sure that employers keep accurate 
records (see, e.g., Exs. 15: 11, 289). Others, however, objected to the 
proposed provision (see, e.g., Exs. 15: 22, 335, 375). The views of 
this latter group were reflected in a comment from the American 
Petroleum Institute (Ex. 15: 375), which urged OSHA to delete this 
section from the rule in its entirety because nothing like it is found 
in any other OSHA regulation or standard. In the final rule, OSHA has 
decided that this section is not needed to enforce the final rule, and 
when need be, to issue citations and levy penalties.
    The Keystone report recommended, and OSHA proposed, to require 
construction employers to maintain ``site logs,'' or comprehensive 
injury and illness records, for major construction projects. The 
Keystone report noted that construction sites are normally composed of 
multiple contractors and subcontractors, each of whom may be present at 
the site for a relatively short period of time, and that no records of 
the safety and health experience of the site are readily available, 
either to OSHA or to employers and employees.
    In an attempt to address this problem, the proposed provision would 
have required site-controlling employers in the construction industry 
to maintain a separate record reflecting the overall injury and illness 
experience of employees working for sub-contract construction firms for 
any construction site having an initial construction contract value 
exceeding $1,000,000. The site-controlling employer would thus have 
been required to record the injuries and illnesses of subcontractor 
employees who were employed by construction employers with 11 or more 
employees working at the site at any time during the previous calendar 
year.
    Many commenters strongly favored the addition of a construction 
site log provision to the final rule (see, e.g., Exs. 20; 29; 35; 36; 
45; 15: 48, 110, 113, 129, 136, 137, 141, 181, 224, 266, 278, 310, 350, 
359, 369, 375, 394, 407, 413, 415, 418, 425, 438, 440). Several of 
these commenters urged OSHA to expand this ``multi-employer'' log 
concept to employers in other industries (see, e.g., Exs. 35; 15: 48, 
113, 129, 369, 415, 418, 438). For example, the AFL-CIO (Ex. 15: 418) 
encouraged OSHA to ``[e]xpand this recommendation to all industries. As 
the Agency is well aware, safety and health problems related to multi-
employer worksites and contract work are a major concern in many 
industries beyond construction. Many of the major chemical explosions 
and fatalities at steel mills, power plants and paper mills have been 
related to contract work. With more and more businesses contracting out 
services for on-site activities, the safety and health concern 
associated with these practices is growing.''
    Other commenters argued that the proposed site log provisions 
should be expanded to include injuries and illnesses to construction 
employees working for employers who would otherwise be exempt from OSHA 
recordkeeping requirements because they employ fewer than 11 workers 
(see, e.g., Exs. 20; 15: 350, 359, 369, 407, 425). Two of these 
commenters recommended adding a requirement to the final rule requiring 
the site-controlling employer to assist smaller

[[Page 5922]]

employers with their records (Exs. 15: 350, 359).
    Several commenters recommended adding provisions to the final rule 
that would provide greater access to the construction site log by 
employees (see, e.g., Exs. 15: 129, 310, 394) and by other employers 
(see, e.g., Ex. 15: 310). Others recommended that OSHA include in the 
final rule a requirement for the site-controlling employer to collect 
the number of hours worked by each subcontractor to make it easier to 
calculate each subcontractor's injury and illness rates (see, e.g., 
Exs. 15: 310, 369, 394), and some commenters recommended that the final 
rule contain a requirement for subcontractors to report work-related 
injuries and illnesses to the site-controlling employer (see, e.g., 
Exs. 15: 359, 369, 440).
    The Building and Construction Trades Department (BCTD), AFL-CIO 
discussed many of these issues while commenting in favor of site logs:

    On the project level, the fragmentation of employers on 
construction sites makes it impossible to assess fully safety and 
health on a particular project. Since the origins of OSHA, injury 
and illness recordkeeping has been the responsibility of each 
individual employer. Nevertheless, the hazards of construction 
activity are shared by employees across the site, and are not 
specific to a single employer. Employees are often injured or made 
ill by circumstances that are not under their own employer's full 
control. The balkanization of recordkeeping contributes to the 
failure of full and complete communication in construction.
    What is needed, at a national and the project level, is a way to 
record and count the injuries and illnesses that occur on specific 
projects. We need to know about illnesses and injuries that are 
associated with distinct types of construction activity, with the 
various phases of construction, and with the methods, materials, and 
hazards that are common to those types of work. Furthermore, we need 
to develop a measure of injury and illness that spans employers, to 
get a picture of the aggregate outcomes affecting all actors on a 
common site. Only with such a tool can the construction industry 
establish and meet performance benchmarks for safety and health.
    Site logs would be useful to all of the actors in the 
occupational safety and health arena. First, employers would benefit 
from the collection of this data. General contractors increasingly 
use safety and health information in selecting their subcontractors, 
and in evaluating projects. Site logs will give them a new tool for 
both self-evaluation and the evaluation of other contractors. 
Similarly, subcontractors are often ignorant of the safety and 
health performance of other contractors and the general contractor. 
Site logs will lead to better information for all contractors on the 
project.
    Second, employees will benefit from site logs. The site log will 
focus employers' attentions upon the risks and hazards that are 
encountered across the worksite. By concretely illustrating that 
hazards are everyone's problems, the site log will prompt employers 
and employees to minimize those hazards and to maximize site safety 
and health.
    Third, owners will benefit from site logs. Today, many owners 
are selecting contractors on the basis of the contractors' rates for 
lost work days and total recordables. In many cases, these rates are 
a poor measure for the owner's purpose. An owner's typical concern 
is with how well a general contractor manages safety and health on 
the entire site, not with how many injuries and illnesses occurred 
within that contractor's own workforce. Site logs can be used to 
measure the management performance of the general contractor, and 
will greatly assist the owners in their quest for construction 
safety.
    Finally, OSHA will find the site logs to be enormously useful in 
its efforts to become a ``data-driven'' agency. First, a project-
centric focus will allow OSHA to focus its enforcement and 
consultation resources. Site logs will be useful to OSHA in 
scheduling inspections during the phases of construction which 
appear, through this data, to present the most risks, and in 
focusing its inspections at construction sites, since the recent 
illness and injury history of the entire site can be assayed by 
examining a single document. By the same token, the information 
revealed by the logs will assist OSHA in reaching out to employers 
to provide consultative services. Site specific data will also aid 
OSHA in developing safety and health standards that are 
appropriately tailored to the risks and hazards of specific types of 
construction.
    The BCTD is convinced that private actors will use site logs to 
improve safety and health performance. If OSHA establishes a 
requirement that site logs be kept, the private marketplace will use 
this new tool to the betterment of employee safety and health (Ex. 
15: 394).

    Other commenters opposed the addition of a site log provision to 
the final rule (see, e.g., Exs. 43; 51; 15: 9, 17, 21, 38, 40, 43, 61, 
67, 74, 77, 97, 111, 116, 119, 121, 126, 151, 155, 163, 170, 194, 195, 
204, 213, 235, 242, 256, 260, 262, 263, 265, 269, 270, 281, 294, 298, 
304, 305, 312, 314, 341, 342, 351, 356, 364, 377, 389, 395, 397, 401, 
406, 412, 423, 433, 437, 443, 441). The most common argument presented 
by these commenters was that records should only be kept by the 
employer, and that one employer should not keep records for another 
employer's employees (see, e.g., Exs. 15: 9, 116, 126, 163, 195, 204, 
260, 262, 265, 281, 294, 304, 312, 314, 341, 342, 351, 364, 389, 395, 
396, 397, 401, 406, 423, 433). The Jewell Coal and Coke Company (Ex. 
15: 281) stated that:

[t]he sub-contractor should be responsible for keeping up with their 
own employee injury/illness records as they are the ultimate 
responsible party for their own employees under worker's 
compensation regulations and in all other legal issues. This 
proposal would appear to be trying to switch total responsibility to 
the site controlling employer for that record keeping purpose and 
taking the responsibility off the subcontractor with whom the 
responsibility should lie. It is, we feel, unfairly discriminatory 
against the site-controlling employer in this case and we are 
strongly opposed to the wording of this proposal. Even the 
alternative proposal in this section places the ultimate 
responsibility upon the project owner for collection of accident and 
illness information and send it to OSHA. Again we are strongly 
opposed to the wording of this proposal because it takes the 
responsibility for record keeping off the sub-contractor and places 
the ultimate responsibility on the project owner, a responsibility 
that we feel belongs to the sub-contractor irregardless of their 
size.

    Brown & Root, Inc. (Ex. 15: 423) added ``A site controlling 
employer cannot be held responsible for determining which injuries and 
illnesses of a subcontractor's employees are recordable. A contractor 
cannot become involved in the medical records of employees who do not 
work for him or her. The subcontractor employer has to be held 
accountable and responsible for his own employees, this responsibility 
cannot be delegated to another contractor. The number of employees or 
the value of the construction project is irrelevant.''
    Some of the commenters who generally opposed this provision agreed 
that site-specific data would be useful if it could be collected by a 
method that allowed each employer to keep its own records (see, e.g., 
Exs. 15: 9, 116, 195, 260, 262, 265, 304, 364, 401). Other commenters 
pointed out that there would be problems in getting accurate data from 
subcontractors (see, e.g., Exs. 15: 242, 263, 269, 270, 310, 314, 377, 
395, 397, 406) or suggested that the site-controlling employer should 
not be held responsible for the quality of the records received from 
subcontractors (see, e.g., Exs. 33; 15: 176, 195, 231, 273, 294, 301, 
305, 312, 351).
    The Alabama Branch of the Associated General Contractors of 
America, Inc. (AGC) cited difficulties associated with other regulatory 
requirements that could result from the proposed OSHA site log 
requirement:

    This could place an undue hardship on the site controlling 
employer far beyond his ability to appoint and manage independent 
contractors and subcontractors without there being other entangling 
both federal and state obligations, which would lead to the 
subcontractor's employees being declared employees of the 
controlling contractor. Many states use the common law to make a 
determination of the employer/employee relationship, as well as the 
Internal Revenue Service. This employee/employer relationship under 
the common law usually

[[Page 5923]]

says if a controlling contractor exercises any control as to time, 
place, method or result of a person's work that they are in fact 
defacto employees of the controlling contractor, for social security 
purposes and other state purposes. Therefore, I think it is shallow 
thinking to believe that the general contractor with 100 
subcontractors should have all 5,500 employees under their control 
and avoid other legal entanglements, without the ability to actually 
control the subcontractor.

    The National Federation of Independent Business (NFIB) expressed 
concern about the proposed site log provision as it would relate to 
OSHA's multi-employer citation policy (Ex. 15: 304), and the Small 
Business Administration (Exs. 51: 67, 437) argued that the proposed 
requirement would require competing employers to share sensitive 
business information.
    A number of commenters objected to the requirement because of the 
additional burden it would place on employers (see, e.g., Exs. 51; 15: 
40, 43, 67, 77, 97, 119, 121, 163, 194, 204, 235, 242, 256, 263, 269, 
270, 294, 298, 304, 312, 314, 356, 377, 389, 395, 397, 406, 412, 437, 
441), arguing that the proposed requirement would result in duplication 
(see, e.g., Exs. 51; 15: 9, 38, 67, 77, 119, 155, 204, 304, 312, 351, 
356, 364, 377, 395, 397, 437). For example, the American Iron and Steel 
Institute (Ex. 15: 395) stated that the proposed requirement would 
place a ``near impossible burden on the `site controlling employer' '' 
to determine the size of each subcontractor to decide which 
subcontractors would be required to keep records.
    A number of commenters also questioned the value of the statistical 
data that would be produced by a site log requirement (see, e.g., Exs. 
51; 15: 61, 62, 67, 74, 77, 97, 121, 151, 194, 312, 314, 351, 389, 395, 
433, 437, 433), and several participants were concerned that the 
records would not be useful for accident prevention purposes (see, 
e.g., Exs. 15: 121, 151, 312, 351, 389, 433) .
    OSHA received many comments addressing miscellaneous points related 
to the proposed construction site log requirement. For example, some 
commenters suggested limiting the scope of the project records required 
to be maintained (see, e.g., Exs. 15: 17, 21, 111, 116, 213, 155), 
while others argued that the proposed dollar threshold ($1 million) for 
a covered construction project was too low and should be raised (see, 
e.g., Exs. 15: 17, 111, 116, 441). Others suggested that the site log 
requirement should be triggered by the time duration of the project 
(Ex. 15: 116); the number of construction workers at the site (Ex. 15: 
111); or include only construction employers with more than 11 
employees (see, e.g., Exs. 15: 170, 213, 405). Some commenters urged 
the Agency not to expand the site log concept beyond the construction 
industry (see, e.g., Exs. 33; 15: 176, 231, 273, 301, 397). Finally, 
several commenters urged OSHA to make any site log provision in the 
final rule compatible with the corresponding provisions of the Process 
Safety Management Standard (29 CFR 1910.119), especially if the site 
log requirement in the recordkeeping rule was expanded beyond 
construction (see, e.g., Exs. 33; 15: 159, 176, 231, 273, 301, 335).
    Based on a thorough review of the comments received, OSHA has 
decided not to include provisions in the final that require the site-
controlling employer to keep a site log for all recordable injuries and 
illnesses occurring among employees on the site. OSHA has made this 
decision for several reasons. First, such a provision would not truly 
capture the site's injury and illness experience because many 
subcontractors employ 10 or fewer employees and are therefore exempt 
from keeping an OSHA Log. To require these very small employers to keep 
records under Part 1904 for the periods of time they worked on a 
construction site meeting the dollar threshold for this provision would 
be a new recordkeeping burden. This would create considerable 
complexity for these employers and for the site-controlling employer. 
Second, under the Data Initiative (section 1904.41 of the final rule), 
OSHA now has a means of targeting data requests for records of the 
safety and health experience of categories of employers and can 
therefore obtain the data it needs to establish inspection priorities 
in a less administratively complex and less burdensome way when the 
Agency needs such data. Third, OSHA was concerned with the utility of 
the data that would have been collected under the proposed site log 
approach, because of the time lag between collection of the data and 
its use in selecting employers for inspections or other interventions. 
In many cases work at the site would be complete before the data was 
collected and analyzed. Finally, a site log requirement is not 
necessary to enable general contractors to compare the safety records 
of potential subcontractors since they can require such information as 
a condition of their contractual arrangements without OSHA 
requirements. For these reasons, the final rule does not contain a site 
log provision.

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 requiring 
separate data for OSHA recordkeeping purposes (see, e.g., Exs. 15: 2, 
28, 58, 63, 97, 184, 195, 289, 327, 341, 374, 444). For example, Alex 
F. Gimble 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 the workers' compensation systems in lieu of employer records. The 
comments of the American Health Care Association (AHCA) are 
representative of the views of these commenters:

    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 injury and illness data 
obtained from treatment facilities rather than the OSHA records:

    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).

    In response to these comments, OSHA notes that the injury and 
illness information compiled pursuant to Part 1904 is much more 
reliable, consistent and comprehensive than data from any available 
alternative data source, including those recommended by commenters. 
This is the case because, although some State workers' compensation 
programs voluntarily provide injury and illness data to OSHA for 
various purposes, others do not. Further, workers' compensation data 
vary widely from state to state. Differing state workers' compensation 
laws and administrative systems have resulted in

[[Page 5924]]

large variations in the content, format, accessibility, and 
computerization of that system's data. In addition, workers' 
compensation databases often 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, which means that injury and illness incidence 
rates cannot be computed from the data. Workers' compensation data are 
also based on insurance accounts (i.e., filed claims), and not on the 
safety and health experience of individual workplaces. As a result, an 
individual account often reflects the experience of several corporate 
workplaces involved in differing business activities. Finally, as 
discussed below in the Legal Authority section of the preamble, the OSH 
Act specifically sets out the recordability criteria that must be 
included in the OSHA recordkeeping system envisioned by the Congress 
when the Act was passed. The Congress intended that all non-minor work-
related injuries and illnesses be captured by the OSHA recordkeeping 
system, both so that individual establishments could evaluate their 
injury and illness experience and so that national statistics 
accurately reflecting the magnitude of the problem of occupational 
injury and illness would be available.
    Although OSHA disagrees that any of the alternate sources of data 
are satisfactory substitutes for the information gathered under Part 
1904, the Agency recognizes that data from these sources have value. To 
the extent that information from workers' compensation programs, the 
BLS statistics, 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 to assess the 
quality of its own data. However, consistent with the Congressional 
mandate of the OSH Act, OSHA must continue to maintain its own 
recordkeeping system and to gather data for this system through 
recording and reporting requirements applicable to covered employers.

Section 1952.4  Injury and Illness Recording and Reporting Requirements

    The requirements of 29 CFR 1952.4 describe the duties of State-Plan 
states to implement the 29 CFR 1904 regulations. These requirements are 
discussed in Section IX of the preamble, State Plans, and in the 
preamble discussion for section 1904.37, State recordkeeping 
regulations.

General Issues Raised by Commenters

    In addition to the issues discussed above, three issues concerning 
recordkeeping warrant discussion: analysis of the data, training and 
qualifications of recordkeepers, and recordkeeping software.
Analysis of the Data
    During OSHA's public meetings, Eric Frumin of the Union of 
Needletrades, Industrial and Textile Employees, AFL-CIO (UNITE) urged 
OSHA to include a requirement for employers to analyze the OSHA 1904 
data in depth to discover patterns and trends of occupational injury 
and illness, stating that:

[y]ou're telling the employers to evaluate information that's coming 
to them, and I say that to stress the point that's a very logical, 
common sense requirement and you're not generally speaking asking 
them to do that once they compile a log. You stop short of asking 
employers to evaluate the log in toto, to look for the kinds of 
trends and comparisons and so forth that we've been discussing here. 
I think it's important for OSHA to consider some--making such a 
requirement, particularly in light of a fairly consistent pattern of 
testimony in this proceeding, wherein employers now do not analyze 
what's on the log in much depth. * * * But what has emerged at the 
end of the day is not a whole lot of use of the information on the 
log for--in terms of analyzing it for trends and various 
associations or conclusions about how to protect people, how to stop 
the injuries and illness (Ex. 58X, pp. 372--375).

    In the final rule, OSHA has not included any requirement for 
employers to analyze the data to identify patterns or trends of 
occupational injury and illness. OSHA agrees with Mr. Frumin that 
analysis of the data is a logical outgrowth of maintaining records. 
Employers and employees can use such analyses to identify patterns and 
trends in occupational injuries and illnesses, and use that information 
to correct safety and health problems in the workplace. OSHA encourages 
both employers and employees to use the data for these purposes. 
However, a requirement of this type would go beyond the scope of the 
recording and reporting rule, which simply requires employers to keep 
records of work-related injuries and illnesses, and report the data 
under certain circumstances. OSHA believes that requirements of this 
type are better addressed through an OSHA standard, rather than the 
1904 recordkeeping regulation.
Training of Recordkeepers
    The American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) suggested that OSHA add requirements for the 
training of the individual who maintains the 1904 records for the 
employer, stating that:

[a]nother important issue relates to the qualifications and 
responsibilities of the individual filling out the 300 log and Form 
301. Most workplaces generally have a non-safety and health 
professional entering this information in the 300 log after the 
decision of a recordable injury or illness has been made. In our 
view it is important that these individuals have proper training 
about the recordkeeping rule and the employer's recordkeeping 
system. In order to assure the most accurate and complete recording 
of work-related injuries and illnesses, we encourage the Agency to 
consider developing guidelines for the qualifications and training 
of these individuals (Ex. 15: 418).

    OSHA has not included a training requirement for the person 
entering the information on the Part 1904 records in this final rule. 
The Agency believes that the Section 1904.32 provisions of the final 
rule calling for annual review of the records and certification of the 
annual summary by a company executive will ensure that employers assign 
qualified personnel to maintain the records and to see that they are 
trained in that task. Further, because OSHA did not include training 
requirements in its 1996 proposal, the Agency has not gathered 
sufficient information in the rulemaking docket about whether specific 
training provisions would have utility, as well as the appropriate 
qualifications and training levels that would assist in writing such 
provisions at this time.
    As part of its outreach and training program accompanying this 
rule, OSHA will be providing speeches and seminars for employers to 
help them train their recordkeeping staff. OSHA will also be producing 
materials employers can use to help train their recordkeeping staff, 
including free software employers can use to keep records, training 
programs, presentations, course outlines, and a training video. All of 
these materials will be available through OSHA's Internet home page at 
www.osha.gov.
OSHA-Produced Recordkeeping Software
    In its proposal (61 FR 4048), OSHA asked the public to comment on 
whether or not OSHA should develop computer software to make injury and 
illness recordkeeping easier for employers, and discussed the features 
that would be desirable for such software. Those features were:
    --decision-making logic for determining if an injury or illness is 
recordable;
    --automatic form(s) generation;

[[Page 5925]]

    --the ability to assist the employer in evaluating the entered data 
through several preset analytical tools (e.g., tables, charts, etc.); 
and
    --computer based training tools to assist employers in training 
employees in proper recordkeeping procedures.
    OSHA also suggested that any such software should be in the public 
domain and/or be available at cost to the public and asked the 
following questions: 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 share-ware distribution, or other channels? Should OSHA 
develop the software or only provide specifications for its 
requirements?
    Several commenters said that most business establishments had 
computers (see, e.g., Exs. 15: 9, 95, 163, 281, 288, 375). The American 
Health Care Association (AHCA) estimated that 50% to 70% of their 
members used computers (Ex. 15: 341), and Raytheon Constructors, Inc. 
estimated that 60% of employers are using computers. OSHA agrees that 
computers are available in most businesses, although certainly not all 
of them. The agency also notes that these comments were made in 1996, 
and that businesses' computer usage has grown since that time.
    A number of commenters urged OSHA to produce and distribute 
software to help employers keep the Part 1904 records (see, e.g., Exs. 
35; 36; 51; 15: 9, 26, 32, 34, 67, 68, 76, 87, 95, 105, 109, 111, 129, 
154, 157, 170, 181, 182, 197, 225, 235, 239, 247, 272, 277, 281, 283, 
288, 303, 313, 327, 341, 347, 350, 352, 353, 356, 394, 405, 406, 409, 
418, 426, 437, 438). The commenters gave various reasons for favoring 
the provision of OSHA-provided software, including reducing the burden 
and cost of the rule for employers (see, e.g., Exs. 15: 87, 95, 111, 
170, 182, 197, 350), saving businesses programming costs (Ex. 15: 277), 
helping small businesses (Ex. 51; 15: 67), resulting in more uniform 
data (see, e.g., Exs. 36; 15: 32, 153, 170, 181, 347, 409, 418), and 
facilitating analysis of the data (see, e.g., Exs. 35; 15: 153, 418). 
For example, the Ford Motor Company stated that ``Ford feels that the 
development of recordkeeping software by OSHA, which will employ a 
decision-making logic, automatic form generation, the ability to assist 
the employer in evaluating the entered data, and a tutorial section to 
assist employers in training is necessary. This will enhance the 
uniformity of data collection amongst all users, which is currently 
lacking'' (Ex. 15: 347). The Muscatine Iowa Chamber of Commerce Safety 
Committee (Ex. 15: 87) added that:

``[e]very feature identified as a minimum requirement would be a 
great benefit to employers attempting to comply with the OSHA 
recordkeeping requirements. Prompts which would in any way aid in 
the determination of recordability would be appreciated by any 
person without a great deal of experience in filing OSHA reports. We 
feel these features are especially important now with the changes in 
forms and information to be collected.''

    Several of the commenters who urged OSHA to provide computer 
software tempered their support by asking that the use of such software 
should be optional and not mandatory (see, e.g., Exs. 15: 60, 109, 154, 
198, 225, 247, 272, 303, 394), and several other commenters recommended 
that OSHA provide both software and specifications so employers could 
use the OSHA product to build their own data systems (see, e.g., Exs. 
15: 170, 247, 283).
    A number of commenters told OSHA that the Agency should not produce 
software to help employers with their 1904 recordkeeping obligations 
(see, e.g., Exs. 15: 78, 82, 85, 156, 163, 324, 348, 359, 363, 374, 
375, 378, 402, 414). Several of these commenters suggested OSHA produce 
software performance specifications for the industry (see, e.g., Exs. 
15: 156, 163, 357, 387). The commenters had various reasons for 
opposing the production of software. Several stated that each employer 
wants different data in its own unique form (see, e.g., Exs. 15: 78, 
85, 375, 414). For example, the Central Vermont Public Service 
Corporation (Ex. 15: 85) stated that ``[b]usinesses using safety 
related software use programs that can perform OSHA recordkeeping and 
workers' compensation functions in one package. It is unlikely that 
software developed by OSHA will perform workers' compensation functions 
and therefore it will not be well received or utilized by business.'' 
Other commenters stated that OSHA should focus elsewhere, that the 
private sector could produce software more economically (see, e.g., 
Exs. 15: 357, 375, 387), and that OSHA software is not needed (see, 
e.g., Exs. 15: 363, 378). For example, the Synthetic Organic Chemical 
Manufacturers Association, Inc. (SOCMA) stated that ``[a]n outside 
organization with software development expertise should develop the 
software. OSHA's limited resources should go directly toward improving 
safety and health in the workplace'' (Ex. 15: 357). The Air Transport 
Association added: ``[m]ost major companies have developed their own 
software to support required OSHA recordkeeping, and others have taken 
advantage of commercially available programs. We see no need for OSHA 
to enter this market'' (Ex. 15: 378).
    OSHA has decided that the Agency will produce software for 
employers to use for keeping their OSHA 1904 records. There is 
obviously a need for the Agency to provide outreach and assistance 
materials for employers, particularly small employers, to help them 
meet their obligations in the least burdensome way possible, and 
software will clearly help achieve this goal. In addition, computer 
software will improve the consistency of the records kept by employers, 
and will assist them with analysis of the data. At this time, OSHA has 
not developed the software or its specifications, but will make every 
effort to produce and distribute software to assist employers by the 
time this final rule becomes effective. Use of the OSHA produced 
software will be optional; employers are not required to use this 
software and may keep records using paper systems. Employers are also 
free to produce their own software, or to purchase software.

VI. Legal Authority

A. The Final Recordkeeping Rule Is a Regulation Authorized by Sections 
8 and 24 of the Act

    The Occupational Safety and Health Act authorizes the Secretary to 
issue two types of final rules, ``standards'' and ``regulations.'' 
Occupational safety and health standards, issued pursuant to section 6 
of the Act, specify the measures to be taken to remedy known 
occupational hazards. 29 U.S.C. 652(8), 655. Regulations, issued 
pursuant to general rulemaking authority found, inter alia, in section 
8 of the Act, are the means to effectuate other statutory purposes, 
including the collection and dissemination of records on occupational 
injuries and illnesses. 29 U.S.C. 657(c)(2).
    OSHA is issuing this final recordkeeping rule as a regulation 
pursuant to the authority expressly granted by sections 8 and 24 of the 
Occupational Safety and Health Act, 29 U.S.C. 657, 673. Section 8 
authorizes the Secretary to issue regulations she determines to be 
necessary to carry out her statutory functions, including regulations 
requiring employers to record and report work-related deaths and non-
minor injuries and illnesses.\1\ Section 8(c)(1) of the Act requires 
each

[[Page 5926]]

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 ``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.''
---------------------------------------------------------------------------

    \1\ This rule excludes minor or insignificant injuries and 
illnesses from reporting requirements. The exclusion of minor 
illnesses represents a change from the former rule, and is discussed 
infra.
---------------------------------------------------------------------------

    Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and 
publish, whether 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.''
    Section 24 contains a similar grant of regulatory authority. It 
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.''
    Section 20 of the Act, 29 U.S.C. 669, contains additional implicit 
authority for collecting and disseminating data on occupational 
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor 
and Health and Human Services to consult on research concerning 
occupational safety and health problems, and provides for the use of 
such research, ``and other information available,'' in developing 
criteria on toxic materials and harmful physical agents. Section 20(d) 
states that ``[i]nformation obtained by the Secretary and the Secretary 
of [HHS] under this section shall be disseminated by the Secretary to 
employers and employees and organizations thereof.''
    Two federal circuit Courts of Appeals have held that rules imposing 
recordkeeping requirements are regulations and not standards, and are 
thus reviewable initially in the district courts, rather than the 
Courts of Appeals. Louisiana Chemical Assn. v. Bingham, 657 F.2d 777, 
782-785 (5th Cir. 1981) (OSHA rule on Access to Employee Exposure and 
Medical Records); Workplace Health & Safety Council v. Reich, 56 F.3d 
1465, 1467-1469 (D.C. Cir. 1995) (OSHA rule on Reporting of Fatality or 
Multiple Hospitalization Incidents). These courts applied a functional 
test to differentiate between standards and regulations: standards aim 
toward correction of identified hazards, while regulations serve 
general enforcement and detection purposes, including those outlined in 
section 8. E.g., Workplace Health & Safety Council, 56 F.3d at 1468. 
See also United Steelworkers of America v. Reich, 763 F.2d 728, 735 (3d 
Cir. 1985) (Hazard Communication rule is a standard because it aims to 
ameliorate the significant risk of inadequate communication about 
hazardous chemicals). Clearly, the recordkeeping requirements in this 
final rule serve general administrative functions: They are intended to 
``aid OSHA's effort to identify the scope of occupational safety and 
health problems,'' to ``serve as the foundation for national statistics 
on the number and rate of workplace injuries and illnesses'' and ``to 
raise employers'' awareness of the kinds of injuries and illnesses 
occurring in their workplaces.'' See Functions of the Recordkeeping 
System, supra. Therefore, the final rule falls squarely within the 
mandate of sections 8 and 24 of the Act and is properly characterized 
as a regulation.

B. The Legal Standard: The Regulation Must Be Reasonably Related to the 
Purposes of the Enabling Legislation

    Under section 8, the Secretary is empowered to issue ``such * * * 
regulations as [s]he may deem necessary to carry out [her] 
responsibilities under this Act[,]'' including regulations requiring 
employers to record and to make 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.'' 29 U.S.C. 657(g)(2), (c)(2). Similarly, section 24 directs the 
Secretary to compile accurate statistics on ``all disabling serious, or 
significant injuries and illnesses, whether or not involving loss of 
time from work, other than minor injuries. * * *'' 29 U.S.C. 673(a). 
Where an agency is authorized to prescribe regulations ``necessary'' to 
implement a statutory provision or purpose, a regulation promulgated 
under such authority is valid ``so long as it is reasonably related to 
the enabling legislation.'' Mourning v. Family Publications Service, 
Inc., 411 U.S. 356, 369 (1973).
    Section 8(g)(2) is functionally equivalent to the enabling 
legislation at issue in Mourning; therefore a reviewing court must 
examine the final recordkeeping rule's relationship to the purposes of 
section 8. Cf. Louisiana Chemical Assn. v. Bingham, 550 F. Supp. 1136, 
1138-1140 (W.D. La. 1982), aff'd, 731 F.2d 280 (5th Cir. 1984) (records 
access rule is directly related to the goals stated in the Act and 
supported by the language of section 8).

C. The Final Recordkeeping Rule's Key Provisions Are Reasonably Related 
to the Purposes of the OSH Act

    The goal of this final rule, as stated in the Summary, is to 
improve the quality and consistency of injury and illness data while 
simplifying the recordkeeping system to the extent consistent with the 
statutory mandate. To achieve this purpose, the final rule carries 
forward the key elements of the existing recordkeeping scheme, with 
changes designed to improve efficiency, equity, and flexibility while 
reducing, to the extent practicable, the economic burden on individual 
establishments. The central requirements in the final rule may be 
summarized as follows: All non-exempt employers must record all work-
related, significant injuries and illnesses. As discussed below, OSHA's 
approach to each of these elements--the scope of the exemptions from 
recording requirements, the meaning of ``work-relationship,'' and the 
criteria for determining whether an injury or illness is 
``significant''--is reasonable and directly related to the statutory 
language and purpose.

[[Page 5927]]

1. Exemptions From Recordkeeping Requirements
    The final rule contains two categories of exemptions that, 
together, relieve most employers of the obligation routinely to record 
injuries and illnesses sustained by their employees. Section 1904.1 
contains a ``very small-employer'' exemption: Employers need not record 
injuries or illnesses in the current year if they had 10 or fewer 
employees at all times during the previous year, unless required to do 
so pursuant to Sections 1904.41 or 1904.42. Section 1904.2 contains a 
``low-hazard industry'' exemption: Individual business establishments 
are not required to keep records if they are classified in specific 
low-hazard retail, service, finance, insurance, or real estate 
industries.
    a. The size-based exemption. Section 8(d) of the Act expresses 
Congress' intent to minimize, where feasible, the burden of 
recordkeeping requirements on employers, particularly small businesses: 
``Any information obtained by the Secretary, the Secretary of [HHS], or 
a State agency under this Act shall be obtained with a minimum burden 
upon employers, especially those operating small businesses. 
Unnecessary duplication of efforts in obtaining information shall be 
reduced to the maximum extent feasible.'' 29 U.S.C. 657(d).
    Since 1972, the Secretary has exempted very small businesses from 
most recordkeeping requirements. On October 4, 1972, OSHA issued a 
provision, codified at 29 CFR 1904.15(a), exempting employers from 
routine injury and illness reporting requirements for the current year 
if they had no more than seven employees during the previous year. The 
exemption did not relieve these businesses from the obligation to 
report fatality and multiple hospitalization incidents to OSHA and to 
participate in the BLS annual survey when selected to do so. 37 FR 
20823 (October 4, 1972). In 1977, the Secretary amended section 1904.15 
to make it applicable to businesses having ten or fewer employees 
during the year preceding the current reporting year. 42 FR 38568 (July 
29, 1977). As support, the amendment cited the Department of Labor 
appropriations acts for fiscal years 1975 and 1976, which exempted 
employers having ten or fewer employees from most routine recordkeeping 
requirements, and Section 8(d) of the Act. Id. The Secretary determined 
that the amendment appropriately balanced the interest of very small 
businesses while preserving the essential purposes of the recordkeeping 
scheme:

    The [exemption] has been carefully designed to carry out the 
mandate of section 8(d) without impairing the Act's basic purpose. 
Thus, the [exemption] will not diminish the protections afforded 
employees under the Act because all employers * * * remain subject 
to the enforcement provisions of the Act. The [exemption] will 
continue to require * * * small employers * * * to report fatalities 
and multiple hospitalizations and to participate in the BLS annual 
survey when selected to do so.

42 FR 10016 (February 18, 1977).
    In the present rulemaking, the Secretary proposed to enlarge the 
scope of the exemption to include employers, in industries other than 
construction, having 19 or fewer employees during the entire previous 
calendar year. 61 FR 4057 (February 2, 1996). At the same time, the 
proposal asked for public comment on whether ``the small employer 
partial exemption [should] remain the same, be eliminated, or be 
expanded?'' 61 FR 4043. In reaching a final decision on this matter, 
the Secretary resolved two interrelated questions. First, she 
determined that there is no sound basis for departing from OSHA's prior 
interpretation that the Act permits a carefully crafted exemption for 
very small employers. Second, she determined that limiting the 
exemption to employers with ten or fewer employees effectuates 
Congress' intent with the minimum degree of impairment to the overall 
recordkeeping scheme. The first question is essentially one of 
statutory construction, and is therefore considered below. The second 
question calls for an analysis of the record and is addressed in the 
preamble explanation for section 1904.1 of the final rule.
    It is a fundamental principle of administrative law that an agency 
which chooses to reverse a previously held position must supply a 
``reasoned analysis'' of its decision. Motor Vehicle Mfgrs Assn. v. 
State Farm Mutual Automobile Insurance Co., 463 U.S. 27, 42 (1983). 
After careful consideration, the Secretary finds no persuasive basis 
for eliminating the small-employer exemption in this rule. As a 
threshold matter, nothing has changed the agency's long-held view that 
section 8(d) permits a carefully tailored exemption from recordkeeping 
requirements for very small businesses. 42 FR 10016 (February 18, 
1977). This interpretation is consistent with the literal wording of 
the statute and is further confirmed by the provisions in the 
Department's appropriations acts for FY 1975 and 1976, exempting 
employers with ten or fewer employees from routine recordkeeping and 
reporting requirements. See 42 FR 5356 (January 28, 1977) (noting 
restriction in FY 1975 and 1976 appropriations acts and stating OSHA 
would continue to treat firms of up to 10 employees as exempt pending 
permanent change in the regulations to expand the small-employer 
exemption).
    OSHA also concludes that a very small business exemption limited to 
the routine recording and reporting of non-fatal injuries and illnesses 
will not seriously undermine the recordkeeping system. OSHA explained 
in Section I. of the preamble that there are three primary purposes for 
recordkeeping and reporting requirements. First, the records are the 
foundation for national statistics published by the BLS on the number 
and rate of workplace injuries and illnesses, as well as their source, 
nature and type. Second, the records provide information useful to 
employers and employees in their efforts voluntarily to locate and 
eliminate workplace safety and health hazards. Finally, the records are 
useful to OSHA in targeting its enforcement efforts and in efficiently 
conducting its safety and health inspections.
    Exempting very small businesses from routine recordkeeping will not 
significantly compromise these goals. The exemption has no effect upon 
the obligation of these businesses to participate in the national 
statistical survey administered by the BLS. See the discussion of 
Sec. 1904.42 in Section V. Summary and Explanation. If a small business 
is selected for participation in the survey, it must keep a log of 
injuries and illnesses and make reports as required by the BLS. Id. 
Thus, even the smallest firms continue to be represented in the 
national injury and illness statistics.
    The second purpose is not seriously compromised by the exemption 
because injury and illness records are less necessary as an aid to 
voluntary compliance efforts by very small employers and their 
employees than they are for larger employers. OSHA's experience is 
that, in establishments with only a few employees, management and 
production personnel typically work in close concert. Because of their 
size, such establishments also tend to record fewer occupational 
injuries and illnesses. Accordingly, in very small firms, managers are 
likely to have first-hand knowledge of those occupational injuries and 
illnesses that occur in their workplaces. By the same token, it is 
reasonable to believe that employees in very small firms are generally 
aware of the injuries that occur in their workplaces and do not

[[Page 5928]]

rely heavily upon access to employer records to inform themselves about 
occupational hazards. In short, review and analysis of injury and 
illness records by very small business employers, or by their 
employees, may not be required for awareness of workplace conditions.
    Finally, routine injury and illness records are of limited 
usefulness to OSHA in targeting and conducting inspections. Many OSHA 
inspections are conducted in response to a specific complaint or 
referral alleging unsafe conditions, or in response to a workplace 
catastrophe or fatality. A large number of inspections are also 
conducted under special emphasis programs at the national and local 
level. The remaining inspections are conducted at specific worksites in 
the construction industry and in other non-construction industries 
selected under a planned schedule. Construction inspections are 
selected using an econometric model that predicts the best time to 
conduct an inspection at a specific construction project. The general 
industry scheduled inspections are targeted primarily toward employers 
with extremely high rates of occupational injury and illness, using 
data supplied by employers to the OSHA Data Initiative (ODI) under the 
requirements of former section 1904.17, Annual OSHA Injury and Illness 
Survey of Ten or More Employers (now section 1904.41). Due to budget, 
paperwork burden and logistical constraints, OSHA collects data only 
from employers in high hazard industries, and has generally not 
collected data from employers with fewer than 40 workers.
    OSHA is also prohibited from conducting scheduled inspections of 
employers with 10 or fewer employees in low hazard industries by an 
annual rider on OSHA's appropriations bills which has been renewed 
annually for many years. Thus, OSHA does not collect data from very 
small employers, and they are excluded from the general industry 
scheduled inspection program. Because very small firms have been wholly 
excluded from the general schedule inspection program, the routine 
injury and illness records of very small businesses have been of little 
use to OSHA in targeting inspections. Should OSHA wish to include very 
smaller employers in a special emphasis inspection program or other 
initiative, the agency may require any business, regardless of its 
size, to keep records and make reports as necessary. See 29 CFR 
1904.41.
    OSHA also finds that access to the Log and Incident Report would be 
of little value to compliance officers in conducting inspections of 
very small businesses initiated by a complaint or report of a fatality 
or an accident resulting in multiple hospitalizations. OSHA has long 
acknowledged that while injury and illness records are frequently 
useful in identifying hazardous areas or operations within larger 
establishments subject to programmed inspections, they are 
significantly less important in the conduct of inspections in the 
smallest businesses. As OSHA has stated, ``experience has shown that 
when dealing with small employers, the injury and illness records * * * 
are normally not needed by the CSHO to locate hazards during an 
inspection. In those cases where log information may be needed, the 
CSHO can easily obtain the information by interviewing the employees.'' 
42 FR 10016 (February 18, 1977). See also 47 FR 57699, 5700 (December 
28, 1982) (in conducting complaint or fatality inspections, the hazard 
information is usually provided by the complaint itself, or through 
prompt investigation.) For these reasons, the Secretary believes that 
an exemption for very small employers, reasonably tailored to the 
purposes served by recordkeeping requirements, is appropriate.
    b. The hazard-based exemption. Since 1982, OSHA has exempted from 
routine recordkeeping requirements certain industries classified in 
OMB's Standard Industrial Classification (SIC) Manual. The 1982 
exemption was limited to establishments in SIC Industry Groups that (1) 
were not subject to general schedule inspections, and (2) had average 
lost workday case injury rates, as published by the BLS, at or below 
75% of the national average. In 1982, the industry groups that met 
these criteria were those classified as retail trade, finance, 
insurance, real estate, and services--SIC codes 52-89, excluding 52-54, 
70, 75, 76, 79, and 80. 47 FR 57699-57,700 (December 28, 1982).
    The purpose of the exemption ``was to further OSHA's continuing 
effort under section 8(d) of the Act to reduce the paperwork burden on 
employers without compromising worker safety and health.'' 47 FR 57700. 
Exempting low-hazard industries from routine record-keeping was 
justified, OSHA explained, for the same reasons that warranted 
exempting very small businesses. Injury and illness records from 
establishments in the affected SIC codes were not of significant 
benefit to OSHA because these industry groups were not then targeted 
for general schedule inspections. Id. The records were not a 
significant source of information for employers and employees because 
BLS data showed that approximately 94% of all establishments in the 
affected industry groups could be expected to have fewer than two 
injuries per establishment on an annual basis. Id. Finally, the 
exemption would not affect the reliability of safety and health 
statistics because the affected establishments would continue to 
participate in the BLS annual survey of occupational injuries and 
illnesses. Id.
    OSHA continues to believe that a properly tailored exemption for 
low-hazard industries is appropriate. Congress intended in section 8(d) 
to minimize the recordkeeping burden on all employers, not only small 
businesses. Exempting from routine injury and illness reporting 
requirements those employers whose records are unlikely to be of 
significant benefit to OSHA, or to the employers and their employees, 
serves this important interest. However, OSHA recognizes that the 
balance between the interest of minimizing recordkeeping burdens and 
that of ensuring accurate, reliable and useful information is a 
delicate one. In the final rule, OSHA has substantially revised the 
list of exempt low-hazard industries based upon more reliable three-
digit industry classification data. See the discussion of Sec. 1904.1, 
in the following Summary and Explanation. With these changes, OSHA 
believes that the rule strikes the appropriate balance.
2. The Meaning of ``Work-Relationship''
    Section 8 of the Act directs the Secretary to prescribe regulations 
requiring employers to ``maintain accurate records of * * * work-
related deaths injuries and illnesses [of a non-minor nature]. 29 
U.S.C. 657(c)(2). The definition of work-relationship in section 1904.5 
of the final rule is consistent, in all but one respect, with the 
definition in the Guidelines to the former rule. The final rule states 
that an injury or illness is work-related ``if an event or exposure in 
the work environment either caused or contributed to [it] or 
significantly aggravated a pre-existing injury or illness. Work-
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring in the work environment, unless an 
exception listed in section 1904.5(b)(2) specifically applies'' 
(emphasis added).
    The Guidelines state that, ``[i]f an event * * * occurred in the 
work environment that caused or contributed to the injury'', the case 
would be recordable, assuming it meets the other requirements for 
recordability. Ex. 2 at

[[Page 5929]]

p. 32 (original emphasis). Further instructions in the Guidelines 
provided that:

    The general rule is that all injuries and illnesses which result 
from events or exposures occurring to employees on the employer's 
premises are presumed to be work related. This presumption is 
rebuttable. * * * However, the nature of the activity which the 
employee is engaged in at the time of the event or exposure, the 
degree of employer control over the employee's activity, the 
preventability of the incident, or the concept of fault do not 
affect the determination.

Ex. 2 at p. 34 (original emphasis). The only significant difference 
between the final rule and the former rule is that the final rule 
requires that work ``significantly'' aggravate a pre-existing injury or 
illness before the case is recordable.
    OSHA's approach to work-relationship in both the former and the 
final recordkeeping rules reflects two important principles. The first 
is that work need only be a causal factor for an injury or illness to 
be work-related. The rule requires neither precise quantification of 
the occupational cause, nor an assessment of the relative weight of 
occupational and non-occupational causal factors. If work is a 
tangible, discernible causal factor, the injury or illness is work-
related. The second principle is that a ``geographic presumption'' 
applies for injuries and illnesses caused by events or exposures that 
occur in the work environment. These injuries and illnesses must be 
considered work-related unless an exception to the presumption 
specifically applies.
    The final rule's geographic presumption reflects a theory of 
causation similar to that applied by courts in some workers' 
compensation cases. Under the ``positional-risk'' test, an injury may 
be found to ``arise out of'' employment for compensation purposes if it 
would not have occurred but for the fact that the conditions and 
obligations of employment placed the claimant in the position where he 
or she was injured. See 1 Larson's Workers' Compensation Law section 
6.50 (1977). Accord, Odyssey/Americare of Oklahoma v. Worden, 948 P.2d 
309, 311 (Okla. 1997). Under this ``but for'' approach to work-
relationship, it is not necessary that the injury or illness result 
from conditions, activities or hazards that are uniquely occupational 
in nature. Accordingly, the presumption encompasses cases in which an 
injury or illness results from an event at work that is outside the 
employer's control, such as a lightning strike, or involves activities 
that occur at work but that are not directly productive, such as 
horseplay.
    The proposed rule asked for comment on whether OSHA should abandon 
its historic approach and adopt a new test for determining work-
relationship. 61 FR 4044, 4045. The proposal outlined three alternative 
tests in which the determination of work-relationship turned on the 
degree to which the injury or illness was linked to occupational 
causes, as compared with personal factors such as off-the job 
activities, aging, or pre-existing medical conditions. Two of these 
alternative tests required evidence of a high degree of work causation 
to establish work-relationship. Alternative 1 required that 
occupational factors be the ``sole cause'' of the injury or illness; 
any evidence of non-work related causal factors was sufficient to 
exclude the case. Alternative 2 required that occupational factors be 
the ``predominant cause'' before the case could be considered work-
related. See 61 FR 4044. Some commenters suggested a modification to 
Alternative 2 that would have involved substitution of the word 
``substantial'' or ``significant'' for ``predominant.''
    The third alternative test was significantly more expansive than 
that adopted in the final rule. Under Alternative 3, an injury or 
illness would be considered work-related if the work environment had 
any possibility of playing a causal role. 61 FR 4044.
    Some commenters favored a somewhat different test for work-
relationship that focused on the nature of the injury-causing event in 
the workplace. This test would include in the OSHA records only those 
cases resulting from uniquely occupational or job-related activities or 
processes. Supporters of this approach argued that it would exclude 
injuries and illnesses caused by factors at work that are unrelated to 
production tasks, or that are unpreventable by the employer's safety 
and health program.
    After careful consideration of the record, OSHA believes that the 
final rule's test for work-relationship is both more consistent with 
the Act's purpose and more practical than the ``quantified occupational 
cause'' tests or the ``unique occupational conditions'' test. The 
language of the statute itself indicates that Congress did not intend 
to give ``work-related'' a narrow or technical meaning, but rather 
sought to cover a variety of causal relationships that might exist in 
workplaces. Section 2 of the Act addresses injuries and illnesses 
arising out of ``work situations.'' Sections 2(b)(1), 2(b)(2), and 
2(b)(4) refer to ``places of employment,'' and to the achievement of 
safe and healthful ``working conditions.'' Section 2(b)(7) seeks to 
assure that no employee will suffer diminished health or life 
expectancy as a result of his ``work experience.'' Section 2(b)(12) 
states that one of the Act's purposes is to provide for reporting 
procedures which ``accurately describe the nature of the occupational 
safety and health problem.'' Section 2(b)(13) encourages joint labor-
management efforts to reduce injuries and disease ``arising out of 
employment.''
    This conclusion is further supported by the Act's stated purpose to 
promote research into the causes and prevention of occupational 
injuries and illnesses. Section 2 of the Act establishes Congress' 
intent to improve occupational safety and health, inter alia, by:

    Providing for research in the field of occupational safety and 
health, including the psychological factors involved, and by 
developing innovative methods, techniques and approaches for dealing 
with occupational safety and health problems. 29 U.S.C. 
Sec. 651(b)(5)
    [E]xploring 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. Sec. 651(b)(6).
    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. Sec. 651(b)(12).

    The legislative history of the Act demonstrates Congress' awareness 
of the importance of developing information for future scientific use. 
The Committee Report accompanying the Senate bill reported to the floor 
noted that,

    [i]n the field of occupational health, the view is particularly 
bleak, and due to the lack of information and records, may well be 
considerably worse than we currently know. * * * Recent scientific 
knowledge points to hitherto unsuspected cause-and-effect 
relationships between occupational exposures and many of the so-
called chronic diseases--cancer, respiratory ailments, allergies, 
heart disease, and others. In some instances, the relationship 
appears to be direct: asbestos, ionizing radiation, chromates, and 
certain dye intermediaries, among others, are directly involved in 
the genesis of cancer. In other cases, occupational exposures are 
implicated as contributory factors. The distinction between 
occupational and non-occupational illnesses is growing increasingly 
difficult to define.

S. Rep. No. 1282, 91st Cong., 2d Sess. 2 (1970), reprinted in 
Subcommittee on Labor of the Senate Committee on Labor and Public 
Welfare, Legislative History of the Occupational Safety and Health Act 
of 1970 (Committee Print 1971) at

[[Page 5930]]

142 (Leg. Hist.). With this background in mind, the committee stated 
that it ``expects the Secretary of Labor and the Secretary of [HHS] 
will make every effort through the authority to issue regulations and 
other means, to obtain complete data regarding the occurrence of 
illnesses, including those resulting from occupational exposure which 
may not be manifested until after the termination of such exposure.'' 
Leg. Hist. at 157.
    Both the Senate and the House Committees expressed concern that the 
statute not be interpreted in a way that would result in under-
reporting of injuries and illnesses. The Senate report states:

    The committee recognizes that some work-related injuries or 
ailments may involve only a minimal loss of work time or perhaps 
none at all, and may not be of sufficient significance to the 
Government to require their being recorded or reported. However, the 
committee was also unwilling to adopt statutory language which, in 
practice might result in under-reporting. The committee believes 
that records and reports prescribed by the Secretary should include 
such occurrences as work-related injuries and illnesses requiring 
medical treatment or restriction or reassignment of work activity, 
as well as work-related loss of consciousness.

Leg. Hist. at 157. The House Report similarly noted that while some 
injuries and illnesses might not be of enough value to require 
recordation, ``the greater peril'' lay in allowing under reporting. 
Leg. Hist. at 860. Therefore, the report added, ``[the] language `all 
work-related injuries, [and illnesses]' should be treated as a minimum 
floor. * * *''
    In light of these purposes, it is apparent that Congress did not, 
in Section 8, mean to limit recordable ``work-related'' injuries and 
illnesses only to those caused primarily or substantially by work. It 
is evident from the statute that Congress wanted employers to keep 
accurate records of non-minor injuries and illnesses, in part, to serve 
as a basis for research on the causes and prevention of industrial 
accidents and diseases. This research is needed, among other reasons, 
to further examine and understand those occupational factors implicated 
as contributory causes in injuries and diseases. To serve this purpose, 
the records should include cases in which there is a tangible 
connection between work and an injury or illness, even if the causal 
effect cannot be precisely quantified, or weighed against non-
occupational factors.
    The first two alternative quantification theories outlined in the 
preamble would exclude important information from the records. These 
theories would eliminate cases in which the work environment is 
believed to have played a definite role in the accident or the onset of 
disease, but not enough is known to quantify the effect of work factors 
or to assess the relative contribution of work and non-work factors. 
However, the information provided by cases having a tangible, yet 
unquantifiable, connection with the work environment is useful to 
employers, employees and researchers and thus serves the recordkeeping 
purposes envisioned by Congress.
    On the other hand, the third alternative theory in the proposal 
would sweep too broadly. A work-relationship test that is met if work 
has ``any possibility of playing a role in the case'' would include 
virtually every injury or illness occurring in the work environment. 61 
Fed. Reg. 4044. Recording cases in which the causal connection to work 
is so vague and indefinite as to exist only in theory would not 
meaningfully advance research, or serve the other purposes for 
requiring recordkeeping. For these reasons, OSHA has rejected the three 
alternative theories outlined in the proposal.
    The ``unique occupational activity'' test, which some commenters 
favored instead of the geographic presumption, would limit recorded 
injuries and illnesses to those caused by an activity or process 
peculiarly occupational in nature. Supporters of this approach 
identified several types of cases that would be work-related under the 
geographic presumption, but not recordable under an activities-based 
approach. These include cases in which the injury or illness was not 
caused by the physical forces or hazards unique to industrial 
processes, cases in which the employee was not injured while performing 
an activity or task directly related to production, and cases in which 
the injury or illness was not preventable by the employer.
    The ``unique occupational activity'' test is unsuitable for 
essentially the same reasons that militate against the first two 
alternatives described in the proposal. The statutory language and 
purpose do not reflect a Congressional intent to limit recording only 
to those cases resulting from uniquely occupational hazards or 
activities. Rather, the statute shows that Congress knew that employees 
were being injured and made ill in a variety of ways and under a 
variety of circumstances, and wanted employers to record all cases 
causally related to the work environment. The ``but-for'' theory 
underlying the geographic presumption is a widely accepted legal test 
for causation and is consistent with the statutory language and 
purpose.
    The ``unique occupational activities'' test, like the 
``quantification'' tests, would likely result in exclusion of important 
information from the records. An activity-based test for work-
relationship could obscure the role of factors in the work environment 
not directly linked to production, such as violence perpetrated by 
employees and others or tuberculosis outbreaks. In addition, the 
precise causal mechanism by which an employee has been injured or made 
ill at work may not be known at the time of the accident, or may be 
misunderstood. To serve the statute's research purposes, the records 
must reflect not only those injuries and illnesses for which the 
precise causal mechanism is apparent at the time of recordation, but 
also those for which the mechanism is imperfectly understood. The 
alternative approaches to work-relationship would severely limit the 
usefulness of injury and illness data for research purposes, 
particularly research to uncover latent patterns of health impairment 
and disease and to establish causal connections between diseases and 
exposure to particular hazards.
    The Occupational Safety and Health Review Commission has affirmed 
the approach to work-relationship taken in the former rule. General 
Motors Corp., Inland Div., 8 O.S.H. Cas. (BNA) 2036, 2039-2040 (August 
29, 1980). The issue in General Motors was whether the employer was 
required to record respiratory ailments of three employees, based on 
notations from the employees' treating physicians that their ailments 
were probably related to exposure to a chemical substance at work. The 
Commission rejected the employer's argument that the recordkeeping rule 
required recording only of illnesses directly caused by work 
activities, stating:

    To accept Respondent's interpretation would impose a static view 
of scientific knowledge. Only illnesses in which the known cause was 
the occupational environment would be recorded. Unknown medical 
correlations between disease and the workplace would be obscured by 
this inadequate recording obligation. Under this interpretation of 
the statute and regulations, OSHA and NIOSH would be significantly 
restrained from fulfilling their statutory obligation of making the 
workplace healthier. * * * [T]he primary purpose of the recording 
obligation is to develop information for future scientific use.

8 O.S.H. Cas. at 2040. Accordingly, OSHA believes that there is a sound 
legal basis for the definition of work-relationship in the final rule.

[[Page 5931]]

    There are also sound policy justifications. The approach to ``work-
relationship'' adopted in the final rule is more cost-effective than 
the alternative approaches and will result in more accurate injury and 
illness data. OSHA expects that for each reported injury or illness, 
employers generally will be able to apply the geographic presumption 
more easily and quickly than a test requiring an assessment of the 
relative contribution of employment and personal causes. The 
incremental reduction in the time necessary to complete each entry, 
when multiplied by the total number of entries per year, will result in 
a substantial cumulative saving in paperwork burden in comparison to 
the burden that would be imposed by the alternatives.
    The geographic presumption will also produce more consistent and 
accurate reporting. OSHA believes that it would be difficult to measure 
the precise degree to which personal and occupational factors cause 
accidents or illnesses. Accordingly, any test requiring that job duties 
or tasks be ``significant'' or ``predominant'' causative factors would 
necessarily involve a high degree of subjective judgment. There is 
likely to be substantial inconsistency, both in the treatment of 
successive, similar cases by the same employer, and in the treatment of 
such cases among different employers. Moreover, such a test would fail 
to capture cases in which the workplace contribution to an injury or 
illness was imperfectly known or misunderstood at the time the case was 
reported. Recording all cases caused by events or exposures at work, 
with only limited exceptions, produces data that enables OSHA, 
employers and others to better understand the causal relationships 
present in the work environment. Although OSHA has not adopted a test 
for determining significant contribution by work, the final rule does 
include provisions to make sure that workplace aggravation of a pre-
existing injury must be significant before work relationship is 
established (see discussion of 1904.5(b)(4)).
    A number of commenters argued that because OSHA's mission is to 
eliminate preventable occupational injuries and illnesses, the 
determination of work-relatedness must turn upon whether the case could 
have been prevented by the employer's safety and health program. Dow 
expressed this view as follows:

    [T]he goal of this recordkeeping system should be to accurately 
measure the effectiveness of safety and health programs in the 
workplace. Activities where safety and health programs could have no 
impact on preventing or mitigating the condition should not be 
logged and included in the Log and Summary nor used by OSHA to 
determine its inspection schedule. If the event was caused by 
something beyond the employer's control, it should not be considered 
a recordable event that calls into question a facility's safety and 
health program. * * * Credibility in this regulation rests on 
whether the recorded data accurately reflects the safety and health 
of the workplace. Including events where the workplace had virtually 
no involvement undermines the credibility of the system and results 
in continued resistance to this regulation.

    Ex. 15-335B. The law firm of Constangy, Brooks and Smith, LLC, 
urged OSHA to adopt the second alternative definition in the proposal 
because cases that are ``predominantly caused by workplace conditions'' 
are the ones most likely to be preventable by workplace controls. They 
stated, ``[s]ince OSHA's ultimate mission is the prevention of 
workplace injuries and illnesses, it is reasonably necessary to require 
recording only when the injury or illness can be prevented by the 
employer.'' Ex. 15-345.
    OSHA believes that these comments reflect too narrow a reading of 
the purposes served by injury and illness records. Certainly one 
important purpose for recordkeeping requirements is to enable 
employers, employees and OSHA to identify hazards that can be prevented 
by compliance with existing standards or recognized safety practices. 
However, the records serve other purposes as well, including 
facilitating the research necessary to support new occupational safety 
and health standards and to better understand causal connections 
between the work environment and the injuries and illnesses sustained 
by employees. As discussed above, these purposes militate in favor of a 
general presumption of work-relationship for injuries and illnesses 
that result from events or exposures at the worksite, with exceptions 
for specific types of cases that can be safely excluded without 
significantly impairing the usefulness of the database.
3. The Criteria for Determining the Significance of an Injury or 
Illness
    Section 1904.7 of the final rule sets forth the criteria to be used 
by employers in determining whether work-related occupational injuries 
and illnesses are significant, and therefore recordable. Under 
Sec. 1904.7, a work-related injury or illness is significant for 
recordkeeping purposes if it results in any of the following: death, 
days away from work, restricted work or transfer to another job, 
medical treatment beyond first aid, or loss of consciousness. Employers 
must also record any significant injury or illness diagnosed by a 
physician or other licensed health care professional even if it does 
not does not result in the one of the listed outcomes. OSHA's 
definition of a ``significant'' injury or illness in this context is 
based on two key principles discussed below. The first is that the 
requirement for recording only significant cases applies equally to 
``injuries'' and ``illnesses'' for recordkeeping purposes. The second 
principle is that the criteria expressly mentioned in the Act, such as 
death, loss of consciousness or restriction of work, are mandatory but 
not exclusive indicia of significance; any significant injury or 
illness diagnosed by a physician or other licensed health care 
professional must also be recorded. These two principles are addressed 
below, while the definitions applicable to the specific criteria 
themselves, and related evidentiary issues, are discussed in the 
preamble explanation for section 1904.7.
    a. The significant case requirement applies equally to injuries and 
illnesses; employers are no longer to report insignificant illnesses. 
OSHA distinguishes between injuries and illnesses based on the nature 
of the precipitating event or exposure. Cases which result from 
instantaneous events are generally considered injuries, while cases 
which result from non-instantaneous events, such as a latent disease or 
cumulative trauma disorder, are considered illnesses. Id.
    Under the former recordkeeping regulations, occupational injuries 
had to be recorded if they were non-minor in nature; that is, if they 
resulted in loss of consciousness, or required medical treatment, time 
off work, restriction of work, lost time, or transfer to another job. 
61 FR 4036. However, all occupational illnesses had to be reported, 
regardless of severity. Id. This difference in the severity threshold 
for recording injuries and illnesses had, in the past, been based upon 
the particular phrasing of section 8(c)(2) of the Act:

    The Secretary * * * 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.''

    29 U.S.C. 657(c)(2). Because the severity criteria appear in the 
clause defining ``minor injuries,'' OSHA had construed the section to 
require recordation of all work-related illnesses, even those that do 
not meet the severity

[[Page 5932]]

characteristics expressly applicable to ``injuries.''
    OSHA has reconsidered its position in this rulemaking, and has 
concluded that the former rule was inappropriate in several respects. 
First, although the severity characteristics listed in section 8(c)(2) 
of the Act apply expressly to ``injuries,'' the Act contains persuasive 
indications that Congress also meant to require recordation only of 
``significant'' illnesses, as determined by reasonable criteria. 
Section 24(a) states that ``[t]he Secretary shall compile accurate 
statistics on work injuries and illnesses which shall include all 
disabling, serious, or significant injuries and illnesses * * * other 
than minor injuries requiring only first aid treatment and which do not 
involve medical treatment * * * .'' 29 U.S.C. 673 (a). The legislative 
history also supports this view. The statement of the House managers on 
the resolution of conflicting House and Senate bills states that:

    A Senate bill provision without a counterpart in the House 
amendment permitted the Secretary to require an employer to keep 
records and make reports on ``all work-related deaths, injuries and 
illnesses.'' The House receded with an amendment limiting the 
reporting requirement to injuries and illnesses other than of a 
minor nature, with a specific definition of what is not of a minor 
nature.

    Leg. Hist. at 1190 (emphasis supplied). The former rule did not 
appropriately implement this intent. In the first place, OSHA's prior 
interpretation that section 8(c)(2) limits the applicability of the 
listed severity criteria only to injuries does not necessarily mean 
that illnesses must be recorded without regard to their significance. 
As a textual matter, such a reading simply leaves open the question of 
what, if any, severity criteria apply to illnesses.
    OSHA believes that the Act does not support a different severity 
threshold for injuries than for illnesses. OSHA is now persuaded that 
its prior reading of section 8(c)(2) placed too much emphasis on the 
fact that the severity criteria modify the word ``injuries'' in the 
clause, ``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.'' 29 U.S.C. 
657(c)(2). Congress' failure to list specific severity criteria for 
illnesses, as it did for injuries, does not, in itself, compel the 
inference that two different sets of criteria must apply. Congress 
meant to limit recordation to significant injuries and illnesses alike, 
and absent strong indications to the contrary, it is reasonable to 
presume that Congress meant the same severity threshold to apply to 
both conditions.
    In addition, there are strong policy reasons for avoiding a 
distinction between injuries and illnesses based on severity. OSHA 
explained in the proposal that the current distinction between injuries 
and illnesses based on the nature of the precipitating event has caused 
some degree of confusion and uncertainty. Using one set of criteria for 
severity means that employers will not have to decide whether a case is 
an injury or an illness in determining its recordability. This 
simplifies the recordkeeping system, resulting in more accurate injury 
and illness data while reducing the recordkeeping burden for employers 
who are required to maintain records (61 FR 4036). Employers will 
continue to classify each recordable case as either an injury or an 
illness on the OSHA 300 Log, but the decision no longer has any effect 
on whether or not the case must be recorded.
    b. The criteria listed in the Act are mandatory but not exclusive 
indicia of significance. A final issue relating to significance is the 
effect to be given a finding that an injury or illness results in, or 
does not result in, one of the outcomes listed in the statute: death, 
days away from work, restricted work or transfer to another job, 
medical treatment beyond first aid, or loss of consciousness. The 
implication arising from the wording of section 8(c)(2) and section 24 
is that if an injury or illness results in one of the listed outcomes, 
it must be deemed significant for recordkeeping purposes. This 
position, which reflects OSHA's longstanding, consistent interpretation 
of the statute, was not seriously questioned in the rulemaking. 
Accordingly, the final rule requires that a work-related injury or 
illness be recorded if it results in one of the outcomes mentioned in 
the statute.
    The final rule also requires that a case be recorded, whether or 
not it results in one of the listed outcomes, if it involves a 
significant injury or illness diagnosed by a physician or other 
licensed health care professional. 29 CFR 1904.10(b). Nothing in the 
statute compels the conclusion that the criteria mentioned in sections 
8 and 24 are the exclusive indicia of severity for recordkeeping 
purposes. Congress directed the Secretary to collect data on ``all 
disabling, serious, or significant injuries and illnesses, whether or 
not involving loss of time from work,'' other than minor injuries * * * 
which [do not result in one of the listed outcomes]. 29 U.S.C. 673(a). 
A reasonable reading of this language is that while an injury that 
meets one of the listed criteria is non-minor and must be recorded, the 
converse does not necessarily follow. An injury or illness may 
reasonably be viewed as significant, and therefore recordable, even if 
it is not immediately followed by death, loss of consciousness, or job-
related disability. For example, an employee diagnosed with an 
unquestionably serious work-related disease, such as asbestosis or 
mesothelioma, may forego or postpone medical treatment and continue 
temporarily to perform his or her normal job duties. Focusing 
exclusively on the basic criteria listed in the statute in cases such 
as these could result in underrecording of serious cases. Accordingly, 
the final rule requires employers to record any significant injury or 
illness that is diagnosed. A thorough discussion of this requirement, 
including a definition of what constitutes a ``significant'' injury or 
illness for this purpose, is contained in the preamble discussion of 
section 1904.7.
    Because the provisions of the final recordkeeping rule, as 
explained above and in the subsequent sections of this preamble, are 
reasonably related to the statutory purposes, the Secretary finds that 
the rule is necessary to carry out her responsibilities under the Act. 
The rule is therefore a valid exercise of the Secretary's general 
rulemaking authority under Section 8. Cf. Mourning v. Family 
Publications Services, 411 U.S. 356.

VII. Summary and Explanation

    The following sections discuss the contents of the final 29 CFR 
Part 1904 and section 1952.4 regulations. OSHA has written these 
regulations using the plain language guidance set out in a Presidential 
Memo to the heads of executive departments and agencies on June 1, 
1998. The Agency also used guidance from the Plain Language Action 
Network (PLAN), which is a government-wide group working to improve 
communications from the Federal government to the public, with the 
goals of increasing trust in government, reducing government costs, and 
reducing the burden on the public. For more information on PLAN, see 
their Internet site at http://www.plainlanguage.gov/.
    The plain language concepts encourage government agencies to adopt 
a first person question and answer format, which OSHA used for the Part 
1904 rule. The rule contains several types of provisions. Requirements 
are described using the ``you must * * *'' construction, prohibitions 
are described using ``you may not * * *'', and optional actions that 
are not

[[Page 5933]]

requirements or prohibitions are preceded by ``you may * * *.'' OSHA 
has also included provisions to provide information to the public in 
the rule.

Subpart A. Purpose

    The Purpose section of the final rule explains why OSHA is 
promulgating this rule. The Purpose section contains no regulatory 
requirements and is intended merely to provide information. A Note to 
this section informs employers and employees that recording a case on 
the OSHA recordkeeping forms does not indicate either that the employer 
or the employee was at fault in the incident or that an OSHA rule has 
been violated. Recording an injury or illness on the Log also does not, 
in and of itself, indicate that the case qualifies for workers' 
compensation or other benefits. Although any specific work-related 
injury or illness may involve some or all of these factors, the record 
made of that injury or illness on the OSHA recordkeeping forms only 
shows three things: (1) that an injury or illness has occurred; (2) 
that the employer has determined that the case is work-related (using 
OSHA's definition of that term); and (3) that the case is non-minor, 
i.e., that it meets one or more of the OSHA injury and illness 
recording criteria. OSHA has added the Note to this first subpart of 
the rule because employers and employees have frequently requested 
clarification on these points.
    The following paragraphs describe the changes OSHA has made to the 
Purpose provisions in Subpart A of the final rule, and discusses the 
Agency's reasons for these changes. Proposed section 1904.1 of Subpart 
A contained three separate paragraphs. Proposed paragraph (a) stated 
that the purpose of the recordkeeping rule (Part 1904) was ``to require 
employers to record and report work-related injuries, illness and 
fatalities.'' It also described several ways in which such records were 
useful to employers, employees, OSHA officials, and researchers 
evaluating and identifying occupational safety and health issues.
    Proposed paragraph (b) noted that the recording of a job-related 
injury, illness or fatality did not necessarily impute fault to the 
employer or the employee, did not necessarily mean that an OSHA rule 
had been violated when the incident occurred, and did not mean that the 
case was one for which workers' compensation or any other insurance-
related benefit was appropriate. The third paragraph in proposed 
section 1904.1, proposed paragraph (c), stated that the regulations in 
Part 1904 had been developed ``in consultation with the Secretary of 
Health and Human Services'' (HHS), as required by Section 24(a) of the 
Act.
    In the final rule, OSHA has moved much of this material, which was 
explanatory in nature, from the regulatory text to the preamble. This 
move has simplified and clarified the regulatory text. The final rule's 
Purpose paragraph simply states that: ``The purpose of this rule (Part 
1904) is to require employers to record and report work-related 
fatalities, injuries and illnesses.'' This final rule statement is 
essentially identical to the first sentence of the proposed Purpose 
section. It clearly and succinctly states OSHA's reasons for issuing 
the final rule.
    A number of commenters (see, e.g., Exs. 25; 15: 199, 305, 313, 346, 
348, 352, 353, 375, 418, 420) specifically addressed proposed section 
1904.1. The principal points raised by these commenters concerned: (1) 
Statements in proposed paragraph (a) about the quality of the data 
captured by the records; (2) proposed paragraph (b)'s discussion of the 
relationship between OSHA recordkeeping and employer/employee fault, 
violations of OSHA rules, and the workers' compensation system, and (3) 
the statement in proposed paragraph (c) that discussed OSHA's 
consultation with the Secretary of Health and Human Services in 
developing this rule. Each of these issues is discussed in detail 
below.
    Most comments on proposed paragraph (a) took issue with the 
language that OSHA used to describe the statistical use of the records 
(see, e.g., Exs. 25, 15: 305, 346, 348, 375, 420). Typical of these 
comments is one from the National Association of Manufacturers: ``We 
urge OSHA to remove the following unverified and conclusory statement 
from Sec. 1904.1(a): ``The records: * * * accurately describe the 
nature of occupational safety and health problems for the Nation, State 
or establishment'' (Exs. 25, 15: 305). OSHA did not intend this 
statement to attest with certainty to the validity of national 
occupational statistics. Proposed section 1904.1(a) merely paraphrased 
section 2(b) of the Act, which states that such records ``will help 
achieve the objectives of this Act and accurately describe the nature 
of the occupational safety and health problem.'' In response to 
commenters, OSHA has simplified the final rule by deleting the proposed 
listing of the functions of the records required by this rule.
    As discussed earlier, proposed paragraph (b) stated that the 
recording of a case did 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.'' The last sentence of proposed paragraph (b) described the 
various types of workplace events or exposures that may lead to a 
recordable injury or illness.
    A number of commenters agreed with the proposed statements on 
fault, compliance, and the relationship between the recording of a case 
and workers' compensation or other insurance (see, e.g., Exs. 25, 15: 
305, 346, 420). Employers have frequently asked OSHA to explain the 
relationship between workers' compensation reporting systems and the 
OSHA injury and illness recording and reporting requirements. As NYNEX 
(Ex. 15: 199) noted,

    [t]he issue of confusion between OSHA recordkeeping and workers' 
compensation/insurance requirements cannot be totally eliminated as 
the workers' compensation criteria vary somewhat from state to 
state. There will always be some differences between OSHA 
recordability and compensable injuries and illnesses. The potential 
consequences of these differences can be minimized, however, if all 
stakeholders in the recordkeeping process (i.e., employers, 
employees, labor unions, OSHA compliance officials) are well 
informed that OSHA recordability does not equate to compensation 
eligibility. This can be facilitated by printed reminders on all of 
the OSHA recordkeeping documents (e.g., forms, instructions, 
pamphlets, compliance directives, etc.).

    As NYNEX observed, employers must document work-related injuries 
and illnesses for both OSHA recordkeeping and workers' compensation 
purposes. Many cases that are recorded in the OSHA system are also 
compensable under the State workers' compensation system, but many 
others are not. However, the two systems have different purposes and 
scopes. The OSHA recordkeeping system is intended to collect, compile 
and analyze uniform and consistent nationwide data on occupational 
injuries and illnesses. The workers' compensation system, in contrast, 
is not designed primarily to generate and collect data but is intended 
primarily to provide medical coverage and compensation for workers who 
are killed, injured or made ill at work, and varies in coverage from 
one State to another.
    Although the cases captured by the OSHA system and workers' 
compensation sometimes overlap, they often do not. For example, many 
injuries and illnesses covered by workers' compensation are not 
required to be recorded in the OSHA records. Such a situation would 
arise, for example, if an employee were injured on the job, sent to a 
hospital emergency

[[Page 5934]]

room, and was examined and x-rayed by a physician, but was then told 
that the injury was minor and required no treatment. In this case, the 
employee's medical bills would be covered by workers' compensation 
insurance, but the case would not be recordable under Part 1904.
    Conversely, an injury may be recordable for OSHA's purposes but not 
be covered by workers' compensation. For example, in some states, 
workers' compensation does not cover certain types of injuries (e.g., 
certain musculoskeletal disorders) and certain classes of workers 
(e.g., farm workers, contingent workers). However, if the injury meets 
OSHA recordability criteria it must be recorded even if the particular 
injury would not be compensable or the worker not be covered. 
Similarly, some injuries, although technically compensable under the 
state compensation system, do not result in the payment of workers' 
compensation benefits. For example, a worker who is injured on the job, 
receives treatment from the company physician, and returns to work 
without loss of wages would generally not receive workers' compensation 
because the company would usually absorb the costs. However, if the 
case meets the OSHA recording criteria, the employer would nevertheless 
be required to record the injury on the OSHA forms.
    As a result of these differences between the two systems, recording 
a case does not mean that the case is compensable, or vice versa. When 
an injury or illness occurs to an employee, the employer must 
independently analyze the case in light of both the OSHA recording 
criteria and the requirements of the State workers' compensation system 
to determine whether the case is recordable or compensable, or both.
    The American Federation of Labor and Congress of Industrial 
Organizations (AFL-CIO) urged OSHA to emphasize the no-fault philosophy 
of the Agency's recordkeeping system, stating:

    The AFL-CIO is encouraged by some provisions currently in the 
proposed rulemaking which indirectly address underreporting. But, we 
believe the Agency must take it one step further. To adequately 
address this problem, the Agency must encourage employers to adopt a 
``no fault system'' philosophy in the workplace and remove barriers 
which discourage the reporting of injuries and illnesses by 
employees. This philosophy will not only encourage workers to report 
injuries and illnesses, but also encourage those individuals (e.g., 
supervisors, safety personnel) responsible for recording this data 
to report all recordable incidents (Ex. 15: 418).

    OSHA believes that the note to the Purpose paragraph of the final 
rule will allay any fears employers and employees may have about 
recording injuries and illnesses, and thus will encourage more accurate 
reporting. Both the Note to Subpart A of the final rule and the new 
OSHA Form 300 expressly state that recording a case does not indicate 
fault, negligence, or compensability.
    The Workplace Health and Safety Council, the American Coke and Coal 
Chemicals Institute, and the National Oilseed Processors Association 
(Exs. 15: 313, 352, 353) all urged OSHA to improve on this paragraph of 
the proposed rule in two ways. First, these commenters asked OSHA to 
remove the word ``necessarily'' from the language of proposed paragraph 
(b), which stated that recording did not ``necessarily mean'' that 
anyone was at fault, that a standard had been violated, or that the 
case was compensable:

    The qualification ``necessarily'' robs the [proposed] sentences 
of their meaning and makes them inaccurate. Using the word 
erroneously implies that merely listing an injury sometimes does 
mean that the employer or employee was at fault, that an OSHA 
standard was violated, or that the employee is eligible for workers' 
compensation. Clearly, this is not what OSHA intended to convey. 
Indeed, the word ``necessarily'' may actually worsen the problem 
OSHA seeks to solve, for attorneys and consultants reading the 
proposed provision might well advise employers that the provision 
actually endorses some uses of a listing against an employer.
    OSHA should, therefore, delete the word ``necessarily. * * *'' 
Alternatively, the sentence in the regulation should read: ``That an 
injury or illness is recordable has no bearing on whether the 
employer or employee was at fault, an OSHA standard violated, or the 
employee is eligible for workers' compensation. * * *'' The legend 
in the form would be similarly changed (Exs. 15: 313, 352, 353).

    These three commenters (Exs. 15: 313, 352, 353) also suggested the 
following:

    (a) much preferred additional solution, would be for OSHA to 
promulgate in the final version a provision that makes inadmissible 
in all proceedings, both those under the OSH Act and those under any 
state or federal law, the entries in Form OSHA 300 and 301 as 
evidence of fault or culpability. Such a regulation would give 
employers the necessary assurance that their recordkeeping forms 
would not be used against them. Injured employees would lose nothing 
by this, for they could still be permitted to prove the fact of 
injury, its work-relatedness, and its consequence, with normal 
proof. They would simply not be permitted to introduce the forms as 
evidence of culpability. Such a rule would implement, be consistent 
with, and be authorized by Section 4(b)(4) of the Act, which 
prohibits the Act from affecting workers' compensation and tort 
schemes.

    OSHA agrees with the point made by these commenters about the 
proposed rule's use of the word ``necessarily.'' Accordingly, the word 
necessarily has been deleted from the Note to the Purpose paragraph of 
the final rule. However, OSHA has rejected the suggestion made by these 
commenters to limit the admissibility of the forms as evidence in a 
court proceeding. Such action is beyond the statutory authority of the 
agency, because OSHA has no authority over the courts, either Federal 
or State.
    In the proposal, the no-fault statement was followed by a listing 
of the various causes of recordable injuries and illnesses: 
``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.'' The American Petroleum Institute (API) (Ex. 15: 375) 
objected to this proposed sentence describing the various examples of 
injury and illness causality, stating:

    To help the system have much-needed credibility, ``regardless of 
fault or preventability'' should not be applied beyond reasonable 
limits. Specifically, it shouldn't mean ``tornado or earthquake'' or 
other sudden, unforeseen catastrophic events over which the employer 
clearly could not have any control. Employers can, however, exercise 
control to prevent injury from some types of naturally occurring 
events. The terms ``tornado or earthquake'' should be replaced with 
more reasonable examples.

    In the final rule, OSHA has decided to eliminate the sentence of 
examples to make the regulatory text clearer and more concise. However, 
OSHA notes that many circumstances that lead to a recordable work-
related injury or illness are ``beyond the employer's control,'' at 
least as that phrase is commonly interpreted. Nevertheless, because 
such an injury or illness was caused, contributed to, or significantly 
aggravated by an event or exposure at work, it must be recorded on the 
OSHA form (assuming that it meets one or more of the recording criteria 
and does not qualify for an exemption to the geographic presumption). 
This approach is consistent with the no-fault recordkeeping system OSHA 
has adopted, which includes work-related injuries and illnesses, 
regardless of the level of employer control or non-control involved. 
The issue of whether different

[[Page 5935]]

types of cases are deemed work-related under the OSHA recordkeeping 
rule is discussed in the Legal Authority section, above, and in the 
work-relationship section (section 1904.5) of this preamble.
    In a comment on proposed paragraph (a), the National Association of 
Manufacturers (NAM) (Exs. 25, 15: 305) argued that the OSHA 
recordkeeping system should only collect information on

``the most significant hazards, those that lead to the most 
significant injuries and illnesses * * *'' and that the purpose 
paragraph of the final rule be revised to state ``The purpose of 
this Part is to require employers to record and report disabling, 
serious and significant work-related injuries and illnesses, and 
work-related fatalities.''

    OSHA does not agree with this interpretation of the OSH Act. As 
discussed in the Legal Authority section, above, Congress stated 
clearly that the OSHA recordkeeping system was intended to capture 
``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'' (Sec. 8(c)(2)) (emphasis added). 
The words ``disabling, serious, and significant,'' suggested by NAM, 
are at variance with Congress' clear intent. OSHA concludes that the 
guidance given by Congress--that employers should record and report on 
work-related deaths, and on injuries and illnesses other than minor 
injuries, establishes the appropriate recording threshold for cases 
entered into the OSHA recordkeeping system.
    A few commenters recommended that OSHA delete paragraph (c) of the 
proposed Purpose section (see, e.g., Exs. 25, 15: 305, 346, 348, 420), 
and in the final rule, OSHA has done so because the paragraph merely 
attested to OSHA's cooperation with other agencies on this rule. 
Although the rule has, in fact, been developed in cooperation with the 
Department of Health and Human Services, and specifically with the 
National Institute for Occupational Safety and Health (NIOSH), there is 
no need to include this information in the regulatory text itself.

Subpart B. Scope

    The coverage and partial exemption provisions in Subpart B of the 
final rule establish which employers must keep OSHA injury and illness 
records at all times, and which employers are generally exempt but must 
keep records under specific circumstances. This subpart contains 
sections 1904.1 through 1904.3 of the final rule.
    OSHA's recordkeeping rule covers many employers in OSHA's 
jurisdiction but continues to exempt many employers from the need to 
keep occupational injury and illness records routinely. This approach 
to the scope of the rule is consistent with that taken in the former 
recordkeeping rule. Whether a particular employer must keep these 
records routinely depends on the number of employees in the firm and on 
the Standard Industrial Classification, or SIC code, of each of the 
employer's establishments. Employers with 10 or fewer employees are not 
required to keep OSHA records routinely. In addition, employers whose 
establishments are classified in certain industries are not required to 
keep OSHA records under most circumstances. OSHA refers to 
establishments exempted by reason of size or industry classification as 
``partially exempt,'' for reasons explained below.
    The final rule's size exemption and the industry exemptions listed 
in non-mandatory Appendix A to Subpart B of the final rule do not 
relieve employers with 10 or fewer employees or employers in these 
industries from all of their recordkeeping obligations under 29 CFR 
Part 1904. Employers qualifying for either the industry exemption or 
the employment size exemption are not routinely required to record 
work-related injuries and illnesses occurring to their employees, that 
is, they are not normally required to keep the OSHA Log or OSHA Form 
301. However, as sections 1904.1(a)(1) and 1904.2 of this final 
recordkeeping rule make clear, these employers must still comply with 
three discrete provisions of Part 1904. First, all employers covered by 
the Act must report work-related fatalities or multiple 
hospitalizations to OSHA under Sec. 1904.39. Second, under 
Sec. 1904.41, any employer may be required to provide occupational 
injury and illness reports to OSHA or OSHA's designee upon written 
request. Finally, under Sec. 1904.42, any employer may be required to 
respond to the Survey of Occupational Injuries and Illnesses conducted 
by the Bureau of Labor Statistics (BLS) if asked to do so. Each of 
these requirements is discussed in greater detail in the relevant 
portion of this summary and explanation.

Section 1904.1 Partial Exemption for Employers With 10 or Fewer 
Employees

    In Sec. 1904.1 of the final rule, OSHA has retained the former 
rule's size-based exemption, which exempts employers with 10 or fewer 
employees in all industries covered by OSHA from most recordkeeping 
requirements. Section 1904.1, ``Partial exemption for employers with 10 
or fewer employees,'' states that:

    (a) Basic requirement.
    (1) If your company had ten (10) or fewer employees at all times 
during the last calendar year, you do not need to keep OSHA injury 
and illness records unless OSHA or the BLS informs you in writing 
that you must keep records under Sec. 1904.41 or Sec. 1904.42. 
However, as required by Sec. 1904.39, all employers covered by the 
OSH Act must report to OSHA any workplace incident that results in a 
fatality or the hospitalization of three or more employees.
    (2) If your company had more than ten (10) employees at any time 
during the last calendar year, you must keep OSHA injury and illness 
records unless your establishment is classified as a partially 
exempt industry under Sec. 1904.2.
    (b) Implementation.
    (1) Is the partial exemption for size based on the size of my 
entire company or on the size of an individual business 
establishment?
    The partial exemption for size is based on the number of 
employees in the entire company.
    (2) How do I determine the size of my company to find out if I 
qualify for the partial exemption for size?
    To determine if you are exempt because of size, you need to 
determine your company's peak employment during the last calendar 
year. If you had no more than 10 employees at any time in the last 
calendar year, your company qualifies for the partial exemption for 
size.
The Size-Based Exemption in the Former Rule
    The original OSHA injury and illness recording and reporting rule 
issued in July 1971 required all employers covered by the OSH Act to 
maintain injury and illness records. In October 1972, an exemption from 
most of the recordkeeping requirements was put in place for employers 
with seven or fewer employees. In 1977, OSHA amended the rule to exempt 
employers with 10 or fewer employees, and that exemption has continued 
in effect to this day. All employers, however, have always been 
required to report fatalities and catastrophes to OSHA and to 
participate in the BLS survey, if requested to do so.
    As discussed in the Legal Authority section of this preamble, the 
10 or fewer employee threshold is consistent with Congressional intent: 
the 1977 Federal Register notice announcing the new exemption cited the 
Department of Labor appropriations acts for fiscal years 1975 and 1976, 
which exempted employers having 10 or fewer employees from most routine 
recordkeeping requirements, and Section 8(d) of the Act, as the major 
reasons for raising the exemption size threshold from seven to 10 
employees. The 1977 Notice stated that the new size

[[Page 5936]]

threshold appropriately balanced the interest of small businesses while 
preserving the essential purposes of the recordkeeping scheme:

    The [exemption] has been carefully designed to carry out the 
mandate of section 8(d) without impairing the Act's basic purpose. 
Thus, the [exemption] will not diminish the protections afforded 
employees under the Act because all employers * * * remain subject 
to the enforcement provisions of the Act. The [exemption] will 
continue to require * * * small employers * * * to report fatalities 
and multiple hospitalizations and to participate in the BLS annual 
survey when selected to do so (42 FR 38568 (July 29, 1977)).
The Size-Based Exemption in the Final Rule
    The final rule published today maintains the former rule's partial 
exemption for employers in all covered industries who have 10 or fewer 
employees. Under the final rule (and the former rule), an employer in 
any industry who employed no more than 10 employees at any time during 
the preceding calendar year is not required to maintain OSHA records of 
occupational illnesses and injuries during the current year unless 
requested to do so in writing by OSHA (under Sec. 1904.41) or the BLS 
(under Sec. 1904.42). If an employer employed 11 or more people at a 
given time during the year, however, that employer is not eligible for 
the size-based partial exemption.
The Size-Based Exemption in the Proposed Rule
    In the 1996 proposal, OSHA contemplated raising the threshold for 
the size-based exemption to 19 employees for all employers except those 
in the construction industry. In proposing this more extensive 
exemption, OSHA stated that BLS Annual Survey data appeared to indicate 
that small businesses in this size category had proportionately fewer 
injuries and illnesses and were thus safer places to work. However, 
since the proposal, OSHA has analyzed the record evidence on this point 
and now believes that small businesses are not generally likely to be 
less hazardous than larger businesses and, in fact, are likely, as a 
general matter, to be more hazardous than large businesses. OSHA's 
reasoning is described below.
    Comments to the record make clear that the recording of fewer 
injuries and illnesses by very small firms could have many causes other 
than a lower level of hazards. For example, the National Institute for 
Occupational Safety and Health (NIOSH) submitted a comment to the 
record that described numerous studies based on fatality and workers' 
compensation data that suggest that smaller businesses are at least as 
hazardous as larger businesses (Ex. 15: 407). NIOSH also argued that 
the BLS estimated injury and illness incidence rates for small 
employers may be erroneously low, i.e., may be the result of 
underreporting rather than a lower injury rate. The following comment 
from NIOSH explains these concerns:

    From a public standpoint, NIOSH does not support a partial 
exemption from recordkeeping requirements for employers in the 
construction industry with 10 or fewer employees, and non-
construction employers with 19 or fewer employees. Research 
indicates significant safety and health problems in ``small'' 
establishments which employ a substantial proportion of the 
workforce. One-quarter of the civilian, full-time workforce is 
employed in establishments with fewer than 25 employees (Oleinick et 
al. 1995).
    The Occupational Safety and Health Administration (OSHA) notes 
[in the proposal to the recordkeeping rule] that ``the Annual Survey 
data show that small employers generally experience much lower 
patterns of injuries and illnesses than medium size firms.'' 
However, recent literature comparing Annual Survey data and workers 
compensation data questions the validity of the estimated rates for 
small employers obtained through the Bureau of Labor Statistics 
(BLS) Annual Survey. Moreover, fatal and nonfatal work injuries are 
a significant risk among small businesses in hazardous industries 
and many industries with high fatal and nonfatal injury rates are 
comprised primarily of small companies. In addition, NIOSH research 
indicates that small companies have less access to safety and health 
programs that might reduce injuries and illnesses than larger 
companies [NIOSH 1988a].
    Though the Annual Survey of Occupational Injuries and Illnesses 
has consistently reported that employers with fewer than 20 
employees have significantly lower rates of injuries and illnesses, 
there is concern that these low incidence rates are an artifact of 
the reporting system. Analysis of compensable injuries with >7 
missed workdays in Michigan indicates that the pattern of lower 
injury rates among small employers is not consistent across industry 
divisions. Though the services and trade industry divisions show a 
marked decline in compensable injury rate for small size firms, the 
higher risk industries of construction and transportation/utilities 
show relatively little decline in the compensable injury rate for 
employers with fewer than 25 employees. Comparison of the 
demographic characteristics of the Michigan work force with the 
demographic characteristics of injured workers suggest that high 
risk groups (e.g., males, younger workers [35 years of age], 
construction, manufacturing, transportation, and blue collar 
workers) are over-represented among workers injured in small size 
firms (25 workers). Using cumulative lost work time as a surrogate 
for severity of injury, the Michigan study also found that with one 
exception (construction), compensable injuries to workers in small 
firms were at least as serious as compensable injuries in larger 
firms [Oleinick et al. 1995] (Ex. 15: 407).

    Since publication of the recordkeeping proposal, OSHA has done 
considerable research into the issue of fatality, injury, and illness 
rates in small companies. The results of this research also point to 
underreporting, rather than safer workplaces, as a likely reason for 
the lower-than-average injury and illness numbers reported by small 
employers. The most telling evidence that injury and illness 
underreporting is prevalent among small firms is the substantial 
discrepancy between the fatality rates in these firms and their injury 
and illness rates.
    Most professionals agree that occupational fatality data are more 
reliable than occupational injury and illness data, primarily because 
fatalities are more likely to be reported than injuries. The work-
related BLS fatality data appear to confirm this belief, showing that 
although businesses with fewer than 10 employees account for only 4% of 
the total workforce, they account for 28% of occupational fatalities. 
Furthermore, although businesses with fewer than 20 employees comprise 
only 26% of the total workforce, they account for 36% of all 
occupational fatalities (see Mendeloff, ``Using OSHA Accident 
Investigations to Study Patterns in Work Fatalities,'' J. Occup. Med 
32: 1117, 1119 (1990) (Ex. 15: 407 F)). These data strongly suggest 
that very small businesses are disproportionately hazardous places to 
work.
    Many safety and health professionals also believe that injuries and 
illnesses are substantially underreported by small employers (see, 
e.g., Exs. 4, 5, 15: 407). However, the occupational injury and illness 
data reported by employers to the BLS in connection with its Annual 
Survey of Occupational Injuries and Illnesses show lower rates of 
injuries and illnesses for firms in the smallest size classes than for 
those in larger classes. In an effort to understand why smaller firms 
might have lower injury and illness incidence rates, the authors of one 
study found that: (1) occupational fatality rates were highest in 
businesses with fewer than 50 employees; (2) businesses with fewer than 
50 employees were least likely to have occupational health services 
available; and (3) lost workday injury rates in several major industry 
categories are highest (i.e., the injuries are most severe) in these 
facilities. From these findings, the authors concluded:


[[Page 5937]]


    It is difficult to imagine a set of workplace conditions in 
small establishments that would lead simultaneously to lower injury 
rates, higher fatality rates, and equal, or greater, injury severity 
measured by missed work time, especially since these establishments 
were less likely to provide injury prevention and safety services 
(Oleinick et al., ``Establishment Size and Risk of Occupational 
Injury,'' Am. J. Med. 28(1): 2-3 (1995) (Ex. 15: 407 N)).

After considering a number of explanations that might explain this 
apparent incongruity, these authors rejected all explanations except 
one--underreporting by small firms:

    With the rejection of alternative explanations, there is a 
strong likelihood of underreporting as the explanation, and we 
estimate that the annual [BLS] survey substantially undercounts 
injuries in small establishments (Oleinick et al., 1995 (Ex. 15: 407 
N)).

    NIOSH agrees, noting that ``recent literature comparing Annual 
Survey data and workers compensation data questions the validity of the 
estimated rates for small employers obtained through the BLS Annual 
Survey'' (Ex.15: 407). Thus, the apparent discrepancy between the high 
fatality rate in the smallest firms (i.e., those with fewer than 20 
employees) and the low rates of injuries and illnesses reported by 
those same firms is likely to be the result of underreporting rather 
than lower relative hazards.
    A Wall Street Journal (Feb. 3, 1994) computer analysis of more than 
500,000 Federal and State safety-inspection records came to the same 
conclusions, i.e., that employees of small businesses are at greater 
risk of exposure to workplace hazards than employees of larger 
businesses, and that BLS data for small firms seriously understate 
injuries and illnesses in such firms. From 1988 through 1992, the 
analysis found an incidence of 1.97 deaths per 1,000 workers at 
workplaces with fewer than 20 employees, compared with an incidence of 
just 0.004 deaths per 1,000 workers at workplaces with more than 2,500 
workers. Thus, an employee's risk of death was approximately 500 times 
higher at the smallest businesses compared with the risk at the largest 
businesses. Similarly, while one in six employees at small businesses 
worked in an area cited for a serious safety violation, only one in 600 
did so at the largest businesses. This means that employees in small 
businesses are 100 times more likely to be exposed to a serious hazard 
at work than those in the largest businesses, a finding that is 
consistent with the higher fatality rates in very small workplaces 
(Wall Street Journal, February 3, 1994).
    In the final rule, OSHA has decided to continue the Agency's 
longstanding practice of partially exempting employers with 10 or fewer 
employees from most recordkeeping requirements, but not to extend the 
exemption to non-construction businesses with 19 or fewer employees, as 
was proposed. OSHA has determined that increasing the number of 
employers partially exempted is not in the best interests of the safety 
and health of their employees. First, as NIOSH's comments (Ex. 15: 
407), the Oleinick et al. study (1995), the Mendeloff article (1990), 
and the Wall Street Journal study (1994) all indicate, businesses with 
20 or fewer employees tend to be relatively hazardous places to work, 
and their employees have a disproportionately high risk of work-related 
death. Second, as NIOSH and others point out, there is reason to 
believe that these very small workplaces also experience 
disproportionately high numbers of injuries and illnesses, and that the 
BLS statistics for these workplaces substantially underreport the 
extent of job-related incidents at these establishments (Ex. 15: 407, 
Oleinick et al. 1995, Wall Street Journal 1994 (Ex. 15: 407 N). 
Finally, under the 10 or fewer employee partial exemption threshold, 
more than 80% of employers in OSHA's jurisdiction are exempted from 
routinely keeping records. Increasing the threshold for the size 
exemption would deprive even more employers and employees of the 
benefits of the information provided by these injury and illness 
records and reduce the number of establishments where the records can 
be of use to the government during an on-site visit. OSHA also believes 
that keeping the OSHA Log and Incident Report is important for national 
statistical purposes.
Size Exemption Threshold for Construction Companies
    The final rule also retains the former rule's size exemption 
threshold (10 or fewer employees) for construction employers. OSHA 
proposed separate size thresholds for construction and nonconstruction 
firms, i.e., the Agency proposed to exempt firms in construction with 
10 or fewer employees and non-construction firms with 19 or fewer 
employees from routine recordkeeping requirements. Comments on this 
aspect of the proposal were mixed. Some commenters agreed that OSHA 
should continue the exemption for construction employers with ten or 
fewer employees (see, e.g., Exs. 15: 145, 170, 197, 288). Other 
commenters urged that employers in the construction industry not be 
exempted from recordkeeping at all (see, e.g., Exs. 15: 62, 74, 414). 
For example, Robert L. Rowan, Jr. stated that:

[s]mall contractors often lack adequate safety knowledge, programs 
and safeguards to prevent injuries and illnesses. I believe that 
data obtained from these small contractors will point to a trend 
that these employees have a relatively high frequency of injuries 
that are related to tasks involving construction work such as 
excavations and fall hazards. I suggest that there be no exemptions 
for recordkeeping for any construction employer (Ex. 15: 62).

    Other commenters asked OSHA to use a single size threshold for 
employees in all industries and to raise the size exemption threshold 
to more than 19 employees across the board (see, e.g., Exs. 15: 67, 
304, 312, 344, 437). For example, the Sheet Metal and Air Conditioning 
Contractors' National Association (SMACNA) remarked:

    The recordkeeping standard is considered to be a horizontal 
standard, which by definition, means that it covers all industries. 
SMACNA members own and operate sheet metal fabrication shops where 
they design and create the products which are then installed in the 
construction process, including duct work and all types of specialty 
and architectural sheet metal. Sheet metal fabrication shops fall 
under the manufacturing classification and are therefore subject to 
general industry standards. SMACNA contractors also construct with 
the components that they fabricate. Therefore, as contractors they 
must also comply with the OSHA standards for construction.
    OSHA's arbitrary two tier record keeping requirement will cause 
confusion among SMACNA contractors as to which classification they 
are under and when they have to maintain records. With the volumes 
of regulations that contractors already must comply with, it is only 
logical that if OSHA truly wishes to simplify its recordkeeping 
requirements it would create a uniform standard for all industries. 
* * *
    SMACNA urges OSHA to create a uniform horizontal standard and 
increase the exemption for the construction industry to cover 
employers with 19 or fewer employees (Ex. 15: 116).

    After a review of the record and reconsideration of this issue, 
OSHA agrees that there should be only one size exemption threshold 
across all industries and finds that the threshold should be 10 or 
fewer employees. This threshold comports both with longstanding Agency 
practice and Congressional intent. Further, as discussed above, OSHA 
finds that extending this threshold to include firms with 11 to 19 
employees is not warranted by the evidence. Firms in this size range 
have a disproportionately large number of fatalities, and their

[[Page 5938]]

lower reported injury and illness rates are likely to be the result of 
underreporting rather than fewer hazards. Thus, companies in this size 
class need the information their OSHA records provide to improve 
conditions in their workplaces and to protect their employees from job-
related injuries, illnesses, and deaths. Likewise, OSHA does not 
believe that it would be appropriate to remove the partial exemption 
for construction employers with 10 or fewer employees, as some 
commenters suggested (see, e.g., Exs. 15: 67, 304, 312, 344, 437). 
Using the same size threshold for all OSHA-covered industries also 
makes the rule simpler and is more equitable from industry to industry.
Comments on Raising the Size-Based Exemption
    Many commenters supported raising the size-based exemption 
threshold (see, e.g., Exs. 27, 15: 26, 27, 67, 102, 123, 145, 170, 173, 
182, 198, 247, 288, 304, 359, 375, 378, 392, 401, 437). For example, 
the American Society of Safety Engineers (ASSE) remarked:

    ASSE supports exempting businesses under twenty (20) employees 
from the standard with some specific industry exemptions. Enforcing 
this regulation for businesses of less than twenty (20) employees 
would be detrimental to small business from the recordkeeping/
bureaucracy perspective, and may not generate any significant data. 
ASSE wishes to clarify, however, that this position should not be 
interpreted to mean that small businesses should be exempted from 
safety and health laws. We believe that all employees are entitled 
to an equal level of safety and health regardless of the size of 
their place of employment. Exempting a paperwork requirement does 
not change this level of commitment (Ex. 15: 182).

    Two commenters suggested that OSHA use an even higher threshold for 
determining the size-based exemption (Exs. 15: 357, 408). The Synthetic 
Organic Chemical Manufacturers Association (SOCMA) stated ``* * * SOCMA 
believes that OSHA should modify the small employer exemption by 
increasing it to 40 employees. This alternative approach would reduce 
the employer paperwork burden while improving the accuracy of injury 
and illness information'' (Ex. 15:357). Similarly, the American Dental 
Association (ADA) commented ``The ADA suggests that OSHA expand the 
proposed exemption from `fewer than 20 employees' to `fewer than 25 
employees.' This would bring the small-employer exception into 
conformity with many federal and state employment laws. It would also 
serve as a more reasonable dividing line between small employers and 
others'' (Ex. 15:408).
    Some commenters, however, objected to OSHA's proposed exemption of 
employers in the 11 to 20 employee size range (see, e.g., Exs. 15:62, 
369, 379, 407, 415, 418). Among these was the International Brotherhood 
of Teamsters (IBT), which stated:

    IBT maintains the importance of recording of all occupational 
injuries and illnesses. For that same reason, International 
Brotherhood of Teamsters does not support increasing the trigger for 
non-construction employers from ten to nineteen employees. Although 
injuries due to preventable causes occur in all types and sizes [of 
businesses], a disproportionately high number of fatalities occur in 
the smallest businesses. According to an analysis of BLS and OSHA 
data, then assistant secretary of labor, Joe Dear, told the House of 
Representative's Small Business Committee, ``Businesses with fewer 
than eleven workers account for 33 percent of all fatalities even 
though they account for less than 20 percent of employees.'' 
According to a study by the National Federation of Independent 
Businesses, ``generally businesses with fewer employees do less to 
improve safety than those with more.'' Large corporations can afford 
the full-time services of a safety engineer and industrial 
hygienist, whereas often small firms cannot. IBT contends that it is 
up to OSHA to protect the workers and institute prevention measures. 
The use of required recordkeeping of data helps to reach that aim by 
providing hard data. If the data is going to be used as a prevention 
tool, it must be collected from the entire workforce not just a 
subgroup (Ex. 15:369).

Reliance on a single size exemption threshold also addresses the point 
made by SMACNA: that many small employers perform construction work and 
also manufacture products and would therefore be uncertain, if the rule 
contained two size exemption thresholds, as to whether they are 
required to keep records or not.
    OSHA's proposed rule stated that the size exemption would apply to 
employers based on the number of employees employed by the employer 
``for the entire previous calendar year.'' The Office of Advocacy of 
the Small Business Administration (SBA) observed (Ex. 15:67, p. 4) that 
this statement could be interpreted in various ways, and expressed 
concern that it could be taken to refer to the total number of 
employees who had been employed at one time or another during the year 
rather than the total employed at any one time of the year. The SBA 
office recommended that OSHA provide clearer guidance. OSHA agrees with 
the SBA that the proposed regulatory language was ambiguous. 
Accordingly, the final rule clarifies that the 10 or fewer size 
exemption is applicable only if the employer had fewer than 11 
employees at all times during the previous calendar year. Thus, if an 
employer employs 11 or more people at any given time during that year, 
the employer is not eligible for the small employer exemption in the 
following year. This total includes all workers employed by the 
business. All individuals who are ``employees'' under the OSH Act are 
counted in the total; the count includes all full time, part time, 
temporary, and seasonal employees. For businesses that are sole 
proprietorships or partnerships, the owners and partners would not be 
considered employees and would not be counted. Similarly, for family 
farms, family members are not counted as employees. However, in a 
corporation, corporate officers who receive payment for their services 
are considered employees.
    Consistent with the former rule, the final rule applies the size 
exemption based on the total number of employees in the firm, rather 
than the number of employees at any particular location or 
establishment. Some commenters suggested that the size exemption should 
be based on the number of employees in each separate establishment 
rather than the entire firm (see, e.g., Exs. 15: 67, 201, 437). For 
example, Caterpillar Inc. (Ex. 15: 201) noted:

    We do object to the note to [proposed] paragraph 1904.2(b)(2) 
which bases size exemptions on the total number of employees in a 
firm rather than the establishment size. Size exemptions must be 
based upon individual establishment size. The factors that make 
recordkeeping difficult and unproductive for small facilities are 
not eliminated by adding small facilities together. Small facilities 
are usually unique and adding together the injury and illness 
experience of different small facilities will not produce a valid 
database for accident analysis or accident prevention planning. 
Injury and illness data collection is difficult because of small 
facility size and lack of recordkeeping expertise and resources. The 
benefits of collecting information in small facilities does not 
justify the costs. It is illogical to base the size exemption on 
anything other than the size of each separate establishment.

    OSHA does not agree with this comment because the resources 
available in a given business depend on the size of the firm as a 
whole, not on the size of individual establishments owned by the firm. 
In addition, the analysis of injury records should be of value to the 
firm as a whole, regardless of the size of individual establishments. 
Further, an exemption based on individual establishments would be 
difficult to administer, especially in

[[Page 5939]]

cases where an individual employee, such as a maintenance worker, 
regularly reports to work at several establishments.

Section 1904.2  Partial Exemption for Establishments in Certain 
Industries

    Section 1904.2 of the final rule partially exempts employers with 
establishments classified in certain lower-hazard industries. The final 
rule updates the former rule's listing of partially exempted lower-
hazard industries. Lower-hazard industries are those Standard 
Industrial Classification (SIC) code industries within SICs 52-89 that 
have an average Days Away, Restricted, or Transferred (DART) rate at or 
below 75% of the national average DART rate. The former rule also 
contained such a list based on data from 1978-1980. The final rule's 
list differs from that of the former rule in two respects: (1) the 
hazard information supporting the final rule's lower-hazard industry 
exemptions is based on the most recent three years of BLS statistics 
(1996, 1997, 1998), and (2) the exception is calculated at the 3-digit 
rather than 2-digit level.
    The changes in the final rule's industry exemptions are designed to 
require more employers in higher-hazard industries to keep records all 
of the time and to exempt employers in certain lower-hazard industries 
from keeping OSHA injury and illness records routinely. For example, 
compared with the former rule, the final rule requires many employers 
in the 3-digit industries within retail and service sector industries 
that have higher rates of occupational injuries and illnesses to keep 
these records but exempts employers in 3-digit industries within those 
industries that report a lower rate of occupational injury and illness. 
Section 1904.2 of the final rule, ``Partial exemption for 
establishments in certain industries,'' states:

    (a) Basic requirement.
    (1) If your business establishment is classified in a specific 
low hazard retail, service, finance, insurance or real estate 
industry listed in Appendix A to this Subpart B, you do not need to 
keep OSHA injury and illness records unless the government asks you 
to keep the records under Sec. 1904.41 or Sec. 1904.42. However, all 
employers must report to OSHA any workplace incident that results in 
a fatality or the hospitalization of three or more employees (see 
Sec. 1904.39).
    (2) If one or more of your company's establishments are 
classified in a non-exempt industry, you must keep OSHA injury and 
illness records for all of such establishments unless your company 
is partially exempted because of size under Sec. 1904.1.
    (b) Implementation.
    (1) Does the partial industry classification exemption apply 
only to business establishments in the retail, services, finance, 
insurance or real estate industries (SICs 52-89)?
    Yes. Business establishments classified in agriculture; mining; 
construction; manufacturing; transportation; communication, 
electric, gas and sanitary services; or wholesale trade are not 
eligible for the partial industry classification exemption.
    (2) Is the partial industry classification exemption based on 
the industry classification of my entire company or on the 
classification of individual business establishments operated by my 
company?
    The partial industry classification exemption applies to 
individual business establishments. If a company has several 
business establishments engaged in different classes of business 
activities, some of the company's establishments may be required to 
keep records, while others may be exempt.
    (3) How do I determine the Standard Industrial Classification 
code for my company or for individual establishments?
    You determine your Standard Industrial Classification (SIC) code 
by using the Standard Industrial Classification Manual, Executive 
Office of the President, Office of Management and Budget. You may 
contact your nearest OSHA office or State agency for help in 
determining your SIC.

    Employers with establishments in those industry sectors shown in 
Appendix A are not required routinely to keep OSHA records for their 
establishments. They must, however, keep records if requested to do so 
by the Bureau of Labor Statistics in connection with its Annual Survey 
(section 1904.42) or by OSHA in connection with its Data Initiative 
(section 1904.41). In addition, all employers covered by the OSH Act 
must report a work-related fatality, or an accident that results in the 
hospitalization of three or more employees, to OSHA within 8 hours 
(section 1904.39).
    In 1982, OSHA exempted establishments in a number of service, 
finance and retail industries from the duty to regularly maintain the 
OSHA Log and Incident Report (47 FR 57699 (Dec. 28, 1982)). This 
industry exemption to the Part 1904 rule was intended to ``reduce 
paperwork burden on employers without compromising worker safety and 
health.''
    The 1982 list of partially exempt industries was established by 
identifying lower hazard major industry groups in the SIC Divisions 
encompassing retail trade, finance, insurance and real estate, and the 
service industries (SICs 52-89). Major industry groups were defined as 
the 2-digit level industries from the SIC manual published by the U.S. 
Office of Management and Budget (OMB). Industries in these major 
industry groups were partially exempted from coverage by Part 1904 if 
their average lost workday injury rate (LWDI) for 1978-80 was at or 
below 75% of the overall private sector LWDI average rate for that 
year. Industries traditionally targeted for OSHA enforcement (those in 
SICs 01 through 51, comprising the industry divisions of agriculture, 
construction, manufacturing, transportation and public utilities, 
mining, and wholesale trade) remained subject to the full recordkeeping 
requirements. Although the 1982 Federal Register notice discussed the 
possibility of revising the exempt industry list on a routine basis, 
the list of partially exempt industries compiled in 1982 has remained 
unchanged until this revision of the Part 1904 rule.
    The proposed rule would have updated the industry exemption based 
on more current data, and would have relied on 3-digit SIC code data to 
do so. The only change from the former rule taken in the proposal would 
have been reliance on LWDI rates for industries at the 3-digit, rather 
than 2-digit, level.
    Evaluating industries at the 3-digit level allows OSHA to identify 
3-digit industries with high LWDI rates (DART rates in the terminology 
of the final rule) that are located within 2-digit industries with 
relatively low rates. Conversely, use of this approach allows OSHA to 
identify lower-hazard 3-digit industries within a 2-digit industry that 
have relatively high LWDI (DART) rates. Use of LWDI (DART) rates at the 
more detailed level of SIC coding increases the specificity of the 
targeting of the exemptions and makes the rule more equitable by 
exempting workplaces in lower-hazard industries and requiring employers 
in more hazardous industries to keep records.
    Under the proposal, based on their LWDI (DART) rates, the following 
industries would have been required to keep records for the first time 
since 1982:

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

[[Page 5940]]

SIC 842  Arboreta and Botanical or Zoological Gardens, and
SIC 869  Membership Organizations Not Elsewhere Classified

    The following industries would have been newly exempted by the 
proposal:

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

    In the Issues section of the preamble to the proposed rule, OSHA 
asked the public to comment on the appropriateness of the proposed 
exemption procedure, and on whether or not OSHA should expand this 
approach to industries in SICs 01 through 51. The Agency also asked for 
alternative approaches that would reduce employer paperwork burden 
while retaining needed injury and illness information, and for 
estimates of the costs and benefits associated with these alternatives. 
OSHA notes that the final rule is based on the most recent data 
available (1996-1998). Although it has relied on the methodologies 
proposed (3-digit SIC codes, industries below 75% of the national 
average LWDI rate), there have been a few shifts in the industries 
proposed to be covered and those actually covered by the final rule. 
Thus this final rule will continue to exempt eating and drinking places 
(SICs 581 and 582) but will not exempt automobile parking (SIC 752).
Comments on the Proposed Industry Exemptions
    A number of commenters supported OSHA's proposal to apply the 1982 
exemption criteria to the service and retail industries at the three-
digit SIC level (see, e.g., Exs. 27; 15: 26, 199, 229, 247, 272, 299, 
359, 375, 378, 392). However, a number of commenters opposed any 
exemptions from the Part 1904 requirements on the basis of industry 
classification (see, e.g., Exs. 15: 9, 13, 31, 62, 78, 83, 129, 153, 
154, 163, 186, 197, 204, 234, 350, 379, 399, 414). The International 
Paper Company explained its reasons for opposing industry exemptions as 
follows:

    Exempting employers with low incidence rates is inconsistent 
with a major objective of the recordkeeping rules; specifically, 
measuring the magnitude of work-related injuries and illnesses. 
Exemption of specific industrial classifications or small employers 
may bias statistics which are used by OSHA for identifying 
industries for inspections. These exemptions may also impact 
statistics related to less traditional, but increasingly more 
frequent exposures such as bloodborne pathogens, tuberculosis, motor 
vehicle incidents or workplace violence.
    Exempting employers with low incidence rates does not provide 
any measurable relief from paperwork requirements. Time spent on 
recordkeeping is primarily dedicated to decision making regarding 
work relationship and recordability, not actual Log entries or 
completing supplemental reports. Simplifying the decision making 
process is the best way to reduce the burden of recordkeeping, not 
exempting employers (Ex. 15:399).

    The Service Employees International Union (SEIU) agreed:

    Injury and illness recordkeeping is the most basic step an 
employer must take in order to begin to address workplace hazards. 
Responsible employers recognize that injury and illness records are 
a useful tool for development of sound company safety and health 
programs. This information is also critical to the workers 
themselves, by raising awareness about how and where people are 
getting hurt, they in turn use this information to work to eliminate 
the causes of such injuries and illnesses. Therefore it is 
disturbing that in the proposed revised standard, there still exist 
industry exemptions for recordkeeping and reporting. Prior to 1983, 
all employers covered by OSHA with more than ten employees were 
required to maintain injury and illness records.
    * * * SEIU believes that such exemptions are unwarranted and 
violate the specific language of the Occupational Safety and Health 
Act. * * * The Act does not provide for excluding entire classes of 
occupationally injured and sick workers. Furthermore, little 
recordkeeping will be required for industries that are safe and 
experience low rates of injuries and illnesses. It is critical that 
OSHA require recordkeeping for all industries, especially since many 
previously exempt sectors now experience increasing rates of injury 
and illness. Many of these industry sectors are also dramatically 
expanding--therefore, continued recordkeeping is even more critical 
(Ex. 15:379).

    The National Safety Council (Ex. 15:359) cautioned:

    From the point of view of injury and illness prevention. * * * 
an establishment that does not track its injury and illness 
experience cannot effectively administer a prevention program. * * *

    Although OSHA encourages employers to track the occupational 
injuries and illnesses occurring among their employees and agrees that 
doing so is important for safety and health prevention efforts, OSHA 
has decided in the final rule to continue the long-established practice 
of exempting employers in industries with lower average lost workday 
incidence rates from most OSHA recordkeeping requirements but to tie 
the exemption as closely as possible to specific 3-digit SIC code data.
    Accordingly, non-mandatory Appendix A of the final rule identifies 
industries for exemption at the 3-digit SIC code level. Although this 
approach does make the list of exempt industries longer and more 
detailed, it also targets the exemption more effectively than did the 
former rule's list. For example, the final rule does not exempt firms 
in many of the more hazardous 3-digit SIC industries that are embedded 
within lower rate 2-digit SIC industries. It does, however, exempt 
firms in relatively low-hazard 3-digit SIC industries, even though they 
are classified in higher hazard 2-digit SIC industries. Where Days 
Away, Restricted, or Transferred (DART, formerly LWDI) rate 
calculations exempt all of the 3-digit SIC industries within a given 2-
digit industry, the exempt industry list in Appendix A displays only 
the 2-digit SIC classification. This approach merely provides a 
shorter, simpler list.
    For multi-establishment firms, the industry exemption is based on 
the SIC code of each establishment, rather than the industrial 
classification of a firm as a whole. For example, some larger 
corporations have establishments that engage in different business 
activities. Where this is the case, each establishment could fall into 
a different SIC code, based on its business activity. The Standard 
Industrial Classification manual states that the establishment, rather 
than the firm, is the appropriate unit for determining the SIC code. 
Thus, depending on the SIC code of the establishment, one establishment 
of a firm may be exempt from routine recordkeeping under Part 1904, 
while another establishment in the same company may not be exempt.
    Several commenters suggested that OSHA use an alternate method for 
determining exemptions (see, e.g., Exs. 15: 97, 201, 359). The National 
Safety Council (Ex. 15: 359), for example, urged OSHA to ``evaluate 
other exemption procedures before incorporating one into proposed 
section 1904.2.''
    OSHA has evaluated other approaches but has decided that the 3-
digit DART rate method is both simpler and more equitable than the 
former 2-digit method. By exempting lower-hazard industry sectors 
within SICs 52-89, OSHA hopes both to concentrate its recordkeeping 
requirements in sectors that will provide the most useful data and to 
minimize paperwork burden. No exemption method is perfect: any method 
that exempts broad classes of employers from recordkeeping obligations 
will exempt some more hazardous workplaces and cover some less 
hazardous workplaces. OSHA has

[[Page 5941]]

attempted to minimize both of these problems by using the most current 
injury and illness statistics available, and by applying them to a more 
detailed industry level within the retail, financial and service 
sectors than was formerly the case. OSHA has also limited the scope of 
the exemptions by using an exemption threshold that is well below the 
national average, including only those industries that have average 
DART rates that are at or below 75% of the national average DART rate. 
The rule also limits the exempt industries to the retail, financial and 
service sectors, which are generally less hazardous than the 
manufacturing industry sector.
    The Orlando Occupational Safety and Health Customer Council asked: 
``What is the criteria for exemptions? For example, large auto dealers 
who also perform auto repair work are exempt, while smaller auto repair 
shops are not exempt. Why not classify the organization by the most 
hazardous occupation [within that organization]?'' (Ex. 15: 97).
    In response to this query, OSHA notes that the exemption procedure 
is reasonably straightforward, as the following example illustrates: 
the automobile dealer industry is exempt because its DART rate, as 
indicated by its average over three years of BLS data, is below 75% of 
the national average rate. Automobile repair shops are not exempted, 
however, because their rate is higher than the 75% cutoff. If OSHA were 
to base its recordkeeping requirements on the most hazardous occupation 
within a given industry, assuming that occupation-specific within-
industry injury and illness data were available, as this commenter 
suggests, the number of establishments in individual industries that 
would have to keep records would greatly increase. This is because even 
relatively safe industries have some number of employees who engage in 
relatively hazardous occupations. For example, workers who transport 
currency, coins, and documents for banks and other financial 
institutions are engaged in a fairly hazardous occupation. They may be 
injured in many different ways, ranging from highway accidents, to 
lifting of heavy parcels, to robberies. However, the experience of 
these few employees within the industry does not accurately reflect the 
relative degree of hazard confronting the vast majority of employees in 
the financial industries. Although it is certainly not perfect, OSHA 
believes that the BLS lost workday injury rate (DART rate) is a better 
comparative statistic than the injury rate for a particular occupation 
because it reflects the risk to the average worker within the 
particular industry. Moreover, while it is relatively easy to classify 
employees according to occupation, it is unclear how to classify 
individual employers with regard to detailed occupation, and OSHA is 
also not aware of data that would permit such classification.
    The Caterpillar Corporation (Ex. 15: 201) suggested that OSHA 
adjust the formula used to determine which industries are exempted:

    You propose to base your exemption on achieving less than 75% of 
the average private sector lost workday injury rate; however, we 
would recommend expanding the size of the exemption to include all 
industries below the private sector average. We have no objection to 
your proposal to eliminate the ``nesting'' problem within 2-digit 
SIC code groups, as long as the exemption size is maximized. The 
recordkeeping paperwork burden for small and relatively safe 
industries is significant and not justified based upon the benefits 
received.

    OSHA has decided in the final rule to continue to use a formula 
that will exempt retail, finance and services industries from most 
recordkeeping requirements if they have a Days Away, Restricted, or 
Transferred (DART) rate that is at or below 75% of the national average 
rate. OSHA believes that the 75% threshold will ensure that only 
industries with relatively low injury and illness rates are exempted 
from these requirements. Using the national average DART rate, rather 
than 75% of the national DART rate, as the threshold for exemption 
purposes would exempt employers whose industries were merely average in 
terms of their DART rate.
    OSHA received many comments from firms in industries that have been 
exempt from most OSHA recordkeeping requirements since 1982 but that 
would have been required by the proposed rule to keep records. Most of 
these commenters opposed their industry's inclusion within the scope of 
the proposed rule. For example, several commenters from the restaurant 
industry objected to the fact that SICs 581 and 582, eating and 
drinking places, would have been covered (see, e.g., Exs. 15: 3, 4, 5, 
6, 7, 8, 12, 20, 22, 55, 96, 125, 202, 311). The National Restaurant 
Association remarked:

    The Association opposes elimination of this exemption on the 
bases that:
    --the proposal, if promulgated, will cost eating and drinking 
establishments an estimated $17 million in the first year alone;
    --the additional recordkeeping obligations under the proposed 
rule duplicate data already available to OSHA from other sources; 
and
    --the current data does not justify removal of the partial 
recordkeeping exemption for eating and drinking establishments (Ex. 
15: 96).

In the final rule, the exemption for eating and drinking places is 
retained, because the recent data indicate that these industries have 
DART rates that are below 75% of the national rate.
    Two commenters addressed the proposed removal of the exemption for 
SIC 553, auto and home supply stores (Ex. 15: 367, 402). For example, 
the Automotive Parts and Accessories Association (APAA) stated:

    The vast majority of auto parts stores are similar to other 
retailers which would still be exempt under this proposal. * * * 
[m]ore than three quarters of the automotive parts retailers which 
are proposed to be saddled with the full Log requirements would have 
little or no potential injury or illness experience to justify the 
added mandate (Ex. 15: 367).

    Several commenters discussed the proposed removal of the exemption 
for SIC 721, laundry, dry cleaning and textile rental services (see, 
e.g., Exs. 15: 183, 244, 326). Typical of the views expressed by these 
commenters was the comment of the Textile Rental Services Association 
of America (TRSA):

    TRSA is strongly opposed to OSHA's proposal to eliminate the 
partial exemption from recordkeeping and reporting requirements for 
laundry, cleaning, and garments services for Standard Industrial 
Classification (SIC) 721. TRSA believes that the proposed inclusion 
of the textile rental industry is unjustified. Because the textile 
rental industry has historically been proactive when it comes to 
workplace safety and has been 75% below the industry average for 
lost work days, we contend that OSHA's plan to eliminate the partial 
exemption from injury/illness recordkeeping requirements is 
unwarranted (Ex. 15: 183).

    The National Association of Home Builders (NAHB) commented on the 
proposed inclusion in the recordkeeping system of a variety of 
industries closely associated with the home building industry:

    As a result of using a 3 digit Standard Industrial 
Classification (SIC), ``Real Estate Offices'' (SIC 651) will now be 
required to report and record injury and illness data if they have 
more than 19 workers during the year. A cursory analysis of the 
hazards associated with real estate offices seems to indicate 
limited exposure to high hazards (Ex. 15: 323).

    The primary arguments put forth by these commenters are as follows: 
(1) The occupational injury and illness data collected under Part 1904 
are available to OSHA from other sources; (2) OSHA's data requirements 
are burdensome; (3) the use of even more current data would change the 
list of exempted industries;

[[Page 5942]]

and (4) some of the individual industries that would be covered are 
relatively safe.
    In response, OSHA notes that, although statistical information on 
average work-related injury and illness rates in industries is 
available from the BLS and other sources, information about the hazards 
present at specific workplaces is not available to OSHA from those same 
sources. OSHA recognizes that the maintenance of these records imposes 
some burden on businesses in the form of paperwork. However, the 
benefits of keeping records are also clearly substantial: informed 
employers can use the data to provide greater protection for their 
employees and to receive the benefits that accrue from prevention 
efforts in the form of fewer injuries and illnesses. In addition, the 
records are useful to OSHA in the inspection process. OSHA also 
believes that the process for selecting exempt industries must be as 
objective as possible, and that exemptions must rely upon timely and 
objective information about the safety and health experience of a given 
industry. The lost workday injury rates published by the Bureau of 
Labor Statistics provide the most consistent and reliable nationwide 
statistics available for this purpose, and OSHA is therefore relying on 
these data. The 75% of the national rate cutoff strikes a reasonable 
balance between collecting data likely to be useful and avoiding 
unnecessary burden. OSHA has used the most recent data available at 
this time in establishing the final list of partially exempt 
industries. OSHA also has used data from a three-year period (1996-
1998) rather than a one-year period to reduce year-to-year variation in 
the data.
    Other commenters argued that their industry should not be exempt 
because their workplaces continue to pose risk to the workers in them. 
For example, the American Nurses Association (ANA) opposed the partial 
exemption of doctor's offices and health services:

    ANA urges OSHA to remember the purpose of the Act, to protect 
the health and safety of ALL workers, when deliberating on exempting 
employers from this standard. As stated before, health care workers 
risk of exposure to injury and illness is not limited to one 
setting. Therefore, the Standard Industrial Classifications (SICs) 
801 Offices and Clinics of Doctors of Medicine and SIC 809 
Miscellaneous Health and Allied Services should not be exempt from 
this standard (Ex. 15: 376).

    The International Brotherhood of Teamsters (IBT) also argued 
against excluding certain health care service industries:

    IBT has concerns when the use of this analysis will grant 
partial exemptions to SIC codes 801 (offices and clinics of 
doctors), 807 (medical and dental offices), and 809 (miscellaneous 
health and allied services). All three of these SIC codes are 
covered under other OSHA rules (such as the bloodborne pathogen 
standard and ethylene oxide standard) and have medical surveillance 
requirements to detect adverse health effects. OSHA should require 
that these workplaces keep records of work related illnesses or 
injuries that occur. Especially, since OSHA has already determined 
that there is a significant risk of harm from exposures in these 
workplaces (Ex. 15: 369).

    OSHA recognizes that workers in establishments that are exempt 
under the 75% DART rate criterion will continue to be exposed to job-
related hazards and to experience workplace injuries and illnesses. 
However, because these industries' overall injury rate is below the 75% 
cutoff, they qualify for exemption, along with other financial, service 
and retail industries that fall below that injury rate threshold. 
Exemption of an industry on the basis of its lower-than-average DART 
rate does not mean that all establishments within that industry have 
such rates or that workers in that industry will not experience 
injuries and illnesses. The 1904 partial exemption does not exempt 
employers from any other OSHA regulation or standard, so employees in 
these industries will continue to benefit from the protection offered 
by the OSHA standards. For example, while doctors' and dentists' 
offices are partially exempt under the 1904 regulation, they are still 
required to comply with the OSHA Bloodborne Pathogens Standard (29 CFR 
1910.1030). Use of the 75% criterion merely provides a cutoff point, 
based on BLS injury and illness rates, for different industry sectors. 
OSHA believes that it is appropriate to use the 75% cutoff point 
because, in general, it is an appropriate overall indicator of the 
relative hazard rank of an industry. OSHA recognizes that no average 
across-establishment statistic can capture the injury and illness 
experience of all occupations or establishments within that industry.
    For some SIC codes, the BLS Annual Survey does not publish data at 
the three-digit level. The survey is designed to provide data at the 
four-digit level in the manufacturing industries and at the three-digit 
level in all other industries, primarily because of budget constraints 
that limit the amount of data the BLS can collect and process. However, 
the survey has other publication criteria that make some of the data at 
this detailed level unpublishable. Under the proposal, coverage would 
have been based on the industry's LWDI rate. If a 3-digit sector did 
not have published data, OSHA proposed to use the data for the two-
digit industry group for that sector.
    One 3-digit sector affected by this approach was dental offices 
(SIC 802), which the proposal would have covered because the entire 2-
digit health care sector has a relatively high injury and illness rate. 
The American Dental Association (ADA) suggested that OSHA use an 
alternative approach to exempt dentists from coverage rather than rely 
on a strict data protocol for making the decision:

[d]ental offices are very much like physicians' offices in terms of 
size, scope of activity, and degree of occupational health risk. For 
purposes of this rulemaking, however, physicians' offices have been 
granted a categorical exemption while dentists' offices (SIC Code 
802) have not. Even dental laboratories (SIC Code 807) have been 
granted a categorical exemption from this rule, although it is 
unlikely that anyone would assert that dental laboratories are safer 
and more healthful places to work than dental offices. The ADA is 
unaware of any data suggesting that dental offices should be treated 
differently than either physicians' offices or dental laboratories 
(Ex. 15: 408).

    The more recent data published by the BLS for the years 1996, 1997, 
and 1998 include specific estimates of the injury and illness 
experience for SIC 802 (dental offices) in that period. The dental 
office industry experienced a 3-year average rate of days away, 
restricted, or transferred injuries of 0.2 per 100 workers in those 
years, a rate well below 75% of the national average. Therefore, the 
final rule exempts employers classified in SIC 802 from routine 
recordkeeping requirements.
    The proposed rule would have removed SIC 736 (personnel supply 
services) from the list of exempted industry sectors; however, because 
this industry's more recent average DART (formerly LWDI) rate (for the 
years 1996, 1997, and 1998, the base years OSHA is using to determine 
lower-hazard industry exemptions) is above 75% of the national average 
cutoff, SIC 736 is not exempted under the final rule. The final rule 
(see section 1904.31(b)(2)) requires the ``using firm'' to record the 
injuries and illnesses of temporary workers that are ``leased'' from a 
personnel supply service, providing that the using firm supervises 
these workers on a day-to-day basis.
    The National Association of Temporary and Staffing Services 
commented on the proposed removal of the exemption for SIC 736:


[[Page 5943]]


    The proposed rules also would lift the partial exemption for 
employers classified under SIC Code 7363 (help supply services). 
Those employers, among others, were exempted from injury and illness 
record keeping requirements in 1982 because they had low work place 
injury rates. The proposal to lift the exemption is based on 
reported increased injury rates for these employers. However, since 
records for the vast majority of staffing firm employees are 
maintained by the worksite employer as explained above, the 
practical effect of lifting the exemption for staffing firms would 
be to require them to maintain records for their home office 
clerical and administrative workers--for whom there is no evidence 
of increased work place illnesses or injuries. Hence, we urge OSHA 
to retain the partial exemption for SIC 7363.
    If the exemption is not retained in the case of SIC 7363 
employers, it would be especially important for the final rules to 
expressly provide, as set forth above, that there is no intent to 
impose a dual reporting requirement. At least one state OSH office 
already has construed the proposed lifting of the partial exemption 
as creating an obligation on the part of staffing firms to maintain 
records for all of its employees, including temporary employees 
supervised by the worksite employer. This is clearly inconsistent 
with the intent of the proposed rule and should be clarified (Ex. 
15: 333).

    The final rule makes clear that, when a ``leased'' or ``temporary'' 
employee is supervised on a day-to-day basis by the using firm, the 
using firm must enter that employee's injuries and illnesses on the 
using firm's establishment Log and other records. Injuries and 
illnesses occurring to a given employee should only be recorded once, 
either by the temporary staffing firm or the using firm, depending on 
which firm actually supervises the temporary employees on a day-to-day 
basis. (see the discussion for Sec. 1904.31, Covered employees, for an 
in-depth explanation of these requirements.)
    Some commenters suggested that OSHA should grant partial exemptions 
to specific industries within SICs 01 through 51 (agriculture, forestry 
and fishing; mining; construction; manufacturing; transportation, 
communications, electric, gas and sanitary services; and wholesale 
trade) that had lost workday incidence rates that were below 75% of the 
average rate for all industries instead of limiting such exemptions to 
industries in SICs 52-89 (see, e.g., Exs. 15: 77, 95, 184, 201, 357, 
359, 374, 375). Typical of these comments was one from the Synthetic 
Organic Chemical Manufacturers Association (SOCMA):

    SOCMA believes that the partial exemption from recordkeeping 
requirements should be consistent for all standard industrial 
classifications. SOCMA supports the use of injury rates, rather than 
SIC Codes, as a criterion for partial exemption from recordkeeping 
requirements, provided the same criterion is applied to all work 
sites. For example, if the performance measure was 75 percent of the 
private sector average, then all industries with injury rates below 
this average should be exempt.
    There is sound basis for this shift in OSHA's approach. It has 
been found in the past that some industries in partially exempt SIC 
Codes 52--89 have had high injury rates while some in the 
``manufacturing'' SIC Codes 01-51 have had low injury rates. This 
has resulted in insufficient or unavailable injury and illness 
information for some facilities in SIC Codes 52-89 with high injury 
rates. Inspection resources are wasted if injury and illness 
information is not available during the inspection of high injury 
rate facilities. Conversely, requiring full recordkeeping for 
facilities with low injury rates results in a facility wasting 
resources on unnecessary recordkeeping. All businesses, regardless 
of SIC Code, should be treated equally and should have the 
opportunity to be exempt based on injury rates (Ex. 15: 357).

    The National Automobile Dealers Association (NADA) urged OSHA to 
exempt truck dealerships [classified in SIC 50], even though they are 
considered wholesale rather than retail establishments, because of 
their similarity to automobile dealerships [SIC 551], which are 
exempted:

    NADA strongly urges OSHA to exempt truck dealerships (SIC 5012), 
the overwhelming majority of whom are small businesses as recognized 
by the Small Business Administration (SBA).* * * A limited exemption 
for truck dealerships is justified under the same criteria used for 
automobile dealerships (Ex. 15: 280).

    On the other hand, some commenters agreed with OSHA's proposal to 
require all businesses in SICs 01-51 to keep injury and illness records 
(see, e.g., Exs. 15: 170, 199, 369). The International Brotherhood of 
Teamsters (IBT) remarked: ``IBT does not support using the same 
analysis of data at the three digit level of those industries in SIC 01 
through 51 (industries historically not exempted from recordkeeping 
requirements). IBT maintains the importance of recording of all 
occupational injuries and illnesses'' (Ex. 15: 369). A major utility, 
New England Power, agreed: ``We believe that the existing exemption 
criteria for SICs 52-89 should remain the same. Although many 
industries would fall within the exemption criteria in SICs 01-51, they 
are still higher hazard industries producing valuable data on injury/
illness experience'' (Ex. 15: 170). The NYNEX Corporation also agreed 
with OSHA's proposed approach:

    We are not in favor of extending the concept of industry-wide 
recordkeeping exemptions to the list of three digit codes in the 
group 01-51 that were identified in the proposal. Even though these 
groups have average injury and illness case rates that are less than 
75% of the private sector average, the nature of the work operations 
performed within these industries suggests that the variation above 
and below average for individual establishments could be much 
greater than with SIC Codes 52-89. An exemption for this group of 
establishments could mask the existence of some very high case rates 
within this group (Ex. 15: 199).

    After a review of the recent BLS data, OSHA's own experience, and 
the record of this rulemaking, OSHA has decided that it is appropriate 
to require firms in industries within the SIC 01 through 51 codes to 
comply with OSHA's requirements to keep records. Thus, the final rule, 
like the proposed rule and the rule published in 1982, does not exempt 
firms with more than 10 employees in the industry divisions of 
agriculture, mining, construction, manufacturing, wholesale trade, 
transportation and public utilities (SICs 01--52) from routine 
recordkeeping.
    Although OSHA no longer restricts its inspection targeting schemes 
to employers in these SICs, these industries have traditionally been, 
and continue to be, the focus of many of the Agency's enforcement 
programs. OSHA believes that it is important for larger employers 
(i.e., those with more than 10 employees) in these industries to 
continue to collect and maintain injury and illness records for use by 
the employer, employees and the government. As noted in the comments 
there is a wide variation in injury/illness rates among establishments 
classified in these industries. Further, as a whole, these industries 
continue to have injury and illness rates that are generally higher 
than the private sector average and will thus benefit from the 
information that OSHA-mandated records can provide about safety and 
health conditions in the workplace. In 1998, the lost workday injury 
and illness rate for the entire private sector was 3.1. As can be seen 
in the following table of lost workday injury and illness rates by 
industry division, all of the covered divisions exceeded 75% of the 
national average LWDI rate (2.325) for the private sector as a whole, 
while the exempted industry divisions had substantially lower rates.

------------------------------------------------------------------------
                                                              1998 lost
                                                               workday
                      Industry sector                         injury and
                                                               illness
                                                                 rate
------------------------------------------------------------------------
Agriculture, forestry and fishing (SIC 01-09)..............          3.9
Mining (SIC 10-14).........................................          2.9
Construction (SIC 15-17)...................................          4.0
Manufacturing (SIC 20-39)..................................          4.7

[[Page 5944]]

 
Transportation, communications, electric, gas and sanitary           4.3
 services (SIC 40-49)......................................
Wholesale trade (SIC 50 & 51)..............................          3.3
Retail trade (SIC 52-59)...................................          2.7
Finance, Insurance & Real Estate (SIC 60-67)...............          0.7
Services (SIC 70-87).......................................         2.4
------------------------------------------------------------------------
 (U.S. Department of Labor Press Release USDL 98-494, December 16, 1999)

    The problems that may be encountered by exempting additional 
industries are exemplified by an analysis of the petrochemical industry 
and the manufacturers of chemicals and petroleum products, classified 
in SICs 28 and 29. If the industry exemption were applied to these 
industries, injury and illness records would not be required for highly 
specialized plants that make industrial inorganic chemicals, plastics 
materials and synthetic resins, pharmaceuticals, industrial organic 
chemicals, and petroleum refineries. These industries have relatively 
low occupational injury and illness rates, but they are not truly low-
hazard industries. All of these facilities make, use and handle highly 
toxic chemicals and consequently have the potential for both acute 
overexposure and chronic exposures of their employees to these 
substances. These industries, for example, are the industries to which 
OSHA health standards, such as the benzene, ethylene oxide, and 
methylene chloride standards, apply. Because occupational illnesses, 
particularly chronic illnesses, are notoriously underreported (see, 
e.g., Exs. 15: 407, 4, 5), the LWDI rates for these industries do not 
accurately reflect the level of hazard present in these facilities. In 
addition, these types of facilities are prone to major safety and 
health problems, including explosions, toxic releases and other events 
that often lead to fatalities and serious injuries. The safety and 
health problems of these facilities are not limited to workers, but 
extend to hazards posed to the general public. In addition, OSHA 
frequently inspects these facilities because of their potential for 
catastrophic releases, fires, and explosions, and the Part 1904 injury 
and illness records have been extremely useful for this purpose.
    The Agency finds that continuing, and improving on, the Agency's 
longstanding approach of partially exempting those industries in SIC 
codes 52-89 that have DART rates, based on 3 years of BLS data, below 
75% of the private-sector average strikes the appropriate balance 
between the need for injury and illness information on the one hand, 
and the paperwork burdens created by recording obligations, on the 
other. The BLS Annual Survey will, of course, continue to provide 
national job-related statistics for all industries and all sizes of 
businesses. As it has done in the past, the BLS will sample employers 
in the partially exempt industries and ask each sampled employer to 
keep OSHA records for one year. In the following year, BLS will collect 
the records to generate estimates of occupational injury and illness 
for firms in the partially exempt industries and size classes, and 
combine those data with data for other industries to generate estimates 
for the entire U.S. private sector. These procedures ensure the 
integrity of the national statistics on occupational safety and health.
    The list of partially exempted industry sectors in this rule is 
based on the current (1987) revision of the SIC manual. The Office of 
Management and Budget (OMB) is charged with maintaining and revising 
the system of industrial classification that will replace the SIC. The 
new system is used by U.S. statistical agencies (including the BLS). 
Under the direction of OMB, the U.S. government has adopted a new, 
comprehensive system of industrial classification that will replace the 
SIC. The new system is called the North American Industrial 
Classification System (NAICS). NAICS will harmonize the U.S. 
classification system with those of Canada and Mexico and make it 
easier to compare various economic and labor statistics among the three 
countries. Several commenters expressed concern about this change in 
industrial classification systems (see, e.g., Exs. 15: 70, 182, 183, 
379). For example, the American Society of Safety Engineers (ASSE) 
stated:

    The Society is concerned with the recent Office of Management 
Budget (OMB), proposal to change the Economic Classification Policy 
from the Standard Industrial Classification System to the North 
American Industry Classification System. We recommend that OSHA 
study what the effect would be of promulgating a new regulation 
partially based on SIC codes when these codes could be potentially 
replaced/revised with a new classification system (Ex. 15: 182).

    Although the NAIC industry classification system has been formally 
adopted by the United States, the individual U.S. statistical agencies 
(including the BLS) are still converting their statistical systems to 
reflect the new codes and have not begun to publish statistics using 
the new industry classifications. The new system will be phased into 
the nation's various statistical systems over the next several years. 
The BLS does not expect to publish the first occupational injury and 
illness rates under the new system until the reference year 2003. Given 
the lag time between the end of the year and the publication of the 
statistics, data for a full three-year period will not be available 
before December of 2006.
    Because data to revise the Part 1904 industry exemption based on 
the NAIC system will not be available for another five years, OSHA has 
decided to update the industry exemption list now based on the most 
recent SIC-based information available from BLS for the years 1996, 
1997 and 1998. OSHA will conduct a future rulemaking to update the 
industry classifications to the NAIC system when BLS publishes injury 
and illness data that can be used to make appropriate industry-by-
industry decisions.
    The proposal inquired whether OSHA should adopt a procedure for 
adjusting the industry exemption lists as the injury and illness rates 
of various industries change over time. A number of commenters urged 
OSHA to update the exemption list periodically (see, e.g., Exs. 15: 27, 
87, 170, 181, 199, 272, 280, 359, 374, 375, 392, 407). Some commenters 
suggested various time periods, such as annually (Ex. 15: 374), every 3 
years (see, e.g., Exs. 15: 87, 181, 199, 407), every 5 years (see, 
e.g., Exs. 15: 170, 181, 262, 272, 359, 375), or every 5 to 10 years 
(Ex. 15: 392). Southwestern Bell Telephone suggested that the list 
should be modified whenever changes in the injury and illness rates 
warrant a change (Ex. 15: 27). In the opinion of the National Safety 
Council, ``How often the SIC exemption should be updated depends on how 
well and how quickly OSHA can communicate changes in the exempt 
industry list to those affected. The Council recommends updating the 
list every 3 to 5 years'' (Ex. 15: 280).
    Several commenters, however, opposed frequent updating of the SIC 
exemption list. For example, the Orlando Safety and Health Customer 
Council stated: ``Changes to SIC exemptions should be limited to a 
minimum of every 5 years. This would reduce confusion'' (Ex. 15: 97). 
The National Institute for Occupational Safety and Health (NIOSH) 
generally opposed industry exemptions but recommended that, if they 
were continued, they be updated as follows:
    If OSHA continues to provide this exemption for low injury rate 
SICs, NIOSH


[[Page 5945]]


recommends that the list of partially exempt SICs be placed in an 
Appendix. Because the injury and illness experience of an industry 
can change over time (e.g., SIC 58 and SIC 84 had injury rates at or 
below 75% of the private sector average in 1983, but above 75% of 
the private sector average in 1990 and 1992), OSHA should 
periodically review and modify the list of partially exempt 
industries. NIOSH recommends that the criteria for partial 
exemptions be placed in the regulatory text, while placing the list 
of partially exempt industries in an Appendix as noted so that the 
list could be updated periodically by administrative means rather 
than by changing the regulation. In addition to the partial 
exemption criteria, the regulatory text should specify the interval 
(in years) for reviewing and revising the list of those industries 
that qualify. NIOSH recommends an interval of 3 years for the review 
and revision process (Ex. 15: 407).

    OSHA agrees with those commenters who favored regular updating of 
the SIC code exemption list. For the list to focus Agency resources 
most effectively on the most hazardous industries, it must be up-to-
date. Industries that are successful in lowering their rates to levels 
below the exemption threshold should be exempted, while those whose 
rates rise sufficiently to exceed the criterion should receive 
additional attention. Unfortunately, the change in industry coding 
systems from the Standard Industrial Classification (SIC) system to the 
North American Industry Classification (NAIC) system will require a 
future rulemaking to shift to that system. Therefore, there is no value 
in adding an updating mechanism at this time. The automatic updating 
issue will be addressed in the same future rulemaking that addresses 
the NAIC system conversion.
Partial Exemptions for Employers Under the Jurisdiction of OSHA-
Approved State Occupational Safety and Health Plans
    Robert L. Rowan, Jr. expressed a concern that the OSHA State-Plan 
States could have differing industry exemptions from those applying to 
federal OSHA states, commenting:

    In regard to the note in OSHA's Coverage and Exemption Table 
that ``some states with their own occupational safety and health 
programs do not recognize the federal record keeping exemptions''. I 
am deeply concerned. I would prefer that all jurisdictions enforce 
the same requirements. This will be confusing and create needless 
problems for businesses with sites in numerous states if 
requirements are not enforced equally (Ex. 15: 62).

    For those States with OSHA-approved State plans, the state is 
generally required to adopt Federal OSHA rules, or a State rule that is 
at least as effective as the Federal OSHA rule. States with approved 
plans do not need to exempt employers from recordkeeping, either by 
employer size or by industry classification, as the final Federal OSHA 
rule does, although they may choose to do so. For example, States with 
approved plans may require records from a wider universe of employers 
than Federal OSHA does. These States cannot exempt more industries or 
employers than Federal OSHA does, however, because doing so would 
result in a State rule that is not as effective as the Federal rule. A 
larger discussion of the effect on the State plans can be found in 
Section VIII of this preamble, State Plans.
Recordkeeping Under the Requirements of Other Federal Agencies
    Section 1904.3 of the final rule provides guidance for employers 
who are subject to the occupational injury and illness recording and 
reporting requirements of other Federal agencies. Several other Federal 
agencies have similar requirements, such as the Mine Safety and Health 
Administration (MSHA), the Department of Energy (DOE), and the Federal 
Railroad Administration (FRA). The final rule at section 1904.3 tells 
the employer that OSHA will accept these records in place of the 
employer's Part 1904 records under two circumstances: (1) if OSHA has 
entered into a memorandum of understanding (MOU) with that agency that 
specifically accepts the other agency's records, the employer may use 
them in place of the OSHA records, or (2) if the other agency's records 
include the same information required by Part 1904, OSHA would consider 
them an acceptable substitute.
    OSHA received very few comments on the issue of duplicate 
recordkeeping under different agency rules. The Fertilizer Institute 
(TFI) recommended that OSHA make the data mandated by OSHA and MSHA 
more consistent (Ex. 15:154). However, MSHA and OSHA have different 
recordkeeping requirements because the agencies' mandate and uses of 
the data differ. The approach OSHA takes in the final rule, which is to 
continue to accept data kept by employers under other Federal 
requirements if the two federal agencies have made an agreement to do 
so, or if the data are equivalent to the data required to be kept by 
Part 1904, appears to be the best way to handle the problem raised by 
the TFI.

Subpart C. Recordkeeping Forms and Recording Criteria

    Subpart C of the final rule sets out the requirements of the rule 
for recording cases in the recordkeeping system. It contains provisions 
directing employers to keep records of the recordable occupational 
injuries and illnesses experienced by their employees, describes the 
forms the employer must use, and establishes the criteria that 
employers must follow to determine which work-related injury and 
illness cases must be entered onto the forms. Subpart C contains 
sections 1904.4 through 1904.29.
    Section 1904.4 provides an overview of the requirements in Subpart 
C and contains a flowchart describing the recording process. How 
employers are to determine whether a given injury or illness is work-
related is set out in section 1904.5. Section 1904.6 provides the 
requirements employers must follow to determine whether or not a work-
related injury or illness is a new case or the continuation of a 
previously recorded injury or illness. Sections 1904.7 through 1904.12 
contain the recording criteria for determining which new work-related 
injuries and illnesses must be recorded on the OSHA forms. Section 
1904.29 explains which forms must be used and indicates the 
circumstances under which the employer may use substitute forms.

Section 1904.4 Recording Criteria

    Section 1904.4 of the final rule contains provisions mandating the 
recording of work-related injuries and illnesses that must be entered 
on the OSHA 300 (Log) and 301 (Incident Report) forms. It sets out the 
recording requirements that employers are required to follow in 
recording cases.
    Paragraph 1904.4(a) of the final rule mandates that each employer 
who is required by OSHA to keep records must record each fatality, 
injury or illness that is work-related, is a new case and not a 
continuation of an old case, and meets one or more of the general 
recording criteria in section 1904.7 or the additional criteria for 
specific cases found in sections 1904.8 through 1904.12. Paragraph (b) 
contains provisions implementing this basic requirement.
    Paragraph 1904.4(b)(1) contains a table that points employers and 
their recordkeepers to the various sections of the rule that determine 
which work-related injuries and illnesses are to be recorded. These 
sections lay out the requirements for determining whether an injury or 
illness is work-related, if it is a new case, and if it meets one or 
more of the general recording criteria. In addition, the table contains 
a row addressing the application of these and additional criteria to 
specific kinds of cases (needlestick and sharps injury cases, 
tuberculosis cases, hearing loss

[[Page 5946]]

cases, medical removal cases, and musculoskeletal disorder cases). The 
table in paragraph 1904.4(b)(1) is intended to guide employers through 
the recording process and to act as a table of contents to the sections 
of Subpart C.
    Paragraph (b)(2) is a decision tree, or flowchart, that shows the 
steps involved in determining whether or not a particular injury or 
illness case must be recorded on the OSHA forms. It essentially 
reflects the same information as is in the table in paragraph 
1904.4(b)(1), except that it presents this information graphically.
    The former rule had no tables or flowcharts that served this 
purpose. However, the former Recordkeeping Guidelines (Ex. 2) contained 
several flowcharts to help employers make decisions and understand the 
overall recording process. The proposed rule included a flowchart as 
Appendix C to Part 1904--Decision Tree for Recording Occupational 
Injuries and Illnesses. OSHA received very few comments in response to 
proposed Appendix C, and no commenters objected to the decision tree 
concept. The commenters who discussed the decision tree supported it, 
and many suggested that it should be incorporated into the computer 
software OSHA develops to assist employers with keeping the records 
(see, e.g., Exs. 51, 15: 38, 67, 335, 407, 438).
    In the final rule, OSHA has decided to include the flowchart 
because of its usefulness in depicting the overall recording process. 
OSHA has not labeled the flowchart non-mandatory, as some commenters 
(see, e.g., Ex. 15: 335) suggested, because the recording of injuries 
and illnesses is a mandatory requirement and labeling the flowchart as 
non-mandatory could be confusing.

Section 1904.5 Determination of Work-Relatedness

    This section of the final rule sets out the requirements employers 
must follow in determining whether a given injury or illness is work-
related. Paragraph 1904.5(a) states that an injury or illness must be 
considered work-related if an event or exposure in the work environment 
caused or contributed to the injury or illness or significantly 
aggravated a pre-existing injury or illness. It stipulates that, for 
OSHA recordkeeping purposes, work relationship is presumed for such 
injuries and illnesses unless an exception listed in paragraph 
1904.5(b)(2) specifically applies.
    Implementation requirements are set forth in paragraph (b) of the 
final rule. Paragraph (b)(1) defines ``work environment'' for 
recordkeeping purposes and makes clear that the work environment 
includes the physical locations where employees are working as well as 
the equipment and materials used by the employee to perform work.
    Paragraph (b)(2) lists the exceptions to the presumption of work-
relatedness permitted by the final rule; cases meeting the conditions 
of any of the listed exceptions are not considered work-related and are 
therefore not recordable in the OSHA recordkeeping system.
    This section of the preamble first explains OSHA's reasoning on the 
issue of work relationship, then discusses the exceptions to the 
general presumption and the comments received on the exceptions 
proposed, and then presents OSHA's rationale for including paragraphs 
(b)(3) through (b)(7) of the final rule, and the record evidence 
pertaining to each.
    Section 8(c)(2) of the OSH Act directs the Secretary to issue 
regulations requiring employers to record ``work-related'' injuries and 
illnesses. It is implicit in this wording that there must be a causal 
connection between the employment and the injury or illness before the 
case is recordable. For most types of industrial accidents involving 
traumatic injuries, such as amputations, fractures, burns and 
electrocutions, a causal connection is easily determined because the 
injury arises from forces, equipment, activities, or conditions 
inherent in the employment environment. Thus, there is general 
agreement that when an employee is struck by or caught in moving 
machinery, or is crushed in a construction cave-in, the case is work-
related. It is also accepted that a variety of illnesses are associated 
with exposure to toxic substances, such as lead and cadmium, used in 
industrial processes. Accordingly, there is little question that cases 
of lead or cadmium poisoning are work-related if the employee is 
exposed to these substances at work.
    On the other hand, a number of injuries and illnesses that occur, 
or manifest themselves, at work are caused by a combination of 
occupational factors, such as performing job-related bending and 
lifting motions, and factors personal to the employee, such as the 
effects of a pre-existing medical condition. In many such cases, it is 
likely that occupational factors have played a tangible role in causing 
the injury or illness, but one that cannot be readily quantified as 
``significant'' or ``predominant'' in comparison with the personal 
factors involved.
    Injuries and illnesses also occur at work that do not have a clear 
connection to a specific work activity, condition, or substance that is 
peculiar to the employment environment. For example, an employee may 
trip for no apparent reason while walking across a level factory floor; 
be sexually assaulted by a co-worker; or be injured accidentally as a 
result of an act of violence perpetrated by one co-worker against a 
third party. In these and similar cases, the employee's job-related 
tasks or exposures did not create or contribute to the risk that such 
an injury would occur. Instead, a causal connection is established by 
the fact that the injury would not have occurred but for the conditions 
and obligations of employment that placed the employee in the position 
in which he or she was injured or made ill.
    The theory of causation OSHA should require employers to use in 
determining the work-relationship of injuries and illnesses was perhaps 
the most important issue raised in this rulemaking. Put simply, the 
issue is essentially whether OSHA should view cases as being work-
related under a ``geographic'' or ``positional'' theory of causation, 
or should adopt a more restrictive test requiring that the occupational 
cause be quantified as ``predominant,'' or ``significant,'' or that the 
injury or illness result from activities uniquely occupational in 
nature. This issue generated substantial comment during this 
rulemaking, and the Agency's evaluation of the various alternative 
tests, and its decision to continue its historic test, are discussed 
below.

    The final rule's test for work-relationship and its similarity 
to the former and proposed rules.--The final rule requires that 
employers consider an injury or illness to be ``work-related'' if an 
event or exposure in the work environment either caused or 
contributed to the resulting condition or significantly aggravated a 
pre-existing injury or illness. Work relatedness is presumed for 
injuries and illnesses resulting from events or exposures occurring 
in the work environment, unless an exception in Sec. 1904.5(b)(2) 
specifically applies.

Under paragraph 1904.5(b)(1), the ``work environment'' means ``the 
establishment and other locations where one or more employees are 
working or are present as a condition of their employment. The work 
environment includes not only physical locations, but also equipment or 
materials used by the employee during the course of his or her work.''
    The final rule's definition of work-relationship is essentially the 
same as that in both the former and proposed rules except for the final 
rule's requirement that the work event or exposure ``significantly'' 
aggravate a

[[Page 5947]]

pre-existing injury or illness. The Guidelines interpreting the former 
rule stated that

    Work-relationship is established under the OSHA recordkeeping 
system when the injury or illness results from an event or exposure 
in the work environment. The work environment is primarily composed 
of: (1) The employer's premises, and (2) other locations where 
employees are engaged in work-related activities or are present as a 
condition of their employment. (Ex. 2 at p. 32).

    The proposed rule also contained a similar definition of ``work-
related'' and ``work environment.'' The only significant difference 
between the proposed and the final rule definitions is that the 
proposed rule also would not have required a ``significant'' 
aggravation of a pre-existing condition before it became recordable; 
under the proposal, any aggravation would have been sufficient (see 61 
FR 4059).
The Alternative Tests for Work-Relationship
    Although OSHA proposed to continue its existing definition of work-
relationship, it sought comment on the following three alternative 
tests:
    1. Exclude cases with any evidence of non-work etiology. Only cases 
where the work event or exposure was the sole causative factor would be 
recorded;
    2. Record only cases where work was the predominant causative 
factor;
    3. Record all cases where the work event or exposure had any 
possibility of contributing to the case (emphasis added). (61 FR 4045)
Comments on the ``Quantified Occupational Cause'' Test
    The first two alternative tests described in the proposal would 
have required the employer to quantify the contribution of occupational 
factors as compared to that of personal factors. These tests are 
referred to in the Legal Authority section, and in this preamble, as 
the ``quantified occupational cause'' tests. Of these tests, 
Alternative 2--record only injuries and illnesses predominantly caused 
by occupational factors--received the most comment. Typical of these 
comments were those of the Dow Chemical Company, which expressed the 
view of many in industry that ``[a] system that labels an injury or 
illness attributable to the workplace even though the workplace 
contribution may be insignificant does not lead to an effective, 
credible or accurate program'' (Ex. 15: 335). Other commenters stated 
that recording only those cases where work was the predominant cause 
would improve the system by focusing attention on cases that are 
amenable to employer abatement (see, e.g., Exs. 22, 15: 13, 27, 34, 38, 
52, 60, 69, 71, 72, 82, 97, 102, 108, 109, 122, 136, 137, 141, 146, 
147, 149, 152, 154, 159, 163, 169, 171, 174, 176, 181, 197, 198, 199, 
200, 201, 214, 218, 224, 230, 231, 238, 239, 260, 262, 265, 266, 272, 
273, 277, 278, 287, 288, 290, 297, 301, 302, 303, 307, 313, 317, 318, 
330, 335, 346, 352, 353, 370, 375, 382, 378, 383, 384, 386, 388, 396, 
401, 402, 404, 405, 425, 426, 430).
    Some commenters (see, e.g., Exs. 15: 185, 199, 205, 332, 338, 349, 
354, 358, 375, 421, 440) offered a slight modification on Alternative 
2. They suggested that using a term other than predominant, such as 
``substantial'' or ``significant,'' would avoid the need to define 
``predominant'' as a percentage. For example, United Technologies (Ex. 
15: 440) opposed ``placing a percentage on the degree of contribution'' 
because doing so would not be practical. Further, according to this 
commenter, ``work relationship should be established in cases where the 
workplace contributed substantially to the injury or illness, as 
determined by an occupational physician.'' Arguing along the same 
lines, the American Petroleum Institute (API) (Ex. 15: 375) stated that 
it supported ``in principle the work-relatedness concept presented by 
OSHA as Alternative 2, but feels ``predominant'' might be too difficult 
to administer as a fundamental criterion. API proposes that work-
relatedness should exist when an event or exposure in the workplace is 
a significant factor resulting in an injury or illness. * * *'' 
Organization Resource Counselors, Inc. (Ex. 15: 358) added: ``[T]he 
Congressional intent in drafting these sections was to require the 
collection of work-related information about significant work-related 
injuries and illnesses.'' The General Electric Company (Ex. 15: 349) 
said that ``OSHA needs to allow the facility the flexibility to record 
only those cases that are ``more likely than not'' related to workplace 
exposure or tasks. This determination can be made during the incident 
investigation. A good test of work-relatedness is whether the injury 
would have been prevented by full compliance with the applicable OSHA 
standard.''
    Proposed Alternative 1, which would have required the recording 
only of cases where work was the sole cause, was also supported by a 
large number of commenters (see, e.g., Exs. 15: 9, 39, 87, 95, 119, 
123, 145, 151, 152, 179, 180, 183, 185, 204, 205, 225, 229, 234, 242, 
259, 263, 269, 270, 304, 341, 363, 377, 389, 393, 414, 433, 443). 
Typical of this view was the comment of the American Health Care 
Association (Ex. 15: 341):

    If OSHA's primary concern is to address those workplace hazards 
or risks that cause or may cause employee injury/illness then the 
agency should confine recordability to those injuries and illnesses 
that are directly caused by a workplace event or exposure. This 
approach, in turn, will focus the employer's attention on those 
unsafe workplace conditions that need to be corrected to protect all 
workers exposed to or at risk from the unsafe conditions.

    The National Federation of Independent Business (Ex. 15: 304) 
supported Alternative 1 ``because under such a system evidence of non-
work-related factors is excluded thus the decision-making process is 
dramatically simplified and the tally is very credible.'' The Painting 
and Decorator Contractors of America (Ex. 15: 433) added: ``[T]his 
approach is also consistent with OSHA's intent (and the Congressional 
mandate in the Paperwork Reduction Act of 1995) to reduce compliance 
burdens as this would be the simplest method for employers to apply.''
Comments on the ``Unique Occupational Activities'' Test
    Some commenters favored a closely related test for work 
relationship that would place primary emphasis on the nature of the 
activity that the employee was engaged in when injured or made ill. 
This test is referred to the Legal Authority section and in this 
preamble section as the ``unique occupational activities'' test. Its 
supporters argued that whether an injury or illness occurs or manifests 
itself at work is less important than whether or not the harm has been 
caused by activities or processes peculiar to the workplace. The AISI 
argued that:

    [I]t is clear that Congress intended OSHA's authority to 
regulate to be limited to ``occupational hazards'' and conceived of 
such hazards as ``processes and materials'' peculiar to the 
workplace. * * * Congress did not give OSHA the authority to 
regulate hazards if they ``grow out of economic and social factors 
which operate primarily outside the workplace. The employer neither 
controls nor creates these factors as he controls or creates work 
processes and materials.'' Congress was concerned with dangerous 
conditions peculiar to the workplace; it did not have in mind the 
recording of illnesses simply because they appear at work (internal 
citations omitted) (Ex. 15: 395).

    Dow Chemical made a similar point in arguing that the criteria for 
determining work-relationship should include whether the activity the 
employee was engaged in at the time of the injury or onset of illness 
was for the direct benefit of the employer or was a required part of 
the job (Ex. 15: 335B).

[[Page 5948]]

According to Dow, the activity-based test would be more accurate than 
the geographic presumption (OSHA's historic test) because it would omit 
injuries due to hazards beyond the employer's control:

    Examples to illustrate this point include the employee who 
during his break attempts to remove a plastic insert in a condiment 
container with a knife and ends up cutting himself which requires 
three stitches. This activity, while it happened on company grounds, 
was not for the direct benefit of the company nor a requirement of 
his job, and there was no way for the employer to prevent it (Ex. 
15: 335B).

Comments on OSHA's Historical Test
    A significant number of commenters supported OSHA's long-standing 
test in which work factors must be a cause, but not necessarily a 
``significant'' or ``predominant'' cause, and a geographic presumption 
applies if ``events or exposures'' in the work environment either 
caused or contributed to the resulting condition, or aggravated a pre-
existing condition (see, e.g., Exs. 15: 74, 153, 362, 369, 394, 407, 
418, 429). For example, NIOSH (Ex. 15: 407) favored this approach 
because ``[o]verreported cases can be identified and accounted for in 
data analysis, in contrast to the other alternatives which stress 
specificity at the expense of sensitivity and would result in 
unreported cases.'' The AFL-CIO argued that:

    * * * [c]apturing all workplace illnesses and injuries, even 
those for which the predominant cause cannot be proven to be work-
related, can lead to early recognition of problems and abatement of 
hazardous conditions. Our experience has shown us that when 
comprehensive records of all possible cases are kept, patterns of 
injury and illness emerge, enabling us to target problem areas/
factors that previously may not have been associated with that 
specific work environment. The inclusion of all cases will lead to 
prevention strategies that can reduce the risk of serious illness 
and injury to workers. Inclusion of all cases that have a workplace 
link will also assist in the recognition of diseases that are caused 
by synergistic effects. (Ex. 15: 418)

    The American Industrial Hygiene Association (AIHA) argued that 
continuing OSHA's historic approach to work-relationship is 
particularly important in the case of occupational illnesses because:

    Occupational illnesses differ from injuries in that minor or 
early symptoms of illness are often an important indicator of a more 
serious disease state, while a minor injury usually goes away 
without further developments. By the time serious disabling symptoms 
have surfaced. a disease may be very far progressed and 
irreversible. Training courses such as Hazard Communication are 
geared toward educating the workforce to recognize and report 
symptoms of overexposure, presumably for disease prevention. AIHA 
does not want this information to be de-emphasized or lost (Ex. 15: 
153).

Comments on the ``Mere Possibility'' Test
    Alternative 3 described in the proposal would have required that an 
injury or illness be considered work related ``if the worker ever 
experienced a workplace event or exposure that had any possibility of 
playing a role in the case.'' This ``mere possibility'' test is 
substantially different than OSHA's historical definition of work-
relationship, which required that the injury or illness have a tangible 
connection with the work environment. Although some commenters 
supported Alternative 3, apparently on the assumption that it was in 
fact OSHA's proposed definition, analysis of these comments suggests 
that the parties involved recognized that an injury must have a real, 
not merely theoretical, link to work to be work-related. No commenter 
suggested a rationale for recording cases having only a theoretical or 
speculative link to work.
OSHA's Reasons for Rejecting the Alternative Tests for Work-
Relationship
    OSHA has given careful consideration to all of the comments and 
testimony received in this rulemaking and has decided to continue to 
rely in the final rule on the Agency's longstanding definition of work-
relationship, with one modification. That modification is the addition 
of the word ``significantly'' before ``aggravation'' in the definition 
of work-relatedness set forth in final rule section 1904.5. The 
relevant portion of the section now states ``an injury or illness is to 
be considered work-related if an event or exposure in the work 
environment either caused or contributed to the injury or illness or 
significantly aggravated a pre-existing injury or illness'' (emphasis 
added).
    In the final rule, OSHA has restated the presumption of work-
relationship to clarify that it includes any non-minor injury or 
illness occurring as a result of an event or exposure in the work 
environment, unless an exception in paragraph 1904.5(b)(2) specifically 
applies. OSHA believes that the final rule's approach of relying on the 
geographic presumption, with a limited number of exceptions, is more 
appropriate than the alternative approaches, for the following reasons.
The Geographic Presumption Is Supported by the Statute
    One important distinction between the geographic test for causation 
and the alternative causation tests is that the geographic test treats 
a case as work-related if it results in whole or in part from an event 
or exposure occurring in the work environment, while the alternative 
tests would only cover cases in which the employer can determine the 
degree to which work factors played a causal role. Reliance on the 
geographic presumption thus covers cases in which an event in the work 
environment is believed likely to be a causal factor in an injury or 
illness but the effect of work cannot be quantified. It also covers 
cases in which the injury or illness is not caused by uniquely 
occupational activities or processes. These cases may arise, for 
example, when: (a) an accident at work results in an injury, but the 
cause of the accident cannot be determined; (b) an injury or illness 
results from an event that occurs at work but is not caused by an 
activity peculiar to work, such as a random assault or an instance of 
horseplay; (c) an injury or illness results from a number of factors, 
including both occupational and personal causes, and the relative 
contribution of the occupational factor cannot be readily measured; or 
(d) a pre-existing injury or illness is significantly aggravated by an 
event or exposure at work.
    As discussed in the Legal Authority section, the statute's language 
and the Legislative History support a definition of work-relationship 
that encompasses all injuries and illnesses resulting from harmful 
events and exposures in the work environment, not only those caused by 
uniquely occupational activities or processes. A number of commenters 
acknowledged the broad purposes served by OSHA's recordkeeping 
requirements and urged continued reliance on the former rule's 
definition of ``work-related'' (see, e.g., Exs. 15: 65, 198, 350, 369, 
418). For example, the AFL-CIO noted, ``[o]ur experience has shown us 
that when comprehensive records of all possible cases are kept, 
patterns of injury and illness emerge, enabling us to target problem 
areas/factors that previously may not have been associated with that 
specific work environment'' (Ex. 15: 418) (emphasis added).
    On the other hand, those commenters favoring the ``quantified 
occupational cause'' test or the ``unique occupational activity'' test 
maintained that injury and illness records have more limited functions. 
Some commenters argued that because OSHA's mission is to

[[Page 5949]]

eliminate preventable occupational injuries and illnesses, the 
determination of work-relationship must turn on whether the case could 
have been prevented by the employer's safety and health program. The 
Dow Chemical Company expressed this view as follows:

    [T]he goal of this recordkeeping system should be to accurately 
measure the effectiveness of safety and health programs in the 
workplace. Activities where safety and health programs could have no 
impact on preventing or mitigating the condition should not be 
logged and included in the Log and Summary nor used by OSHA to 
determine its inspection schedule. If the event was caused by 
something beyond the employer's control it should not be considered 
a recordable event that calls into question a facility's safety and 
health program.
    . . . Credibility in this regulation rests on whether the 
recorded data accurately reflects the safety and health of the 
workplace. Including events where the workplace had virtually no 
involvement undermines the credibility of the system and results in 
continued resistance to this regulation (Ex. 15: 335B).

    The law firm of Constangy, Brooks and Smith, LLC, urged OSHA to 
adopt the proposal's second alternative (``predominant cause'') because 
cases that are ``predominantly caused by workplace conditions'' are the 
ones most likely to be preventable by workplace controls. Their comment 
stated, ``[s]ince OSHA's ultimate mission is the prevention of 
workplace injuries and illnesses, it is reasonably necessary to require 
recording only when the injury or illness can be prevented by the 
employer'' (Ex. 15-345). Other commenters opposed the recording of 
cases in which the injury or illness arises while the employee is on 
break, in the rest room, or in storage areas located on the employer's 
premises. These commenters claimed that use of the geographic 
presumption results in recording many injuries and illnesses that have 
little or no relationship to the work environment (see, e.g., Exs. 15: 
231, 423, 424G).
    OSHA believes that the views of Dow Chemical and others in support 
of the proposal's alternative tests for work-relationship reflect too 
narrow a reading of the purposes served by the OSHA injury and illness 
records. Certainly, one important purpose for recordkeeping 
requirements is to enable employers, employees, and OSHA to identify 
hazards that can be prevented by compliance with existing standards or 
recognized safety practices. However, the records serve other purposes 
as well, including providing information for future scientific research 
on the nature of causal connections between the work environment and 
the injuries and illnesses sustained by employees. For example, the 
records kept by employers under Part 1904 produced useful data on 
workplace assaults and murders, which has permitted OSHA, employers, 
and others to focus on the issue of violence in the workplace. This has 
led, in turn, to efforts to reduce the number of such cases by 
implementing preventive measures. Although this issue was not 
anticipated by the 1904 system, the broad collection of injury, illness 
and fatality data allowed useful information to be extracted from the 
1904 data. As discussed in the Legal Authority section, these purposes 
militate in favor of a general presumption of work-relationship for 
injuries and illnesses that result from events or exposures occurring 
in the work environment, with exceptions for specific types of cases 
that may safely be excluded without significantly impairing the 
usefulness of the national job-related injury and illness database.
    At the same time, OSHA is sensitive to the concerns of some 
commenters that the injury and illness records are perceived as a 
measure of the effectiveness of the employer's compliance with the Act 
and OSHA standards. OSHA emphasizes that the recording of an injury or 
illness on the Log does not mean that a violation has occurred. The 
explanatory materials accompanying the revised OSHA Forms 300 and 301 
contain the following statement emphasizing this point: ``Cases listed 
on the Log of Work-Related Injuries and Illnesses are not necessarily 
eligible for Workers Compensation or other insurance benefits. Listing 
a case on the Log does not mean that the employer or worker was at 
fault or that an OSHA standard was violated.''
The Alternative Tests for Work-Relationship Will Likely Lead Both to 
Inconsistent Determinations and to Underreporting of Cases
    Under the first two alternative tests for work-relationship 
described in the proposal, the decision on work-relationship would 
depend upon the degree to which the injury or illness resulted from 
distinctly occupational causes. Whether labeled ``sole cause,'' 
``predominant cause,'' or ``significant cause,'' these alternative 
tests would require the employer, in each case, to distinguish between 
the occupational and non-occupational causal factors involved, and to 
weigh the contribution of the occupational factor or factors. Requiring 
the occupational cause to be quantified in this way creates practical 
problems militating against the use of these alternative tests in the 
final recordkeeping rule.
    The most serious problem is that there is no reliable, objective 
method of measuring the degree of contribution of occupational factors. 
The absence of a uniform methodology for assessing the extent of work 
contribution caused several industry commenters to endorse the former 
rule's position on work-relationship. For example, the American 
Automobile Manufacturers Association (AAMA) noted that an ideal system 
would focus on cases in which the work environment was a major 
contributor to the injury or illness. Nevertheless, the AAMA argued 
against adopting the predominant cause test, stating: ``until a system 
is developed in which employers can measure objectively and 
consistently whether or not the work environment is a major contributor 
to a workplace injury or illness, we favor continuing the definition of 
work-relationship as it currently exists'' (Ex. 15: 409). The Ford 
Motor Co. also argued in favor of continuing the existing definition:

    Ford feels that the work environment should be a major 
contributor to an injury or illness for the case to be considered 
work-related. However, we are unsure how employers can measure 
objectively, consistently and equally whether the work environment 
is a major contributor. The use of a checklist by a health care 
provider to determine whether the work environment was a major 
contributor for a case to be considered work-related would be overly 
burdensome and subjective. Until a system is developed by which 
employers can measure objectively, consistently and equally whether 
or not the work environment is a major contributor to a workplace 
injury or illness, we favor continuing the definition of work 
relationship as it currently exists (Ex. 15: 347).

    Based on a review of the record, OSHA agrees with those commenters 
who supported a continuation of the Agency's prior practice with regard 
to reliance on the geographic presumption for determinations of work-
relatedness. OSHA finds that this approach, which includes all cases 
with a tangible connection with work, better serves the purposes of 
recordkeeping. Accordingly, the final rule relies on the geographic 
presumption, with a few limited exceptions, as the recordkeeping 
system's test for work-relationship.
Who Makes the Determination?
    In addition to the definition of work-relatedness, commenters 
addressed the issue of who should make the determination of work-
relatedness in a given case (see, e.g., Exs. 15: 27, 35, 102, 105, 127, 
193, 221, 281, 305, 308, 324, 325, 341, 345, 347, 385, 387, 390, 392,

[[Page 5950]]

397, 420). Some commenters believed that a trained medical professional 
should make this determination, while others argued that the employer 
should make the ultimate decision about the work-relatedness of 
occupational injuries and illnesses. Some supported the use of the 
work-relatedness checklist for specific disorders included by OSHA in 
the proposal. For example, the American Public Health Association (Ex. 
15: 341) commented:

    We also believe that work-relatedness should only be established 
by the documented determination of a qualified health care provider 
with specific training related to the type of case reported. OSHA's 
checklist for determining work-relatedness. . . .should be used and 
expanded to include potentially recordable cases, i.e., excluding 
first aid treatment.

    The Dow Corning Corporation (Ex. 15: 374) argued that the employer 
should make the determination, albeit with the assistance of a health 
care professional:

    This assessment process should include interviews with 
knowledgeable people regarding the duties and hazards of the 
employee's job tasks in addition to the employee interview. If 
inaccurate or misleading information is given to the health care 
provider improper or inaccurate conclusions may be reached with 
regard to the incident cause. A health care provider's assessment of 
work-relationship is typically viewed as difficult to overcome, even 
if it is made with incomplete information. We recommend that the 
health care provider's checklist be used as only one input in the 
work-relationship decision and that the final decision should still 
rest with the employer.

    Deere and Company (Ex. 15: 253) opposed leaving the determination 
of work-relatedness to a health care professional:

    We strongly disagree with any provision that would allow a 
physician to make a final determination of work-relatedness. The 
only time a physician should have any input into the actual 
determination of work-relatedness is if they are knowledgeable of 
the employer's workplace environment and the specific job tasks 
performed by employees. Frequently, physicians will state that a 
condition was caused by an employee's job without having any 
knowledge of the specific tasks being performed by the employee. 
This is an unacceptable usurpation of employers' rights and we 
oppose any attempt to codify it in a federal regulation.

    However, several participants opposed making any work-relatedness 
checklist mandatory (such as the one OSHA proposed) (see, e.g., Exs. 
15: 68, 170, 201, 283, 434). The American Trucking Association's 
comment (Ex. 15: 397) was typical of this view:

    We do not, however, support a requirement that employers must 
use a mandatory checklist to determine work-relatedness. . . . 
Because the checklist asks for medical information, the employer 
would find itself in conflict with the confidentiality requirements 
imposed under the Americans With Disabilities Act. 29 C.F.R. 
Sec. 1630.14. Moreover, a mandatory checklist would be unnecessarily 
time-consuming and subjective. Finally, we note that inclusion of 
item 5(b), ``possible work contribution,'' biases the checklist in 
favor of work-relatedness. In the absence of a clear indication of 
whether or not the workplace caused or substantially caused the 
condition, asking a provider or employee if it were ``possible'' 
that the workplace contributed to or aggravated the injury/illness 
invites an affirmative response.

    OSHA has concluded that requiring employers to rely on a health 
care professional for the determination of the work-relatedness of 
occupational injuries and illnesses would be burdensome, impractical, 
and unnecessary. Small employers, in particular, would be burdened by 
such a provision. Further, if the professional is not familiar with the 
injured worker's job duties and work environment, he or she will not 
have sufficient information to make a decision about the work-
relatedness of the case. OSHA also does not agree that health care 
professional involvement is necessary in the overwhelming majority of 
cases. Employers have been making work-relatedness determinations for 
more than 20 years and have performed this responsibility well in that 
time. This does not mean that employers may not, if they choose, seek 
the advice of a physician or other licensed health care professional to 
help them understand the link between workplace factors and injuries 
and illnesses in particular cases; it simply means that OSHA does not 
believe that most employers will need to avail themselves of the 
services of such a professional in most cases.
    Accordingly, OSHA has concluded that the determination of work-
relatedness is best made by the employer, as it has been in the past. 
Employers are in the best position to obtain the information, both from 
the employee and the workplace, that is necessary to make this 
determination. Although expert advice may occasionally be sought by 
employers in particularly complex cases, the final rule provides that 
the determination of work-relatedness ultimately rests with the 
employer.
The Final Rule's Exceptions to the Geographic Presumption
    Paragraph 1904.5(b)(2) of the final rule contains eight exceptions 
to the work environment presumption that are intended to exclude from 
the recordkeeping system those injuries and illnesses that occur or 
manifest in the work environment, but have been identified by OSHA, 
based on its years of experience with recordkeeping, as cases that do 
not provide information useful to the identification of occupational 
injuries and illnesses and would thus tend to skew national injury and 
illness statistics. These eight exceptions are the only exceptions to 
the presumption permitted by the final rule.
    (i) Injuries or illnesses will not be considered work-related if, 
at the time of the injury or illness, the employee was present in the 
work environment as a member of the general public rather than as an 
employee. This exception, which is codified at paragraph 
1904.5(b)(2)(i), is based on the fact that no employment relationship 
is in place at the time an injury or illness of this type occurs. A 
case exemplifying this exception would occur if an employee of a retail 
store patronized that store as a customer on a non-work day and was 
injured in a fall. This exception allows the employer not to record 
cases that occur outside of the employment relationship when his or her 
establishment is also a public place and a worker happens to be using 
the facility as a member of the general public. In these situations, 
the injury or illness has nothing to do with the employee's work or the 
employee's status as an employee, and it would therefore be 
inappropriate for the recordkeeping system to capture the case. This 
exception was included in the proposal, and OSHA received no comments 
opposing its adoption.
    (ii) Injuries or illnesses will not be considered work-related if 
they involve symptoms that surface at work but result solely from a 
non-work-related event or exposure that occurs outside the work 
environment. OSHA's recordkeeping system is intended only to capture 
cases that are caused by conditions or exposures arising in the work 
environment. It is not designed to capture cases that have no 
relationship with the work environment. For this exception to apply, 
the work environment cannot have caused, contributed to, or 
significantly aggravated the injury or illness. This exception is 
consistent with the position followed by OSHA for many years and 
reiterated in the final rule: that any job-related contribution to the 
injury or illness makes the incident work-related, and its corollary--
that any injury or illness to which work makes no actual contribution 
is not work-related. An example of this type of injury would be a 
diabetic incident that occurs while an employee is working. Because no 
event or exposure at work contributed in any

[[Page 5951]]

way to the diabetic incident, the case is not recordable. This 
exception allows the employer to exclude cases where an employee's non-
work activities are the sole cause of the injury or illness. The 
exception was included in the proposal, and OSHA received no comments 
opposing its adoption.
    (iii) Injuries and illnesses will not be considered work-related if 
they result solely from voluntary participation in a wellness program 
or in a medical, fitness, or recreational activity such as blood 
donation, physical, flu shot, exercise classes, racquetball, or 
baseball. This exception allows the employer to exclude certain injury 
or illness cases that are related to personal medical care, physical 
fitness activities and voluntary blood donations. The key words here 
are ``solely'' and ``voluntary.'' The work environment cannot have 
contributed to the injury or illness in any way for this exception to 
apply, and participation in the wellness, fitness or recreational 
activities must be voluntary and not a condition of employment.
    This exception allows the employer to exclude cases that are 
related to personal matters of exercise, recreation, medical 
examinations or participation in blood donation programs when they are 
voluntary and are not being undertaken as a condition of work. For 
example, if a clerical worker was injured while performing aerobics in 
the company gymnasium during his or her lunch hour, the case would not 
be work-related. On the other hand, if an employee who was assigned to 
manage the gymnasium was injured while teaching an aerobics class, the 
injury would be work-related because the employee was working at the 
time of the injury and the activity was not voluntary. Similarly, if an 
employee suffered a severe reaction to a flu shot that was administered 
as part of a voluntary inoculation program, the case would not be 
considered work-related; however, if an employee suffered a reaction to 
medications administered to enable the employee to travel overseas on 
business, or the employee had an illness reaction to a medication 
administered to treat a work-related injury, the case would be 
considered work-related.
    This exception was included in the proposal, and received support 
from a number of commenters (see, e.g., Exs. 15: 147, 181, 188, 226, 
281, 304, 341, 345, 363, 348, 373). Other commenters supported this 
proposal but suggested consolidating it with the proposed exception for 
voluntary activities away from the employer's establishment (see, e.g., 
Exs. 15-176, 231, 248, 249, 250, 273, 301). OSHA has decided not to 
combine this exception with another exception because questions are 
often asked about injuries and illnesses that arise at the employer's 
establishment and the Agency believes that a separate exception 
addressing voluntary wellness programs and other activities will 
provide clearer direction to employers.
    (iv) Injuries and illnesses will not be considered work-related if 
they are solely the result of an employee eating, drinking, or 
preparing food or drink for personal consumption (whether bought on the 
premises or brought in). This exception responds to a situation that 
has given rise to many letters of interpretation and caused employer 
concern over the years. An example of the application of this exception 
would be a case where the employee injured himself or herself by 
choking on a sandwich brought from home but eaten in the employer's 
establishment; such a case would not be considered work-related under 
this exception. On the other hand, if the employee was injured by a 
trip or fall hazard present in the employer's lunchroom, the case would 
be considered work-related. In addition, a note to the exception makes 
clear that if an employee becomes ill as a result of ingesting food 
contaminated by workplace contaminants such as lead, or contracts food 
poisoning from food items provided by the employer, the case would be 
considered work-related. As a result, if an employee contracts food 
poisoning from a sandwich brought from home or purchased in the company 
cafeteria and must take time off to recover, the case is not considered 
work related. On the other hand, if an employee contracts food 
poisoning from a meal provided by the employer at a business meeting or 
company function and takes time off to recover, the case would be 
considered work related. Food provided or supplied by the employer does 
not include food purchased by the employee from the company cafeteria, 
but does include food purchased by the employer from the company 
cafeteria for business meetings or other company functions. OSHA 
believes that the number of cases to which this exception applies will 
be few. This exception was included in the proposal and received 
generally favorable comments (see, e.g., Exs. 15: 31, 78, 105, 159, 
176, 181, 184, 188, 345, 359, 428).
    (v) Injuries and illnesses will not be considered work-related if 
they are solely the result of employees doing personal tasks (unrelated 
to their employment) at the establishment outside of their assigned 
working hours. This exception, which responds to inquiries received 
over the years, allows employers limited flexibility to exclude from 
the recordkeeping system situations where the employee is using the 
employer's establishment for purely personal reasons during his or her 
off-shift time. For example, if an employee were using a meeting room 
at the employer's establishment outside of his or her assigned working 
hours to hold a meeting for a civic group to which he or she belonged, 
and slipped and fell in the hallway, the injury would not be considered 
work-related. On the other hand, if the employee were at the employer's 
establishment outside his or her assigned working hours to attend a 
company business meeting or a company training session, such a slip or 
fall would be work-related. OSHA also expects the number of cases 
affected by this exception to be small. The comments on this exception 
are discussed in more detail in the section concerning proposed 
Exception B-5, Personal Tasks Unrelated To Employment Outside of Normal 
Working Hours, found later in this document.
    (vi) Injuries and illnesses will not be considered work-related if 
they are solely the result of personal grooming, self-medication for a 
non-work-related condition, or are intentionally self-inflicted. This 
exception allows the employer to exclude from the Log cases related to 
personal hygiene, self-administered medications and intentional self-
inflicted injuries, such as attempted suicide. For example, a burn 
injury from a hair dryer used at work to dry the employee's hair would 
not be work-related. Similarly, a negative reaction to a medication 
brought from home to treat a non-work condition would not be considered 
a work-related illness, even though it first manifested at work. OSHA 
also expects that few cases will be affected by this exception.
    (vii) Injuries will not be considered work-related if they are 
caused by motor vehicle accidents occurring in company parking lots or 
on company access roads while employees are commuting to or from work. 
This exception allows the employer to exclude cases where an employee 
is injured in a motor vehicle accident while commuting from work to 
home or from home to work or while on a personal errand. For example, 
if an employee was injured in a car accident while arriving at work or 
while leaving the company's property at the end of the day, or while 
driving on his or her lunch hour to run an errand, the case would not 
be considered work-related. On the other hand, if an employee was 
injured in a car accident while leaving

[[Page 5952]]

the property to purchase supplies for the employer, the case would be 
work-related. This exception represents a change from the position 
taken under the former rule, which was that no injury or illness 
occurring in a company parking lot was considered work-related. As 
explained further below, OSHA has concluded, based on the evidence in 
the record, that some injuries and illnesses that occur in company 
parking lots are clearly caused by work conditions or activities--e.g., 
being struck by a car while painting parking space indicators on the 
pavement of the lot, slipping on ice permitted to accumulate in the lot 
by the employer--and by their nature point to conditions that could be 
corrected to improve workplace safety and health.
    (viii) Common colds and flu will not be considered work-related.
    Paragraph 1904.5(b)(2)(viii) allows the employer to exclude cases 
of common cold or flu, even if contracted while the employee was at 
work. However, in the case of other infectious diseases such as 
tuberculosis, brucellosis, and hepatitis C, employers must evaluate 
reports of such illnesses for work relationship, just as they would any 
other type of injury or illness.
    (ix) Mental illness will not be considered work-related unless the 
employee voluntarily provides the employer with an opinion from a 
physician or other licensed health care professional with appropriate 
training and experience (psychiatrist, psychologist, psychiatric nurse 
practitioner, etc.) stating that the employee has a mental illness that 
is work-related.
    Exception (ix) is an outgrowth of proposed Exception B-11--Mental 
illness, unless associated with post-traumatic stress. There were more 
than 70 comments that addressed the issue of mental illness 
recordkeeping. Two commenters suggested that OSHA postpone any decision 
on the issue: the National Safety Council (Ex. 15: 359) recommended 
further study, and the AFL-CIO (Ex. 15: 418) stated that the problem of 
mental illness in the workplace was so prevalent and so important that 
it should be handled in a separate rulemaking devoted to this issue.
    A few commenters, including NIOSH (Ex. 15: 407), the American 
Psychological Association (Ex. 15: 411), the AFL-CIO (Ex. 14: 418), the 
United Steelworkers of America (Ex. 15: 429), and the United 
Brotherhood of Carpenters Health and Safety Fund of North America (Ex. 
15: 350) argued that recording should not be limited to post-traumatic 
stress as OSHA had proposed but should instead include a broader range 
of mental disorders. The primary arguments of this group of comments 
were:
     Workers are afflicted with a number of mental disorders 
caused or exacerbated by work, and the statistics should include those 
disorders just as they include physical disorders;
     If the records include only post-traumatic stress as a 
mental disorder, many work-related cases of mental illness will go 
unreported (6,000 mental illness cases are reported to the BLS and 
involve days away from work, but less than 10% of these are post-
traumatic stress cases), and the statistics will be skewed and 
misinterpreted;
     Workers' compensation does not restrict compensable mental 
illnesses to post-traumatic stress cases;
     Employers are recording and reporting all mental disorders 
now and thus would not be burdened by continuing the practice.
    Arguments in support of treating mental illnesses no differently 
from any other injury or illness were made by the American 
Psychological Association (Ex. 15: 411):

    The American Psychological Association strongly opposes OSHA's 
proposal to consider a mental illness to be work related only if it 
is ``associated with post-traumatic stress.'' We feel that this 
proposal disregards an accumulating body of research showing the 
relationship between mental health/illness and workplace stressors. 
Mental illness associated with post traumatic stress is only one 
form of mental illness and use of this singular definition would 
exclude much of the mental illness affecting our nation's workforce.
    Job stress is perhaps the most pervasive occupational health 
problem in the workplace today. There are a number of emotional and 
behavioral results and manifestations of job stress, including 
depression and anxiety. These mental disorders have usually been 
captured under the ``mental illness'' category but would no longer 
be recognized if the proposed reporting guidelines were enacted.
    The 1985 National Health Interview Survey (Shilling & Brackbill, 
1987) indicated that approximately 11 million workers reported 
health-endangering levels of ``mental stress'' at work. A large and 
growing body of literature on occupational stress has identified 
certain job and organizational characteristics as having deleterious 
effects on the psychological and physical health of workers, 
including their mental health. These include high workload demands 
coupled with low job control, role ambiguity and conflict, lack of 
job security, poor relationships with coworkers and supervisors, and 
repetitive, narrow tasks (American Psychological Association, 1996). 
These include role stressors and demands in excess of control. More 
precise analyses reveal that specific occupations and job factors 
present particular risks. For example, machine-paced workers 
(involving limited worker control of job demands) have one of the 
highest levels of anxiety, depression, and irritation of 24 
occupations studied (Caplan et al., 1975). Health professionals 
(e.g., physicians, dentists, nurses, and health technologists) have 
higher than expected rates of suicide which is most often related to 
depression (Milham, 1983) and of alcohol and drug abuse (Hoiberg, 
1982). Nurses and other health care workers have increased rates of 
hospitalizations for mental disorders (Gundersson & Colcord, 1982; 
Hoiberg, 1982). This information about specific risks within 
different occupations provides important information for possible 
intervention and training to improve conditions while at the same 
time, indicating the possibility of specific stressors that need to 
be addressed within the job. This type information would be lost 
with the proposed reporting guidelines.

    Fourteen commenters opposed having to record mental illness cases 
of any kind (Exs. 15: 78, 133, 184, 248, 249, 250, 304, 348, 378, 395, 
406, 409, 412, 424). Their primary arguments were:
     The diagnosis of mental illnesses is subjective and 
unreliable;
     It is often impossible, even for a health care 
professional, to determine objectively which mental disorders are work-
related and which are not;
     Workers have a right to privacy about mental conditions 
that should not be violated; employers fear the risk of invasion of 
privacy lawsuits if they record these cases on ``public records''; 
because of confidentiality concerns, workers are unlikely to disclose 
mental illnesses, and employers will therefore be unable to obtain 
sufficient information to make recordability determinations;
     Mental illnesses are beyond the scope of the OSHA Act; 
Congress intended to include only ``recognized injuries or illnesses'';
     Recording mental disorders opens the door to abuse; 
workers may ``fake'' mental illnesses, and unions may encourage workers 
to report mental problems as a harassment tactic; and
      No useful statistics will be generated by such recording.
    The American Iron and Steel Institute (AISI) (Ex.15: 395) expressed 
the concerns of the group of employers opposed to any recording of 
mental conditions:

    OSHA should eliminate its proposed recording requirements for 
mental illness. OSHA's proposed rule includes changes in an 
employee's psychological condition as an ``injury or illness,'' and 
[proposed] Appendix A presumes that mental illness ``associated with 
post-traumatic stress'' is work related. Employers, employees, and 
OSHA have been wrestling for 25 years with the proper recording of 
fairly simple injuries like back

[[Page 5953]]

injuries, sprains, and illnesses caused by chemical exposures. 
Requiring employers to record something as vague as psychological 
conditions will impose impossible burdens on employers (and 
compliance officers) and thus will create an unworkable 
recordkeeping scheme.
    Moreover, too little is known about the etiology of most mental 
conditions to justify any presumption or conclusion that a condition 
that surfaces at work was ``caused'' by something in the work 
environment. It is hard to imagine a mental illness appearing at 
work that is not a manifestation of a preexisting condition or 
predisposition. Thus, the only sensible approach is to exclude all 
mental illnesses from recording requirements.

    Many commenters from business and trade associations either agreed 
with OSHA's proposal or recommended an even stricter limitation on 
recordable mental disorders (see, e.g., Exs. 33, 15: 27, 31, 38, 46, 
79, 122, 127, 132, 153, 170, 176, 181, 199, 203, 226, 230, 231, 273, 
277, 289, 301, 305, 307, 308, 313, 325, 332, 352, 353, 368, 384, 387, 
389, 392, 410, 427, 430, 434). Points raised by these commenters 
included recommendations that OSHA should require:
     Recording only of those mental illnesses that arise from a 
single, work-related traumatic or catastrophic event, such as a 
workplace explosion or an armed robbery;
     Recording only of those mental illnesses that are directly 
and substantially caused by a workplace incident;
     Recording only of diagnosed mental illnesses resulting 
from a single workplace event that is recognized as having the 
potential to cause a significant and severe emotional response;
     Recognition only of post-traumatic stress cases or related 
disorders that include physical manifestations of illness and that are 
directly related to specific, objectively documented, catastrophic 
work-related events; and
     Recording only of diagnosed conditions directly 
attributable to a traumatic event in the workplace, involving either 
death or severe physical injury to the individual or a co-worker.
    Several commenters suggested the use of a medical evaluation to 
determine diagnosis and/or work-relationship in cases of mental illness 
(see, e.g., Exs. 15: 65, 78, 105, 127, 170, 181, 184, 226, 230). For 
example, the Aluminum Company of America (Ex. 15: 65) stated that:

    OSHA should define mental health conditions for recordkeeping 
purposes as conditions diagnosed by a licensed physician or advanced 
health care practitioner with specialized psychiatric training 
(i.e., psychiatric nurse practitioner). Work-relatedness of the 
mental health condition should be determined by a psychiatric 
independent medical evaluation.

    A comment from the Department of Energy (Ex. 15: 163) stated that 
any diagnosis of mental illness should be made by at least two 
qualified physicians, and CONSOL Inc. (Ex. 15: 332) and Akzo Nobel (Ex. 
15: 387) wanted the rule to require that any such diagnosis meet the 
criteria of the Diagnostic and Statistical Manual, Version IV (DSM-IV). 
Commenters had different opinions about the minimum qualifications 
necessary for a health care professional to make decisions about mental 
health conditions; specifically, some commenters urged OSHA to exclude 
``counselors'' (Ex. 15: 226) or to include ``only psychiatrists and 
Ph.D. psychologists'' (Ex. 15: 184).
    A number of commenters suggested excluding from the requirement to 
record any mental illness related to personnel actions such as 
termination, job transfer, demotions, or disciplinary actions (see, 
e.g., Exs. 15: 68, 127, 136, 137, 141, 176, 184, 224, 231, 266, 273, 
278, 301, 395, 424). The New York Compensation Board (Ex. 15: 68) noted 
that New York's workers' compensation law excludes such cases by 
specifying that mental injuries are compensable with the exception of 
injuries that are the ``direct consequence of a lawful personnel 
decision involving a disciplinary action, work evaluation, job 
transfer, demotion, or termination taken in good faith by the 
employer.''
    Finally, several employers raised the issues of the privacy of an 
employee with a mental disorder, the need to protect doctor-patient 
confidentiality, and the potential legal repercussions of employers 
breaching confidentiality in an effort to obtain injury and illness 
information and in recording that information (see, e.g., Exs. 15: 78, 
153, 170, 195, 260, 262, 265, 277, 348, 392, 401, 406, 409). Some of 
these commenters suggested that an employer should only have the 
obligation to record after the employee has brought the condition to 
the attention of the employer, either directly or through medical or 
workers' compensation claims, and in no case should doctor-patient 
confidentiality be breached. (Issues related to confidentiality of the 
Log are discussed in detail in the summary and explanation of 
Sec. 1904.35, Employee Involvement.)
    After a review of the comments and the record on this issue, OSHA 
has decided that the proposed exception, which would have limited the 
work-relatedness (and thus recordability) of mental illness cases to 
those involving post-traumatic stress, is not consistent with the 
statute or the objectives of the recordkeeping system, and is not in 
the best interest of employee health. The OSH Act is concerned with 
both physical and mental injuries and illnesses, and in fact refers to 
``psychological factors'' in the statement of Congressional purpose in 
section 2 of the Act (29 U.S.C. 651(b)(5)).
    In addition, discontinuing the recording of mental illnesses would 
deprive OSHA, employers and employees, and safety and health 
professionals of valuable information with which to assess occupational 
hazards and would additionally skew the statistics that have been kept 
for many years. Therefore, the final rule does not limit recordable 
mental disorders to post traumatic stress syndrome or any other 
specific list of mental disorders. OSHA also does not agree that 
recording mental illnesses will lead to abuse by employees or others. 
OSHA has required the recording of these illnesses since the inception 
of the OSH Act, and there is no evidence that such abuse has occurred.
    However, OSHA agrees that recording work-related mental illnesses 
involves several unique issues, including the difficulty of detecting, 
diagnosing and verifying mental illnesses; and the sensitivity and 
privacy concerns raised by mental illnesses. Therefore, the final rule 
requires employers to record only those mental illnesses verified by a 
health care professional with appropriate training and experience in 
the treatment of mental illness, such as a psychiatrist, psychologist, 
or psychiatric nurse practitioner. The employer is under no obligation 
to seek out information on mental illnesses from its employees, and 
employers are required to consider mental illness cases only when an 
employee voluntarily presents the employer with an opinion from the 
health care professional that the employee has a mental illness and 
that it is work related. In the event that the employer does not 
believe the reported mental illness is work-related, the employer may 
refer the case to a physician or other licensed health care 
professional for a second opinion.
    OSHA also emphasizes that work-related mental illnesses, like other 
illnesses, must be recorded only when they meet the severity criteria 
outlined in Sec. 1904.7. In addition, for mental illnesses, the 
employee's identity must be protected by omitting the employee's name 
from the OSHA 300 Log and instead entering ``privacy concern case'' as 
required by Sec. 1904.29.

[[Page 5954]]

Exceptions Proposed but Not Adopted
    The proposed rule contained eleven exceptions to the geographic 
presumption. Some of these exceptions are included in the final rule, 
and therefore are discussed above, while others were rejected for 
various reasons. The following discussion addresses those proposed 
exemptions not adopted in the final rule, or not adopted in their 
entirety.
    Proposed Exception B-5. Personal Tasks Unrelated To Employment 
Outside of Normal Working Hours. The proposed rule included an 
exception for injuries and illnesses caused solely by employees 
performing personal tasks at the establishment outside of their normal 
working hours. Some aspects of this proposed exception have been 
adopted in the final, but others have not. Almost all the comments on 
this proposed exception supported it (see, e.g., Exs. 15: 31, 78, 105, 
121, 159, 281, 297, 336, 341, 350), and many suggested that the 
exception be expanded to include personal tasks conducted during work 
hours (see, e.g., Exs. 15: 176, 184, 201, 231, 248, 249, 250, 273, 301, 
335, 348, 374). Caterpillar, Inc. (Ex. 15: 201) offered an opinion 
representative of the views of these commenters: ``We agree with this 
exception but it should be expanded to include any personal tasks 
performed during work hours if the work environment did not cause the 
injury or illness. Expanding this exemption will be consistent with the 
exemptions for voluntary wellness program participation and eating, 
drinking, and preparing one's own food.''
    One commenter disagreed with the proposed exception (the Laborers 
Safety and Health Fund of North America (Ex. 15: 310)) and cited as a 
reason the difficulty of determining the extent to which, for example, 
a case involving an employee misusing a hazardous chemical after hours 
because he or she did not receive the necessary Right-to-Know training 
from the employer would qualify for this exception.
    Several commenters suggested that OSHA clarify what it meant by the 
terms ``personal tasks'' and ``normal working hours'' (see, e.g., Exs. 
15: 102, 304, 345). For example, a representative of Constangy, Brooks 
& Smith recommended that:

    More explanation be provided regarding the further limitation on 
this exclusion. For example, does this section of the proposal 
envision the exclusion of injuries and illnesses resulting from 
personal tasks performed during overtime (i.e., outside of normal 
working hours)? If I am injured while talking to my spouse on the 
phone during regular business hours, must the case be recorded, 
while if the same injury occurs during overtime, the case is non-
recordable? Also, how are injuries to salaried employees (who are 
exempt from overtime) treated under this aspect of the proposal? I 
submit that if these issues are not fully ``fleshed out'' in the 
proposal or its preamble, this subparagraph will result in the 
creation of more questions than it resolves.

    The National Federation of Independent Business (NFIB) (Ex. 15: 
304) asked OSHA ``to specify that the `normal working hours' refers to 
the work schedule of the employee not the employer. If this distinction 
is not made clear, this proposal arguably could deny this exemption to 
establishments which operate during non-standard operating hours (e.g., 
24 hours a day, weekends, after 5 PM, etc.)--and we assume this is not 
OSHA's intent.''
    OSHA believes that injuries and illnesses sustained by employees 
engaged in purely personal tasks at the workplace, outside of their 
assigned working hours, are not relevant for statistical purposes and 
that information about such injuries and illnesses would not be useful 
for research or other purposes underlying the recordkeeping 
requirements. OSHA has therefore decided to include some parts of the 
proposed exception in the final rule. Additional language has been 
added to the exception since the proposal to clarify that the exception 
also applies when the employee is on the premises outside of his or her 
assigned working hours, as the NFIB pointed out.
    OSHA does not agree, however, with those commenters who suggested 
that the exception be expanded to include personal tasks performed by 
employees during work hours. As discussed in preceding sections of this 
summary and explanation and in the Legal Authority discussion, there 
are strong legal and policy reasons for treating an injury or illness 
as work-related if an event or exposure in the work environment caused 
or contributed to the condition or significantly aggravated a pre-
existing condition. Under this ``but-for'' approach, the nature of the 
activity the employee was engaged in at the time of the incident is not 
relevant, except in certain limited circumstances. Moreover, OSHA 
believes that it would be difficult in many cases for employers to 
distinguish between work activities and personal activities that occur 
while the employee is on-shift. Accordingly, the final rule codifies 
parts of this proposed exception in paragraph 1904.5(b)(v) in the 
following form: ``The injury or illness is solely the result of an 
employee doing personal tasks (unrelated to their employment) at the 
establishment outside of the employee's assigned working hours.''
    Proposed Exception B-6. Cases Resulting From Acts of Violence by 
Family Members or Ex-spouses When Unrelated to Employment, Including 
Self-inflicted Injuries. The final rule does not exempt workplace 
violence cases from the Log, although it does allow employers to 
exclude cases that involve intentionally self-inflicted injuries. The 
final rule thus departs substantially from the proposal in this 
respect. The proposed exception, which would have exempted domestic 
violence and self-inflicted cases from the Log, drew many comments. The 
comments generally fell into four categories: (1) those urging OSHA to 
require the recording of all cases of violence occurring at the 
establishment; (2) those recommending that no violence cases at the 
establishment be recorded; (3) those recommending recordation only of 
violence cases perpetrated by certain classes of individuals; and (4) 
those urging OSHA to require the recording of cases involving violence 
related to employment without regard to the perpetrator. The comments 
on the proposed exception are discussed below.
    No exemption/record all injuries and illnesses arising from violent 
acts. A number of commenters objected to OSHA's proposed exemption of 
domestic violence cases from the list of recordable injuries, arguing 
that all acts of violence occurring at the workplace should be recorded 
(see, e.g., Exs. 15: 31, 54, 56, 88, 90, 91, 93, 94, 99, 101, 103, 104, 
106, 111, 114, 115, 144, 186, 187, 238, 345, 362, 407, 418, 439). For 
example, the North Carolina Department of Labor stated that ``if an 
employer must log the injuries sustained as a result of workplace 
violence then the employer may also institute needed security measures 
to protect the employees at the establishment. An employer should be 
required to log any `preventable' injury (above first aid) that an 
employee sustains at the establishment'' (Ex. 15: 186). The Miller 
Brewing Company also supported recording all acts of workplace 
violence, based on the following rationale: ``I envision a scenario 
involving an angry husband attempting to kill his wife but, because he 
is a ``bad shot,'' another employee is killed. Why should killing an 
innocent bystander be a reportable event, whereas a fatality involving 
a spouse is excluded?'' (Ex. 15: 442).
    Exception for all violent acts. There were commenters who thought 
injuries and illnesses resulting from violence were outside of OSHA's 
purview and

[[Page 5955]]

should not be recorded at all (see, e.g., Exs. 15: 28, 75, 96, 107, 
203, 254, 289). For example, the Quaker Oats Company (Ex. 15: 289) 
stated that ``[w]orkplace violence in any form is a personal criminal 
act, and in no way, shape or form should violence be labeled under 
hazards in the workplace or even [be] monitored by OSHA. A person who 
may turn to violent behavior from family, personal, or job dispute is a 
matter of NLRB [National Labor Relations Board], law enforcement or 
state employment statutes, not industrial safety.'' The National 
Restaurant Association (Ex. 15: 96) agreed:

    Congress passed the Occupational Safety and Health Act to 
regulate workplace hazards dealing with the workplace environment or 
processes that employers could identify and possibly protect. The 
Congress did not contemplate that this statute would be used to 
redress incidents over which the employer has no ability to control, 
such as the unpredictability of workers or nonworkers committing 
violent, tortuous acts towards others. This issue was litigated 
unsuccessfully by OSHA in Secretary of Labor v. Megawest Financial, 
Inc., OSHRC Doc. No. 93-2879 (June 19, 1995). OSHA apparently is 
attempting in this NPR to obtain by regulatory fiat what was 
rejected by case law and to displace state tort law actions by using 
the OSH Act to police social behavior.

    Recording work-related violence except acts of certain classes of 
individuals. There were many commenters who supported the proposed 
exception, which would only have excluded acts of violence on employees 
committed by family members and ex-spouses and self-inflicted injuries 
and illnesses. The proposed exception as drafted was supported by some 
commenters (see, e.g., Exs. 15: 78, 198, 350, 359). Others thought the 
exception should be expanded to include not only family members and ex-
spouses, but also live-in partners, friends, and other intimates (see, 
e.g., Exs. 15: 80, 122, 153, 181, 213, 325, 363, 401), while others 
argued that the exemption should apply to the general public, i.e., to 
all people (see, e.g., Exs. 15: 9, 111, 119, 151, 152, 179, 180, 239, 
260, 262, 265, 272, 303, 304, 341, 356, 375, 401, 430).
    Typical of comments in support of a broader exception were the 
remarks of the National Oilseed Processors Association (Ex. 15: 119):

    The only time violence in the work place should be considered 
work-related is when it is associated with a work issue and 
committed by an employee or other person linked to the business, 
e.g., a customer. Any other act of violence is not under the control 
of the employer and should not be considered work-related.

    Alabama Shipyard Inc. (Ex. 15: 152) added:

    Exempting acts of violence based strictly on acts committed by 
family members, a spouse, or when self-inflicted is too limited. 
Instead, the exemption should be based on the relationship of the 
perpetrator to the employer. The employer should be no more 
responsible for some random act of violence by a crazy individual 
walking in off the street who is in no way associated with the 
employer than it should be for an act of violence by a family 
member.

    Southern California Edison (Ex. 15: 111) stated that ``violence is 
another example that should be excluded from being work-related if the 
employee personally knows the attacker. This would include family 
members or coworkers. Only those acts of violence that result from 
random criminal activity should be included (i.e., robbery, murder, 
etc.).'' TU Services (Ex. 15: 262) recommended ``that only cases that 
involve acts of violence that are the result of random criminal 
activity should be recorded. Cases that involve anyone with a personal 
relationship with the employee should be excluded.'' The American Feed 
Industry Association (Ex. 15: 204) and United Parcel Service (Ex. 15: 
424), on the other hand, argued that cases involving workplace violence 
should only be recorded if the perpetrator was a fellow employee.
    Record all violent acts directly related to employment regardless 
of who commits the act. Commenters favoring this approach suggested 
that violence by family members or others should be recorded if linked 
to work, but that all personal disputes should be exempt (see, e.g., 
Exs. 15: 105, 146, 176, 184, 231, 273, 297, 301, 313, 336, 348, 352, 
353, 374, 389, 392). The Workplace Health and Safety Council (Ex. 15: 
313) proposed the following exception:

    Cases will not be considered work-related if they result solely 
from acts of violence committed by one's family, or ex-spouse, or 
other persons when unrelated to the worker's employment, including 
intentionally self-inflicted injuries. Violence by persons on the 
premises in connection with the employer's business (including 
thieves and former employees) is considered work related even if 
committed by one's family or ex-spouse.

    The American Ambulance Association (Ex. 15: 226) stated simply: 
``AAA believes that OSHA should define what is work-related violence 
and assume that all other acts are not work-related, and eliminate the 
family and non-family distinction.'' The United Auto Workers (Ex. 15: 
438) agreed:

    Incidents of intentional violence should be recorded only if 
they arise from employment activities. Incidents between employees, 
or between employees and non-employees which rise from personal 
disputes should not be recorded. Existing data show that the number 
of incidents of interpersonal violence between coworkers or workers 
and intimates is small, although these incidents do get high 
visibility. Therefore, exclusion of these small number of cases will 
have little effect on statistical measures.

    Some commenters urged OSHA to place some restrictions on the 
proposed exception. For example, two commenters argued that cases 
involving violence should only be recorded for occupations where there 
is a reasonable potential of encountering violence (Exs. 15: 335, 409). 
The American Automobile Manufacturers Association (AAMA) stated that:

    Workplace violence as a reasonable function of an employee's 
employment should be recorded, for example: a cashier injured in a 
robbery attempt at a 24-hour retail establishment. An example of 
``unreasonable'' recordable workplace violence that should not be 
recordable (i.e., where an employee was simply ``in the wrong place 
at the wrong time'') would be a flight crew that perishes mid-flight 
from a terrorist's bomb. These cases have nothing to do with the 
individual's employer, only that they happened to be victims at the 
employer's place of employment. It is AAMA's understanding that the 
purpose of the subject standard is to collect information pertaining 
to injuries and illnesses that arise out of conditions in the 
workplace, with the end objective being to use that information to 
correct or mitigate these conditions so as to prevent additional 
injuries or illnesses.

    Caterpillar Inc. (Ex. 15: 201) suggested that ``a predominant 
contributor concept, similar to that being proposed to help establish 
work-relatedness, could be utilized in cases where the clear cause of 
violence is not readily apparent.''
    In the final rule, OSHA has decided not to exclude from recording 
those injury and illness cases involving acts of violence against 
employees by family members or ex-spouses that occur in the work 
environment or cases involving other types of violence-related injuries 
and illnesses. The final rule does exempt from recording those cases 
resulting from intentionally self-inflicted injuries and illnesses; 
these cases represent only a small fraction of the total number of 
workplace fatalities (three percent of all 1997 workplace violence 
fatalities) (BLS press release USDL 98-336, August 12, 1998). OSHA 
believes that injuries and illnesses resulting from acts of violence 
against employees at work are work-related under the positional theory 
of causation. The causal connection is usually established by the fact 
that the assault or other harmful event would not have

[[Page 5956]]

occurred had the employee not, as a condition of his or her employment, 
been in the position where he or she was victimized. Moreover, 
occupational factors are directly involved in many types of workplace 
violence, such as assaults engendered by disputes about working 
conditions or practices, or assaults on security guards or cashiers and 
other employees, who face a heightened risk of violence at work. 
Accordingly, OSHA does not accept the premise, advanced by some 
commenters, that workplace violence is outside the purview of the 
statute.
    In some cases, acts of violence committed by a family member or ex-
spouse at the workplace may be prevented by appropriate security 
measures enforced by employers. Moreover, information about workplace 
injuries due to assaults by family members or ex-spouses is relevant 
and should be included in the overall injury and illness data for 
statistical and research purposes. Omitting the proposed exception also 
obviates the need for employers to make distinctions among various 
degrees of personal relationships. Accordingly, the final rule does not 
allow employers to exclude injuries and illnesses resulting from 
violence occurring in the workplace from their Logs. However, some 
cases of violence will be excluded under Sec. 1904.5(b)(2)(v), which 
exempts an injury or ilness that is solely the result of an employee 
doing personal tasks (unrelated to their employment) at the 
establishment outside of the employee's assigned working hours. For 
example, if an employee arrives at work early to use a company 
conference room for a civic club meeting, and is injured by some 
violent act, the case would not be considered work related.
    OSHA has decided to maintain the exclusion for intentionally self-
inflicted injuries that occur in the work environment in the final 
rule. The Agency believes that when a self-inflicted injury occurs in 
the work environment, the case is analogous to one in which the signs 
or symptoms of a pre-existing, non-occupational injury or illness 
happen to arise at work, and that such cases should be excluded for the 
same reasons. (see paragraph 1904.5(b)(2)(ii)). The final rule at 
paragraph 1904.5(b)(2)(vi) therefore includes that the part of 
exception proposed that applied to injuries and illnesses that are 
intentionally self-inflicted.
    Proposed Exception B-7. Parking Lots and Access Roads. This 
proposed exception, which in effect would have narrowed the definition 
of ``establishment'' to exclude company parking lots, had approximately 
equal numbers of commenters in favor and opposed. The final rule 
includes some aspects of the proposed exemption. In favor of recording 
injuries in parking lots and on access roads were the commenters 
represented by Exs. 24, 15: 41, 72, 310, 362. Typical of the views of 
this group was that of the Association of Operating Room Nurses (AORN) 
(Ex. 15: 72), which noted that:

    [e]mployee parking lots should be included in defining ``work-
related.'' Perioperative nurses and other surgical service providers 
may be required on a ``call'' basis during the night hours. 
Consequently they enter and leave parking lots at unusual times when 
traffic in the lots is minimal. These providers may be at increased 
risk for random violence. Absent the ``call'' requirement, the 
employee would not be in the parking lot at the time of the injury. 
Further, if the employee is paid for travel time to and/or from the 
facility, injuries occurring during that period should be considered 
``work-related.''

    The AFL-CIO (Ex. 15: 362) added that employers may be less likely 
to provide lighting, security and other controls that could prevent 
violent assaults in parking lots and access roads if injuries occurring 
there are not recordable.
    The opposite view, in support of the proposed exception for parking 
lots, was expressed by several employers (see, e.g., Exs. 15: 27, 45, 
176, 185, 195, 231, 248, 249, 250, 273, 289, 301, 304, 341, 363). The 
National Wholesale Druggists Association (NWDA) (Ex. 15: 185) supported 
the proposed exclusion:

    [i]nevitably, activities that take place in the company parking 
lot or on the company access road are not only outside of the 
employer's dominion and control but also are most often not related 
in any way to the employee's work. Including injuries that occur in 
these locations as part of the OSHA log would lead to an inaccurate 
reflection of injury data as a whole. OSHA should retain this 
exemption. An employer has no control over an employee's commute to 
and from the workplace, with the exception of arrival and departure 
times for the work day. If OSHA requires the reporting of injuries 
that occur during the employee's commute, the number of injuries 
reported would increase dramatically.

    The National Federation of Independent Business (Ex. 15: 304) 
stated that the proposed exception would be consistent with workers' 
compensation rules.
    OSHA has concluded that a limited exception for cases occurring on 
parking lots is appropriate but that the broader exception proposed is 
not. The final rule thus provides an exception for motor vehicle injury 
cases occurring when employees are commuting to and from work. As 
discussed in the preamble that accompanies the definition of 
``establishment'' (see Subpart G of the final rule), OSHA has decided 
to rely on activity-based rather than location-based exemptions in the 
final rule. The parking lot exception in the final rule applies to 
cases in which employees are injured in motor vehicle accidents 
commuting to and from work and running personal errands (and thus such 
cases are not recordable), but does not apply to cases in which an 
employee slips in the parking lot or is injured in a motor vehicle 
accident while conducting company business (and thus such cases are 
recordable). This exception is codified at paragraph 1904.5(b)(2)(vii) 
of the final rule.
    Proposed Exception B-8. Never Engaged in an Activity That Could 
Have Placed Stress On the Affected Body Part. This proposed exception 
would have allowed employers not to record cases if no aspect of the 
worker's job placed stress on the affected body part or exposed the 
worker to any chemical or physical agent at work that could be 
associated with the observed injury or illness. This proposed exception 
received support from a number of employers (see, e.g., Exs. 15: 176, 
185, 231, 273, 301, 341, 359, 406). For example, the National Wholesale 
Druggists' Association stated that ``Such injuries or illnesses are 
obviously not caused by any work-related activities and should 
therefore be excluded from any reporting and recording requirements' 
(Ex. 15: 185).
    Deleting the word ``never'' from the proposed exception was also 
supported by many respondents (see, e.g., Exs. 15: 146, 279, 304, 335, 
374, 392, 395, 430, 431, 442). Representative of the latter group is 
the following comment by the BF Goodrich Company (Ex. 15: 146):

    The use of the term ``never'' in this exemption requires too 
harsh a test for case evaluation. A back injury should not be 
recordable because the employee lifted a box 10 years previous to 
the injury. A more reasonable evaluation criteria meeting the same 
intent could be stated as below: The injury or illness is not work-
related if it cannot be associated with the employee's duties or 
exposures at work.

    Taking an opposing view to the proposed exception were the AFL-CIO 
(Ex. 15: 418), the United Steelworkers of America (Ex. 15: 429), and 
the United Brotherhood of Carpenters Health and Safety Fund of North 
America (Ex. 15: 350). The AFL-CIO stated that:

    We believe when evaluating injuries this approach could 
logically work in most cases, but in cases of chemical exposures and 
musculoskeletal disorders this logic does not hold merit. If the 
Agency attempts to apply this approach to the aforementioned types 
of cases, the employer will have to become an

[[Page 5957]]

epidemiologist, ergonomist or toxicologist to determine if these 
cases meet the recordability criteria set forth in this proposal . . 
. . We encourage the Agency to omit this provision from the final 
standard. Because of the increasing numbers of workers being 
medically diagnosed for multiple chemical sensitivity and the 
exposures some workers receive without any knowledge until years 
after the incident, the Agency must carefully think about the 
inclusion of this provision to the final standard.

    Similarly, the Carpenters Fund (UBC H&SF) argued that:

    [T]his [exception] would exclude those cases where symptoms 
arise at work, but are caused by accidents or exposures away from 
work. The UBC H&SF agrees with the theory of this provision, but 
emphasizes that the task placed on employers to determine causation 
by exposures away from work would in many cases be impossible. Also 
the apportionment of causation is not discussed in this analysis and 
would allow some to record cases .01 percent caused by work and 
others to not record cases 99 percent caused by work. For the 
foregoing reasons, that this requirement is unworkable, we urge it 
be dropped from the final rule.

    Based on a review of the record on this issue, OSHA has decided not 
to include this proposed exception in the final rule. On reflection, 
the proposed language is confusing and would be difficult to apply. The 
underlying concept, to the extent it has merit, is better covered in 
the exemption paragraph 1904.5(b)(2)(ii). As discussed in preceding 
sections of this summary and explanation for section 1904.5, there are 
sound legal and policy justifications for defining work-relationship 
broadly to include injuries and illnesses that result from events or 
exposures in the work environment. The proposed exception would 
effectively ``swallow'' the geographic presumption theory of causation 
underpinning the rule by shifting the focus of enquiry in every case to 
the employee's specific job duties. As OSHA has noted, the geographic 
presumption includes some cases in which the illness or injury cannot 
be directly linked to the stresses imposed by job duties. For example, 
if an employee trips while walking on a level factory floor and breaks 
his arm, the injury should be recordable. The comments supporting the 
proposed exemption do not, in OSHA's view, provide a basis for 
excluding these types of cases from recording on the Log.
    Proposed Exception B-9. Voluntary Community Activities Away From 
The Employer's Establishment. This proposed exemption drew two comments 
supporting it as written (Exs. 15: 78, 304), and several other 
participants recommended that it be expanded to exclude injuries and 
illnesses that arise from voluntary community activities wherever they 
occur (see, e.g., Exs. 15: 146, 184, 272, 303, 359). Typical of these 
comments is one from U.S. West (Ex. 15: 184), which stated that 
``[e]mphasis should be on the activity that occurred, not the location 
of the activity.''
    The United Brotherhood of Carpenters, Health & Safety Fund of North 
America (Ex. 15: 350) agreed with the proposed exception, except for 
cases where the employee is present as a condition of employment or in 
the employer's interest. It commented:

    [A]t the surface this exception seems to make perfect sense. 
However, real employment relationships and real employer-community 
relationships do not fit such clean characterizations. Many times 
employees are forced to become ``team players'' and volunteer for 
unpaid off-establishment activities. Many employers engage in 
community ``good will'' generating activities by having their 
employees volunteer. For the above reasons we urge that cases 
occurring away from the employer's establishment be considered work-
related if the employee is engaged in any activity in the interest 
of the employer or is there as a condition of employment.

    OSHA has decided not to include this proposed exception in the 
final rule because the final rule's overall definition of work-
environment addresses this situation in a simple and straightforward 
way. If the employee is taking part in the activity and is either 
working or present as a condition of employment, he or she is in the 
work environment and any injury or illness that arises is presumed to 
be work-related and must then be evaluated for its recordability under 
the general recording criteria. Thus, if the employee is engaged in an 
activity at a location away from the establishment, any injury or 
illness occurring during that activity is considered work-related if 
the worker is present as a condition of employment (for example, the 
worker is assigned to represent the company at a local charity event). 
For those situations where the employee is engaged in volunteer work 
away from the establishment and is not working or present as a 
condition of employment, the case is not considered work-related under 
the general definition of work-relationship. There is thus no need for 
a special exception.
    Proposed Exception B-10. The Case Results Solely From Normal Body 
Movements, not Job-Related Motions or Contribution from the Work 
Environment. This proposed exception generated some support (see, e.g., 
Exs. 15: 107, 147, 173, 185, 341, 348, 373, 392) but also caused much 
confusion about the meaning of the phrases ``normal body movement'' and 
``job-related'' (see, e.g., Exs. 15: 80, 83, 89, 98, 146, 176, 225, 
226, 231, 239, 273, 301, 304, 313, 352, 353, 355, 359, 406, 424). The 
following comment by the American Gas Association (Ex. 15: 225) is 
representative of those in this group:

    `[N]ormal body movements' needs clarification since OSHA has not 
set forth any reasons for excluding it. OSHA's language states that 
there is an exclusion ``* * * provided that activity does not 
involve a job related motion and the work environment does not 
contribute to the injury or illness''. OSHA goes on to elaborate 
that illnesses or injuries should not be recorded if they are not 
related to an identifiable work activity. However, OSHA also states 
the exclusion would not apply if it involved repetitive motion or if 
the work environment either caused or contributed to the injury or 
illness. This language is ambiguous and redundant. Repetitive motion 
injury/illness conditions should be treated in the same way as any 
other condition. There should be a work-related exclusion if the 
work environment did not cause or contribute to the injury/illness.

    LeRoy E. Euvard, Jr., Safety and Environmental Staff (Ex. 15: 80) 
added:

    [T]he definition of work-related resulting from normal body 
movements is too broad. The definition excludes walking, talking, 
etc. `provided the activity does not involve a job-related motion.' 
Does that mean that if an employee is walking to the rest room and 
becomes ill, the illness is not work-related, but, if he/she is 
walking from the rest room back to his/her work station, it is work-
related? If the employee is engaged in social talk, the illness is 
not work-related, but, if he/she is engaged in a conversation 
regarding some aspect of work, the illness is work-related?

    Other commenters objected to the concept of excluding cases 
resulting from normal body movements from the Log (Ex. 56X, pp. 51, 52; 
Ex. 15: 418). Walter Jones of the International Brotherhood of 
Teamsters used the following example:

    We do take opposition to some of the exceptions. For cases that 
result in normal body movement, I'd like to just bring another 
example up. We have a member who after spending most of his morning 
sorting about 700 different boxes, on break in a normal, 
unencumbered motion, dropped his pencil and picked it up, had a back 
spasm and his back went out. And I know that according to the way 
the standard is written, or the regulation is written, that this can 
be attributed to work activity. But the reason we bring it up is we 
need to be careful in trying to be that exact because an employer 
will take an uninformed employee and may take liberties (Ex. 56X, 
pp. 51, 52).

    OSHA has decided not to include a recordkeeping exception for 
injuries or illnesses associated with normal body movements in the 
final rule. The

[[Page 5958]]

proposed provision was intended to exclude the recording of cases that 
happened to occur in the work environment without any real work 
contribution. However, the comments on this issue have convinced OSHA 
that the proposed provision is unnecessary, would be unworkable, and 
would result in incomplete and inconsistent data. The case cited by the 
Teamsters is but one example of a legitimate work-related injury that 
could go unrecorded if OSHA were to adopt this provision in the final 
rule. Further, the final rule already makes clear that injuries and 
illnesses that result solely from non-work causes are not considered 
work-related and therefore are excluded from the Log, and establishes 
the requirements employers must follow to determine work-relationship 
for an injury or illness when it is unclear whether the precipitating 
event occurred in the workplace or elsewhere (see paragraph 
1904.5(b)(3)). According to the requirements in that section, the 
employer must evaluate the employee's work duties and the work 
environment to decide whether it is more likely than not that events or 
exposures in the work environment either caused or contributed to the 
condition or significantly aggravated a pre-existing condition. If so, 
the case is work-related.
Additional Exemptions Suggested by Commenters but Not Adopted
    In addition to commenting on the eleven proposed exceptions, 
interested parties suggested adding some exceptions to the final rule. 
This section contains a discussion of those additional exemptions 
suggested by commenters but not adopted in the final rule.
    Acts of God: The International Dairy Foods Association (IDFA) 
suggested that OSHA exclude any injury or illness that was ``the result 
of an ``Act of God,'' such as, but not limited to, an earthquake or a 
tornado'' (Ex. 15: 203). OSHA has not adopted such an exception because 
doing so would not be in keeping with the geographic presumption 
underpinning this final rule, and would exclude cases that are in fact 
work-related. For example, if a worker was injured in a flood while at 
work, the case would be work-related, even though the flood could be 
considered an act of God. Accordingly, if workplace injuries and 
illnesses result from these events, they must be entered into the 
records (for a more detailed discussion of this point, see the Legal 
Authority section, above).
    Phobias: The American Crystal Sugar Company (Ex. 15: 363) suggested 
that OSHA add an exception from recording for cases involving phobias:

    I would also like to suggest exempting an employee's loss of 
consciousness based on a fear-based phobia, i.e., fainting at the 
sight of blood. Occasionally an OSHA regulation may require blood 
tests, such as checking lead levels in blood. There are a few 
employees that will lose consciousness at the sight of a needle. 
These phobias are not limited to medical procedures, but may include 
spiders, snakes, etc. In several of our factories, the occupational 
health nurse will administer tetanus boosters as a service to our 
employees. Employees that have a phobia about injections can (and 
do) lose consciousness, which now makes what was intended as a 
service an OSHA recordable accident.

    OSHA has not included an exception from recording in the final 
recordkeeping regulation for phobias or any other type of mental 
illness. The scenario described by the American Crystal Sugar Company, 
which involved fainting from fear of an injection offered as a service 
to employees, might be considered non-work-related under the exception 
codified at paragraph 1904.5(b)(2)(iii), Voluntary participation in a 
medical activity. OSHA also believes that it would be unreasonable to 
omit a case of loss of consciousness resulting from the administration 
of a blood test for lead exposure at work. These tests are necessitated 
by the employee's exposure to lead at work and are required by OSHA's 
lead standard (29 CFR 1910.1025). The other scenarios presented by 
these commenters, involving spiders, snakes, etc., would also be work-
related under the geographic presumption.
    Illegal activities and horseplay: Several commenters suggested an 
exception for an employee engaging in illegal activities, horseplay, or 
failing to follow established work rules or procedures (see, e.g., Exs. 
15: 49, 69, 117, 151, 152, 179, 180, 203, 368, 393). The comment of the 
American Network of Community Options and Resources (ANCOR) (Ex. 15: 
393) is representative of those on this issue:

    Employees who fail to follow employer training and best 
practices or violate established policy present a threat not only to 
other employees and consumers/customers, but also to employers held 
responsible for the consequences of their actions. For example, 
ANCOR does not believe that employers should have to use these 
recording and reporting procedures when illnesses and injuries are a 
result of an employee engaged in illegal activities or fails/
violates established procedures.

    OSHA has not adopted any of these recommended exceptions in the 
final recordkeeping rule because excluding these injuries and illnesses 
would be inconsistent with OSHA's longstanding reliance on the 
geographic presumption to establish work-relatedness. Furthermore, the 
Agency believes that many of the working conditions pointed to in these 
comments involve occupational factors, such the effectiveness of 
disciplinary policies and supervision. Thus, recording such incidents 
may serve to alert both the employer and employees to workplace safety 
and health issues.
    Non-occupational degenerative conditions: Two commenters also asked 
OSHA to include in the final rule a recording exception for non-
occupational degenerative conditions (Exs. 15: 176, 248) such as high 
blood pressure, arthritis, coronary artery disease, heart attacks, and 
cancer that can develop regardless of workplace exposure. OSHA has not 
added such an exception to the rule, but the Agency believes that the 
fact that the rule expects employers confronted with such cases to make 
a determination about the extent to which, if at all, work contributed 
to the observed condition will provide direction about how to determine 
the work-relatedness of such cases. For example, if work contributes to 
the illness in some way, then it is work-related and must be evaluated 
for its recordability. On the other hand, if the case is wholly caused 
by non-work factors, then it is not work-related and will not be 
recorded in the OSHA records.
Determining Whether the Precipitating Event or Exposure Occurred in the 
Work Environment or Elsewhere
    Paragraph 1904.5(b)(3) of the final rule provides guidance on 
applying the geographic presumption when it is not clear whether the 
event or exposure that precipitated the injury or illness occurred in 
the work environment or elsewhere. If an employee reports pain and 
swelling in a joint but cannot say whether the symptoms first arose 
during work or during recreational activities at home, it may be 
difficult for the employer to decide whether the case is work-related. 
The same problem arises when an employee reports symptoms of a 
contagious disease that affects the public at large, such as a 
staphylococcus infection (``staph'' infection) or Lyme disease, and the 
workplace is only one possible source of the infection. In these 
situations, the employer must examine the employee's work duties and 
environment to determine whether it is more likely than not that one or 
more events or exposures at work caused or contributed to the 
condition. If the employer determines that it is unlikely that the 
precipitating event or exposure

[[Page 5959]]

occurred in the work environment, the employer would not record the 
case. In the staph infection example given above, the employer would 
consider the case work-related, for example, if another employee with 
whom the newly infected employee had contact at work had been out with 
a staph infection. In the Lyme disease example, the employer would 
determine the case to be work-related if, for example, the employee was 
a groundskeeper with regular exposure to outdoor conditions likely to 
result in contact with deer ticks.
    In applying paragraph 1904.5(b)(3), the question employers must 
answer is whether the precipitating event or exposure occurred in the 
work environment. If an event, such as a fall, an awkward motion or 
lift, an assault, or an instance of horseplay, occurs at work, the 
geographic presumption applies and the case is work-related unless it 
otherwise falls within an exception. Thus, if an employee trips while 
walking across a level factory floor, the resulting injury is 
considered work-related under the geographic presumption because the 
precipitating event--the tripping accident--occurred in the workplace. 
The case is work-related even if the employer cannot determine why the 
employee tripped, or whether any particular workplace hazard caused the 
accident to occur. However, if the employee reports an injury at work 
but cannot say whether it resulted from an event that occurred at work 
or at home, as in the example of the swollen joint, the employer might 
determine that the case is not work-related because the employee's work 
duties were unlikely to have caused, contributed to, or significantly 
aggravated such an injury.
Significant Workplace Aggravation of a Pre-existing Condition
    In paragraph 1904.5(b)(4), the final rule makes an important change 
to the former rule's position on the extent of the workplace 
aggravation of a preexisting injury or illness that must occur before 
the case is considered work-related. In the past, any amount of 
aggravation of such an injury or illness was considered sufficient for 
this purpose. The final rule, however, requires that the amount of 
aggravation of the injury or illness that work contributes must be 
``significant,'' i.e., non-minor, before work-relatedness is 
established. The preexisting injury or illness must be one caused 
entirely by non-occupational factors.
    A number of commenters on OSHA's proposed rule raised the issue of 
recording injuries that were incurred off the job and then were 
aggravated on the job (see, e.g., Exs. 15: 60, 80, 95, 107, 176, 201, 
204, 213, 281, 308, 313, 338, 368, 375, 395, 396, 406, 424, 427, 428, 
441). The National Roofing Contractors Association (NRCA) commented 
that ``[t]his definition [includes] aggravating a pre-existing 
condition. While NRCA believes that the exemptions provided [in the 
proposed rule] are a step in the right direction, this provision could 
require that an employer record an injury that originally occurred 
outside the employer's workplace. The motion or activity that 
aggravated the injury may not represent any substantial hazard, yet 
would still be recorded'' (Ex. 15: 441). The United Parcel Service (Ex. 
15: 424) objected to the inclusion of the concept of aggravation in the 
definition of work-relatedness:

    [a]nother flaw in the proposal arises from its proposed 
recording requirement in the case of ``aggravation'' of prior 
conditions. As drafted, the rule would require reporting as an 
occupational injury or illness a musculoskeletal condition arising 
away from work which becomes aggravated by performing job duties 
(i.e., the job increases discomfort), when accompanied by swelling 
or inflammation. Thus, an employee who hurts his wrist playing 
tennis on the weekend and who returns to his word processing job 
Monday would have a reportable MSD under the rule. With such 
criteria for recordation, reported occupational injuries and 
illnesses would skyrocket, and yet most often these reports would 
reflect conditions arising away from work.

    The Food Distributors International (Ex. 15: 368) recommended:

    [i]t is very important that injuries that are not truly work-
related not be the subject of mandatory recording. For example, if 
an employee were injured off the job and came to work to ``try it 
out'' (i.e., to see if he or she was capable of performing the 
normal job functions), resulting pain might be seen as 
``aggravation'' and become recordable on that basis. The true source 
of injury, however, would be outside the workplace, and recording 
would produce an artificially inflated rate of injuries and 
illnesses, and a profile that was inaccurate.

    Several commenters were concerned about the aggravation of 
preexisting injuries in the context of recurrences or new cases (see, 
e.g., Exs. 15: 210, 204, 338) . For example, Caterpillar Inc. (Ex. 15: 
201) stated that:

    [b]ack injuries, repetitive motion injuries, and other chronic 
conditions which have degenerative or aging causal factors often 
recur without a new work accident and further without a new work 
accident capable of causing the underlying condition. Even if a new 
work accident occurs, the accident should be serious enough to cause 
the underlying condition before the new case presumption is 
applicable. The effect of this would be to eliminate minor 
aggravation of preexisting conditions from consideration as new 
injuries.

    LeRoy E. Euvard, Jr., of the Safety and Environmental Staff Company 
(Ex. 15: 80), suggested that:

    [a]ggravation of a pre-existing condition should not be 
recordable if normal body movements or events cause the aggravation. 
For example, a smoker with asthma or other obstructive airway 
disease may experience shortness of breath while climbing a flight 
of stairs. A person with degenerative disk disease may experience 
pain while lifting a normal bag of groceries. If performing similar 
activities at work likewise aggravates the condition, it should not 
be recordable.

    As discussed above, OSHA agrees that non-work-related injuries and 
illnesses should not be recorded on the OSHA Log. To ensure that non-
work-related cases are not entered on the Log, paragraph 
1904.5(b)(2)(ii) requires employers to consider as non-work-related any 
injury or illness that ``involves signs or symptoms that surface at 
work but result solely from a non-work-related event or exposure that 
occurs outside the work environment.''
    The Agency also believes that preexisting injury or illness cases 
that have been aggravated by events or exposures in the work 
environment represent cases that should be recorded on the Log, because 
work has clearly worsened the injury or illness. OSHA is concerned, 
however, that there are some cases where work-related aggravation 
affects the preexisting case only in a minor way, i.e., in a way that 
does not appreciably worsen the preexisting condition, alter its 
nature, change the extent of the medical treatment, trigger lost time, 
or require job transfer. Accordingly, the final rule requires that 
workplace events or exposures must ``significantly'' aggravate a pre-
existing injury or illness case before the case is presumed to be work-
related. Paragraph 1904.5(a) states that an injury or illness is 
considered work-related if ``an event or exposure in the work 
environment either caused or contributed to the resulting condition or 
significantly aggravated a pre-existing injury or illness.''
    Paragraph 1904.5(b)(4) of the final rule defines aggravation as 
significant if the contribution of the aggravation at work is such that 
it results in tangible consequences that go beyond those that the 
worker would have experienced as a result of the preexisting injury or 
illness alone, absent the aggravating effects of the workplace. Under 
the final rule, a preexisting injury or illness will be considered to 
have been significantly aggravated, for the purposes of OSHA injury and 
illness recordkeeping, when an event or exposure in the work

[[Page 5960]]

environment results in: (i) Death, providing that the preexisting 
injury or illness would likely not have resulted in death but for the 
occupational event or exposure; (ii) Loss of consciousness, providing 
that the preexisting injury or illness would likely not have resulted 
in loss of consciousness but for the occupational event or exposure; 
(iii) A day or days away from work or of restricted work, or a job 
transfer that otherwise would not have occurred but for the 
occupational event or exposure; or (iv) Medical treatment where no 
medical treatment was needed for the injury or illness before the 
workplace event or exposure, or a change in the course of medical 
treatment that was being provided before the workplace event or 
exposure. OSHA's decision not to require the recording of cases 
involving only minor aggravation of preexisting conditions is 
consistent with the Agency's efforts in this rulemaking to require the 
recording only of non-minor injuries and illnesses; for example, the 
final rule also no longer requires employers to record minor illnesses 
on the Log.
Preexisting Conditions
    Paragraph 1904.5(b)(5) stipulates that pre-existing conditions, for 
recordkeeping purposes, are conditions that resulted solely from a non-
work-related event or exposure that occurs outside the employer's work 
environment. Pre-existing conditions also include any injury or illness 
that the employee experienced while working for another employer.
Off Premises Determinations
    Employees may be injured or become ill as a result of events or 
exposures away from the employer's establishment. In these cases, OSHA 
proposed to consider the case work-related only if the employee was 
engaged in a work activity or was present as a condition of employment 
(61 FR 4063). In the final rule, (paragraph 1904.5(b)(1)) the same 
concept is carried forward in the definition of the work environment, 
which defines the environment as including the establishment and any 
other location where one or more employees are working or are present 
as a condition of their employment.
    Thus, when employees are working or conducting other tasks in the 
interest of their employer but at a location away from the employer's 
establishment, the work-relatedness of an injury or illness that arises 
is subject to the same decision making process that would occur if the 
case had occurred at the establishment itself. The case is work-related 
if one or more events or exposures in the work environment either 
caused or contributed to the resulting condition or significantly 
aggravated a pre-existing condition, as stated in paragraph 1904.5(a). 
In addition, the exceptions for determining work relationship at 
paragraph 1904.5(b)(2) and the requirements at paragraph 1904.5(b)(3) 
apply equally to cases that occur at or away from the establishment.
    As an example, the work-environment presumption clearly applies to 
the case of a delivery driver who experiences an injury to his or her 
back while loading boxes and transporting them into a building. The 
worker is engaged in a work activity and the injury resulted from an 
event--loading/unloading--occurring in the work environment. Similarly, 
if an employee is injured in an automobile accident while running 
errands for the company or traveling to make a speech on behalf of the 
company, the employee is present at the scene as a condition of 
employment, and any resulting injury would be work-related.
Employees on Travel Status
    The final rule continues (at Sec. 1904.5(b)(6)) OSHA's longstanding 
practice of treating injuries and illnesses that occur to an employee 
on travel status as work-related if, at the time of the injury or 
illness, the employee was engaged in work activities ``in the interest 
of the employer.'' Examples of such activities include travel to and 
from customer contacts, conducting job tasks, and entertaining or being 
entertained if the activity is conducted at the direction of the 
employer.
    The final rule contains three exceptions for travel-status 
situations. The rule describes situations in which injuries or 
illnesses sustained by traveling employees are not considered work-
related for OSHA recordkeeping purposes and therefore do not have to be 
recorded on the OSHA 300 Log. First, when a traveling employee checks 
into a hotel, motel, or other temporary residence, he or she is 
considered to have established a ``home away from home.'' At this time, 
the status of the employee is the same as that of an employee working 
at an establishment who leaves work and is essentially ``at home''. 
Injuries and illnesses that occur at home are generally not considered 
work related. However, just as an employer may sometimes be required to 
record an injury or illness occurring to an employee working in his or 
her home, the employer is required to record an injury or illness 
occurring to an employee who is working in his or her hotel room (see 
the discussion of working at home, below).
    Second, if an employee has established a ``home away from home'' 
and is reporting to a fixed worksite each day, the employer does not 
consider injuries or illnesses work-related if they occur while the 
employee is commuting between the temporary residence and the job 
location. These cases are parallel to those involving employees 
commuting to and from work when they are at their home location, and do 
not have to be recorded, just as injuries and illnesses that occur 
during normal commuting are not required to be recorded.
    Third, the employer is not required to consider an injury or 
illness to be work-related if it occurs while the employee is on a 
personal detour from the route of business travel. This exception 
allows the employer to exclude injuries and illnesses that occur when 
the worker has taken a side trip for personal reasons while on a 
business trip, such as a vacation or sight-seeing excursion, to visit 
relatives, or for some other personal purpose.
    The final rule's travel-related provisions (at paragraph 
1904.5(b)(6)) are essentially identical to those proposed (63 FR 4063), 
with only minor editorial changes, and are also parallel to those for 
determining the work-relationship of traveling employees under the 
former recordkeeping system (Ex. 2, pp. 36, 37). OSHA received various 
comments and suggestions about how best to determine work relationship 
for traveling employees. A few commenters endorsed OSHA's proposed 
approach (see, e.g., Exs. 15: 199, 396, 406). Other commenters believe, 
however, that employer control of, or the authority to control, the 
work environment should be determinative because activities outside the 
employer's control fall outside the scope of the employer's safety and 
health program (see, e.g., Exs. 15: 335, 396, 409, 424). The comments 
of the Dow Chemical Company (Ex. 15: 335) are typical of these views:

    [t]ravel on public carriers such as commercial airlines, trains, 
and taxi services or pre-existing conditions that are aggravated 
during normal unencumbered body motions, or injuries that occur off-
the-job but do not impair someone until they arrive at work are all 
beyond the control of the employer and the scope of any safety and 
health program. The commercial plane that crashes while the employee 
was flying on company business or the taxi accident while the 
employee was trying to get to the airport to fly on company business 
are events which, while tragic, are beyond the scope of an 
employer's control and beyond the reasonable reach of that 
employer's safety and health program.


[[Page 5961]]


    However, as discussed in the Legal Authority section and the 
introduction to the work-relationship section of the preamble, OSHA has 
decided not to limit the recording of occupational injuries and 
illnesses to those cases that are preventable, fall within the 
employer's control, or are covered by the employer's safety and health 
program. The issue is not whether the conditions could have, or should 
have, been prevented or whether they were controllable, but simply 
whether they are occupational, i.e., are related to work. This is true 
regardless of whether the employee is injured while on travel or while 
present at the employer's workplace. An employee who is injured in an 
automobile accident or killed in an airline crash while traveling for 
the company has clearly experienced a work-related injury that is 
rightfully included in the OSHA injury and illness records and the 
Nation's occupational injury and illness statistics. As the American 
Industrial Hygiene Association (Ex. 15: 153) remarked:

    The workforce is increasingly made up of service sector jobs. 
Computers, materials movement, travel, violence are all emerging and 
increasing sources of occupational injury and illness. Many of these 
newer trends in cases may not involve lost workdays, but are 
recordable and significant to the workforce none the less. Many of 
the clean, non-manufacturing employers who were traditionally exempt 
from recordkeeping have risk in these and other emerging areas about 
which OSHA should be collecting data.

    Two commenters specifically objected to the inclusion of cases 
involving client entertainment (Ex. 15: 409, 424). The American 
Association of Automobile Manufacturers (AAMA) remarked:

    AAMA agrees with OSHA that injuries/illnesses to employees 
during travel status are work-related and recordable. However, AAMA 
takes strong exception to the inclusion of `entertaining or being 
entertained for the purpose of transacting, discussing, or promoting 
business.' We find the notion of recording an illness for an 
employee, while he/she was engaged in a business related dinner, and 
subsequently suffering acute onset of diarrhea leading to 
hospitalization for gastroenteritis, to be inappropriate. OSHA needs 
to remove this obligation from the final rule. (Ex. 15: 409)

    OSHA does not agree with this comment, because the Agency believes 
that employees who are engaged in management, sales, customer service 
and similar jobs must often entertain clients, and that doing so is a 
business activity that requires the employee to work at the direction 
of the employer while conducting such tasks. If the employee is injured 
or becomes ill while engaged in such work, the injury or illness is 
work-related and should be recorded if it meets one or more of the 
other criteria (death, medical treatment, etc.). The gastroenteritis 
example provided by the AAMA is one type of injury or illness that may 
occur in this situation, but employees are also injured in accidents 
while transporting clients to business-related events at the direction 
of the employer or by other events or exposures arising in the work 
environment.
    On the other hand, not all injuries and illnesses sustained in the 
course of business-related entertainment are reportable. To be 
recordable, the entertainment activity must be one that the employee 
engages in at the direction of the employer. Business-related 
entertainment activities that are undertaken voluntarily by an employee 
in the exercise of his or her discretion are not covered by the rule. 
For example, if an employee attending a professional conference at the 
direction of the employer goes out for an evening of entertainment with 
friends, some of whom happen to be clients or customers, any injury or 
illness resulting from the entertainment activities would not be 
recordable. In this case, the employee was socializing after work, not 
entertaining at the direction of the employer. Similarly, the fact that 
an employee joins a private club or organization, perhaps to 
``network'' or make business contacts, does not make any injury that 
occurs there work-related.
    Two commenters recommended that OSHA eliminate the exceptions for 
determining work-relationship while employees are on travel and simply 
require all injuries and illnesses occurring while an employee is on 
travel status to be considered work-related (Exs. 15: 350, 418). For 
example, the AFL-CIO (Ex. 15: 418) suggested:

    We would also strongly encourage the Agency to re-evaluate 
[proposed] Appendix A Section C ``Travel Status''. The AFL-CIO 
believes that employees in ``travel status'' (e.g., traveling on 
company business) should be considered engaged in work-related 
activities during ALL of their time spent on the trip. This includes 
all travel, job tasks, entertaining and other activities occurring 
during ``travel status.''

    OSHA believes that expanding the concept of work-related travel to 
include all of the time the worker spends on a trip would be 
inconsistent with the tests of work-relationship governing the 
recording of other injuries and illnesses and would therefore skew the 
statistics and confuse employers. As the Dow Chemical Company (Ex. 15: 
335) stated:

    While the employee is traveling for the benefit of the company, 
it cannot be said that 100% of their time is engaged in work-related 
activities. Employees engage in personal and social activities while 
traveling on company business that is not for the direct benefit of 
the company nor a condition of employment and which cannot be 
impacted by an employer's safety or health program. Often there is 
``free time'' while traveling and employees engage in a myriad of 
activities such as shopping, sightseeing, dining out with friends or 
family that may be in the area, and the like. These are activities 
that do not benefit the company and are outside the company's 
control or reasonable reach of its safety and health programs. These 
are activities which, if the employee were engaged in them at their 
normal work location, would not be recordable; but just by the fact 
that they happen to be traveling for business purposes raises these 
otherwise non-recordable cases into those subject to the 
recordkeeping rule.

    OSHA agrees with Dow that there are situations where an injury or 
illness case involving an employee who is on travel status should be 
excluded from the records. There is no value in recording injuries and 
illnesses that would not be recorded under non-travel circumstances. 
For example, there is no value to including in the statistics an injury 
sustained by an employee who slips and falls in a motel room shower or 
who is injured in an automobile accident while on personal business, or 
becomes the victim of random street violence while doing personal 
shopping on a business trip. OSHA is therefore continuing the Agency's 
practice of excluding certain cases while employees are in travel 
status and applying the exceptions to the geographic presumption in the 
final rule to those occurring while the worker is traveling.
    The Department of Energy (Ex. 15: 163) expressed a concern about 
overseas travel, remarking ``For employees who travel in the U.S., the 
standard makes sense. For employees who travel out of the country, 
additional burdens to them are generally incurred. Travelers to 
tropical locations or other areas with different fauna and microbes may 
incur diseases that are not indigenous to the U.S.'' In response, OSHA 
notes that the recordkeeping regulation does not apply to travel 
outside the United States because the OSH Act applies only to the 
confines of the United States (29 U.S.C. Sec. 652(4)) and not to 
foreign operations. Therefore, the OSHA recordkeeping regulation does 
not apply to non-U.S. operations, and injuries or illnesses that may 
occur to a worker traveling outside the United States need not be 
recorded on the OSHA 300 Log.
Working at Home
    The final rule also includes provisions at Sec. 1904.5(b)(7) for

[[Page 5962]]

determining the work-relatedness of injuries and illnesses that may 
arise when employees are working at home. When an employee is working 
on company business in his or her home and reports an injury or illness 
to his or her employer, and the employee's work activities caused or 
contributed to the injury or illness, or significantly aggravated a 
pre-existing injury, the case is considered work-related and must be 
further evaluated to determine whether it meets the recording criteria. 
If the injury or illness is related to non-work activities or to the 
general home environment, the case is not considered work-related.
    The final rule includes examples to illustrate how employers are 
required to record injuries and illnesses occurring at home. If an 
employee drops a box of work documents and injures his or her foot, the 
case would be considered work-related. If an employee's fingernail was 
punctured and became infected by a needle from a sewing machine used to 
perform garment work at home, the injury would be considered work-
related . If an employee was injured because he or she tripped on the 
family dog while rushing to answer a work phone call, the case would 
not be considered work-related. If an employee working at home is 
electrocuted because of faulty home wiring, the injury would not be 
considered work-related.
    This provision is consistent with longstanding Agency practice 
under the former recordkeeping system. It was also included in the 
proposed rule (63 FR 4063), which read ``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.''
    A number of commenters supported OSHA's proposed approach to 
recording the injuries and illnesses of employees who work at home 
(see, e.g., Exs. 15: 31, 146, 176, 231, 273, 301, 336, 348, 375, 406, 
409, 413, 427, 429). The comments of the Council of Community Blood 
Centers (CCBC) (Ex. 15: 336) are typical of the views of these 
participants:

    CCBC believes this is a good rule and should stay on the books. 
Accident or illness should be work-related if it occurs at home and 
is related to performance of the work, not the general home 
environment or setting. Workers often are off the premises in a 
variety of situations, such as travel, providing repair services, or 
consultation. Just as injuries in these situations are reportable, 
so should those during work at home, if authorized by the employer.

    A large number of commenters objected to the proposed approach, 
however (see, e.g., Exs. 65, 66, 78, 89, 105, 111, 123, 194, 200, 225, 
239, 260, 262, 265, 277, 288, 330, 335, 341, 345, 360, 387, 393, 401, 
406, 409, 430, 434, 440). Most of these commenters objected because of 
the employer's perceived inability to control working conditions in the 
home environment (see, e.g., Exs. 15: 89, 163, 194, 239, 262, 288, 330, 
345, 360). For example, the Fort Howard Corporation commented:

    Fort Howard strongly opposes OSHA's proposal to consider any 
injuries and illnesses as ``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 the 
work. Employers have absolutely no control over employees' homes. 
They cannot oversee employees who are doing the work nor can they 
effectively monitor the manner the work is conducted or the 
environment in which it is conducted. OSHA's proposal could place 
employers in the role of insuring the home as a safe work 
environment. (Ex. 15: 194)

    Again, as discussed above, OSHA is concerned that all non-minor 
work-related cases be recorded on the Log and become part of the 
national statistics, both because these injuries and illnesses provide 
information about the safety and health of the work environment to 
employers, employees, and safety and health professionals and because 
collecting them may allow previously obscured safety and health issues 
to be identified. Injuries and illnesses occurring while the employee 
is working for pay or compensation at home should be treated like 
injuries and illnesses sustained by employees while traveling on 
business. The relevant question is whether or not the injury or illness 
is work-related, not whether there is some element of employer control. 
The mere recording of these injuries and illnesses as work-related 
cases does not place the employer in the role of insuring the safety of 
the home environment.
    The law firm of Leonard, Ralston, Stanton & Remington, Chartered 
(Ex. 15: 430) raised questions about OSHA's role when employees perform 
office work activities in a home office:

    The increasing incidence of home work (or ``telecommuting'') 
raises some interesting issues. For example, does OSHA assume that 
its right of inspection extends to an employee's private home? If 
so, has the Agency examined the constitutionality of this position? 
What control does the Agency assume an employer has over working 
conditions in a private home? Does the Agency expect the employer to 
inspect its employees' homes to identify unsafe conditions? Must the 
employer require an employee to correct unsafe conditions in the 
home (e.g., frayed carpet which presents a tripping hazard; 
overloaded electrical wiring or use of extension cords; etc.) as a 
condition of employment? If so, who must pay the cost of necessary 
home improvements?

    OSHA has recently issued a compliance directive (CPL 2-0.125) 
containing the Agency's response to many of the questions raised by 
this commenter. That document clarifies that OSHA will not conduct 
inspections of home offices and does not hold employers liable for 
employees' home offices. The compliance directive also notes that 
employers required by the recordkeeping rule to keep records ``will 
continue to be responsible for keeping such records, regardless of 
whether the injuries occur in the factory, in a home office, or 
elsewhere, as long as they are work-related, and meet the recordability 
criteria of 29 CFR Part 1904.''
    With more employees working at home under various telecommuting and 
flexible workplace arrangements, OSHA believes that it is important to 
record injuries and illnesses attributable to work tasks performed at 
home. If these cases are not recorded, the Nation's injury and illness 
statistics could be skewed. For example, placing such an exclusion in 
the final rule would make it difficult to determine if a decline in the 
overall number or rate of occupational injuries and illnesses is 
attributable to a trend toward working at home or to a change in the 
Nation's actual injury and illness experience. Further, excluding these 
work-related injuries and illnesses from the recordkeeping system could 
potentially obscure previously unidentified causal connections between 
events or exposures in the work environment and these incidents. OSHA 
is unwilling to adopt an exception that would have these potential 
effects. As the BF Goodrich Company (Ex. 15: 146) said, ``[s]pecific 
criteria to address employee work-at-home situations is appropriate to 
assure consistent reporting in our changing work environment.''

Section 1904.6 Determination of New Cases

    Employers may occasionally have difficulty in determining whether 
new signs or symptoms are due to a new event or exposure in the 
workplace or whether they are the continuation of an existing work-
related injury or illness. Most occupational injury and illness cases 
are fairly discrete events, i.e., events in which an injury or acute 
illness occurs, is treated, and then resolves completely. For example, 
a worker may suffer a cut, bruise, or rash from a clearly recognized 
event in the

[[Page 5963]]

workplace, receive treatment, and recover fully within a few weeks. At 
some future time, the worker may suffer another cut, bruise or rash 
from another workplace event. In such cases, it is clear that the two 
injuries or illnesses are unrelated events, and that each represents an 
injury or illness that must be separately evaluated for its 
recordability.
    However, it is sometimes difficult to determine whether signs or 
symptoms are due to a new event or exposure, or are a continuance of an 
injury or illness that has already been recorded. This is an important 
distinction, because a new injury or illness requires the employer to 
make a new entry on the OSHA 300 Log, while a continuation of an old 
recorded case requires, at most, an updating of the original entry. 
Section 1904.6 of the final rule being published today explains what 
employers must do to determine whether or not an injury or illness is a 
new case for recordkeeping purposes.
    The basic requirement at Sec. 1904.6(a) states that the employer 
must consider an injury or illness a new case to be evaluated for 
recordability if (1) the employee has not previously experienced a 
recorded injury or illness of the same type that affects the same part 
of the body, or (2) the employee previously experienced a recorded 
injury or illness of the same type that affected the same part of the 
body but had recovered completely (all signs and symptoms of the 
previous injury or illness had disappeared) and an event or exposure in 
the work environment caused the injury or illness, or its signs or 
symptoms, to reappear.
    The implementation question at Sec. 1904.6(b)(1) addresses chronic 
work-related cases that have already been recorded once and 
distinguishes between those conditions that will progress even in the 
absence of workplace exposure and those that are triggered by events in 
the workplace. There are some conditions that will progress even in the 
absence of further exposure, such as some occupational cancers, 
advanced asbestosis, tuberculosis disease, advanced byssinosis, 
advanced silicosis, etc. These conditions are chronic; once the disease 
is contracted it may never be cured or completely resolved, and 
therefore the case is never ``closed'' under the OSHA recordkeeping 
system, even though the signs and symptoms of the condition may 
alternate between remission and active disease.
    However, there are other chronic work-related illness conditions, 
such as occupational asthma, reactive airways dysfunction syndrome 
(RADs), and sensitization (contact) dermatitis, that recur if the ill 
individual is exposed to the agent (or agents, in the case of cross-
reactivities or RADs) that triggers the illness again. It is typical, 
but not always the case, for individuals with these conditions to be 
symptom-free if exposure to the sensitizing or precipitating agent does 
not occur.
    The final rule provides, at paragraph (b)(1), that the employer is 
not required to record as a new case a previously recorded case of 
chronic work-related illness where the signs or symptoms have recurred 
or continued in the absence of exposure in the workplace. This 
paragraph recognizes that there are occupational illnesses that may be 
diagnosed at some stage of the disease and may then progress without 
regard to workplace events or exposures. Such diseases, in other words, 
will progress without further workplace exposure to the toxic 
substance(s) that caused the disease. Examples of such chronic work-
related diseases are silicosis, tuberculosis, and asbestosis. With 
these conditions, the ill worker will show signs (such as a positive TB 
skin test, a positive chest roentgenogram, etc.) at every medical 
examination, and may experience symptomatic bouts as the disease 
progresses.
    Paragraph 1904.6(b)(2) recognizes that many chronic occupational 
illnesses, however, such as occupational asthma, RADs, and contact 
dermatitis, are triggered by exposures in the workplace. The difference 
between these conditions and those addressed in paragraph 1904.6(b)(1) 
is that in these cases exposure triggers the recurrence of symptoms and 
signs, while in the chronic cases covered in the previous paragraph, 
the symptoms and signs recur even in the absence of exposure in the 
workplace. This distinction is consistent with the position taken by 
OSHA interpretations issued under the former recordkeeping rule (see 
the Guidelines discussion below). The Agency has included provisions 
related to new cases/continuations of old cases in the final rule to 
clarify its position and ensure consistent reporting.
    Paragraph 1904.6(b)(3) addresses how to record a case for which the 
employer requests a physician or other licensed health care 
professional (HCP) to make a new case/continuation of an old case 
determination. Paragraph (b)(3) makes clear that employers are to 
follow the guidance provided by the HCP for OSHA recordkeeping 
purposes. In cases where two or more HCPs make conflicting or differing 
recommendations, the employer is required to base his or her decision 
about recordation based on the most authoritative (best documented, 
best reasoned, or most persuasive) evidence or recommendation.
    The final rule's provisions on the recording of new cases are 
nearly identical to interpretations of new case recordability under the 
former rule. OSHA has historically recognized that it is generally an 
easier matter to differentiate between old and new cases that involve 
injuries than those involving illnesses: the Guidelines stated that 
``the aggravation of a previous injury almost always results from some 
new incident involving the employee * * * [w]hen work-related, these 
new incidents should be recorded as new cases on the OSHA forms, 
assuming they meet the criteria for recordability * * *'' (Ex. 2, p. 
31). However, the Guidelines also stated that ``certain illnesses, such 
as silicosis, may have prolonged effects which recur over time. The 
recurrence of these symptoms should not be recorded as a new case on 
the OSHA forms. * * * Some occupational illnesses, such as certain 
dermatitis or respiratory conditions, may recur as the result of new 
exposures to sensitizing agents, and should be recorded as new cases.''
    OSHA developed and included specific guidance for evaluating when 
cumulative trauma disorders (CTDs) (ergonomic injuries and illnesses, 
now known as musculoskeletal disorders, or MSDs) should be recorded as 
new cases in the Ergonomics Program Management Guidelines For 
Meatpacking Plants (Ex. 11, p. 15) which were published in 1990. These 
Guidelines provided:

    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.''

    Thus, the former rule had different ``new case'' criteria for 
musculoskeletal disorders than for other injuries and illnesses. (For 
the final rule's recording criteria for musculoskeletal disorders, see 
Section 1904.12.)
    OSHA's recordkeeping NPRM proposed a single approach to the 
identification of new cases for all injuries and illnesses, including 
musculoskeletal disorders. The proposal would have required the 
recurrence of a pre-existing injury or illness to be considered a new 
case to evaluate for recordability if (1) it resulted from a

[[Page 5964]]

new work event or exposure, or (2) 45 days had elapsed since medical 
treatment, work restriction, or days away from work had ceased, and the 
last sign or symptom had been experienced. The proposed approach would, 
in effect, have extended the recurrence criteria for musculoskeletal 
disorders to all injury and illness cases, but would have increased the 
no-medical-intervention interval from 30 to 45 days. A recurrence of a 
previous work-related injury or illness would have been presumed, under 
the proposed approach, to be a new case if (1) it resulted from a new 
work accident or exposure, or (2) 45 days had elapsed since medical 
treatment had been administered or restricted work activity or days 
away had occurred and since the last sign or symptom had been 
experienced. This proposed presumption would have been rebuttable if 
there was medical evidence indicating that the prior case had not been 
resolved. In the proposal, OSHA also asked for input on the following 
questions related to new case recording:

    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?

    In response to the views and evidence presented by commenters to 
the record, OSHA has decided not to adopt the proposed approach to the 
recording of new/recurring cases in the final rule. Commenters 
expressed a wide variety of views about the recording of recurring 
injury and illness cases. Some commenters favored the proposed approach 
as drafted. Others, however, objected to it on many grounds: (1) the 
time limit should be longer or shorter than the 45 days proposed; (2) 
the proposed approach would result in under- or overreporting; (3) it 
would conflict with workers' compensation requirements; (4) it was too 
restrictive (5) it would encourage excessive use of the health care 
system; and (6) it should be replaced by a physician or other licensed 
health care professional's opinion.
    A number of commenters supported OSHA's proposed approach (see, 
e.g., Exs. 15: 27, 65, 70, 151, 152, 154, 179, 180, 181, 185, 186, 188, 
214, 331, 332, 336, 359, 387, 396, 424, 428). Representative of these 
comments was one from The Fertilizer Institute (TFI):

    TFI agrees with OSHA's proposed 45 day criterion for the 
recording of new cases. Concerning OSHA's solicitation of comments 
on whether different conditions should have different evaluation 
periods, TFI encourages OSHA to adopt a single time period for all 
conditions. Different evaluation periods for different conditions 
will lead to complexity and confusion without any resulting benefit 
to recordkeeping (Ex. 15: 154).

    Other commenters supported the concept of using a time limit for 
determining new cases, but thought the number of days should be higher 
(see, e.g., Exs. 15: 45, 49, 61, 82, 89, 131, 147, 184, 235, 331, 389). 
Some commenters generally opposed the time limit concept but made 
recommendations for longer time periods if OSHA decided in the final 
rule to adopt a time limit (see, e.g., Exs. 15: 38, 79, 89, 111, 136, 
137, 141, 194, 224, 246, 266, 278, 288, 299, 313, 335, 352, 353, 430). 
The longer intervals suggested by commenters included 60 days (see, 
e.g., Exs. 15: 82, 389); 90 days (see, e.g., Exs. 15: 38, 49, 79, 147, 
184, 246, 299, 313, 331, 335, 352, 353, 430); 120 days (Ex. 15: 194); 
180 days (see, e.g., Exs. 15: 61, 111, 136, 137, 141, 224, 266, 278, 
288); one year (Ex. 15: 131); and five years (Ex. 15: 89).
    A large number of commenters opposed the proposed approach for 
identifying new cases that would then be tested for their recordability 
(see, e.g., Exs. 15: 33, 38, 39, 41, 78, 79, 89, 95, 102, 107, 111, 
119, 127, 133, 136, 137, 141, 153, 171, 176, 194, 199, 203, 224, 225, 
231, 246, 266, 273, 278, 281, 288, 289, 299, 301, 305, 307, 308, 313, 
335, 337, 341, 346, 348, 352, 353, 375, 395, 405, 410, 413, 424, 425, 
428, 430, 440). Some commenters argued that the proposed 45-day 
interval was arbitrary (see, e.g., Exs. 15: 119, 203, 289, 313, 352, 
353, 395), that it conflicted with workers' compensation new case 
determinations (see, e.g., Exs. 15: 38, 119, 136, 137, 141, 224, 266, 
278), that the approach would not work in the case of chronic injury 
(see, e.g., Exs. 33; 15: 176, 199, 231, 273, 299, 301, 305, 308, 337, 
346, 348, 375), or that the proposed 45-day rule would result in over-
reporting of occupational injuries and illnesses (see, e.g., Exs. 15: 
119, 127, 136, 137, 141, 171, 199, 224, 266, 278, 305, 337, 424, 425). 
The comments of the NYNEX Corporation (Ex. 15: 199) illustrate the 
general concerns of these commenters:

    We do not agree, however, with the second criterion of a symptom 
free 45 day period following medical treatment, restriction, or days 
away from work. This criterion fails to take into account the 
persistent nature of many chronic or recurring conditions, i.e., 
back strains, musculoskeletal disorders, where the symptoms may 
disappear for a period of time, but the underlying conditions are 
still present. If adopted, this criterion could cause injury and 
illness data to be artificially inflated with the onset of ``new'' 
cases, which in fact are recurrences of existing conditions. This in 
turn could lead to false epidemics and a diversion of resources from 
more legitimate workplace concerns.

    On the other hand, William K. Principe of Constangy, Brooks & 
Smith, LLC (Ex. 15: 428) was concerned that the proposed method would 
result in fewer recordable cases:

    Since many employees will report that they continued to 
experience symptoms or that they continue to have good days and bad 
days, the new rule will result in many fewer recordable CTD 
[cumulative trauma disorder] cases. In fact, at some hand-intensive 
manual operations, the number of CTD cases should be drastically 
reduced under the proposal that 45 days must elapse since the last 
symptom. There is something fundamentally wrong with a recordkeeping 
system that one year shows a high incidence of CTDs and the next 
shows a dramatic decline, when the underlying conditions remain 
virtually identical.

    United Parcel Service (Ex. 15: 424) stated that there should be no 
time limit to determining whether or not a case is a recurrence:

    In UPS's experience, however, it is a simple process to 
determine, by medical referral or by examining prior medical 
history, whether a condition is a recurrence. This has long been the 
practice, and indeed the [proposal] contemplates it will remain the 
practice through the first 44 days. It does not become any more 
complex on the 45th, 50th, or 100th day; and if in an individual 
employer's judgment it does, then the employer may of course report 
the condition as a new injury.

    Three commenters disapproved of OSHA's approach because it would 
have been applicable to all recurrences and they believe that each case 
must be evaluated on its own merits (Exs. 15: 78, 184, 203). The 
International Dairy Foods Association (IDFA) described this concern 
succinctly: ``Each injury has its own resolution based on the injury, 
illness, degree, and numerous other factors that are characteristic of 
the

[[Page 5965]]

individual. As such, it is impossible for OSHA or anyone else to set a 
valid number of days even if the resolution period is set on the basis 
of the type of illness/injury'' (Ex. 15: 203).
    In addition, the proposed 45-day approach was interpreted 
differently by different commenters. For example, David E. Jones of the 
law firm Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) suggested:

    The words ``either'' and ``or'' * * * should be deleted because 
an aggravation of the previously recorded injury or illness brought 
about within the 45-day period would require the entry of a new case 
at that time, thus negating the 45-day rule, leading to the adverse 
result that the 45-day rule otherwise would rectify. Accordingly, 
ODNSS recommends * * * ``A recurrence of a previous work-related 
injury or illness is a new case when it (1) results from a new work 
event or exposure and (2) 45 days have elapsed since medical 
treatment, restricted work activity, or days away from work (as 
applicable) were discontinued and the employee has been symptom-free 
(including both subjective symptoms and physical findings) (emphasis 
added) (Ex. 15: 406).

    In the final rule, OSHA has decided against the proposed approach 
of determining case resolution based on a certain number of days during 
which the injured or ill employee did not lose time, receive treatment, 
have signs or symptoms, or be restricted to light duty. OSHA agrees 
with those commenters who argued that the proposed approach was too 
prescriptive and did not allow for the variations that naturally exist 
from one injury and illness case to the next. Further, the record 
contains no convincing evidence to support a set number of days as 
appropriate. OSHA thus agrees with those commenters who pointed out 
that adoption of a fixed time interval would result in the 
overrecording of some injury and illness cases and the underrecording 
of others, and thus would impair the quality of the records.
    Further, OSHA did not intend to create an ``injury free'' time zone 
during which an injury or illness would not be considered a new case, 
regardless of cause, as ODNSS suggested. Instead, OSHA proposed that a 
case be considered a new case if either condition applied: the case 
resulted from a new event or exposure or 45 days had elapsed without 
signs, symptoms, or medical treatment, restricted work, or days away 
from work. There are clearly cases where an event or exposure in the 
workplace would be cause for recording a new case. A new injury may 
manifest the same signs and symptoms as the previous injury but still 
be a new injury and not a continuation of the old case if, for example, 
an employee sustains a fall and fractures his or her wrist, and four 
months later falls again and fractures the wrist in the same place. 
This occurrence is not a continuation of the fracture but rather a new 
injury whose recordability must be evaluated. The final rule's approach 
to recurrence/new case determinations avoids this and other recording 
problems because it includes no day count limit and relies on one of 
the basic principles of the recordkeeping system, i.e., that injuries 
or illnesses arising from events or exposures in the workplace must be 
evaluated for recordability.
    In response to those commenters who raised issues about 
inconsistency between the OSHA system and workers' compensation, OSHA 
notes that there is no reason for the two systems, which serve 
different purposes (recording injuries and illnesses for national 
statistical purposes and indemnifying workers for job-related injuries 
and illnesses) to use the same definitions. Accordingly, the final rule 
does not rely on workers' compensation determinations to identify 
injuries or illness cases that are to be considered new cases for 
recordkeeping purposes.
    Another group of commenters argued that the 45-day recording 
requirement would lead employers to spend money on unnecessary and 
costly health care (see, e.g., Exs. 15: 136, 137, 141, 224, 266, 278, 
305, 346, 348, 375). The views of the American Petroleum Institute 
(API) are representative: ``OSHA's proposal would also add 
substantially to employers' costs since it could require employees to 
make frequent trips to a health care professional, even if symptom 
free, just to avoid being recorded repeatedly on the OSHA log as new 
cases'' (Ex. 15: 375). Union Carbide Corporation (Ex. 15: 396) also 
remarked on the proposed approach's potential incentive for medical 
follow-up, but viewed such an incentive as a positive phenomenon, 
stating ``One benefit [of the proposed approach] is that it encourages 
medical follow-up for the employee.'' Although the proposed approach 
would not have ``required'' an employer to send a worker to a physician 
or other licensed health care professional, and OSHA is not persuaded 
that employers would choose to spend money in this way merely to avoid 
recording an occasional case as a new case, elimination of any set day-
count interval from the final rule will also have made the concerns of 
these commenters moot.
    OSHA also received a number of suggestions about the role of 
physicians and other licensed health care professionals (HCP) in new 
case determinations. A number of commenters recommended that the 
decision to record should be based solely on the opinions of a 
physician or other licensed health care professional (see, e.g., Exs. 
33: 15: 39, 95, 107, 119, 127, 133, 225, 289, 332, 335, 341, 387, 424, 
440). The National Grain and Feed Association, the National Oilseed 
Processors Association, and the Grain Elevator and Processing Society 
(Ex. 15: 119) commented as a group and recommended that ``[r]elying on 
a physician's opinion rather than an arbitrary timeframe would simplify 
recordkeeping and help ensure that the records are consistent with 
existing and accepted workers' compensation plans.''
    Other commenters recommended that, if OSHA adopted a day count time 
limit, the rule should specifically allow a physician's opinion to be 
used to refute a new case determination (see, e.g., Exs. 15: 65, 181, 
184, 203). Several others simply asked OSHA to provide more guidance on 
what type of medical evidence could be used in new case determinations 
(see, e.g., Exs. 15: 176, 231, 273, 301, 430). The National Wholesale 
Druggists' Association (NWDA) suggested that ``OSHA should also include 
a provision that the employee obtain written approval from a doctor 
that the employee's condition has been resolved before going back to 
work. Determining the end of treatment should be left in the hands of a 
medical professional and OSHA should require some type of documentation 
to that effect'' (Ex. 15: 185).
    OSHA has not included any provisions in the final rule that require 
an employer to rely on a physician or other licensed health care 
professional or that tell a physician or other licensed health care 
professional how to treat an injured or ill worker, or when to begin or 
end such treatment. In the final rule OSHA does require the employer to 
follow any determination a physician or other licensed health care 
professional has made about the status of a new case. That is, if such 
a professional has determined that a case is a new case, the employer 
must record it as such. If the professional determines that the case is 
a recurrence, rather than a new case, the employer is not to record it 
a second time. In addition, the rule does not require the employee, or 
the employer, to obtain permission from the physician or other licensed 
health care professional before the employee can return to work. OSHA 
believes that the employer is capable of, and often in the best 
position to, make return-to-work decisions.
    Southern California Edison (Ex. 15: 111) expressed concern that 
imposing a day limit would not take differences

[[Page 5966]]

between types of injuries and illnesses into account, stating ``A 
recurrence of a previous work-related injury or illness should only be 
considered a new case when the injury or illness has completely healed. 
Severe muscle and nerve damage can take many weeks or months to 
properly heal.'' The final rule takes such differences into account, as 
follows. If the previous injury or illness has not healed (signs and 
symptoms have not resolved), then the case cannot be considered 
resolved. The employer may make this determination or may rely on the 
recommendation of a physician or other licensed health care 
professional when doing so. Clearly, if the injured or ill employee is 
still exhibiting signs or symptoms of the previous injury or illness, 
the malady has not healed, and a new case does not have to be recorded. 
Similarly, if work activities aggravate a previously recorded case, 
there is no need to consider recording it again (although there may be 
a need to update the case information if the aggravation causes a more 
severe outcome than the original case, such as days away from work).
    The Quaker Oats Company (Ex. 15: 289) suggested that employers 
should be permitted by the rule to decide whether a given case was a 
new case or not, without requirements in the rule:

    The 45 day interval on determining if a case is a new one or 
should be counted under a previous injury should be left to the 
discretion of the employer. They have the most intimate knowledge of 
the work environment, medical treatment of the affected employee and 
the status of their work-related injury or illness. I will agree 
that it is a difficult matter to decide and to assure consistency 
throughout industry * * * I believe that any number of days would 
simply be an arbitrary attempt at quantifying something that is best 
left to the medical judgment of a healthcare professional.

    Under the OSHA recordkeeping system, the employer is always the 
responsible party when it comes to making the determination of the 
recordability of a given case. However, if OSHA did not establish 
consistent new case determination criteria, a substantial amount of 
variability would be introduced into the system, which would undermine 
the Agency's goals of improving the accuracy and consistency of the 
Nation's occupational injury and illness data. Accordingly, OSHA has 
not adopted this suggested approach in the final rule.
    A number of commenters argued that the occurrence of a new event, 
exposure, or incident should be required to trigger the recording of a 
new case (see, e.g., Exs. 33, 15: 102, 171, 176, 231, 273, 301, 307, 
308, 405, 410, 413, 425). Representative of these comments was one from 
the Voluntary Protection Programs Participants' Association (VPPPA), 
which recommended that OSHA ``adopt a definition for new case that 
requires the occurrence of a new work-related event to trigger a new 
case. In the absence of this, the case would be considered recurring'' 
(Ex. 15: 425). OSHA agrees with the VPPPA that if no further event or 
exposure occurs in the workplace to aggravate a previous injury or 
illness, a new case need not be recorded. However, if events or 
exposures at work cause the same symptoms or signs to recur, the final 
rule requires employers to evaluate the injury or illness to see if it 
is a new case and is thus recordable.
    The OSHA statistical system is designed to measure the incidence, 
rather than prevalence, of occupational injury and illness. Incidence 
measures capture the number of new occupational injuries and illnesses 
occurring in a given year, while prevalence measures capture the number 
of such cases existing in a given year (prevalence measures thus 
capture cases without regard to the year in which they onset). 
Prevalence measures would therefore capture all injuries and illnesses 
that occurred in a given year as well as those unresolved injuries and 
illnesses that persist from previous years. The difference is 
illustrated by the following cases: (1) A worker experiences a cut that 
requires sutures and heals completely before the year ends; this injury 
would be captured both by an incidence or prevalence measure for that 
particular year. (2) Another worker retired last year but continues to 
receive medical treatment for a work-related respiratory illness that 
was first recognized two years ago. This case would be captured in the 
year of onset and each year thereafter until it resolves if a 
prevalence measure is used, but would be counted only once (in the year 
of onset) if an incidence measure is used.
    Because the OSHA system is intended to measure the incidence of 
occupational injury and illness, each individual injury or illness 
should be recorded only once in the system. However, an employee can 
experience the same type of injury or illness more than once. For 
example, if a worker cuts a finger on a machine in March, and is then 
unfortunate enough to cut the same finger again in October, this worker 
has clearly experienced two separate occupational injuries, each of 
which must be evaluated for its recordability. In other cases, this 
evaluation is not as simple. For example, a worker who performs 
forceful manual handling injures his or her back in 1998, resulting in 
days away from work, and the case is entered into the records. In 1999 
this worker has another episode of severe work-related back pain and 
must once again take time off for treatment and recuperation. The 
question is whether or not the new symptoms, back pain, are continuing 
symptoms of the old injury, or whether they represent a new injury that 
should be evaluated for its recordability as a new case. The answer in 
this case lies in an analysis of whether or not the injured or ill 
worker has recovered fully between episodes, and whether or not the 
back pain is the result of a second event or exposure in the workplace, 
e.g., continued manual handling. If the worker has not fully recovered 
and no new event or exposure has occurred in the workplace, the case is 
considered a continuation of the previous injury or illness and is not 
recordable.
    One reason for the confusion that is apparent in some of the 
comments on the proposal's approach to the recording of recurrences may 
be the custom that developed over the years of referring to recordable 
recurrences of work-related injuries and illnesses as ``new cases.'' 
See for example, 61 FR 4037/1 (``employers may be dealing with a re-
injury or recurrence of a previous case and must decide whether the 
recurrence is a ``new case'' or a continuation of the original case.'') 
The term ``new case'' tends to suggest to some that the case is totally 
original, when in fact new cases for OSHA recordkeeping purposes 
include three categories of cases; (1) totally new cases where the 
employee has never suffered similar signs or symptoms while in the 
employ of that employer, (2) cases where the employee has a preexisting 
condition that is significantly aggravated by activities at work and 
the significant aggravation reaches the level requiring recordation, 
and (3) previously recorded conditions that have healed (all symptoms 
and signs have resolved) and then have subsequently been triggered by 
events or exposures at work.
    Under the former rule and the final rule, both new injuries and 
recurrences must be evaluated for their work-relatedness and then for 
whether they meet one or more of the recording criteria; when these 
criteria are met, the case must be recorded. If the case is a 
continuation of a previously recorded case but does not meet the ``new 
case'' criteria, the employer may have to update the OSHA 300 Log entry 
if the original case continues to progress, i.e., if the status of the 
case worsens. For example, consider a case where an

[[Page 5967]]

employee has injured his or her back lifting a heavy object, the injury 
resulted in medical treatment, and the case was recorded as a case 
without restricted work or days away. If the injury does not heal and 
the employer subsequently decides to assign the worker to restricted 
work activity, the employer is required by the final rule to change the 
case classification and to track the number of days of restricted work. 
If the case is a previous work-related injury that did not meet the 
recording criteria and thus was not recorded, future developments in 
the case may require it to be recorded. For example, an employee may 
suffer an ankle sprain tripping on a step. The employee is sent to a 
health care professional, who does not recommend medical treatment or 
restrictions, so the case is not recorded at that time. If the injury 
does not heal, however, and a subsequent visit to a physician results 
in medical treatment, the case must then be recorded.
    OSHA and employers and employees need data on recurring cases 
because recurrence is an important indicator of severity over the long 
term. Just as the number of days away is a useful indicator of health 
and safety risk at a particular establishment, so is the total number 
of injury and illness events and of exposures resulting in health 
consequences that occur in an establishment or industry. Further, any 
realistic assessment of occupational safety and health conditions 
should reflect the fact that some but not all injuries and illnesses 
have long-term consequences. In other words, a safety and health 
analysis should give less weight to an injury or illness that has a 
clear and relatively quick recovery without impairment of any kind and 
an injury or illness that is chronic in nature or one that involves 
recurring episodes that are retriggered by workplace events or 
exposures.
    Ignoring the fact that an occupational injury or illness is a 
recurrence occasioned by an event or exposure in the workplace would 
result in an underestimate of the true extent of occupational injury 
and illness and deprive employers, employees, and safety and health 
professionals of essential information of use in illness prevention. 
The other extreme, requiring employers to record on-going signs or 
symptoms repeatedly, even in the absence of an event or exposure in the 
workplace, would result in overstating the extent of illness. In terms 
of the recordkeeping system, deciding how most appropriately to handle 
new cases requires a balanced approach that minimizes both 
overrecording and underrecording. OSHA has dealt with this problem in 
the final rule by carefully defining the circumstances under which a 
chronic and previously recorded injury or illness must be considered 
closed and defining the circumstances under which a recurrence is to be 
considered a new case and then evaluated to determine whether it meets 
one or more of the recordability criteria.
    OSHA's proposal to apply a single criterion to the determination of 
the recordability of all recurrences of previously recorded injuries 
and illnesses received support from several commenters (see, e.g., Exs. 
15: 31, 61, 70, 154, 203, 396). The final rule uses one set of criteria 
for determining whether any injury or illness, including a 
musculoskeletal disorder, is to be treated as a new case or as the 
continuation of an ``old'' injury or illness. First, if the employee 
has never had a recorded injury or illness of the same type and 
affecting the same part of the body, the case is automatically 
considered a new case and must be evaluated for recordability. This 
provision will handle the vast majority of injury and illness cases, 
which are new cases rather than recurrences or case continuations. 
Second, if the employee has previously had a recorded injury or illness 
of the same type and affecting the same body part, but the employee has 
completely recovered from the previous injury or illness, and a new 
workplace event or exposure causes the injury or illness (or its signs 
or symptoms) to reappear, the case is a recurrence that the employer 
must evaluate for recordability.
    The implementation section of Sec. 1904.6 describes these 
requirements and includes explanations applying to two special 
circumstances. In the first case, paragraph 1904.6(b)(1) the employee 
has experienced a chronic injury or illness of a type that will 
progress regardless of further workplace exposure. Cases to which this 
provision applies are serious, chronic illness conditions such as 
occupational cancer, asbestosis, silicosis, chronic beryllium disease, 
etc. These occupational conditions generally continue to progress even 
though the worker is removed from further exposure. These conditions 
may change over time and be associated with recurrences of symptoms, or 
remissions, but the signs (e.g., positive chest roentgenogram, positive 
blood test) generally continue to be present throughout the course of 
the disease.
    The second kind of case, addressed in paragraph 1904.6(b)(b)(2), 
requires employers to record chronic illness cases that recur as a 
result of exposures in the workplace. These conditions might include 
episodes of occupational asthma, reactive airways dysfunction syndrome 
(RADS), or contact allergic dermatitis, for example.
    Paragraph 1904.6(b)(3) recognizes the role of physicians and other 
licensed health care professionals that the employer may choose to rely 
on when tracking a ``new case'' or making a continuation of an old case 
determination. If a physician or other licensed health care 
professional determines that an injury or illness has been resolved, 
the employer must consider the case to be resolved and record as a new 
case any episode that causes the signs and symptoms to recur as a 
result of exposure in the workplace. On the other hand, if the HCP 
consulted by the employer determines that the case is a chronic illness 
of the type addressed by paragraph 1904.6(b)(1), the employer would not 
record the case again. In either case, the employer would evaluate it 
for work-relatedness and then determine whether the original entry 
requires updating or the case meets the recording criteria. Paragraph 
(b)(3) also recognizes that the employer may ask for input from more 
than one HCP, or the employer and employee may each do so, and in such 
cases, the rule requires the employer to rely on the one judged by the 
employer to be most authoritative.
Adding a Recurrence Column to the OSHA 300 Log
    In the proposal, OSHA asked commenters whether the Log should 
include a column with a check-box that could be marked if a case was a 
recurrence of a pre-existing condition (61 FR 4037). Some commenters 
supported the proposed approach (see, e.g., Exs. 15: 27, 39, 61, 65, 
89, 154, 186, 214, 235, 277, 299, 305, 332, 336). For example, the 
National Association of Manufacturers (NAM) suggested that, in lieu of 
adopting a 45-day time limit, OSHA should add a column to the Log: ``If 
the Agency believes there is a need to track the number of recurring 
cases, we believe the better approach would be to add a column to the 
log which would permit the original entry for each injury or illness to 
be updated in the event of a recurrence'' (Ex. 15: 305). The American 
Association of Homes and Services for the Aging (AAHSA) agreed:

    [t]here should be a column on the injury and illness log for 
employers to check for reoccurring injuries. This addition would 
help the employer to identify possible patterns or problems 
associated with a specific job and find solutions. Recommendation: 
Add a column to the injury and illness log allowing the employer

[[Page 5968]]

to check when an employee is having a repetitive injury or illness 
(Ex. 15: 214).

    Other commenters did not support the proposal's approach to 
tracking recurrences (see, e.g., Exs. 15: 70, 78, 136, 137, 141, 151, 
152, 179, 180, 194, 224, 266, 278). The comments of Kathy Lehrman, RN, 
Occupational Health Nurse (Ex. 15: 136) are representative of these 
comments:

    The addition of a column to record recurrent conditions would 
not reduce the stigma and would lead to increased health care 
provider visits to avoid having an ongoing case labeled as a new 
case. * * * I do not see the value of including a new category of 
case designation. This runs counter to the simplification objective.

    After a review of the comments on this issue, OSHA has decided not 
to include such a check-box on the Log. The final rule adds several 
columns to the OSHA 300 form to collect data on the number of 
restricted workdays and on various types of occupational injuries and 
illnesses. The addition of these columns, and the decision to provide 
more space on the Log to add information on the case, has used up the 
available space on the form. Requiring employers to record recurrences 
would also be burdensome and make the rule more complex. Further, OSHA 
did not propose such a requirement, and this issue raises questions not 
adequately aired in the record. For example, if an employee has 
recurring episodes of low back pain, should the employer be required to 
record each day the employee experiences such pain as a recurring 
injury? OSHA is also unsure how recurrence data should be captured and 
used in the Nation's injury and illness statistics. For example, would 
a separate data set on recurrences, similar to data on injuries and 
illnesses, be produced by the BLS?
    OSHA has therefore decided that it is not appropriate to add a 
column to the Log to capture data on recurring injuries and illnesses. 
However, OSHA recognizes that data on injury and illness recurrence may 
be useful to employers and employees at individual worksites and 
encourages employers who wish to collect this additional information to 
do so; however, the final rule does not require employers to provide 
recurrence data on the Log.

Section 1904.7 General Recording Criteria

    Section 1904.7 contains the general recording criteria for 
recording work-related injuries and illnesses. This section describes 
the recording of cases that meet one or more of the following six 
criteria: death, days away from work, restricted work or transfer to 
another job, medical treatment beyond first aid, loss of consciousness, 
or diagnosis as a significant injury or illness by a physician or other 
licensed health care professional.
Paragraph 1904.7(a)
    Paragraph 1904.7(a) describes the basic requirement for recording 
an injury or illness in the OSHA recordkeeping system. It states that 
employers must record any work-related injury or illness that meets one 
or more of the final rule's general recording criteria. There are six 
such criteria: death, days away from work, days on restricted work or 
on job transfer, medical treatment beyond first aid, loss of 
consciousness, or diagnosis by a physician or other licensed heath care 
professional as a significant injury or illness. Although most cases 
are recorded because they meet one of these criteria, some cases may 
meet more than one criterion as the case continues. For example, an 
injured worker may initially be sent home to recuperate (making the 
case recordable as a ``days away'' case) and then subsequently return 
to work on a restricted (``light duty'') basis (meeting a second 
criterion, that for restricted work). (see the discussion in Section 
1904.29 for information on how to record such cases.)
Paragraph 1904.7(b)
    Paragraph 1904.7(b) tells employers how to record cases meeting 
each of the six general recording criteria and states how each case is 
to be entered on the OSHA 300 Log. Paragraph 1904.7(b)(1) provides a 
simple decision table listing the six general recording criteria and 
the paragraph number of each in the final rule. It is included to aid 
employers and recordkeepers in recording these cases.
1904.7(b)(2) Death
    Paragraph 1904.7(b)(2) requires the employer to record an injury or 
illness that results in death by entering a check mark on the OSHA 300 
Log in the space for fatal cases. This paragraph also directs employers 
to report work-related fatalities to OSHA within 8 hours and cross 
references the fatality and catastrophe reporting requirements in 
Sec. 1904.39 of the final rule, Reporting fatalities and multiple 
hospitalizations to OSHA.
    Paragraph 1904.7(b)(2) implements the OSH Act's requirements to 
record all cases resulting in work-related deaths. There were no 
comments opposing the recording of cases resulting in death. However, 
there were several comments questioning the determination of work-
relatedness for certain fatality cases and the appropriateness of 
reporting certain kinds of fatalities to OSHA. These comments are 
addressed in the sections of this preamble devoted to work-relationship 
and fatality reporting (sections 1904.5 and 1904.39, respectively).
Paragraph 1904.7(b)(3) Days Away From Work
    Paragraph 1904.7(b)(3) contains the requirements for recording 
work-related injuries and illnesses that result in days away from work 
and for counting the total number of days away associated with a given 
case. Paragraph 1904.7(b)(3) requires the employer to record an injury 
or illness that involves one or more days away from work by placing a 
check mark on the OSHA 300 Log in the space reserved for day(s) away 
cases and entering the number of calendar days away from work in the 
column reserved for that purpose. This paragraph also states that, if 
the employee is away from work for an extended time, the employer must 
update the day count when the actual number of days away becomes known. 
This requirement continues the day counting requirements of the former 
rule and revises the days away requirements in response to comments in 
the record.
    Paragraphs 1904.7(b)(3)(i) through (vi) implement the basic 
requirements. Paragraph 1904.7(b)(3)(i) states that the employer is not 
to count the day of the injury or illness as a day away, but is to 
begin counting days away on the following day. Thus, even though an 
injury or illness may result in some loss of time on the day of the 
injurious event or exposure because, for example, the employee seeks 
treatment or is sent home, the case is not considered a days-away-from-
work case unless the employee does not work on at least one subsequent 
day because of the injury or illness. The employer is to begin counting 
days away on the day following the injury or onset of illness. This 
policy is a continuation of OSHA's practice under the former rule, 
which also excluded the day of injury or onset of illness from the day 
counts.
    Paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to 
record days-away cases when a physician or other licensed health care 
professional (HCP) recommends that the injured or ill worker stay at 
home or that he or she return to work but the employee chooses not to 
do so. As these paragraphs make clear, OSHA requires employers to 
follow the physician's or HCP's recommendation when recording the case. 
Further, whether the employee works or not is in the control of the

[[Page 5969]]

employer, not the employee. That is, if an HCP recommends that the 
employee remain away from work for one or more days, the employer is 
required to record the injury or illness as a case involving days away 
from work and to keep track of the days; the employee's wishes in this 
case are not relevant, since it is the employer who controls the 
conditions of work. Similarly, if the HCP tells the employee that he or 
she can return to work, the employer is required by the rule to stop 
counting the days away from work, even if the employee chooses not to 
return to work. These policies are a continuation of OSHA's previous 
policy of requiring employees to follow the recommendations of health 
care professionals when recording cases in the OSHA system. OSHA is 
aware that there may be situations where the employer obtains an 
opinion from a physician or other health care professional and a 
subsequent HCP's opinion differs from the first. (The subsequent 
opinion could be that of an HCP retained by the employer or the 
employee.) In this case, the employer is the ultimate recordkeeping 
decision-maker and must resolve the differences in opinion; he or she 
may turn to a third HCP for this purpose, or may make the recordability 
decision himself or herself.
    Paragraph 1904.7(b)(3)(iv) specifies how the employer is to account 
for weekends, holidays, and other days during which the employee was 
unable to work because of a work-related injury or illness during a 
period in which the employee was not scheduled to work. The rule 
requires the employer to count the number of calendar days the employee 
was unable to work because of the work-related injury or illness, 
regardless of whether or not the employee would have been scheduled to 
work on those calendar days. This provision will ensure that a measure 
of the length of disability is available, regardless of the employee's 
work schedule. This requirement is a change from the former policy, 
which focused on scheduled workdays missed due to injury or illness and 
excluded from the days away count any normal days off, holidays, and 
other days the employee would not have worked.
    Paragraph 1904.7(b)(3)(v) tells the employer how to count days away 
for a case where the employee is injured or becomes ill on the last day 
of work before some scheduled time off, such as on the Friday before 
the weekend or the day before a scheduled vacation, and returns to work 
on the next day that he or she was scheduled to work. In this 
situation, the employer must decide if the worker would have been able 
to work on the days when he or she was not at work. In other words, the 
employer is not required to count as days away any of the days on which 
the employee would have been able to work but did not because the 
facility was closed, the employee was not scheduled to work, or for 
other reasons unrelated to the injury or illness. However, if the 
employer determines that the employee's injury or illness would have 
kept the employee from being able to work for part or all of time the 
employee was away, those days must be counted toward the days away 
total.
    Paragraph 1904.7(b)(3)(vi) allows the employer to stop counting the 
days away from work when the injury or illness has resulted in 180 
calendar days away from work. When the injury or illness results in an 
absence of more than 180 days, the employer may enter 180 (or 180+) on 
the Log. This is a new provision of the final rule; it is included 
because OSHA believes that the ``180'' notation indicates a case of 
exceptional severity and that counting days away beyond that point 
would provide little if any additional information.
    Paragraph 1904.7(b)(3)(vii) specifies that employers whose 
employees are away from work because of a work-related injury or 
illness and who then decide to leave the company's employ or to retire 
must determine whether the employee is leaving or retiring because of 
the injury or illness and record the case accordingly. If the 
employee's decision to leave or retire is a result of the injury or 
illness, this paragraph requires the employer to estimate and record 
the number of calendar days away or on restricted work/job transfer the 
worker would have experienced if he or she had remained on the 
employer's payroll. This provision also states that, if the employee's 
decision was unrelated to the injury or illness, the employer is not 
required to continue to count and record days away or on restricted 
work/job transfer.
    Paragraph 1904.(b)(3)(viii) directs employers how to handle a case 
that carries over from one year to the next. Some cases occur in one 
calendar year and then result in days away from work in the next year. 
For example, a worker may be injured on December 20th and be away from 
work until January 10th. The final rule directs the employer only to 
record this type of case once, in the year that it occurred. If the 
employee is still away from work when the annual summary is prepared 
(before February 1), the employer must either count the number of days 
the employee was away or estimate the total days away that are expected 
to occur, use this estimate to calculate the total days away during the 
year for the annual summary, and then update the Log entry later when 
the actual number of days is known or the case reaches the 180-day cap 
allowed in Sec. 1904.7(b)(3)(v).
Comments on the Recording of Days Away From Work
    OSHA received a large number of comments on how days away should be 
counted. The issues addressed by commenters included (1) whether to 
count scheduled workdays or calendar days, (2) whether the day counts 
should be ``capped,'' and, if so, at what level, (3) how to count days 
away or restricted when employees are terminated or become permanently 
disabled, and (4) how to handle cases that continue to have days away/
restricted from one year to the next.
    Scheduled or calendar work days. OSHA proposed to count scheduled 
workdays, consistent with its long-standing policy of excluding normal 
days off such as weekends, holidays, days the facility is closed, and 
prescheduled vacation days (61 FR 4033). The proposal asked the public 
for input on which counting method--calendar days or scheduled work 
days--would be better, stating that ``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'' (61 FR 4033). The proposal also discussed 
the potential benefits and pitfalls of counting calendar days:

    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

[[Page 5970]]

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? (61 FR 4034)

    OSHA received a large number of comments on the calendar day/
scheduled day issue. Many commenters suggested that OSHA track days 
away from work using its former method of counting scheduled workdays 
(see, e.g., Exs. 21; 30; 37; 15: 10, 16, 30, 42, 44, 48, 61, 66, 69, 
78, 79, 89, 100, 107, 108, 119, 121, 122, 127, 130, 133, 146, 151, 152, 
154, 159, 163, 170, 172, 179, 180, 200, 203, 204, 213, 214, 219, 226, 
246, 260, 262, 265, 281, 287, 297, 299, 300, 304, 305, 307, 308, 341, 
346, 356, 363, 364, 368, 373, 378, 384, 385, 387, 389, 390, 397, 401, 
404, 410, 413, 414, 424, 426, 427, 431, 440, 443). Many commenters also 
suggested that OSHA use calendar days instead of scheduled workdays to 
track days away from work (see, e.g., Exs. 19; 44; 15: 26, 27, 31, 34, 
44, 71, 75, 82, 105, 111, 119, 127, 136, 137, 138, 141, 153, 181, 182, 
188, 198, 205, 218, 224, 233, 242, 263, 266, 269, 270, 271, 278, 310, 
316, 326, 337, 345, 347, 350, 359, 369, 377, 391, 396, 405, 407, 409, 
415, 418, 423, 425, 428, 429, 434, 438). The arguments of each group 
fall loosely into two categories: which counting method provides the 
most meaningful data and which method is least burdensome.
    Arguing against counting calendar days, a number of commenters 
stated that calendar days would overstate lost workdays and 
artificially inflate or distort severity rates (see, e.g., Exs. 15: 10, 
16, 42, 44, 69, 108, 119, 127, 130, 133, 146, 159, 163, 170, 195, 203, 
213, 219, 281, 287, 297, 300, 304, 305, 307, 341, 356, 364, 373, 385, 
389, 390, 397, 404, 410, 414, 424, 426, 431, 440, 443). Some commenters 
also argued that the information would be ``false and misleading'' 
(see, e.g., Exs. 15: 287, 443), ``would not indicate true severity'' 
(Ex. 15: 108), or would make it difficult to compare data from the old 
rule with data kept under the new rules (see, e.g., Exs. 37; 15: 44, 
61, 130, 146, 226, 281, 297, 299, 300, 304, 341, 378, 384, 385, 397, 
404, 426, 440). Typical of these views was the one expressed by the 
American Trucking Associations (Ex. 15: 397), which stated that:

    This provision serves no useful purpose. Its proponents 
exaggerate the difficulty in computing days away from work under the 
current regulation. Instead, it will only serve the purpose of 
artificially increasing incidence and severity rates which would 
falsely designate a given worksite as unsafe or delineate it as a 
high hazard workplace. This false delineation of high hazardousness 
would also result in the workplace being unfairly targeted by OSHA 
for enforcement activities. In addition, this change would make it 
difficult, if not impossible, for employers to compare previous lost 
work day incidence rates with current rates. Such trend data is 
invaluable to employers in tracking progress made in eliminating 
workplace injuries and illnesses.

    Other commenters, however, argued that calendar days would be a 
better statistical measure (see, e.g., Exs. 15: 71, 75, 347, 425, 434, 
438). For example, the American Waterways Shipyard Conference (Ex. 15: 
75) stated:

    AWSC would also urge that ``days away from work'' be counted by 
calendar days rather than work days. This would ease the burden on 
establishments in their recordkeeping and would also make the data 
more useful. For example, an employee injured on Friday who does not 
return to work until Tuesday is currently counted as one-day off the 
job. If ``days away from work'' are calculated by calendar days, 
then this same injury would be counted as three days. The three day 
injury ruling is a more accurate indicator of the seriousness of the 
injury.

    The United Auto Workers (UAW) argued that: ``Calendar days are a 
much better measure of severity or disability than actual days which 
are adjusted for work schedule, vacations, layoffs and other extraneous 
disruptions. Frankly, counting actual days is a waste of effort, 
subject to manipulation and serves no public health purpose. It is 
relic and should be eliminated. The only reason some employers might 
wish to retain this measure is because they can generate a lower 
number'' (Ex. 15: 438).
    Other commenters were concerned that the change to counting 
calendar days would have an unfair effect on firms that rely more 
heavily on part-time workers, use alternative schedules, and/or use 
planned plant shutdowns (see, e.g., Exs. 15: 42, 96, 121, 159, 163, 
213, 219, 200, 262, 281, 299). For example, Dayton Hudson Corporation 
(Ex. 15: 121) stated that:

    DHC questions the concept of counting calendar days versus the 
proposed scheduled work days in documenting days away from work. 
Both methods have their value and also potential problems. The 
calendar method would make it much easier for a company to record 
the severity of an accident. However, this method would have a 
significant effect on an industry such as retailing, since the 
majority of our work force is part-time. If OSHA decides to go with 
the calendar method, there needs to be clearly defined examples 
referenced in the standard dealing with part-time workers.

    Northrop Grumman Corporation (Ex. 15: 42) asserted that: 
``[c]ounting calendar days for days away from work would have an 
adverse impact on those companies, such as aerospace companies, which 
routinely have shut downs for one or more weeks at a time. Employees 
injured on the day prior to shut down would have to be recorded as 
being injured, off work, for the entire time of the shut down.'' The 
Texas Chemical Council (Ex. 15: 159) expressed concern about the impact 
the change to calendar days might have on day counts involving 
alternative schedules:

    We believe the value of the reduced burden is not worth the 
skewed data that may result. OSHA's proposal may yield accurate data 
and better reflect severity when applied to work schedules following 
an 8 hour day, Monday through Friday. However, many industries 
utilize a 12 hour shift that provides periods of time off longer 
than the normal two day weekends. The proposed method of counting 
days could, for example, turn an injury requiring two days 
recuperation time into a case requiring four or more days to be 
counted. This would skew severity analysis utilizing days off data.

    However, the Eli Lilly Company (Ex. 15: 434) argued that calendar 
days would help equalize day counts: ``[a] calendar day count would 
ensure employer consistency and comparability even when employers have 
unique and variable shift works.''
    Other commenters argued that scheduled workdays are a better 
measurement because they measure economic impact and lost productivity 
(see, e.g., Exs. 15: 154, 172, 203, 204, 226, 262, 304, 341, 356, 364, 
367, 397). The Fertilizer Institute (Ex. 15: 154) argued that: 
``Although such a change might simplify the counting of days, it will 
make comparisons difficult for companies, trade and professional 
associations, and government agencies that are trying to measure the 
severity of injuries and illnesses in terms of productivity. In 
addition to the health and safety of its employees, industry is 
primarily concerned with the cost of work-related injuries and 
illnesses, as they relate to lost productivity. Thus, the basis of the 
lost work day, not the lost calendar day, is the most appropriate 
measurement to use.'' The Society of the Plastics Industry, Inc. (Ex. 
15: 364) urged OSHA to retain the scheduled days system because of its 
usefulness in measuring the economic impact of job-related accidents 
and the incentive such information provides for prevention efforts.
    In addition to arguments about the preferred way of counting days 
away, commenters discussed the issues of

[[Page 5971]]

simplification and the burden of counting days away from work with both 
methods. A number of commenters supported using calendar days because 
doing so would simplify the process and reduce burden (see, e.g., Exs. 
15: 71, 75, 82, 136, 137, 141, 224, 242, 263, 266, 269, 270, 278, 347, 
377, 415, 418, 423, 434). Two commenters made the point that using 
calendar days would make it easier to use computer software to 
calculate days away from work (Exs. 15: 347, 423). Representative of 
the comments supporting the use of calendar days to reduce the 
recording burden was the view of the Ford Motor Company (Ex. 15: 347):

    The single most significant change that could be made to 
simplify and reduce the burden of the current recordkeeping system 
would be a change to a calendar count for days away from work. This 
would eliminate the need to keep track of and subtract out any 
scheduled days off from the time of the employee's first day away 
until the time the employee was able to return to work. Of 
additional importance, a calendar count approach would provide a 
more accurate reflection of the severity of injuries and illnesses.
    Currently, tracking days away from work is a particular problem 
in that many individuals no longer work a traditional eight hours a 
day, Monday through Friday. Some individuals work four days a week, 
ten hours a day, others work every Saturday and/or Sunday, and some 
individuals have their scheduled days off during the week. Different 
employees in the same establishment commonly have different work 
schedules. Different departments are commonly on ``down time'' while 
the rest of the establishment may be in full operation. A calendar 
count will simplify the calculation of days away from work for 
alternative work schedules.
    In comparison to the current system, a calendar count will 
provide meaningful, consistent, and useful data, as well as provide 
an accurate reflection of severity. The calendar day count will also 
enhance the ability to develop software to standardize the 
recordkeeping process.
    In addition, the change to a calendar day count would enable 
Ford Motor Company to free up highly trained personnel for more 
productive and effective pursuits rather than tracking lost workdays 
under the current system. The cost of these resources to track lost 
workdays cases exceeds one million dollars per year.

    Even some of the commenters who argued against OSHA's adoption of a 
calendar day approach in the final rule acknowledged that counting 
calendar days would be simpler but emphasized that this added 
simplicity and reduction in burden would not offset the deleterious 
effect of this change on the data (see, e.g., Exs. 15: 44, 61, 69, 121, 
154, 159, 170, 195). The Institute for Interconnecting and Packaging 
Electronic Circuits (IPC) said that: ``According to IPC member 
companies, the potential simplification gains that may be achieved by 
this proposal would not outweigh the gross overreporting and, 
therefore, inaccurate data that would result'' (Ex. 15: 69).
    Other commenters arguing against calendar days stated that counting 
scheduled workdays is not difficult or onerous (see, e.g., Exs. 15: 
107, 146, 387), that counting calendar days would not simplify the 
counting of lost workdays (see, e.g., Exs. 15: 16, 119, 146, 281, 299, 
304, 308, 341, 364, 367, 424), that counting calendar days would add to 
the administrative burden (see, e.g., Exs. 15: 42, 146, 304, 308, 341, 
364, 367, 431), that counting calendar days would add confusion (see, 
e.g., Exs. 15: 204, 431), or that employers already report scheduled 
workdays to workers' compensation and thus this information is already 
available (see, e.g., Exs. 15: 367, 384). Commenters also cited the 
need to change computer software systems if a shift to calendar days 
was made (Ex. 15: 122) and argued that retaining scheduled workdays 
would require less training than moving to calendar days (see, e.g., 
Exs. 15: 37, 122, 133, 304, 384). The BF Goodrich Company (Ex. 15: 146) 
summed up these views:

    BF Goodrich's business systems are set up to count and track 
work days and work hours. We do not agree with the suggestion of 
counting calendar days rather than actual work days for Days Away 
From Work cases. Counting calendar days would improperly inflate the 
severity incidence rates which are calculated based on actual hours 
worked and defeat any efforts to perform trend analysis against 
previous years. Use of calendar days would also require unnecessary 
analysis of work capability for days that would not be worked 
anyway. There would be no reduction in burden in a calendar day 
system and there would be loss of severity trend analysis 
capability.

    A number of commenters pointed to the difficulty of analyzing days 
away for injuries that occur just before scheduled time off, such as 
before the weekend (see, e.g., Exs. 15: 16, 42, 44, 69, 79, 130, 179, 
226, 281, 299, 341, 363, 389, 414, 424). The Institute for 
Interconnecting and Packaging Electronic Circuits (IPC) described the 
following scenario:

    [i]f a worker is injured on Friday, is sent home, and returns to 
work on Monday, the alternative [calendar day] proposal would 
require employers to count weekend days in the lost workday count. 
IPC believes that this alternative proposal would not accurately 
reflect the severity of the injury since, if the same injury had 
occurred on a Monday, the worker might have been able to return to 
work on Tuesday. (Ex. 15: 69)

    United Parcel Service (UPS) was concerned about the accuracy of 
employee reporting of injuries and illnesses under the calendar day 
system:

    [t]he cessation of the effects of an employee's injury or 
illness cannot reliably be determined in the case of a worker who 
``heals'' on the weekend. Thus, the number of days away from work 
and their impact on the perception of serious incidents will be 
substantially inflated. Indeed, it has been UPS's experience that a 
disproportionate number of injuries are reported on Friday and 
Monday; inclusion of claimed weekend injury, therefore, would 
greatly inflate OSHA statistics with factors that honest observers 
know to be linked, to some degree, with the universal attraction of 
an extended weekend. The risk, moreover, is not merely inflated 
numbers, but inflation of the apparent severity of those conditions 
that are difficult to verify and that are therefore the most likely 
resort of employees who would misreport a condition for time off 
(Ex. 15: 424).

    Another issue noted by commenters was the difficulty of getting 
medical attention over the weekend. For example, the American Ambulance 
Association (Ex. 15: 226) cautioned that ``The common practice of a 
health care provider is to defer an employee's return to work until 
after a weekend or holiday, due to limited staff resources for 
evaluating employee status on those days,'' and the Sandoz Corporation 
(Ex. 15: 299) noted that ``This change [to calendar days] would lead to 
overstatement of the severity in cases of part-time employees due to 
the difficulty of getting return-to-work clearance from medical 
personnel.''
    Two commenters (Exs. 15: 69, 15: 363) objected to counting calendar 
days based on a belief that counting these days would raise their 
workers' compensation insurance rates. For example, the Institute for 
Interconnecting and Packaging Electronic Circuits (IPC) stated that 
``Lost time is a major factor in insurance premiums for facilities. As 
a result, a definition that would over-estimate lost time would 
significantly raise facility insurance costs'' (Ex. 15: 69).
    Patrick R. Tyson, a partner in the law firm of Constangy, Brooks & 
Smith, LLC (Ex. 55X, pp. 99-100), strongly favored moving to a 
calendar-day-count system, for the following reason:

    [w]hat we've seen in some audits is companies that attempt to 
try to control the number of days that would be counted as lost work 
days by controlling the number of days that otherwise would be 
worked.* * *
    We * * * encountered one company that announced proudly in its 
newsletter that one particular employee should be congratulated 
because when she had to have surgery for carpal tunnel syndrome, 
clearly work related * * * she chose to have that surgery during

[[Page 5972]]

her vacation so that the company's million man hours of work without 
a lost time accident would not be interrupted. That doesn't make any 
sense where we encourage those kinds of things * * * We ought to 
consider a calendar count if only to address those kinds of 
situations. I understand that would cause problems with respect to 
those companies who use lost work days as a measure of the economic 
impact of injuries and illnesses in the workplace, but I suspect 
that a better measure of that would be worker's compensation. If 
it's a lost work day, you're going to pay comp on it. * * *

    OSHA agrees with some of the points made by those in favor of, and 
those opposed to, changing over to calendar day counts. After a 
thorough review of the arguments for each alternative, however, OSHA 
has decided to require employers to count calendar days, both for the 
totals for days away from work and the count of restricted workdays. 
OSHA does not agree with those commenters who argued that the counting 
of calendar days away from work would be a significant burden. The 
Agency finds that counting calendar days is administratively simpler 
than counting scheduled days away and thus will provide employers who 
keep records some relief from the complexities of counting days away 
from work (and days of restricted work) under the old system. For the 
relatively simple injury or illness cases (which make up the great 
majority of recorded cases) that involve a one-time absence from work 
of several days, the calendar-day approach makes it much easier to 
compare the injury/illness date with the return-to-work date and 
compute the difference. This process is easier than determining each 
employee's normal schedule and adjusting for normal days away, 
scheduled vacations, and days the facility was not open. The calendar 
method also facilitates computerized day counts. OSHA recognizes that, 
for those injuries and illnesses that require two or more absences, 
with periods of work between, the advantages of the calendar day system 
are not as significant; OSHA notes, however, that injuries and 
illnesses following this pattern are not common.
    Changing to a calendar day counting system will also make it easier 
to count days away or restricted for part-time workers, because the 
difficulties of counting scheduled time off for part-time workers will 
be eliminated. This will, in turn, mean that the data for part-time 
workers will be comparable to that for full-time workers, i.e., days 
away will be comparable for both kinds of workers, because scheduled 
time will not bias the counting method. Calendar day counts will also 
be a better measure of severity, because they will be based on the 
length of disability instead of being dependent on the individual 
employee's work schedule. This policy will thus create more complete 
and consistent data and help to realize one of the major goals of this 
rulemaking: to improve the quality of the injury and illness data.
    OSHA recognizes that moving to calendar day counts will have two 
effects on the data. First, it will be difficult to compare injury and 
illness data gathered under the former rule with data collected under 
the new rule. This is true for day counts as well as the overall number 
and rate of occupational injuries and illnesses. Second, it will be 
more difficult for employers to estimate the economic impacts of lost 
time. Calendar day counts will have to be adjusted to accommodate for 
days away from work that the employee would not have worked even if he 
or she was not injured or ill. This does not mean that calendar day 
counts are not appropriate in these situations, but it does mean that 
their use is more complicated in such cases. Those employers who wish 
to continue to collect additional data, including scheduled workdays 
lost, may continue to do so. However, employers must count and record 
calendar days for the OSHA injury and illness Log.
    Thus, on balance, OSHA believes that any problems introduced by 
moving to a calendar-day system will be more than offset by the 
improvements in the data from one case to the next and from one 
employer to another, and by the resulting improvements in year-to-year 
analysis made possible by this change in the future, i.e., by the 
improved consistency and quality of the data.
    The more difficult problem raised by the shift to calendar days 
occurs in the case of the injury or illness that results on the day 
just before a weekend or some other prescheduled time off. Where the 
worker continues to be off work for the entire time because of the 
injury or illness, these days are clearly appropriately included in the 
day count. As previously discussed, if a physician or other licensed 
health care professional issues a medical release at some point when 
the employee is off work, the employer may stop counting days at that 
point in the prescheduled absence. Similarly, if the HCP tells the 
injured or ill worker not to work over the scheduled time off, the 
injury was severe enough to require days away and these must all be 
counted. In the event that the worker was injured or became ill on the 
last day before the weekend or other scheduled time off and returns on 
the scheduled return date, the employer must make a reasonable effort 
to determine whether or not the employee would have been able to work 
on any or all of those days, and must count the days and enter them on 
the Log based on that determination. In this situation, the employer 
need not count days on which the employee would have been able to work, 
but did not, because the facility was closed, or the employee was not 
scheduled to work, or for other reasons unrelated to the injury or 
illness.
    Accordingly, the final rule adopts the counting of calendar days 
because this approach provides a more accurate and consistent measure 
of disability duration resulting from occupational injury and illness 
and thus will generate more reliable data. This method will also be 
easier and less burdensome for employers who keep OSHA records and make 
it easier to use computer programs to keep track of the data.
Capping the Count of Lost Workdays
    OSHA proposed to limit, or cap, the total number of days away from 
work the employer would be required to record. This would have been a 
departure from OSHA's former guidance for counting both days away from 
work and restricted workdays. The former rule required the employer to 
maintain a count of lost workdays until the worker returned to work, 
was permanently reassigned to new duties, had permanent work 
restrictions, or was terminated (or retired) for reasons unrelated to 
the workplace injury or illness (Ex. 2, pp. 47-50).
    OSHA's proposed regulatory text stated that ``[f]or 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'' (61 FR 4058). In the preamble to the proposal, OSHA 
explained that day counts of more than 180 days would add negligible 
information for the purpose of injury and illness case analysis but 
would involve burden when updating the OSHA records. The proposed 
preamble also asked several questions: ``Should the days away from work 
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?'' (61 FR 4033)
    A large number of commenters supported a cap on day counts (see, 
e.g., Exs. 21; 27; 33; 51; 15: 26, 67, 72, 82, 85, 89, 95, 105, 108, 
111, 119, 120, 121, 127, 132, 133, 136, 137, 141, 146, 153, 159, 170, 
173, 176, 180, 182, 185, 188, 194, 195, 198, 199, 203, 205, 213, 224, 
231, 233, 239, 242, 260, 262, 263, 265, 266, 269, 270, 271, 273, 278, 
283, 287, 288, 289, 297, 298, 301, 304, 307, 310,

[[Page 5973]]

316, 317, 321, 332, 334, 335, 336, 341, 345, 346, 347, 348, 351, 368, 
373, 374, 375, 377, 378, 384, 385, 387, 389, 390, 392, 397, 401, 404, 
405, 434, 437, 440, 442). The most common argument was that capping the 
counts would reduce the burden on employers (see, e.g., Exs. 21; 33; 
15: 82, 95, 111, 146, 154, 159, 170, 176, 182, 188, 213, 231, 260, 262, 
265, 273, 288, 289, 297, 301, 304, 305, 310, 341, 345, 346, 373, 389, 
390, 401, 442) and simplify the OSHA recordkeeping system (see, e.g., 
Exs. 21; 15: 188, 297, 373). Several commenters argued that such a 
change would produce a ``significant'' reduction in burden and cost 
(see, e.g., Exs. 15: 154, 159, 203, 297). The Miller Brewing Company 
comment (Ex. 15: 442) was representative: ``We endorse this cap on the 
days away from work (DAFW) calculation. Once a case reaches 180 days, 
it is clearly recognized as a serious case. The requirement to 
calculate days away from work beyond 180 is a time consuming 
administrative exercise which provides no value-added information 
relative to the severity of a given case. Again, we support this rule 
change and OSHA's attempt to simplify the recordkeeping process.''
    Commenters also pointed out that limiting the day counts would make 
it easier to count days for cases that span two calendar years (see, 
e.g., Exs. 15: 153, 194, 195, 289). Other commenters stated that it was 
difficult to modify the former year's records (Ex. 15: 153) and that 
the day count cap would ease the burden of tracking cases that span two 
calendar years (Ex. 15: 289).
    Several commenters stated that the benefits of recording extended 
day counts were insignificant (see, e.g., Exs. 15: 111, 159, 176, 184, 
260, 262, 265, 288, 297, 373, 401, 430, 434, 442), that they added 
negligible information for case analysis or safety and health program 
evaluation (Ex. 15: 434), and that there was no ``value added 
information'' from high day counts (see, e.g., Exs. 15: 260, 262, 265, 
401, 442). Others stated that capping the day counts would provide 
``adequate data'' (see, e.g., Exs. 15: 111, 159, 304, 345) and that 
there would be no loss of significant data for analysis (see, e.g., 
Exs. 15: 170, 184, 297, 341, 373). The McDonnell Douglas Corporation 
(Ex. 15: 297) argued that a cap ``[w]ould allow industry to avoid the 
significant and costly paperwork burdens associated with tracking lost 
workdays, without any appreciable reduction in OSHA's ability to 
identify significant workplace injuries and illnesses or to assure 
continuing improvement in workplace safety and health.''
    Support for capping the count of days away from work was not 
unanimous, and several commenters opposed a day count cap (see, e.g., 
Exs. 15: 31, 62, 197, 204, 225, 277, 294, 302, 350, 359, 369, 379). The 
National Safety Council stated that ``[n]o cap on counting lost 
workdays is necessary provided that the count automatically ends with 
termination, retirement, or entry into long-term disability. Only a 
small proportion of cases have extended lost workday counts so there is 
little additional recordkeeping burden. The additional information 
gained about long-term lost workday cases is important and keeps 
employers aware of such cases'' (Ex. 15: 359). Other commenters 
stressed that it was important to obtain an accurate accounting of days 
away to assess the severity of the case (see, e.g., Exs. 15: 294, 379, 
429, 440), that the counts were needed to make these cases visible 
(see, e.g., Exs. 15: 294, 440), and that the counts demonstrate the 
impact of long term absences (Ex. 15: 62). For example, the Boeing 
Company (Ex. 15: 294) argued that

    If the count is suspended after 180 days (or any other arbitrary 
number), an employer will lose valuable information regarding the 
true amount of lost work days and their associated costs. The 
experience of The Boeing Company indicates that there are a small 
number of cases that have many more than 180 days. The result is a 
disproportionate amount of total costs. Not having visibility of 
these cases would be a mistake.

    The United Steelworkers of America (USWA) offered several reasons 
for not adopting a day count cap: ``The USWA also strongly opposes 
capping lost work day cases at 180. We believe that no cap is necessary 
or desirable. Only a very small proportion of cases have extended lost 
workdays recorded so there is little additional recordkeeping burden. 
The additional information gained about long-term lost workday cases is 
important in evaluating the severity of the injury and it keeps 
attention on such cases'' (Ex. 15: 429).
    The International Brotherhood of Teamsters (IBT) opposed the 
capping of day counts on the basis that the OSH Act requires 
``accurate'' records, stating that:

    The IBT opposes the elimination of counting the days of 
restricted work activity and opposes capping the count of ``days 
away from work'' at 180 days. The IBT uses the restricted work 
activity day count to gauge the severity of an injury or illness. We 
are supported by the OSH Act, section 24(a) ``the Secretary shall 
compile accurate statistics on work injuries and illnesses which 
shall include all disabling, serious, or significant injuries or 
illnesses. * * *. The International Brotherhood of Teamsters 
maintains that the recording of restricted work activity day counts 
and counting of days away from work enables OSHA to compile accurate 
data on serious and significant injuries. (Ex. 15: 369)

    After a review of the evidence submitted to the record, OSHA has 
decided to include in the final rule a provision that allows the 
employer to stop counting days away from work or restricted workdays 
when the case has reached 180 days. OSHA's primary reason for this 
decision is that very few cases involve more than 180 days away or days 
of restricted work, and that a cap of 180 days clearly indicates that 
such a case is very severe. Continuing to count days past the 180-day 
cap thus adds little additional information beyond that already 
indicated by the 180-day cap.
Selection of the Day Count Cap
    A large number of commenters specifically supported the 180 day cap 
proposed by OSHA (see, e.g., Exs. 51; 15: 26, 27, 67, 70, 89, 111, 121, 
127, 136, 137, 141, 153, 154, 159, 170, 176, 184, 224, 233, 242, 260, 
262, 263, 265, 266, 269, 270, 278, 283, 288, 298, 316, 335, 341, 368, 
377, 385, 401, 404, 423, 430, 437, 442). The Chemical Manufacturers 
Association (CMA) stated that ``CMA supports the use of a cap on the 
number of days away from work that must be counted. Once an employee 
misses more than 180 days from work * * * due a workplace injury or 
illness, the relative seriousness of the incident is determined and 
little benefit is derived from continuing to count the number of days 
for OSHA's recordkeeping system.'' The Fertilizer Institute (Ex. 15: 
154) supported 180 days because it ``is consistent with most corporate 
long-term disability plans.''
    Many commenters who supported a cap on counting days away 
recommended that OSHA adopt a number of days other than 180 (see, e.g., 
Exs. 21; 37; 15: 60, 71, 75, 82, 85, 105, 108, 119, 122, 132, 180, 182, 
185, 188, 194, 195, 198, 199, 203, 213, 239, 246, 271, 272, 287, 289, 
297, 303, 304, 305, 307, 308, 317, 336, 347, 348, 351, 375, 378, 384, 
385, 404, 405, 407, 409, 410, 414, 425, 431, 434). The most common 
argument against capping at 180 days was that a few very serious cases 
would skew the statistical data (see, e.g., Exs. 15: 75, 180, 246, 271, 
385, 409). Hoffman-La Roche, Inc. argued for 90 days on the grounds 
that ``90 days is more than sufficient to get a read on the severity of 
the injury/illness. This would enable employers to obtain meaningful 
data that is not skewed by one or two cases'' (Ex. 15: 271).

[[Page 5974]]

    Commenters suggested a number of alternatives, including 30 days 
(see, e.g., Ex. 15: 414); 60 days (see, e.g., Exs. 15: 60, 108, 119, 
194, 203, 246, 287, 405); 60 or 90 (Ex. 15: 407); 90 days (see, e.g., 
Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 289, 297, 303, 
317, 336, 347, 378, 409, 410, 425, 431); 50 to 100 days (see, e.g., 
Exs. 37; 15: 384); 90 to 120 days (Ex. 15: 71); 90 or 180 days (Ex. 15: 
434); 120 days (Ex. 15: 198); the equivalent of six months (see, e.g., 
Exs. 15: 82, 188, 199, 213, 304, 307, 308, 351, 375); one year (Ex. 15: 
122); and 60 days after the beginning of the new year (see, e.g., Ex. 
15: 195).
    The most common alternative recommended by commenters was 90 days 
(see, e.g., Exs. 21; 15: 75, 85, 105, 132, 182, 185, 239, 271, 272, 
289, 297, 303, 317, 336, 347, 378, 409, 410, 425, 431). These 
commenters argued that 90 days would reduce the burden without a loss 
of information (see, e.g., Exs. 15: 75, 85, 239, 297, 425), that 90 
days is sufficient to determine severity (see, e.g., Exs. 15: 85, 105, 
271 272, 289, 303, 410), that 90 days matches existing labor agreements 
(see, e.g., Exs. 15: 378), and that 90 days limits the problems caused 
by a case that extends over 2 years (see, e.g., Exs. 15: 407, 431).

    NIOSH (Ex. 15: 407) commented that:
    NIOSH agrees with OSHA that ``day counts greater than 180 days 
add negligible information while entailing significant burden on 
employers when updating OSHA records.'' Therefore, NIOSH agrees with 
the concept of capping the count of days away from work at a maximum 
of 180 days, and recommends that OSHA also consider caps of 60 or 90 
days away from work.
    Currently, the Annual Survey of Occupational Injuries and 
Illnesses reports distributional data for the number of days away 
from work and the median number of days away from work for 
demographic (age, sex, race, industry, and occupation) and injury/
illness (nature, part of body, source, and event) characteristics. 
The largest category of days away from work reported by the BLS for 
days away from work is ``31 days or more.'' In 1992, the Annual 
Survey reported median days away from work that ranged from 1 day to 
236 days [U.S. Department of Labor 1995]. For most demographic and 
injury/illness categories, capping the count of days away from work 
at 180 days will not alter the values for either the percent of 
injuries in the ``31 days or more'' category or median days away 
from work.
    OSHA may wish to consider capping the count of days away from 
work at either the 60 or the 90 day level. Employers could be 
instructed to enter a value of 61+(or 91+) to indicate that the 
recorded injury or illness condition existed beyond the cap on the 
count of days away from were based on the 1992 Annual Survey data, 
no reported industry and only one reported occupation had a median 
of greater than 60 days (dental hygienist, median = 71). There was 
also a very small number of injury/illness characteristics with 
medians between 60 and 90 days or with medians exceeding 90 days. 
Eleven of the 13 instances in which the median exceeded 60 days away 
from work were based on distributions involving a small number of 
estimated cases i.e., only 100 to 400 nationally. Capping the count 
of days away from work at either 60 or 90 days would still allow the 
reporting of the proportion of cases involving days away from work 
in the ``31 days or more category'' that is currently being reported 
by the BLS. A minor limitation of capping the count of days away 
from work at 60 or 90 days is that for a very small number of 
characteristics, the median would have to be reported as exceeding 
the cap.

    Two commenters suggested that OSHA use months instead of days as 
the measurement (Exs. 15: 304, 404), and a number of commenters pointed 
out that OSHA's proposed 180 days should be 125 if based on 6 months of 
actual workdays instead of calendar days (see, e.g., Exs. 15: 199, 213, 
307, 308, 348).
    After careful consideration, OSHA has decided to cap the day counts 
at 180 days and to express the count as days rather than months. The 
calendar month is simply too large and unwieldy a unit of measurement 
for this purpose. The calendar-day method is the simplest method and 
will thus produce the most consistent data.
    OSHA has decided to cap the counts at 180 days to eliminate any 
effect such capping might have on the median days away from work data 
reported by BLS. This cap will continue to highlight cases with long 
periods of disability, and will also reduce the burden on employers of 
counting days in excess of 180. Using a shorter threshold, such as 90 
or even 120 days, could impact the injury and illness statistics 
published by the BLS, and could thus undermine the primary purpose of 
this regulation: to improve the quality and utility of the injury and 
illness data. Using a shorter time frame would also make it harder to 
readily identify injuries and illnesses involving very long term 
absences. The rule also does not require the employer to use the 
designation of 180+ or otherwise require cases extending beyond 180 
days to be marked with an asterisk or any other symbol, as suggested by 
various commenters (see, e.g., Exs. 15: 31, 62, 153, 289, 374, 407, 
425). Employers who wish to attach such designations are free to do so, 
but OSHA does not believe such designations are needed.
Counting Lost Workdays When Employees Are No Longer Employed by the 
Company
    The proposed rule contained a provision that would have allowed the 
employer to stop counting the days away from work when the worker was 
terminated for reasons unrelated to an injury or illness (61 FR 4058). 
This provision would have continued OSHA's former policy on this 
matter, which allowed the employer to stop counting days away or 
restricted workdays when the employee's employment was terminated by 
retirement, plant closings, or like events unrelated to the employee's 
work-related injury or illness (Ex. 2, pp. 49, 50). The final rule, at 
paragraph 1904.7(b)(3)(vii), permits employers to stop counting days 
away if an injured or ill employee leaves employment with the company 
for a reason unrelated to the injury or illness. Examples of such 
situations include retirement, closing of the business, or the 
employee's decision to move to a new job.
    Paragraph 1904.7(b)(3)(vii) also requires employers whose employees 
have left the company because of the injury or illness to make an 
estimate of the total days that the injured or ill employee would have 
taken off work to recuperate. The provisions in paragraph 
1904.7(b)(3)(vii) also apply to the counting of restricted or 
transferred days, to ensure that days are counted consistently and to 
provide the simplest counting method that will collect accurate data. 
OSHA's reasoning is that day counts continue to be relevant indicators 
of severity in cases where the employee was forced to leave work 
because of the injury or illness.
Handling Cases That Cross Over From One Year to the Next
    A special recording problem is created by injury and illness cases 
that begin in one year but result in days away from work or days of 
restricted work in the next year. Under the former rule, the employer 
was to record the case once, in the year it occurred, and assign all 
days away and restricted days to that case in that year (Ex. 2, p. 48). 
Under the rule being published today, this policy still applies. If the 
case extends beyond the time when the employer summarizes the records 
following the end of the year as required by Sec. 1904.32, the employer 
is required by paragraph 1904.7(b)(3)(viii) to update the records when 
the final day count is known. In other words, the case is entered only 
in the year in which it occurs, but the original Log entry must 
subsequently be updated if the day count extends into the following 
year.
    In addition to the NIOSH (Ex. 15: 407) comments on the day counts 
summarized above, the Society for Human Resource Management (Ex. 15: 
431) urged OSHA to adopt a lower day

[[Page 5975]]

count cap to limit the ``crossover'' problem. Two commenters urged OSHA 
to take a new approach to cases that extend over two or more years. 
Both the Laborers' Health & Safety Fund of North America (Ex. 15: 310) 
and the Service Employees International Union (Ex. 15: 379) recommended 
that these cases be recorded in each year, with the days for each year 
assigned to the appropriate case. The Laborers' Health & Safety Fund of 
North America (Ex. 15: 310) stated:

    One concern with a large number of days away from work is how to 
record the lost days which begin in one calendar year and end in a 
following calendar year. We suggest that it is best to record the 
number of days lost from the date of the injury to the end of the 
calendar year, and to enter the injury again on the following year's 
OSHA 300 with the remaining days of lost time up to the 180 day 
maximum. A box should be available to indicate that the entry is a 
continuation from the prior year.

    As stated earlier, OSHA has decided on the 180 day cap for both 
days away and days of restricted work cases to ensure the visibility of 
work-related injuries and illnesses with long periods of disability. 
The final rule also requires the employer to summarize and post the 
records by February 1 of the year following the reference year. 
Therefore, there will be some cases that have not been closed when the 
records are summarized. Although OSHA expects that the number of cases 
extending over two years will be quite small, it does not believe that 
these cases warrant special treatment. A policy that would require the 
same case to be recorded in two years would result in inaccurate data 
for the following year, unless special instructions were provided. 
Accordingly, the final rule requires the employer to update the Log 
when the final day count is known (or exceeds 180 days), but to record 
the injury or illness case only once. This approach is consistent with 
OSHA's longstanding practice and is thus familiar to employers.
Miscellaneous Day Counting Issues
    Two commenters provided additional comments for OSHA to consider on 
the issue of counting days away from work. The Laborers' Health & 
Safety Fund of North America (Ex. 15: 310) recommended that OSHA 
require employers to enter a count of 365 days away from work on the 
Log for any fatality case:

    In a recent project we used OSHA 200 data from road construction 
and maintenance employers to determine the causes and relative 
severities of serious injuries. The number of lost workdays plus 
restricted work activity days for an injury event or type was used 
as a measure of severity. In quite a few individual injury cases, 
the number of days away from work entry was not available because of 
the severity of the injury or because the injury resulted in a 
fatality. For recordkeeping purposes, we would suggest a maximum cap 
of 180 days for a non-fatal serious injury of long duration, and an 
automatic entry of 365 for fatalities. Using this method, the most 
severe cases would be weighted appropriately, with fatalities 
carrying the heaviest weight. Also, entering a lost workday number 
for fatalities would enable fatalities to count in a single and 
simple ``severity-weighted Lost Work Day Injury and Fatality (LWDIF) 
rate''.

    OSHA has not adopted the Laborers' Health & Safety Fund of North 
America recommendation. OSHA believes that fatalities must be 
considered separately from non-fatal cases, however severe the latter 
may be. When an employee dies due to a work-related injury or illness, 
the outcome is so severe and so important that it must be treated 
separately. Merging the two types of cases would diminish the 
importance of fatality entries and make the days away data less useful 
for determining the severity of days away injury cases. Accordingly, 
the final rule being published today does not reflect this 
recommendation.
    The Westinghouse Corporation (Ex. 15: 405) suggested that OSHA look 
at days of hospitalization as a measure of severity, stating ``[t]he 
number of days hospitalized does provide a more objective indication of 
the seriousness of injury or illness, if for no other reason than cost 
control by insurance companies. If OSHA can document a legitimate use 
for an indicator of the ``seriousness'' of an injury, it may want to 
consider hospital stay time.'' OSHA has considered the use of 
hospitalized days, but has rejected them as a measure of injury or 
illness severity. Although these day counts may be a reasonable proxy 
for severity, they are applicable only in a relatively small number of 
cases.
Paragraph 1904.7(b)(4) Restricted Work or Transfer to Another Job
    Another class of work-related injuries and illnesses that Section 
8(c) of the Act identifies as non-minor and thus recordable includes 
any case that results in restriction of work or motion\2\ or transfer 
to another job. Congress clearly identified restricted work activity 
and job transfer as indicators of injury and illness severity.
---------------------------------------------------------------------------

    \2\ The term restricted motion has been interpreted to mean 
restricted work motion and to be essentially synonymous with 
restricted work. OSHA does not distinguish between the two terms. 
OSHA's former Guidelines (Ex. 2, p. 43) clearly stated that a 
restriction of work or motion, such as that resulting from a 
bandaged finger, that did not also impair work was not recordable, 
and that is also the interpretation of the final rule.
---------------------------------------------------------------------------

    In the years since OSHA has been enforcing the recordkeeping rule, 
however, there has been considerable misunderstanding of the meaning of 
the term ``restricted work,'' and, as a result, the recording of these 
cases has often been inconsistent. The Keystone Report (Ex. 5), which 
summarized the recommendations of OSHA stakeholders on ways to improve 
the OSHA recordkeeping system, noted that restricted work was perhaps 
the least understood of the elements of the system.
    This section of the Summary and Explanation first discusses the 
former recordkeeping system's interpretation of the term restricted 
work, describes how the proposed rule attempted to revise that 
interpretation, and then summarizes and responds to the comments OSHA 
received on the proposed approach to the recording of work restriction 
and job transfer cases. Finally, this section explains the final rule's 
restricted work and job transfer requirements and OSHA's reasons for 
adopting them.
The Former Rule
    The former recordkeeping rule did not include a definition of 
restricted work or job transfer; instead, the definition of these terms 
evolved on the basis of interpretations in the BLS Guidelines (Ex. 2, 
p. 48). The Guidelines stated that restricted work cases were those 
cases ``where, because of injury or illness, (1) the employee was 
assigned to another job on a temporary basis; or (2) the employee 
worked at a permanent job less than full time; or (3) the employee 
worked at his or her permanently assigned job but could not perform all 
the duties connected with it.'' The key concepts in this interpretation 
were that work was to be considered restricted when an employee 
experienced a work-related injury or illness and was then unable, as a 
result of that injury or illness, to work as many hours as he or she 
would have been able to work before the incident, or was unable to 
perform all the duties formerly connected with that employee's job. 
``All duties'' were interpreted by OSHA as including any work activity 
the employee would have performed over the course of a year on the job.
    OSHA's experience with recordkeeping under the former system 
indicated that employers had difficulty with the restricted work 
concept. They questioned the need for keeping a tally of restricted 
work cases, disagreed with the ``less than full time'' concept, or

[[Page 5976]]

were unsure about the meaning of ``all the duties connected with [the 
job].'' (In OSHA's experience, employers have not generally had 
difficulty understanding the concept of temporary job transfer, which 
are treated in the same way as restricted work cases for recordkeeping 
purposes. The following discussion thus focuses on restricted work 
issues.) The changes OSHA proposed to make to the work restriction 
concept (61 FR 4033) were intended to address these employer concerns.
The Proposed Rule
    The proposal would have changed restricted work recordkeeping 
practices markedly. For example, the proposal would have required 
employers to acknowledge that the case involved restricted work by 
placing a check in the restricted work column on the Log but would no 
longer have required them to count the number of restricted work days 
associated with a particular case. At the time of the proposal, OSHA 
believed that dropping the requirement to count restricted days was 
appropriate because the Agency lacked data showing that restricted work 
day counts were being used by employers in their safety and health 
programs. In addition, the proposal would have limited the work 
activities to be considered by the employer in determining whether the 
injured or ill worker was on restricted work. Under the former rule, 
employers had to consider whether an injured or ill employee was able 
to perform ``all the duties'' normally connected with his or her job 
when deciding if the worker's job was restricted; OSHA interpreted 
``all the duties'' to include any work activity the employee performed 
at any time within a year. Under the proposal, the duties that the 
employer would have been required to consider were narrowed to include 
only (1) those work activities the employee was engaged in at the time 
of injury or illness onset, or (2) those activities the employee would 
have been expected to perform on that day (61 FR 4059). OSHA also 
requested comment in the proposal on the appropriateness of limiting 
the activities to be considered and on other definitions of work 
activities that should be considered, e.g., would it be appropriate not 
to consider an employee to be on restricted work if he or she is able 
to perform any of his or her former job activities? (61 FR 4059).
Comments on the Proposed Rule's Restricted Work and Job Transfer 
Provisions
    The comments OSHA received on these provisions were extensive. 
Commenters offered a wide variety of suggestions, including that OSHA 
eliminate restricted work activity cases from the recordkeeping system 
altogether, that the proposed definition of restricted work activity be 
changed, that the proposed approach be rejected, that it be adopted, 
and many other recommendations. These comments are grouped under topic 
headings and are discussed below.
Eliminate the Recording of Restricted Work Cases
    Several commenters recommended that OSHA completely eliminate the 
recording of restricted work cases because, in the opinion of these 
commenters, the concept confused employers, created disincentives to 
providing light duty work or return-to-work programs, and provided no 
useful information (see, e.g., Exs. 15: 119, 203, 235, 259, 336, 414, 
427). For example, the American Bakers Association said, ``We believe 
that the concept and definitions of `restricted work activity' should 
be eliminated. That term and its proposed definition is so ambiguous as 
to be unworkable, and information gleaned from that terminology would 
have little reliability or usefulness'' (Ex. 15: 427).
    The National Grain and Feed Association agreed, arguing that the 
recording of restricted work cases should be eliminated on the 
following grounds:

    [w]e agree with the conclusion of the Keystone Report that ``the 
recording of restricted work is perhaps the least understood and 
least accepted concept in the recordkeeping system.'' We disagree 
with OSHA, however, that the concept of restricted work is 
meaningful. For example, there is a wide range of restrictions that 
may be placed on an injured employee's activity after returning to 
work depending on the nature of the injury (e.g., the range of work 
possible for an employee who has experienced a slight sprain versus 
an employee with a broken bone). Additionally, the concept of 
restricted work is greatly dependent on individual employee 
motivation and job description. * * * Importantly, we believe the 
concepts embodied in the proposed restricted work definition run 
counter to modern work practices that encourage workers to return to 
productive work at the worksite. Workers who have experienced minor 
injuries on the job can return to productive work under employer 
``return-to-work'' programs. For this reason, the concept of 
restricted work is arbitrary and ultimately of little use to either 
evaluating the effectiveness of an employer's safety and health 
programs or determining the exposure of workers to a hazard at a 
specific worksite. We, therefore, recommend that the Agency delete 
the category of restricted work injuries from the proposed changes 
to 29 CFR 1904. Removal of this section will simplify the 
recordkeeping system and make it more ``user friendly.'' We support 
deletion of this category of injury because we think it will make 
the system more complex and is inconsistent with current practices 
of returning employees back to productive work at the earliest date 
(Ex. 15: 119).
Revise the Proposed Definition of a Restricted Work Case
    Most of the remaining comments recommended either that the 
definition of restricted work in the final rule be revised to include a 
more inclusive set of job activities or functions or a less inclusive 
set. For example, the Small Business Administration (Ex. 51) was 
concerned that:

    [t]he new definition for classifying ``restricted work 
activity'' could increase the number of cases that would be subject 
to this standard, and subsequently, classified as a recordable 
incident. Small businesses would face increased recordkeeping. Under 
the proposed definition, a case would be determined as a 
``restricted work activity'' if the employee cannot perform what he 
or she was doing at the time of the illness or injury, or he or she 
could not perform the activities scheduled for that day. While this 
would be a very simple method, it would encompass more recordable 
incidents. Many workers have a myriad of tasks associated with their 
job. If an employee can return to work and perform functions within 
their job description, this should not be considered ``restricted 
work activity''. * * *

    Several commenters recommended that OSHA rely on a definition of 
restricted work that would focus on ``non productive work'' and exclude 
the recording of any case where the employee was still productive (see, 
e.g., Exs. 15: 9, 45, 46, 67, 80, 89, 247, 437). For example, 
Countrymark Cooperative, Inc. (Ex. 15: 9) stated:

    [w]e disagree with a portion of the definition for restricted 
work activity. We agree that this should include injuries or 
illnesses where the worker is not capable of performing at full 
capacity for a full shift. However, by addressing the task that they 
were engaged in at the time of the injury will create problems. Most 
employees today have numerous assignments and responsibilities. They 
move from one task to another during a given day and during a given 
week. What they are doing at the time they are injured may not be 
the assignment for the next day or the next week. In these cases, 
they may be back at work in a fully productive role, but not doing 
the same task as when they were hurt. If they are performing a fully 
productive role within the same job description, but cannot perform 
the role of the job they were doing at the time, they should not be 
penalized. In many cases, this job task may not be active at the 
time they return. * * * It should be very clear that the ability to 
return an employee to a productive role (whether 50% or 100%) is 
extremely important to any ``Return-to-Work'' Program. If that 
person is returned to work and is

[[Page 5977]]

performing at full capacity in a given task within their job 
description, this should not be recorded unless it meets other 
criteria such as medical treatment. If we return to the days of 
recording these and penalizing the employer, they may be inclined to 
return to the days of only allowing employees to return to work when 
they are 100% in all given tasks within their job description. If 
this occurs, we all lose. * * * We do agree that any time an 
employee is returned to work and is restricted to only perform 
certain jobs, can only return for a limited duration, or must be 
reassigned to another task, this should be recorded as a restricted 
work case (Ex. 15: 9).

    Others recommended that OSHA adopt the Keystone Report's definition 
of restricted work (see, e.g., Exs. 15: 123, 129, 145, 225, 359, 379, 
418). For example, the National Safety Council recommended:

    [t]he concept of restricted work activity as described on page 
4046 [of the Federal Register] is one with which the Council 
concurs, but the specific wording in proposed section 1904.3 is less 
clear. The colon following the opening clause of the definition ``at 
full capacity for a full shift:'' seems to mean that the employee 
must be able to perform the task during which he/she was injured and 
the other tasks he/she performed or would have performed that day 
not only for the normal frequency or duration, but ``at full 
capacity for a full shift.'' For example, if the employee were 
required to open a valve at the start of a shift and close it at the 
end of the shift, the current wording seems to say that if the 
employee could not spend the entire shift opening and closing the 
valve, then his/her work activity is restricted. * * * The Council 
also believes that the concept of restricted work activity as 
formulated by the Keystone Report is appropriate in that it 
represents a consensus among the various stakeholder groups. For 
this reason, we also recommend that the task limitations refer to 
the week's activities rather than the day's activities (Ex. 15: 
359).

    The Union of Needletrades, Industrial and Textile Employees (UNITE) 
agreed with the National Safety Council that a different time period 
should be used in determining what job activities to consider. UNITE 
suggested that OSHA use the employee's monthly, rather than daily or 
weekly, duties to define restricted work activity (Ex. 15: 380).
    A few commenters expressed concern that use of the proposed 
restricted work definition could lead employers to include unusual, 
extraordinary or rarely performed duties in the ``work activities'' to 
be considered when determining whether a case was a restricted work 
case (see, e.g., Exs. 15: 80, 247). For example, the Arizona Public 
Service Company said:

    [d]etermining restricted duty days should remain as it currently 
is in the Guidelines. The restriction should focus on the ability of 
the employee to perform all or any part of his or her normal job 
duties. Focusing on what specifically they were doing at the time of 
injury could incorrectly base this determination on an activity that 
is performed rarely. Also, focusing on what they were scheduled to 
do for that week would not be useful for those whose schedules can 
change daily (Ex. 15: 247).
Adopt the Americans With Disabilities Act Definition of Essential 
Duties
    The Laboratory Corporation of America's comment (Ex. 15: 127) was 
typical of those of several commenters who suggested that OSHA use the 
concept of essential job duties that is also used for the 
administration of the Americans with Disabilities Act (ADA) (see, e.g., 
Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431):

    [t]he definition used by the Americans with Disability Act (ADA) 
would be very useful here. That definition indicates that restricted 
work exists if an employee is unable to perform the essential 
functions of his/her job. Since these essential functions are 
identified in the employee's job description, the employer would 
have a consistent ``yardstick'' with which to make this 
determination for each employee.

Adoption of the Proposed Approach Will Lead to Underreporting
    Some commenters, such as the AFL-CIO, opposed the proposed approach 
to restricted work on the grounds that it would result in 
underreporting:

    [w]e believe this proposed provision would entice employers to 
manipulate records and lead to further under-reporting. We strongly 
suggest that the Agency adopt the Keystone Report recommendation of 
restricted work which requires an employer to record if the employee 
is (1) unable to perform the task he or she was engaged in at the 
time of injury or onset of illness (task includes all facets of the 
assignment the employee was to perform); or (2) unable to perform 
any activity that he or she would have performed during the week 
(Ex. 15: 418).

    Other commenters agreed (see, e.g., Exs. 20, 15: 17, 129, 418). For 
example, the United Brotherhood of Carpenters (UBC) Health & Safety 
Fund of North America argued in favor of a broader definition to avoid 
this problem:

    [t]he majority of workers represented by the UBC, such as 
carpenters and millwrights, routinely perform a wide variety of 
tasks during their normal workdays in either construction or 
industrial settings. Therefore, OSHA should not limit the 
classification of ``restricted work activity'' to either ``the task 
he or she was engaged in at the time of the injury'' or his or her 
daily work activity (daily work activity includes all assignments 
the employee was expected to perform on the day of the injury or 
onset of illness)'' as proposed. The UBC feels that the current 
proposal would allow for manipulation of the records and will lead 
to serious under reporting. Many workplaces have armies of ``walking 
wounded'' rather than reporting lost or restricted work activity. 
OSHA should at the very least adopt the position of the Keystone 
Report which recommended that restricted work activity should be 
recorded if the employee is ``(1) unable to perform the task he or 
she was engaged in at the time of the injury or onset of illness, or 
(2) unable to perform any activity that he or she would have 
performed during the week.'' The UBC believes that the best 
definition of restricted work activity would be any illness or 
injury which inhibits, interferes with, or prevents a worker from 
performing any or all of the functions considered to be a normal 
part of his or her trade or occupation as defined in the applicable 
job description (Ex. 20).

Do Not Count Incidents Involving Only One or a Few Days as Restricted 
Work
    A number of commenters recommended that restricted work activity 
involving only the day of injury/illness onset should not trigger an 
OSHA recordable case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 
364, 374, 391). Typical of these comments is one from the Society of 
the Plastics Industry, Inc.:

    [e]mployers have had problems with OSHA's definition of 
restricted work activity because OSHA's interpretation that having 
any work restriction, even one which lasts only for the remainder of 
the shift and which imposes no significant limitations on the 
employee's ability to perform his or her job, makes a case 
recordable. OSHA should adopt the administratively simple and 
common-sense rule that restricted work activity on the day of the 
case report does not make the case recordable. . . . The definition 
of ``restricted work activity'' should be clarified to state that 
the criteria apply only to days following the day of injury or onset 
of the illness. An employee's inability to work a full shift on the 
actual date of injury or onset of illness should not require 
recording as a restricted work case. As noted above, because OSHA's 
interpretation that having any work restriction, even one which 
lasts only for the remainder of the shift and which imposes no 
significant limitations on the employee's ability to perform his or 
her job, makes a case recordable, many non-serious, non-disabling 
cases are now recorded. Cases which do not otherwise meet the 
recordability criteria should not be recordable. Therefore, as 
recommended above, OSHA should eliminate the current requirement to 
record cases in which restricted work activity occurs only on the 
day of the case report (Ex. 15: 364).

    The Kodak Company urged OSHA not to count cases involving 
restrictions lasting only for three days as restricted work cases on 
the grounds that such cases are ``minor'': ``Restricted work activity 
allows employers and employees to remain at work. This is a win-win 
situation for both. Kodak suggests restricted work activity be counted 
only if the restriction lasts

[[Page 5978]]

longer than 3 working days. Hence, only serious cases would be 
recorded'' (Ex. 15: 322).
Adopt the Proposed Approach
    A large number of commenters supported OSHA's proposed definition, 
however (see, e.g., Exs. 27, 15: 26, 61, 70, 133, 159, 171, 185, 199, 
204, 242, 263, 269, 270, 272, 283, 303, 305, 307, 317, 318, 324, 334, 
347, 351, 373, 375, 377, 378, 384, 390, 392, 405, 409, 413, 425, 430). 
Typical of these were comments from the New Jersey Department of Labor 
(Ex. 15: 70), which commented:

    [p]roviding a clear definition of what constitutes restricted 
work and an item to indicate that an injured employee has been 
shifted to restricted work activity should improve the accuracy and 
completeness of case reporting. Identifying the actual number of 
cases in which employees are shifted to alternate work, which are 
thought to be under reported, and adding the date when the employee 
returned to his/her usual work will help to assess the impact of 
these incidents.

    The American Petroleum Institute, which believed that the proposed 
definition would be easy to interpret and would therefore improve 
recording consistency, stated: ``API strongly supports OSHA's proposed 
definition of restricted activity. Because it is much more logical and 
easy to understand than the current definition, API believes it will 
lead to greater consistency'' (Ex. 15: 375).
Use Different Triggers Than Those Proposed
    The Commonwealth Edison Company recommended that restricted work be 
defined only in terms of the hours the employee is able to work, not 
the functions the employee is able to perform:

    [C]omEd disagrees with OSHA on its definition of ``restricted 
work activity''. We propose that OSHA consider that restricted work 
activity simply state ``Restricted work activity means the worker, 
due to his or her injury or illness, is unable to work a full 
shift.'' OSHA's proposed definition of restricted work activity is 
even more confusing than the current one. ComEd's proposed 
definition will allow quantifiable, direct cost tracking for this 
category of injury or illness. Workers will more than likely have 
some kind of meaningful work waiting for them if the injury is not 
disabling. If he or she is able to work the required normal shift 
hours, don't count the case as restricted. If they miss the entire 
shift, count is as a day away from work. If they miss part of the 
shift, count it as restricted (Ex. 15: 277).

    Two commenters suggested that a case should only be considered 
restricted when it involves both medical treatment and work 
restrictions (Exs. 15: 9, 348). For example, the E. I. du Pont de 
Nemours & Company (DuPont) said that the

    ``Restricted Work Activity'' definition is a definite 
improvement over the current one. Suggest making treatment AND 
restriction the criteria. An insignificant injury can result in 
being told not to climb ladders. This does not negate the ability to 
do the job; it just limits the job to levels where ladder climbing 
is not required. * * * Restricted work activity is more dependent on 
timing and job than on injury severity. It doesn't necessarily focus 
on hazardous conditions. Certainly the definition in the proposed 
guidelines is far more specific and appropriate than the current 
one. We suggest consideration be given to dropping the Restricted 
category where medical treatment is not also given. For example, a 
slight muscle strain will result in advice not to climb ladders. The 
case would be in the restricted category although the treatment, if 
any, would be at the first aid level. Injury severity is the 
equivalent of a cut finger'' (Ex. 15: 348).

    Other comments sought a broader, more inclusive definition of 
restricted work, one that relies on job descriptions (see, e.g., Exs. 
15: 41, 62, 198, 426). For example, Robert L. Rowan, Jr. stated:

    [t]he definition of ``restricted work activity'' also concerns 
me and I believe it is unsuitable. The definition refers to an 
employee who is not capable of performing at full capacity for a 
full shift the ``task'' that he or she was engaged in at the time of 
the injury or onset of illness. The definition should include ``any 
and all tasks'' within the employee's clearly defined job 
description'' (Ex. 15: 62).

    The Maine Department of Labor, however, preferred the former rule's 
interpretation, with some modifications:

    [w]e agree that there should be no mention of ``normal'' duties 
in the definition. Include: temporary transfer to a position or 
department other than the position or department the worker was 
working at when he/she was injured. Some of these can be detected on 
payroll records; only being able to work part of their workday. Time 
forms could raise suspicion here; a health care provider puts the 
person on written restrictions unless the employer can show that the 
restrictions listed do not impact the employee's ability to do his 
or her scheduled job during the time period of the restrictions. 
Keep a copy of the restrictions in the file. The doctor's name on 
the OSHA 301 serves as another possible check (Ex. 15:41).

Miscellaneous Comments and Questions
    There were also a variety of miscellaneous comments and questions 
about the proposed approach to the recording of restricted work cases. 
For example, Bob Evans Farms suggested that:

    [w]hen considering this proposal, OSHA needs to keep in mind the 
special nature of the restaurant business. It is not uncommon for a 
cook to cut himself or herself, apply a Band-Aid, and then 
temporarily be reassigned to janitorial work for a day or two to 
keep the cut dry while it heals. This could be considered work duty 
modification and would then need to be reported to OSHA. As you can 
see, this type of minor occurrence would clog the system with 
needless paper (Exs. 15: 3, 4, 5, 6).

    Phibro-Tech, Inc. offered this comment:

    [a] factory employee who normally performs heavy labor may be 
assigned office work as a restricted work activity, and may not 
actually be contributing anything meaningful to the job. Will 
employers be required to limit what is considered ``light duty'' 
tasks? Will there be directives as to when an employee should really 
be off work or when he can be on ``light duty''? Occupational 
physicians all have different opinions as to when an employee can 
return for light or full duty. It would be helpful to have more 
direction on this issue so employees aren't sent back to work too 
soon or kept off on lost time too long (Ex. 15: 35).

    The law firm of Constangy, Brooks & Smith, LLC, asked, ``[w]ould a 
restriction of piece rate or production rate be considered restricted 
duty under the proposed definition even though it is not considered 
restricted duty under the present guidelines?'' (Ex. 15: 428). Miller 
Brewing Company added, ``[w]ould also recommend that OSHA attempt to 
clarify whether a treating physician's [non-specific] return to work 
instructions such as ``8 hours only,'' ``self restrict as needed,'' and 
``work at your own pace'' will constitute restricted work activity 
under the proposed recordkeeping rule'' (Ex. 15: 442).
    The Pacific Maritime Association stated:

    This is another example where the ILWU/PMA workforce does not 
fit into the proposed recordkeeping system. The regulation as 
written pertains to employers who assign their employees to work 
tasks. As previously mentioned, in our industry it is the employee 
who selects the job they will perform. This dispatch system, or job 
selection process, presents many problems when the maritime industry 
is required to conform to requirements established for traditional 
employee/employer relationships found in general industry. At the 
present time there is no method available to determine why an 
individual longshoreman selects a specific job. Therefore, the 
requirement to identify, track, and record ``restricted work 
activity'' may be impossible to accomplish [in the maritime 
industry] (Ex. 15: 95).

Preventive Job Transfers
    Several commenters (see, e.g., Exs. 25; 15: 69, 156, 406) urged 
OSHA to make some accommodation for ``preventive

[[Page 5979]]

transfers'' and medical removals. Many transfers and removals of this 
nature are related to work-related musculoskeletal disorders and are 
used to prevent minor musculoskeletal soreness from becoming worse. The 
following comments are representative of the views of these commenters. 
The Ogletree, Deakins, Nash, Smoak & Stewart (ODNSS) coalition 
commented:

    [t]his definition [the proposed definition of restricted work] 
is overly broad, penalizes employers who have a light duty program 
in place, and fails to take into account that (1) today's employees 
increasingly are cross trained and perform varied tasks, and (2) the 
ability of an employee to perform alternative meaningful work 
mitigates the seriousness of the inability to perform work in the 
two categories set out in the definition as proposed. The ODNSS 
Coalition recommends curing these defects by adding the following 
proviso to the proposed definition: ``The case should be recorded as 
a restricted work case UNLESS the restrictive work activity is 
undertaken to relieve minor soreness experienced by a newly hired or 
transferred employee during a break-in phase to prevent the soreness 
from worsening, or the employee otherwise is able to perform other 
existing full-time duties.'' The appropriate nature of the 
recommended proviso is underscored by a baseball analogy where the 
right fielder and the center fielder change positions. They both 
continue to play on the same team and make substantial 
contributions, but the strain on the new right fielder is less 
because he doesn't have as much ground to cover (Ex. 15: 406).

    The National Association of Manufacturers (NAM) summed up its views 
as follows:

    [a] preventive or prophylactic measure such as medical removal 
(as opposed to a restorative or curative measure) is not and should 
not be deemed medical treatment, a job transfer or restricted 
activity for purposes of recordability, in the absence of a 
substantial impairment of a bodily function (Ex. 25).

    Although Organization Resource Counselors (ORC) generally endorsed 
the proposed approach to the treatment of restricted work cases, it did 
express concern about how medical removal cases would be treated under 
the proposed definition:

    [t]he proposed definition of restricted work is a significant 
improvement over the current [former] one, which was considered by 
many employers to be unfair and confusing. It is no secret that many 
employers did not understand the current restricted work rules and, 
as a result, did not follow them consistently. Additionally, the 
[proposed] elimination of the count of restricted workdays is 
appropriate and is a recognition by OSHA that the recording of this 
count is of little value to either the Agency or employers in 
program evaluation or program development. * * * Additionally, 
requirements for the recording of either voluntary or mandatory 
medical removals where no additional symptoms are present are 
examples of appropriate action taken by employers to prevent harm to 
employees and not of a recordable injury or illness. * * *'' (Ex. 
15: 358).

Final Rule's Restricted Work and Job Transfer Provisions, and OSHA's 
Reasons for Adopting Them
    Paragraph 1904.7(b)(4) contains the restricted work and job 
transfer provisions of the final rule. These provisions clarify the 
definition of restricted work in light of the comments received and 
continue, with a few exceptions, most of the former rule's requirements 
with regard to these kinds of cases. OSHA finds, based on a review of 
the record, that these provisions of the final rule will increase 
awareness among employers of the importance of recording restricted 
work activity and job transfer cases and make the recordkeeping system 
more accurate and the process more efficient.
    OSHA believes that it is even more important today than formerly 
that the definition of restricted work included in the final rule be 
clear and widely understood, because employers have recently been 
relying on restricted work (or ``light duty'') with increasing 
frequency, largely in an effort to encourage injured or ill employees 
to return to work as soon as possible. According to BLS data, this 
category of cases has grown by nearly 70% in the last six years. In 
1992, for example, 9% of all injuries and illnesses (or a total of 
622,300 cases) recorded as lost workday cases were classified in this 
way solely because of restricted work days, while in 1998, nearly 18% 
of all injury and illness cases (or a total of 1,050,200 cases) were 
recorded as lost workday cases only because they involved restricted 
work [BLS Press Release 99-358, 12-16-99). The return-to-work programs 
increasingly being relied on by employers (often at the recommendation 
of their workers' compensation insurers) are designed to prevent 
exacerbation of, or to allow recuperation from, the injury or illness, 
rehabilitate employees more effectively, reintegrate injured or ill 
workers into the workplace more rapidly, limit workers' compensation 
costs, and retain productive workers. In addition, many employees are 
eager to accept restricted work when it is available and prefer 
returning to work to recuperating at home.
    The final rule's requirements in paragraph 1904.10(b)(4) of the 
final rule state:

    (4) How do I record a work-related injury or illness that 
involves restricted work or job transfer?
    When an injury or illness involves restricted work or job 
transfer but does not involve death or days away from work, you must 
record the injury or illness on the OSHA 300 Log by placing a check 
mark in the space for job transfer or restricted work and entering 
the number of restricted or transferred days in the restricted work 
column.
    (i) How do I decide if the injury or illness resulted in 
restricted work?
    Restricted work occurs when, as the result of a work-related 
injury or illness:
    (A) You keep the employee from performing one or more of the 
routine functions of his or her job, or from working the full 
workday that he or she would otherwise have been scheduled to work; 
or
    (B) A physician or other licensed health care professional 
recommends that the employee not perform one or more of the routine 
functions of his or her job, or not work the full workday that he or 
she would otherwise have been scheduled to work.
    (ii) What is meant by ``routine functions''?
    For recordkeeping purposes, an employee's routine functions are 
those work activities the employee regularly performs at least once 
per week.
    (iii) Do I have to record restricted work or job transfer if it 
applies only to the day on which the injury occurred or the illness 
began?
    No. You do not have to record restricted work or job transfers 
if you, or the physician or other licensed health care professional, 
impose the restriction or transfer only for the day on which the 
injury occurred or the illness began.
    (iv) If you or a physician or other licensed health care 
professional recommends a work restriction, is the injury or illness 
automatically recordable as a ``restricted work'' case?
    No. A recommended work restriction is recordable only if it 
affects one or more of the employee's routine job functions. To 
determine whether this is the case, you must evaluate the 
restriction in light of the routine functions of the injured or ill 
employee's job. If the restriction from you or the physician or 
other licensed health care professional keeps the employee from 
performing one or more of his or her routine job functions, or from 
working the full workday the injured or ill employee would otherwise 
have worked, the employee's work has been restricted and you must 
record the case.
    (v) How do I record a case where the worker works only for a 
partial work shift because of a work-related injury or illness?
    A partial day of work is recorded as a day of job transfer or 
restriction for recordkeeping purposes, except for the day on which 
the injury occurred or the illness began.
    (vi) If the injured or ill worker produces fewer goods or 
services than he or she would have produced prior to the injury or 
illness but otherwise performs all of the activities of his or her 
work, is the case considered a restricted work case?
    No. The case is considered restricted work only if the worker 
does not perform all of the

[[Page 5980]]

routine functions of his or her job or does not work the full shift 
that he or she would otherwise have worked.
    (vii) How do I handle vague restrictions from a physician or 
other licensed health care professional, such as that the employee 
engage only in ``light duty'' or ``take it easy for a week''?
    If you are not clear about a physician or other licensed health 
care professional's recommendation, you may ask that person whether 
the employee can perform all of his or her routine job functions and 
work all of his or her normally assigned work shift. If the answer 
to both of these questions is ``Yes,'' then the case does not 
involve a work restriction and does not have to be recorded as such. 
If the answer to one or both of these questions is ``No,'' the case 
involves restricted work and must be recorded as a restricted work 
case. If you are unable to obtain this additional information from 
the physician or other licensed health care professional who 
recommended the restriction, record the injury or illness as a case 
involving job transfer or restricted work.
    (viii) What do I do if a physician or other licensed health care 
professional recommends a job restriction meeting OSHA's definition 
but the employee does all of his or her routine job functions 
anyway?
    You must record the injury or illness on the OSHA 300 Log as a 
restricted work case. If a physician or other licensed health care 
professional recommends a job restriction, you should ensure that 
the employee complies with that restriction. If you receive 
recommendations from two or more physicians or other licensed health 
care providers, you may make a decision as to which recommendation 
is the most authoritative, and record the case based upon that 
recommendation.

    The concept of restricted work activity in the final rule falls 
somewhere between the commenters' broadest and narrowest definitions of 
the work activities that should be considered in determining whether a 
particular case involves work restriction. The final rule's concept of 
restricted work is based both on the type of work activities the 
injured or ill worker is able to perform and the length of time the 
employee is able to perform these activities. The term ``routine 
functions of the job'' in paragraphs 1904.7(b)(4)(i) and (b)(4)(ii) 
clarifies that OSHA considers an employee who is unable, because of a 
work-related injury or illness, to perform the job activities he or she 
usually performs to be restricted in the work he or she may perform. 
Use of the term ``routine functions of the job'' should eliminate the 
concern of some commenters who read the proposed definition as meaning 
that an employee had to be able to perform every possible work 
activity, including those that are highly unusual or performed only 
very rarely, in order for the employer to avoid recording the case as a 
restricted work case (see, e.g., Exs. 15: 80, 247). In other words, 
OSHA agrees that it makes little sense to consider an employee who is 
prevented by an injury or illness from performing a particular job 
function he or she never or rarely performed to be restricted (see, 
e.g., Exs. 15: 80, 247). For example, OSHA finds that, for the purposes 
of recordkeeping, an activity that is performed only once per month is 
not performed ``regularly.'' This approach is consistent with OSHA 
interpretations under the former rule. Limiting the definition to 
``essential functions,'' the ADA term recommended by several commenters 
(see, e.g., Exs. 15: 127, 136, 137, 141, 224, 266, 278, 431), would be 
inappropriate, because OSHA needs information on all restricted work 
cases, not just those that interfere with the essential functions of 
the job (29 U.S.C. 657(c)(2)).
    On the other hand, OSHA agrees with those commenters who argued 
that the proposed definition, to limit the definition of restricted 
activity to the specific functions or tasks the employee was engaged in 
on the day of injury or onset of illness would be unsatisfactory, 
because doing so could fail to capture activities that an employee 
regularly performs (see, e.g., Exs. 20; 15: 17, 129, 380, 418). In the 
final rule, OSHA has decided that defining restricted work as work that 
an employee would regularly have performed at least once per week is 
appropriate, i.e., OSHA believes that the range of activities captured 
by this interval of time will generally reflect the range of an 
employee's usual work activities. Activities performed less frequently 
than once per week reflect more uncommon work activities that are not 
considered routine duties for the purposes of this rule. However, the 
final rule does not rely on the duties the employee actually performed 
during the week when he or she was injured or became ill. Thus, even if 
an employee did not perform the activity within the last week, but 
usually performs the activity once a week, the activity will be 
included. OSHA believes that this change in definition will foster 
greater acceptance of the concept of restricted work among employers 
and employees because of its common sense approach.
    Use of the term ``partial work shift'' in paragraph 1904.7(b)(4)(v) 
covers restrictions on the amount of time an employee is permitted to 
work because of the injury or illness. This interpretation of 
restricted work was not generally disputed by commenters, although some 
argued that the restriction on the hours worked should last for a 
specific number of days before the case becomes recordable as a 
restricted work case (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 198, 
364, 374, 391).
    The final rule's restricted work provisions also clarify that work 
restriction must be imposed by the employer or be recommended by a 
health care professional before the case is recordable. Only the 
employer has the ultimate authority to restrict an employee's work, so 
the definition is clear that, although a health care professional may 
recommend the restriction, the employer makes the final determination 
of whether or not the health care professional's recommended 
restriction involves the employee's routine functions. Restricted work 
assignments may involve several steps: an HCP's recommendation, or 
employer's determination to restrict the employee's work, the employers 
analysis of jobs to determine whether a suitable job is available, and 
assignment of the employee to that job. All such restricted work cases 
are recordable, even if the health care professional allows some 
discretion in defining the type or duration of the restriction, an 
occurrence noted by one commenter (Ex. 15:442). However, the final 
rule's provisions make it clear that the employee is not the person 
making the determination about being placed on restricted work, as one 
commenter (Ex. 15: 97) feared.
    A number of commenters suggested that OSHA cease to require the 
recording of restricted work cases entirely (see, e.g., Exs. 15: 119, 
427). However, the Congress has directed that the recordkeeping system 
capture data on non-minor work-related injuries and illnesses and 
specifically on restricted work cases, both so that the national 
statistics on such injuries and illnesses will be complete and so that 
links between the causes and contributing factors to such injuries and 
illnesses will be identified (29 U.S.C. 651(b)). Days away and 
restricted work/job transfer cases together constitute two of the most 
important kinds of job-related injuries and illnesses, and it would be 
inappropriate not to record these serious cases. OSHA also cannot 
narrow the definition of restricted work to those cases where the 
employee is at work but cannot do productive work, as several 
commenters suggested (see, e.g., Exs. 15: 9, 45, 46, 89, 437), because 
the Congress clearly intended that workers whose work-related injuries 
and illnesses were so severe as to prevent them from doing their former 
work or from working for a full shift had experienced an injury or 
illness that was non-minor and thus worthy of being recorded. OSHA does 
not believe that requiring employers to record such injuries and 
illnesses as

[[Page 5981]]

restricted work cases will in any way discourage the use of restricted 
work or return-to-work programs, and the marked shift in the number of 
restricted work cases reported to the BLS in the last few years bears 
this out. It would also not be appropriate for OSHA to require that 
employers only record as restricted work cases those cases in which the 
injured or ill worker requires medical treatment and is placed on 
restricted work, as some commenters suggested (see, e.g., Exs. 15: 9, 
348). The OSH Act clearly requires the recording of all work-related 
cases that require either medical treatment or restricted work.
    Under the final rule, employers are not required to record a case 
as a restricted work case if the restriction is imposed on the employee 
only for the day of the injury or onset of illness. OSHA thus agrees 
with a number of commenters (see, e.g., Exs. 15: 19, 44, 146, 154, 156, 
198, 364, 374, 391) that restricted activity only on the day the injury 
occurred or the illness began does not justify recording. This 
represents a change in the treatment of restricted work cases from 
OSHA's practice under the former rule. OSHA has made this change to 
bring the recording of restricted work cases into line with that for 
days away cases: under the final rule, employers are not required to 
record as days away or restricted work cases those injuries and 
illnesses that result in time away or time on restriction or job 
transfer lasting only for the day of injury of illness onset.
    Several commenters recommended that cases involving medical removal 
under the lead or cadmium standards or cases involving ``voluntary'' 
preventive actions, such as cases involving job transfer or restricted 
work activity, not be considered recordable under the final rule; these 
participants argued that requiring employers to record voluntary 
transfers or removals would create a disincentive for employers to take 
these protective actions (see, e.g., Exs. 25, 15: 69, 156, 358, 406). 
Under the final rule (see section 1904.9), mandated removals made in 
accordance with an OSHA health standard must be recorded either as days 
away from work or as days of restricted work activity, depending on the 
specific action an employer takes. Since these actions are mandated, no 
disincentive to record is created by this recordkeeping rule.
    Some commenters, however, urged OSHA to make an exception from the 
recording requirements for cases where the employer voluntarily, or for 
preventive purposes, temporarily transfers an employee to another job 
or restricts an employee's work activities. OSHA does not believe that 
this concept is relevant to the recordkeeping rule, for the following 
reasons. Transfers or restrictions taken before the employee has 
experienced an injury or illness do not meet the first recording 
requirement of the recordkeeping rule, i.e., that a work-related injury 
or illness must have occurred for recording to be considered at all. A 
truly preventive medical treatment, for example, would be a tetanus 
vaccination administered routinely to an outdoor worker. However, 
transfers or restrictions whose purpose is to allow an employee to 
recover from an injury or illness as well as to keep the injury or 
illness from becoming worse are recordable because they involve 
restriction or work transfer caused by the injury or illness. All 
restricted work cases and job transfer cases that result from an injury 
or illness that is work-related are recordable on the employer's Log.
    As the regulatory text for paragraph (b)(4) makes clear, the final 
rule's requirements for the recording of restricted work cases are 
similar in many ways to those pertaining to restricted work under the 
former rule. First, like the former rule, the final rule only requires 
employers to record as restricted work cases those cases in which 
restrictions are imposed or recommended as a result of a work-related 
injury or illness. A work restriction that is made for another reason, 
such as to meet reduced production demands, is not a recordable 
restricted work case. For example, an employer might ``restrict'' 
employees from entering the area in which a toxic chemical spill has 
occurred or make an accommodation for an employee who is disabled as a 
result of a non-work-related injury or illness. These cases would not 
be recordable as restricted work cases because they are not associated 
with a work-related injury or illness. However, if an employee has a 
work-related injury or illness, and that employee's work is restricted 
by the employer to prevent exacerbation of, or to allow recuperation 
from, that injury or illness, the case is recordable as a restricted 
work case because the restriction was necessitated by the work-related 
injury or illness. In some cases, there may be more than one reason for 
imposing or recommending a work restriction, e.g., to prevent an injury 
or illness from becoming worse or to prevent entry into a contaminated 
area. In such cases, if the employee's work-related illness or injury 
played any role in the restriction, OSHA considers the case to be a 
restricted work case.
    Second, for the definition of restricted work to apply, the work 
restriction must be decided on by the employer, based on his or her 
best judgment or on the recommendation of a physician or other licensed 
health care professional. If a work restriction is not followed or 
implemented by the employee, the injury or illness must nevertheless be 
recorded on the Log as a restricted case. This was also the case under 
the former rule.
    Third, like the former rule, the final rule's definition of 
restricted work relies on two components: whether the employee is able 
to perform the duties of his or her pre-injury job, and whether the 
employee is able to perform those duties for the same period of time as 
before.
    The principal differences between the final and former rules' 
concept of restricted work cases are these: (1) the final rule permits 
employers to cap the total number of restricted work days for a 
particular case at 180 days, while the former rule required all 
restricted days for a given case to be recorded; (2) the final rule 
does not require employers to count the restriction of an employee's 
duties on the day the injury occurred or the illness began as 
restricted work, providing that the day the incident occurred is the 
only day on which work is restricted; and (3) the final rule defines 
work as restricted if the injured or ill employee is restricted from 
performing any job activity the employee would have regularly performed 
at least once per week before the injury or illness, while the former 
rule counted work as restricted if the employee was restricted in 
performing any activity he or she would have performed at least once 
per year.
    In all other respects, the final rule continues to treat restricted 
work and job transfer cases in the same manner as they were treated 
under the former rule, including the counting of restricted days. 
Paragraph 1904.7(b)(4)(xi) requires the employer to count restricted 
days using the same rules as those for counting days away from work, 
using Sec. 1904.7(b)(3)(i) to (viii), with one exception. Like the 
former rule, the final rule allows the employer to stop counting 
restricted days if the employee's job has been permanently modified in 
a manner that eliminates the routine functions the employee has been 
restricted from performing. Examples of permanent modifications would 
include reassigning an employee with a respiratory allergy to a job 
where such allergens are not present, or adding a mechanical assist to 
a job that formerly required manual lifting. To make it clear that 
employers may stop

[[Page 5982]]

counting restricted days when a job has been permanently changed, but 
not to eliminate the count of restricted work altogether, the rule 
makes it clear that at least one restricted workday must be counted, 
even if the restriction is imposed immediately. A discussion of the 
desirability of counting days of restricted work and job transfer at 
all is included in the explanation for the OSHA 300 form and the 
Sec. 1904.29 requirements. The revisions to this category of cases that 
have been made in the final rule reflect the views of commenters, 
suggestions made by the Keystone report (Ex. 5), and OSHA's experience 
in enforcing the former recordkeeping rule.
Paragraph 1904.7(b)(5) Medical Treatment Beyond First Aid
    The definitions of first aid and medical treatment have been 
central to the OSHA recordkeeping scheme since 1971, when the Agency's 
first recordkeeping rule was issued. Sections 8(c)(2) and 24(a) of the 
OSH Act specifically require employers to record all injuries and 
illnesses other than those ``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.'' Many 
injuries and illnesses sustained at work do not result in death, loss 
of consciousness, days away from work or restricted work or job 
transfer. Accordingly, the first aid and medical treatment criteria may 
be the criteria most frequently evaluated by employers when deciding 
whether a given work-related injury must be recorded.
    In the past, OSHA has not interpreted the distinction made by the 
Act between minor (i.e., first aid only) injuries and non-minor 
injuries as applying to occupational illnesses, and employers have 
therefore been required to record all occupational illnesses, 
regardless of severity. As a result of this final rule, OSHA will now 
apply the same recordability criteria to both injuries and illnesses 
(see the discussion of this issue in the Legal Authority section of 
this preamble). The Agency believes that doing so will simplify the 
decision-making process that employers carry out when determining which 
work-related injuries and illnesses to record and will also result in 
more complete data on occupational illness, because employers will know 
that they must record these cases when they result in medical treatment 
beyond first aid, regardless of whether or not a physician or other 
licensed health care professional has made a diagnosis.
    The former recordkeeping rule defined first aid as ``any one-time 
treatment and any follow-up visit for the purpose of observation, of 
minor scratches, cuts, burns, splinters, and so forth, which do not 
ordinarily require medical care.'' Medical treatment was formerly 
defined as ``treatment administered by a physician or by registered 
professional personnel under the standing orders of a physician.''
    To help employers determine the recordability of a given injury, 
the Recordkeeping Guidelines, issued by the Bureau of Labor Statistics 
(BLS) in 1986, provided numerous examples of medical treatments and of 
first aid treatments (Ex. 2). These examples were published as mutually 
exclusive lists, i.e., a treatment listed as a medical treatment did 
not also appear on the first-aid list. Thus, for example, a positive x-
ray diagnosis (fractures, broken bones, etc.) was included among the 
treatments generally considered medical treatment, while a negative x-
ray diagnosis (showing no fractures) was generally considered first 
aid. Despite the guidance provided by the Guidelines, OSHA continued to 
receive requests from employers for interpretations of the 
recordability of specific cases, and a large number of letters of 
interpretation addressing the distinction between first aid and medical 
treatment have been issued. The following sections discuss the 
definitions of medical treatment and first aid proposed by OSHA, the 
comments received in response to the proposal, and the definition of 
medical treatment that OSHA has decided to include in the final rule.
    In the proposed rule, OSHA presented a simplified approach: to 
define as first aid anything on a list of first aid treatments, and to 
define as medical treatment any treatment not on that list. 
Specifically, medical treatment was defined as ``any medical cure or 
treatment beyond first aid'' (61 FR 4059).
    The proposal contained a comprehensive list of all treatments that 
would be considered ``first aid'' regardless of the provider:
    (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 to 
Part 1904)
    (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 
(61 FR 4059)
    OSHA also solicited comment on three specific definitional 
questions:
    (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?

    OSHA received many comments on the general approach taken in the 
proposal, i.e., that employers rely on a comprehensive list of first 
aid treatment and define any treatment not on that list as medical 
treatment. The Agency also received many comments on the individual 
items on the proposed first aid list. The following discussion 
addresses comments on the general approach adopted in the final rule 
and then deals with comments on specific items and OSHA's responses to 
each issue.
    A large number of commenters agreed with OSHA's proposal to rely on 
a finite list of treatments considered first aid and to consider all 
other treatments medical treatment (see, e.g., Exs. 15: 9, 13, 26, 27, 
74, 76, 87, 95, 122, 127, 156, 163, 185, 188, 199, 204, 218, 242, 263, 
269, 270, 283, 297, 324, 332, 338, 347, 357, 359, 377, 378, 385, 386, 
387, 395, 397, 405, 407, 414, 434). Several commenters wanted no change 
to the proposal (see, e.g., Exs. 15: 26, 76, 204, 385, 378), while 
others agreed with the general approach but stated that the first aid 
list should be more comprehensive (see, e.g., Exs. 15: 199, 332, 338, 
357, 386, 387).
    Commenters supported the proposed approach for a variety of 
reasons. For example, some stated that a finite list

[[Page 5983]]

would improve the clarity of the definition, reduce confusion for 
employers, and reduce inaccuracy in the data (see, e.g., Exs. 15: 87, 
95, 122, 127, 163, 185, 188, 395, 338, 242, 270, 269, 263, 347, 377, 
386). The statement of the American Iron and Steel Institute 
exemplified these comments:

    Consistent with its statutory mandate, OSHA's proposal would 
also require the recording of all work-related injuries and 
illnesses that result in medical treatment beyond first aid. The 
expanded and finite list of treatments that constitute first aid 
would clarify the task of deciding what to record, because any 
treatment that does not appear on this list will be considered a 
medical treatment. (Ex. 15: 395)

    The Ford Motor Company agreed, stating:

    Ford supports that the definition of first aid be modified to 
consist of a comprehensive list of treatments. Treatments not found 
on the first aid list would be considered medical treatment for 
recordkeeping purposes. Assuming that the list will be 
comprehensive, it will reduce confusion, lead to consistent 
recordkeeping, and greatly simplify the decision making process (Ex. 
15: 347).

    Some commenters stated that the proposed approach would be simpler 
for employers, generate more consistent records, and facilitate better 
comparisons of injury and illness data over time (see, e.g., Exs. 15: 
13, 122, 127, 242, 270, 269, 263, 283, 297, 347, 359, 377, 405, 407). 
According to the Southern Nuclear Operating Company: ``Providing a 
comprehensive list of all first-aid treatments will remove the current 
ambiguity in deciding if a case involves first aid only or if it is 
medical treatment. This should provide more consistent recordkeeping 
and allow for more meaningful comparisons of accident histories'' (Ex. 
15: 242, p. 2).
    A number of commenters, however, disagreed that defining first aid 
by listing first aid treatments was appropriate (see, e.g., Exs. 15: 
18, 63, 83, 87, 96, 119, 123, 129, 145, 159, 171, 173, 176, 182, 201, 
225, 229, 247, 260, 262, 265, 272, 281, 303, 307, 308, 335, 337, 338, 
341, 348, 349, 357, 364, 375, 380, 382, 389, 396, 401, 413, 418, 430, 
434). Several of these commenters argued that it would not be possible 
to list every first aid treatment (see, e.g., Exs. 15: 225, 335, 337, 
396, 430). Some commenters stated that the proposed approach would not 
provide sufficient clarity, would involve a definition of medical 
treatment that was overly vague, and would not be helpful to employers 
without additional definitions (see, e.g., Exs. 15: 159, 171, 176, 229, 
281, 348, 357, 396). Another group of commenters stated that the 
approach did not provide flexibility to adapt to changing medical 
practice, and would not be capable of responding to changes in 
technology (see, e.g., Exs. 15: 18, 63, 96, 335, 348). The comments of 
the Dow Chemical Corporation are representative of these views:

    Dow believes that OSHA should provide non-exhaustive lists for 
both first aid and medical treatment, rather than defining one 
solely by the exclusion of the other. Dow believes this suggested 
approach is necessary to take into account that these lists cannot 
be comprehensive or all-inclusive as it is impossible to list every 
possible contingency. Moreover, technology is constantly changing 
and cannot be accounted for in a static list. For example, one can 
now obtain Steri-Strips over the counter where previously it would 
have been considered ``medical treatment.'' Since exhaustive lists 
do not allow the flexibility to take these technologies into account 
nor capture every possible situation, much would still be left to 
supposition. By providing an illustrative list for both first aid 
and medical treatment, OSHA would be giving adequate guidance for 
the regulated community. Dow recommends OSHA make this modification 
in the final rule. (Ex. 15: 335)

    A number of commenters urged OSHA to use the definition of medical 
treatment as a way to focus primarily on the seriousness of the injury 
or illness (see, e.g., Exs. 15: 147, 201, 308, 341, 375, 395, 418). For 
example, the American Petroleum Institute remarked ``* * * the 
fundamental issue is the seriousness of the injury or illness, not the 
treatment'' (Ex. 375-A, p. 7). The Caterpillar Corporation provided 
lengthy comments on the definition of medical treatment, including the 
following criticism of the proposed approach:

    Insignificant injuries for which medical treatment is provided 
do not provide valuable information for safety and health analysis. 
This proposal attempts to oversimplify the recordkeeping process 
which will result in many insignificant injuries and illnesses being 
recorded because of the unnecessarily restrictive definitions for 
first aid and medical treatment. The definition and listing of first 
aid cannot be a comprehensive or exclusive listing and definition. 
Medical treatment may be provided for insignificant injuries and 
significant injuries may receive little or no medical treatment. The 
medical treatment process and options are too complicated to be 
adequately described by one list which makes the treatments mutually 
exclusive. OSHA should continue the current practice with lists for 
both first aid and medical treatment. Further, the treatments cannot 
be mutually exclusive since treatment does not necessarily recognize 
the severity of the injury or illness (Ex. 15: 201, p. 4).

    Some commenters who disagreed with the proposed approach provided 
suggestions and alternative definitions. A number of commenters 
suggested that OSHA keep its former definitions of first aid and 
medical treatment (see, e.g., Exs. 15: 83, 119, 123, 129, 145, 225, 
337, 380, 389, 418, 430). Several commenters urged OSHA to update the 
former rule's definitions using the proposed rule's listing of first 
aid treatments (see, e.g., Exs. 15: 83, 380, 418). Other commenters 
urged OSHA not to change the definition in any way because it would 
produce a break in the historical series of occupational injury and 
illness data (see, e.g., Exs. 15: 123, 145, 389).
    Several commenters made suggestions that they believed would 
introduce flexibility into the proposed rule's first aid definition. 
The National Restaurant Association suggested that OSHA add a 
``catchall'' category to the list to include ``any similar type of 
treatment'' (Ex. 15: 96, p. 5). The General Electric Company urged that 
the following language be added: ``Other treatments may be considered 
first aid so long as they are recognized as first aid actions and [are] 
not listed in the definition of medical treatment'' (Ex. 15: 349, p. 
8). Some commenters suggested allowing the health care professional to 
determine whether the activity was properly classified as first aid or 
medical treatment (see, e.g., Exs. 27; 15: 131, 173, 176, 201, 334, 
382, 392, 434). A typical comment along these lines was one from the 
American Forest and Paper Association, which stated that ``* * * we 
believe a qualified health care professional should have the authority 
to determine what is properly characterized as first aid and what 
should be properly characterized as medical treatment'' (Ex. 15:334, p. 
7). Two commenters suggested that the health care professional be 
allowed to decide whether an action constituted first aid or medical 
treatment only if the treatment was not on either the first aid or 
medical treatment lists (see, e.g., Exs. 27; 15: 382, 392, 434).
    One commenter, the American Network of Community Options and 
Resources, supported the development of a finite first aid list, but 
suggested that OSHA define medical treatment as ``any treatment that 
requires professional medical intervention'' (Ex. 15: 393, p. 8).
    A number of commenters agreed with OSHA that the first aid 
definition should focus on the type of treatment given, and not on the 
provider (see, e.g., Exs. 15: 185, 308, 338, 349, 364, 443). Other 
comments argued that a distinction between first aid and medical 
treatment could be made on the basis of the number of times a 
particular treatment had been given. The AFL-CIO expressed a concern 
that, absent some

[[Page 5984]]

consideration of the number of times a treatment was administered, many 
serious injuries and illnesses would no longer be recordable and 
valuable data would be lost. The AFL-CIO stated that longer term 
treatments are more likely than shorter ones to be indicative of 
medical treatment:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. Those conditions 
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of 
wounds would no longer be recordable. The AFL-CIO believes that 
first aid should be limited to one time treatments as is the current 
practice, so that serious conditions which require multiple 
treatments are recorded on the log. We strongly urge OSHA to 
maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first 
aid. (Ex. 15: 418).

    Similarly, the TIMEC group of companies believed that any one-time 
treatment should be considered first aid, saying:

    It is also TIMEC's perspective that the exclusion of a ``one 
time medical treatment'' provision from the list of first aids is 
unduly restrictive. Any condition that can be resolved or treated in 
one visit to the doctor should be considered minimal or negligible 
in the context of record keeping for industrial injuries. Under the 
proposed regulation, a condition that results in a one time medical 
treatment theoretically could be given the same weight, in terms of 
OSHA recordability, as a broken or severed limb. This seems unduly 
restrictive. Further, it may inhibit some employers from taking 
injured employees to the doctor in the first instance, in order to 
avoid a ``OSHA recordable injury.'' An employer may otherwise hope 
that the matter will heal itself without infection. This seems 
contrary to the goal of the Occupational Safety and Health Act, to 
ensure appropriate and prompt medical treatment and safety services 
to employees (Ex. 15: 18, p. 2).

    In response to these comments and the evidence in the record of 
this rulemaking, the final rule essentially continues the proposed 
approach, i.e., it includes a list of first-aid treatments that is 
inclusive, and defines as medical treatment any treatment not on that 
list. OSHA recognizes, as several commenters pointed out, that no one 
can predict how medical care will change in the future. However, using 
a finite list of first aid treatments--knowing that it may have to be 
amended later based on new information--helps to limit the need for 
individual judgment about what constitutes first aid treatment. If OSHA 
adopted a more open-ended definition or one that relied on the judgment 
of a health care professional, employers and health care professionals 
would inevitably interpret different cases differently, which would 
compromise the consistency of the data. Under the system adopted in the 
final rule, once the employer has decided that a particular response to 
a work-related illness or injury is in fact treatment, he or she can 
simply turn to the first aid list to determine, without elaborate 
analysis, whether the treatment is first aid and thus not recordable. 
OSHA finds that this simple approach, by providing clear, unambiguous 
guidance, will reduce confusion for employers and improve the accuracy 
and consistency of the data.
    The need for clear and unambiguous guidance is also OSHA's reason 
for not considering treatments from the first aid list to be medical 
treatment if carried out for a lengthier time, as suggested by the AFL-
CIO. If an injured or ill employee is given first-aid treatment, such 
as non-prescription medications (at non-prescription strength), hot or 
cold therapy, massage therapy, or some other treatment on the first aid 
list, the treatment should not be considered medical treatment for OSHA 
recordkeeping purposes, regardless of the length of time or number of 
applications used. This approach will ensure that the recordkeeping 
system excludes truly minor injuries and illnesses, and capture the 
more serious cases that require treatment beyond first aid.
    In the final rule, OSHA has adopted the approach taken in the 
proposal, in a slightly modified form. Under the final rule, employers 
will be able to rely on a single list of 14 first aid treatments. These 
treatments will be considered first aid whether they are provided by a 
lay person or a licensed health care professional. However, the final 
rule includes the following definition of medical treatment; 
``management and care of a patient for the purpose of combating disease 
or disorder;'' this definition excludes observation and counseling, 
diagnostic procedures, and the listed first aid items. OSHA believes 
that providing a definition of medical treatment for recordkeeping 
purposes will help employers who are uncertain about what constitutes 
medical treatment. OSHA will also provide examples of medical 
treatments covered by this definition in compliance assistance 
documents designed to help smaller businesses comply with the rule. The 
following discussion describes the definitions of first aid and medical 
treatment in the final rule and explains the Agency's reasons for 
including each item on the first aid list.
Final Rule
    The final rule, at Sec. 1904.7(b)(5)(i), defines medical treatment 
as the management and care of a patient for the purpose of combating 
disease or disorder. For the purposes of Part 1904, medical treatment 
does not include:

    (A) Visits to a physician or other licensed health care 
professional solely for observation or counseling;
    (B) The conduct of diagnostic procedures, such as x-rays and 
blood tests, including the administration of prescription 
medications used solely for diagnostic purposes (e.g., eye drops to 
dilate pupils); or
    (C) ``first aid'' as defined in paragraph (b)(5)(ii) of this 
section.

    The final rule, at paragraph (b)(5)(ii), defines first aid as 
follows:

    (A) Using a nonprescription medication at nonprescription 
strength (for medications available in both prescription and non-
prescription form, a recommendation by a physician or other licensed 
health care professional to use a non-prescription medication at 
prescription strength is considered medical treatment for 
recordkeeping purposes).
    (B) administering tetanus immunizations (other immunizations, 
such as hepatitis B vaccine or rabies vaccine, are considered 
medical treatment).
    (C) Cleaning, flushing or soaking wounds on the surface of the 
skin;
    (D) Using wound coverings, such as bandages, Band-
Aids, gauze pads, etc.; or using butterfly bandages or 
Steri-Strips (other wound closing devices, such as 
sutures, staples, etc. are considered medical treatment);
    (E) Using hot or cold therapy;
    (F) Using any non-rigid means of support, such as elastic 
bandages, wraps, non-rigid back belts, etc. (devices with rigid 
stays or other systems designed to immobilize parts of the body are 
considered medical treatment for recordkeeping purposes);
    (G) Using temporary immobilization devices while transporting an 
accident victim (e.g. splints, slings, neck collars, back boards, 
etc.)
    (H) Drilling of a fingernail or toenail to relieve pressure, or 
draining fluid from a blister;
    (I) Using eye patches;
    (J) Removing foreign bodies from the eye using only irrigation 
or a cotton swab;
    (K) Removing splinters or foreign material from areas other than 
the eye by irrigation, tweezers, cotton swabs, or other simple 
means;
    (L) Using finger guards;
    (M) Using massages (physical therapy or chiropractic treatment 
are considered medical treatment for recordkeeping purposes);
    (N) Drinking fluids for relief of heat stress.

    This list of first aid treatments is comprehensive, i.e., any 
treatment not included on this list is not considered

[[Page 5985]]

first aid for OSHA recordkeeping purposes. OSHA considers the listed 
treatments to be first aid regardless of the professional 
qualifications of the person providing the treatment; even when these 
treatments are provided by a physician, nurse, or other health care 
professional, they are considered first aid for recordkeeping purposes.
    The definition of medical treatment in the final rule differs both 
from the definition used in the former rule (``treatment administered 
by a physician or by registered professional personnel under the 
standing orders of a physician'') and the proposed definition 
(``medical treatment includes any medical care or treatment beyond 
first aid''). The medical treatment definition in the final rule is 
taken from Dorland's Illustrated Medical Dictionary, and is thus 
consistent with usage in the medical community.
    The three listed exclusions from the definition--visits to a health 
care professional solely for observation or counseling; diagnostic 
procedures, including prescribing or administering of prescription 
medications used solely for diagnostic purposes; and procedures defined 
in the final rule as first aid--clarify the applicability of the 
definition and are designed to help employers in their determinations 
of recordability.
    OSHA received several comments on the proposed definition of 
medical treatment. These dealt primarily with the general approach OSHA 
was proposing, i.e., the use of an all-inclusive list of first aid 
applications, and defining any treatment not on the list as medical 
treatment. The remaining comments (see, e.g., Exs. 15: 87, 171, 173, 
176, 182, 229, 247, 260, 262, 265, 272, 303, 307, 357, 338, 375, 382, 
396, 401, 413) urged OSHA to develop an all-inclusive list of medical 
treatments, to provide examples of some medical treatments, or to 
provide a non-mandatory appendix with such examples.
    OSHA has not adopted the suggestions made by these commenters 
because the Agency finds that simplicity and clarity are best served by 
adopting a single, all-inclusive first aid list and explicitly stating 
that any treatment not on the list is considered, for recordkeeping 
purposes, to be medical treatment. Employers will thus be clear that 
any condition that is treated, or that should have been treated, with a 
treatment not on the first aid list is a recordable injury or illness 
for recordkeeping purposes.
    This simplified approach addresses the concerns expressed by 
several commenters, who emphasized that the distinction between first 
aid and medical treatment made in the Act was meant to ensure that all 
occupational injuries and illnesses that were other than minor be 
captured by OSHA's recordkeeping system but that minor conditions not 
be recorded (see, e.g., Exs. 15-308, 375A, p. 7). As the American 
Petroleum Institute commented (Ex. 375A), ``* * * the fundamental issue 
is the seriousness of the injury or illness, not the treatment.'' OSHA 
concludes, based on its review of the record, that the final rule's 
definitions of medical treatment and first aid will work together to 
achieve Congress's intent, as specified in sections 8 and 24 of the 
Act.
    In making its decisions about the items to be included on the list 
of first aid treatments, OSHA relied on its experience with the former 
rule, the advice of the Agency's occupational medicine and occupational 
nursing staff, and a thorough review of the record comments. In 
general, first aid treatment can be distinguished from medical 
treatment as follows:
     First aid is usually administered after the injury or 
illness occurs and at the location (e.g., workplace) where the injury 
or illness occurred.
     First aid generally consists of one-time or short-term 
treatment.
     First aid treatments are usually simple and require little 
or no technology.
     First aid can be administered by people with little 
training (beyond first aid training) and even by the injured or ill 
person.
     First aid is usually administered to keep the condition 
from worsening, while the injured or ill person is awaiting medical 
treatment.
    The final rule's list of treatments considered first aid is based 
on the record of the rulemaking, OSHA's experience in implementing the 
recordkeeping rule since 1986, a review of the BLS Recordkeeping 
Guidelines, letters of interpretation, and the professional judgment of 
the Agency's occupational physicians and nurses.
Specific Items on the Proposed First Aid List in the NPRM
    Item 1 listed in the NPRM definition of first aid was ``Visit(s) to 
a health care provider limited to observation.'' Two commenters raised 
the issue of counseling with regard to the recording of mental 
disorders (Exs. 15: 226, 395). The American Ambulance Association (AAA) 
stated that: ``This is and should be considered preventive treatment 
aimed at preventing stress-related illnesses. OSHA's adoption of such a 
policy will allow and encourage employers to provide CISD (critical 
incident stress debriefing) counseling'' (Ex. 15: 226, p. 3). The AAA 
recommended that OSHA add preventive counseling, such as critical 
incident stress debriefing, to the first aid listing.
    OSHA agrees that counseling should not be considered medical 
treatment and has expressly excluded it from the definition of medical 
treatment. Counseling is often provided to large groups of workers who 
have been exposed to potentially traumatic events. Counseling may be 
provided on a short-term basis by either a licensed health care 
professional or an unlicensed person with limited training. OSHA 
believes that capturing cases where counseling was the only treatment 
provided do not rise to the level of recording; other counseling cases, 
where prescription medications, days away from work, or restricted work 
activity is involved, would be captured under those criteria.
    The Brookhaven National Laboratory recommended that the first aid 
list include any return visit to evaluate diagnostic decisions (Ex. 15: 
163). Caterpillar, Inc. suggested that visits for observation, testing 
or diagnosis of injuries should also be considered first aid (Ex. 15: 
201). The Chemical Manufacturers Association and Marathon Oil Company 
encouraged OSHA to add visits to the hospital for observation to the 
first-aid list (Exs. 15: 308, 310)
    OSHA generally agrees with these commenters. OSHA believes that 
visits to a health care professional for observation, testing, 
diagnosis, or to evaluate diagnostic decisions should be excluded from 
the definition of medical treatment in the final rule. Visits to a 
hospital, clinic, emergency room, physician's office or other facility 
for the purpose of seeking the advice of a health care professional do 
not themselves constitute treatment. OSHA believes that visits to a 
hospital for observation or counseling are not, of and by themselves, 
medical treatment. Accordingly, the final rule excludes these 
activities from the definition of medical treatment.
    Item 2 listed in the NPRM definition of first aid was ``Diagnostic 
procedures, including the use of prescription medications solely for 
diagnostic purposes (e.g. eye drops to dilate pupils).'' Several 
commenters believed that diagnostic procedures such as x-rays and blood 
tests should not be considered medical treatment (see, e.g., Exs. 15: 
176, 301, 347, 349, 375, 443). For example, General Electric (GE) 
stated ``Diagnostic tests should not be considered medical treatment.

[[Page 5986]]

Considering a diagnostic test to be a recordable injury without 
consideration of the test results is illogical and will establish a 
disincentive to test. GE's position is that a definition of medical 
treatment should also be included in the proposed regulation. Proposed 
wording is as follows: ``Medical treatment'' includes any medical care 
or treatment beyond ``first aid'' and does not include diagnostic 
procedures.''
    Two commenters opposed the exclusion of diagnostic procedures. The 
National Institute for Occupational Safety and Health (NIOSH) said 
``the term diagnostic procedures'' in item #2 is too broad, and the 
example given is vague. These procedures should not be considered first 
aid'' (Ex. 15: 407, p. 17). The United Steelworkers of America stated 
`` * * * delete the use of prescription drugs for diagnostic purposes. 
This will be abused by the company'' (Ex. 15: 429).
    OSHA disagrees with NIOSH that the exclusion for diagnostic 
procedures is overly vague. It is the experience of the Agency that 
employers generally understand the difference between procedures used 
to combat an injury or illness and those used to diagnose or assess an 
injury or illness. In the event that the employer does not have this 
knowledge, he or she may contact the health care professional to obtain 
help with this decision. If the employer does not have this knowledge, 
and elects not to contact the health care professional, OSHA would 
expect the employer to refer to the first aid list and, if the 
procedure is not on the list, to presume that the procedure is medical 
treatment and record the case. OSHA also does not believe that this 
provision will be subject to abuse, because the procedures used for 
diagnosis are generally quite different from those involving treatment.
    OSHA agrees with those commenters who recommended the exclusion of 
diagnostic procedures from the definition of medical treatment. 
Diagnostic procedures are used to determine whether or not an injury or 
illness exists, and do not encompass therapeutic treatment of the 
patient. OSHA has included such procedures on the first aid list in the 
final rule with two examples of diagnostic procedures to help reduce 
confusion about the types of procedures that are excluded.
    Item 3 listed in the NPRM definition of first aid was ``Use of 
nonprescription medications, including antiseptics.'' This issue 
received a large number of comments, more than any other issue related 
to the proposed definition of medical treatment and first aid. Most of 
the comments requested that OSHA consider some uses of prescription 
drugs to be first aid treatment (see, e.g., Exs. 15: 13, 60, 147, 159, 
201, 218, 225, 246, 247, 297, 308, 332, 335, 336, 348, 349, 359, 374, 
375, 386, 387, 395, 405, 414, 430, 434). The most common reason given 
by commenters for treating some prescription drugs as first aid was 
their use when they were given for preventive rather than therapeutic 
intervention. Several commenters asked for a broad exception from 
medical treatment for prescription drugs taken for preventive or 
prophylactic purposes (see, e.g., Exs. 55X 15: 247, 336, 375, 395). For 
example, the American Iron and Steel Institute stated ``AISI encourages 
OSHA to make one change: add the use of prescription medications for 
prophylactic reasons to the first aid list. In many instances, a health 
care professional will prescribe antibiotics as a precaution against a 
possible infection. An employer should not be required to record a 
minor injury solely because a health care professional opted to respond 
aggressively'' (Exs. 15: 395; 55X).
    Several commenters asked for an exception from the medical 
treatment for antibiotics and antiseptics (see, e.g., Exs. 15: 218, 
246, 332, 349, 375, 395, 414, 430). Raytheon Constructors, Inc. 
commented: ``We believe the following treatments should be added [to 
the first aid list]: Application of antiseptics, as often as needed. 
This is for prevention of infection after an injury. Infection is not 
caused by the work environment. Treatment for an infection, such as 
prescription drugs. Again, infection is not the result of the work 
environment'' (Ex. 15: 414).
    A number of employers asked OSHA to define the use of prescription 
drugs for comfort, or to relieve pain or inflammation, as first aid 
(see, e.g., Exs. 15: 60, 147, 201, 225, 247, 308, 348, 349). The 
American Gas Association stated that: we propose that `prescription 
medications for comfort' be added to the list. Medical practitioners 
frequently ``prescribe drugs to comfort people after an injury'' (Ex. 
15: 225), and the Proctor and Gamble Company stated ``[p]rescription 
medication to prevent complications or reduce pain should not be a sole 
basis for recording injuries and illnesses. It is our view that 
preventive measures or action taken to reduce pain should not in 
themselves be the basis for recording'' (Ex. 15: 147). Entergy Services 
Inc. suggested that OSHA include Benadryl shots as first aid since they 
are often given to prevent allergic reactions to insect bites and 
poison oak/ivy/sumac (Ex. 15: 13). The Arizona Public Service Company 
remarked: ``Treatment for bee stings should be addressed (perhaps 
listed on the First Aid list). For instance, if a doctor administers 
the same treatment that an employee could have administered themselves 
it should not be considered medical treatment'' (Ex. 15: 247).
    Another set of comments suggested that prescription medications 
should be considered first aid if they were used only once or for a 
limited period of time. A number of comments requested that OSHA 
continue to treat a single dose of prescription medication as first 
aid. (see, e.g., Exs. 15: 201, 332, 348, 349, 359, 374, 386, 387, 405, 
430, 434). Typical of these comments was one from the National Safety 
Council:

[t]hat administration of a single dose of prescription medication on 
first visit for minor injury or discomfort remain first aid. For 
example, minor muscle aches and pains may occasionally be eased with 
a single dose of 800 mg ibuprofen. This is currently considered 
first aid and should remain so. Another example would be the 
treatment of first degree burns. This is currently considered first 
aid treatment, even though treatment frequently involves the 
application of a single dose of prescription-strength ointment. 
(Ex.15: 359, p. 12)

    Other commenters suggested that prescription medications used for 
24 hours, 48 hours, or five days be considered first aid (see, e.g., 
Exs. 15: 159, 246, 297, 308, 335, 375).
    In the final rule, OSHA has not included prescription medications, 
whether given once or over a longer period of time, in the list of 
first aid treatments. The Agency believes that the use of prescription 
medications is not first aid because prescription medications are 
powerful substances that can only be prescribed by a licensed health 
care professional, and for the majority of medications in the majority 
of states, by a licensed physician. The availability of these 
substances is carefully controlled and limited because they must be 
prescribed and administered by a highly trained and knowledgeable 
professional, can have detrimental side effects, and should not be 
self-administered.
    Some commenters asked whether a case where a prescription was 
written by a physician and given to the injured or ill employee but was 
not actually filled or taken would be recordable. In some instances the 
employee, for religious or other reasons, refuses to fill the 
prescription and take the medicine. In other cases, the prescriptions 
are issued on a ``take-as-needed'' basis. In these cases, the health 
care professional gives the patient a prescription, often for pain 
medication, and tells the patient to fill and take the prescription if 
he or she

[[Page 5987]]

needs pain relief. OSHA's long-standing policy has been that if a 
prescription of this type has been issued, medical treatment has been 
provided and the case must therefore be recorded. Numerous commenters 
asked OSHA to reverse or clarify its policy and consider these 
prescriptions to be first aid in the final rule (see, e.g., Exs. 15: 
13, 105, 247, 260, 262, 279, 281, 295, 300, 308, 359, 362, 386, 414). 
For example, the National Safety Council requested that ``OSHA should 
specify whether the treatment must actually be given or merely be 
appropriate or normal for the injury or illness. For example, is 
medical treatment given when a prescription is written or when it is 
filled or when it is taken by the employee'' (Ex. 15: 359).
    OSHA has decided to retain its long-standing policy of requiring 
the recording of cases in which a health care professional issues a 
prescription, whether that prescription is filled or taken or not. The 
patient's acceptance or refusal of the treatment does not alter the 
fact that, in the health care professional's judgment, the case 
warrants medical treatment. In addition, a rule that relied on whether 
a prescription is filled or taken, rather than on whether the medicine 
was prescribed, would create administrative difficulties for employers, 
because such a rule would mean that the employer would have to 
investigate whether a given prescription had been filled or the 
medicine had actually been taken. Finally, many employers and employees 
might well consider an employer's inquiry about the filling of a 
prescription an invasion of the employee's privacy. For these reasons, 
the final rule continues OSHA's longstanding policy of considering the 
giving of a prescription medical treatment. It departs from former 
practice with regard to the administration of a single dose of a 
prescription medicine, however, because there is no medical reason for 
differentiating medical treatment from first aid on the basis of the 
number of doses involved. This is particularly well illustrated by the 
recent trend toward giving a single large dose of antibiotics instead 
of the more traditional pattern involving several smaller doses given 
over several days.
    Yet another issue raised by commenters about medications involved 
the use of non-prescription medications at prescription strength. In 
recent years, many drugs have been made available both as prescription 
and ``over-the-counter'' medications, depending on the strength or 
dosage of the product. Some examples include various non-steroidal 
anti-inflammatory drugs (NSAIDs), such as ibuprofen, and cortisone 
creams. OSHA's policy has been that if these drugs are used in the 
over-the-counter form they are first aid, but if they are used in 
prescription form, they are medical treatment. Some commenters stated 
that these drugs should always be considered first aid (see, e.g., Exs. 
15: 300, 308, 414). For example, Heritage Environmental Services, Inc. 
stated:

    While the proposed rule includes the use of non-prescription 
medications in the definition of first aid, it fails to address the 
use of prescription quantities of over-the-counter medications 
(i.e., Tylenol, Motrin). It has been Heritage's experience that the 
requirement of the current rule to record cases where physicians 
have prescribed over the counter medications has resulted in the 
inclusion of a broad range of minor cases, that in all other 
respects would not have been recordable. In working with 
occupational health care providers for many years, Heritage has 
found that frequently, physicians prescribe prescription quantities 
of over the counter medications for reasons other than the severity 
of the injury. Many physicians are unaware that the distribution of 
OTC medications in such a manner results in an OSHA recordable 
injury/illness.* * * Heritage strongly favors the inclusion of a 
statement within the definition of first aid that eliminates the 
need to record cases where the sole reason for the recording of the 
case is the administration of prescription quantities of over-the-
counter medications. (Ex. 15: 300)

    Other commenters stated that the use of nonprescription medications 
should be considered medical treatment if they are used at prescription 
strength (Ex. 15: 279) or that the continued use of non-prescription 
drugs, especially anti-inflammatory drugs, should be considered medical 
treatment (see, e.g., Exs. 15: 362, 371, 380, 418). The Union of 
Needletrades, Industrial and Textile Employees (UNITE) stated that 
``the self-administration of medication, when used on a recurring 
basis, should trigger the recording of cases'' (Ex. 15: 380), and the 
United Food and Commercial Workers Union, pointed out that ``When the 
employee reports pain that has lasted for over a week, they are given 
over-the-counter medication for as long as they ask. These cases, which 
can go on for a month or longer, are never recorded'' (Ex. 15: 371).
    One commenter suggested that health care professionals might 
prescribe over-the-counter medications rather than prescription 
medications for economic reasons (Ex. 15: 279).
    The final rule does not consider the prescribing of non-
prescription medications, such as aspirin or over-the-counter skin 
creams, as medical treatment. However, if the drug is one that is 
available both in prescription and nonprescription strengths, such as 
ibuprofen, and is used or recommended for use by a physician or other 
licensed health care professional at prescription strength, the medical 
treatment criterion is met and the case must be recorded. There is no 
reason for one case to be recorded and another not to be recorded 
simply because one physician issued a prescription and another told the 
employee to use the same medication at prescription strength but to 
obtain it over the counter. Both cases received equal treatment and 
should be recorded equally. This relatively small change in the 
recordkeeping rule will improve the consistency and accuracy of the 
data on occupational injuries and illnesses and simplify the system as 
well.
    Two commenters asked OSHA to add non-prescription ointments to item 
3 on the first aid list (Exs. 15: 308, 443). The final rule simply 
lists non-prescription medications, and expects non-prescription 
medications to be included regardless of form. Therefore, non-
prescription medicines at non-prescription strength, whether in 
ointment, cream, pill, liquid, spray, or any other form are considered 
first aid. OSHA has also removed antiseptics from the description of 
non-prescription medications. Following the same logic used for 
ointments, there is no need to list the variety of possible uses of 
non-prescription medications. Non-prescription medicines are first aid 
regardless of the way in which they are used.
    Item 4 listed in the NPRM definition of first aid was ``Simple 
administration of oxygen.'' Some commenters agreed with OSHA's proposal 
to define the giving of oxygen as first aid (see, e.g., Exs. 15: 34, 
74, 78, 201, 281, 378, 414).
    Several commenters, however, asked OSHA to provide more guidance as 
to what qualified as the ``simple'' administration of oxygen (see, 
e.g., Exs. 15: 13, 170, 188, 229, 260, 262, 265, 272, 303, 374, 401, 
405), while others suggested alternatives that would make some uses of 
oxygen first aid and other uses medical treatment. The American 
Petroleum Institute recommended: ``Simple oxygen administration is 
standard operating procedure for EMTs and should remain first aid. 
Oxygen therapy, if prescribed, should be considered medical treatment'' 
(15: 375). A group of utilities said ``Simple administration of oxygen 
should be defined to include the preventive aspects following an 
injury. This would include, for example, administration at the pre-
hospital site or while in the emergency room or hospital for 
observation. Identifying oxygen administration in this manner would

[[Page 5988]]

eliminate the need to identify which of the more advanced uses of 
oxygen should be considered as medical treatment'' (see, e.g., Exs. 15: 
260, 262, 265, 401).
    A number of commenters opposed the inclusion of oxygen as a first 
aid treatment (see, e.g., Exs. 15: 9, 87, 156, 290, 350, 395, 415, 
429). The American Red Cross stated:

    The simple administration of oxygen * * * is inappropriately 
considered first aid. Simple administration of oxygen is not so 
simple. If oxygen is administered to someone with chronic pulmonary 
disease (a medical condition not generally recognized by untrained 
individuals), the victim could die. Carbon dioxide build-up in the 
blood forces an individual with this condition to breathe; 
therefore, administration of oxygen would obstruct the involuntary 
breathing action, resulting in pulmonary arrest. Red Cross would 
argue that no administration of oxygen is ``simple'' (Ex. 15: 290).

The United Brotherhood of Carpenters Health & Safety Fund of North 
America (USC H&SF) remarked, ``[w]e urge that OSHA remove the simple 
administration of oxygen from first aid treatment. This procedure 
requires considerable training above what is recognized as First Aid by 
either the Red Cross's or National Safety Council's First Aid training 
courses'' (Ex. 15: 350). The Muscatine Iowa Chamber of Commerce Safety 
Committee added:

    We feel that oxygen administration, as a first aid treatment 
would extend beyond the intent of the standards. The training and 
equipment requirements for the delivery of oxygen are extensive and 
beyond the simple first aid kits. We believe that the delivery of 
even the most minimal amount of oxygen constitutes an advanced level 
of care to an employee. All oxygen administration should be 
considered as medical treatment, no matter how delivered or how much 
is used, for whatever the reason'' (Ex. 15: 87, p. 4).

    OSHA is persuaded by the views of the Red Cross and others, which 
point to the potential complexities and consequences of the 
administration of oxygen. Accordingly, the Agency has decided to remove 
the use of oxygen from the first aid list and to consider any use of 
oxygen medical treatment. Oxygen administration is a treatment that can 
only be provided by trained medical personnel, uses relatively complex 
technology, and is used to treat serious injuries and illnesses. The 
use of any artificial respiration technology, such as Intermittent 
Positive Pressure Breathing (IPPB), would also clearly be considered 
medical treatment under the final rule.
    Item 5 listed in the NPRM definition of first aid was 
``administration of tetanus or diphtheria shot(s) or booster(s).'' 
These treatments have been considered first aid by OSHA for some time 
when they are administered routinely, i.e., in the absence of an injury 
or illness (see the Recordkeeping Guidelines (Ex. 2, p. 43)). Several 
commenters expressed their support for continuing to include tetanus 
and diphtheria shots and boosters as first aid (see, e.g., Exs. 15: 
197, 201, 218, 247, 302, 308, 348, 385, 386, 393). Bell Atlantic 
commented that ``Bell Atlantic supports the proposed inclusion of 
tetanus/diphtheria shots on the first aid list. Such preventative 
actions should not be considered medical treatment'' (Ex. 15: 218). One 
commenter, Countrymark Cooperative, Inc., agreed that tetanus shots or 
boosters should be considered first aid, but did not believe diphtheria 
shots or boosters should be (Ex. 15: 9).
    Two commenters recommended that tetanus and diphtheria shots be 
considered medical treatment, whether or not they are administered in 
connection with a work-related injury or illness. The American Red 
Cross stated, ``inappropriately considered * * * administration of 
diphtheria and tetanus shots or boosters cannot be performed without a 
prescription from a physician. The person administering the shots must 
also be cognizant of potential side effects, i.e., anaphylactic shock, 
which can result from such an action, and be prepared to address them'' 
(Ex. 15: 290). The International Brotherhood of Teamsters added 
``International Brotherhood of Teamsters encourages OSHA to discontinue 
tetanus and diphtheria booster shots as first aid. They should be 
considered medical treatment. They are usually administered both after 
exposure and before diagnosis. The International Brotherhood of 
Teamsters considers it similar to the prophylaxis medical treatment 
given after exposure to Hepatitis B Virus'' (Ex. 15: 369).
    A number of commenters recommended the addition to the first aid 
list of other immunizations, including gamma globulin; vaccines for 
hepatitis B, hepatitis C, and rabies; or other prophylactic 
immunizations (see, e.g., Exs. 15: 197, 201, 218, 302, 308, 347, 348, 
386). Caterpillar, Inc. recommended, ``[c]learly exclude any 
immunizations and inoculations which are preventative in nature. 
Immunizations and inoculations are not usually provided in response to 
a specific injury or illness and should be excluded from OSHA records'' 
(Ex. 15: 201).
    In the final rule, tetanus immunizations are included as item B on 
the first aid list. These immunizations are often administered to a 
worker routinely to maintain the required level of immunity to the 
tetanus bacillus. These immunizations are thus based not on the 
severity of the injury but on the length of time since the worker has 
last been immunized.
    The issue of whether or not immunizations and inoculations are 
first aid or medical treatment is irrelevant for recordkeeping purposes 
unless a work-related injury or illness has occurred. Immunizations and 
inoculations that are provided for public health or other purposes, 
where there is no work-related injury or illness, are not first aid or 
medical treatment, and do not in themselves make the case recordable. 
However, when inoculations such as gamma globulin, rabies, etc. are 
given to treat a specific injury or illness, or in response to 
workplace exposure, medical treatment has been rendered and the case 
must be recorded. The following example illustrates the distinction 
OSHA is making about inoculations and immunizations: if a health care 
worker is given a hepatitis B shot when he or she is first hired, the 
action is considered first aid and the case would not be recordable; on 
the other hand, if the same health care worker has been occupationally 
exposed to a splash of potentially contaminated blood and a hepatitis B 
shot is administered as prophylaxis, the shot constitutes medical 
treatment and the case is recordable.
    Item 6 listed in the NPRM definition of first aid was ``cleaning, 
flushing or soaking wounds on skin surface.'' OSHA received only one 
specific comment on this item. The American Federation of State, 
County, and Municipal Employees (AFSCME) commented: ``Cleaning, 
flushing or soaking wounds on skin surfaces. This is the initial 
treatment for needle stick injuries. AFSCME requests that OSHA clarify 
its position that cleaning, flushing or soaking of sharps injuries is 
considered a medical treatment'' (Ex. 15: 362).
    The AFL-CIO disagreed with OSHA's proposed approach to skin surface 
wounds, based on the belief that valuable information about serious 
work-related injuries would be lost if the approach were adopted:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. Those conditions 
which require continued treatments, including continued use of non-
prescription drugs and repeated cleaning, flushing or soaking of 
wounds would no longer be recordable. The AFL-CIO believes that 
first aid should be limited to one time treatments as is the

[[Page 5989]]

current practice, so that serious conditions which require multiple 
treatments are recorded on the log. We strongly urge OSHA to 
maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first aid 
(Ex. 15: 418).

    OSHA believes that cleaning, flushing or soaking of wounds on the 
skin surface is the initial emergency treatment for almost all surface 
wounds and that these procedures do not rise to the level of medical 
treatment. This relatively simple type of treatment does not require 
technology, training, or even a visit to a health care professional. 
More serious wounds will be captured as recordable cases because they 
will meet other recording criteria, such as prescription medications, 
sutures, restricted work, or days away from work. Therefore, OSHA has 
included cleaning, flushing or soaking of wounds on the skin surface as 
an item on the first aid list. As stated previously, OSHA does not 
believe that multiple applications of first aid should constitute 
medical treatment; it is the nature of the treatment, not how many 
times it is applied, that determines whether it is first aid or medical 
treatment.
    Item 7 listed in the NPRM definition of first aid was ``Use of 
wound coverings, such as bandages, gauze pads, etc.'' These treatments 
were considered first aid treatments by the Recordkeeping Guidelines 
(Ex. 2, p. 43). OSHA received no comments opposing the proposed 
definition of wound coverings as first aid. However, the issue of 
whether or not butterfly bandages and Steri-stripsTM are 
first aid was raised. Steri-stripsTM are a product of the 3M 
Company, which advertises them as a comfortable adhesive strip used to 
secure, close and support small cuts, wounds and surgical incisions. 
``Butterfly bandages'' is a generic term used for similar adhesive 
strips designed for small wounds.
    All of the commenters who raised the issue suggested that OSHA add 
Steri-strips and butterfly bandages to this first aid item (see, e.g., 
Exs. 15: 45, 108, 163, 201, 247, 308, 332, 349, 387, 405). Some 
commenters believed that the use of Steri-stripsTM and 
butterfly bandages should always be considered first aid (see, e.g., 
Exs. 15: 45, 247, 332, 349, 387), while others believed they should be 
considered medical treatment only when used as a replacement for, or in 
lieu of, sutures (see, e.g., Exs. 15: 108, 163, 201, 308, 405). The 
Westinghouse Electric Corporation stated, ``Steri-strips should be 
added to the list of first-aid treatments, when determined by the 
attending medical provider that the Steri-stripTM was not 
applied in lieu of sutures. Often medical care providers use a Steri-
stripTM rather than a bandage, even though the injury does 
not require closure of any type'' (Ex. 15: 405).
    These treatments were listed in the 1986 Recordkeeping Guidelines 
as medical treatment when applied ``in lieu of sutures'' (Ex. 2, p. 
43). In the past, this provision in the Guidelines has been the subject 
of several letters of interpretation. For example, in a 1993 letter 
from Ms. Monica Verros, R.N., C.O.H.N, of the IBP company, Ms. Verros 
asked, ``[a]re all applications of butterfly adhesive dressing(s) and 
Steri-strip(s) considered medical treatment?'' OSHA's answer was simply 
``yes'' (Ex. 70: 136).
    OSHA agrees with the commenters who suggested that these devices be 
considered first aid treatment. They are included in item D of the 
first aid list. Steri strips and butterfly bandages are relatively 
simple and require little or no training to apply, and thus are 
appropriately considered first aid.
    Two commenters also raised the issue of whether or not sutures or 
stitches should be considered first aid (Exs. 15: 229, 348). The 
National Pest Control Association (NPCA) stated:

    NPCA believes cuts requiring five or less external stitches 
should also be categorized as first aid as well unless the employee 
has to go back to the medical provider because of the cut or there 
are more than five external stitches. Some of the examples the 
agency has included in its list of first aid, such as drilling of a 
nail to relieve pressure for subungual hematoma and removal of 
splinters or foreign material from areas other than eyes by 
irrigation, tweezers, cotton, swabs or other simple means, seems to 
be comparable to cuts requiring a minimal amount of stitches. 
Therefore, we believe it should be added to the list (Ex. 15: 229, 
p. 4).

The Dupont Company suggested: ``Expand the `suture' category to say 
that any device used for closure for therapeutic reasons is an 
automatic MTC (medical treatment case). Leeway should be given for when 
a care provider gives `unnecessary' treatment, for example, sutures for 
cosmetic reasons instead of for therapeutic closure, where the doctor 
provides the documentation'' (Ex. 15: 348).
    OSHA believes that including sutures or stitches in the first aid 
list would not be appropriate. Performing these procedures requires 
substantial medical training, and they are used only for more serious 
wounds and are generally considered to go beyond first aid. OSHA has 
also decided not to provide exclusions for first aid items based on 
their purpose or intent. If the medical professional decides stitches 
or sutures are necessary and proper for the given injury, they are 
medical treatment.
    Because OSHA has decided not to include a list of medical 
treatments in the final rule, there is no need to articulate that the 
use of other wound closing devices, such as surgical staples, tapes, 
glues or other means are medical treatment. Because they are not 
included on the first aid list, they are by definition medical 
treatment.
    Item 8 listed in the proposed definition of first aid was ``[u]se 
of any hot/cold therapy (e.g. compresses, soaking, whirlpools, non 
prescription skin creams/lotions for local relief, etc.) except for 
musculoskeletal disorders'' (61 FR 4059). The Recordkeeping Guidelines 
defined heat therapy, hot or cold therapy compresses or soaking 
therapy, or whirlpool bath therapy on a second or subsequent visit to 
be medical treatment (Ex. 2, p. 43). OSHA has restated this guidance in 
numerous letters of interpretation, most of them related to the issue 
of the recording of musculoskeletal disorders (MSDs).
    A number of commenters recommended that hot or cold therapy be 
defined as first aid regardless of the number of times it is 
administered or the type of condition for which it is used (see, e.g., 
Exs. 15: 39, 45, 95, 109, 156, 163, 199, 201, 218, 246, 308, 347, 348, 
359, 386, 414, 430, 443). Several of the comments cited consistency as 
an issue (see, e.g., Exs. 15: 39, 109, 347, 348, 430). For example, the 
Dupont Company stated that ``Item 8 on the `First Aid Treatment' list 
considers the same treatment as either first aid or medical treatment 
depending on the condition for which it is applied. The treatment is 
used for reduction of swelling and discomfort. The condition for which 
it is used should not matter. * * * Exclude the `except for 
musculoskeletal disorders * * *' clause from item 8 (Ex. 15: 348, p. 
9).
    Another issue raised was that hot and cold treatments do not 
require special training (Ex. 15: 414). For example, Raytheon 
Constructors stated ``[w]e believe the following treatments should be 
added: Soaking, whirlpool and hot/cold therapy with no limit on the 
number of times. Many physicians choose this conservative treatment, 
plus, any first aid trained person and/or the injured person can do 
this'' (Ex. 15: 414). Other commenters stated that serious 
musculoskeletal disorders would be captured more consistently by other 
recording criteria (see, e.g., Exs. 15: 199, 347). The Ford Motor 
Company stated:


[[Page 5990]]


    We have a major disagreement with the proposed rule that the use 
of any hot or cold therapy is first aid, except for musculoskeletal 
disorders. The use of hot or cold therapy should always be 
considered first aid. If an individual has a significant or serious 
musculoskeletal disorder, it would require prescription medicine, 
restriction of work or motion, transfer to another job, a day away 
from work, or medical treatment. Considering hot or cold therapy to 
always be first aid simplifies the system, reduces confusion, and 
does not discourage practitioners from using hot or cold therapy for 
minor or insignificant musculoskeletal disorders. If all 
musculoskeletal disorders which include two or more applications of 
hot or cold therapy as directed by a health care provider are 
recordable, the data on musculoskeletal disorders will be absolutely 
useless (Ex. 15: 347).

    Several commenters believed that multiple hot or cold treatments 
should be considered medical treatment (see, e.g., Exs. 15: 371, 418). 
The AFL-CIO disagreed with OSHA's proposal; it recommended that 
multiple treatments of all types be considered medical treatment, based 
on the belief that valuable information about serious work-related 
injuries would otherwise be lost. The AFL-CIO said:

    The proposed change in definition would seem to exclude cases 
where there are continued instances of the listed first aid 
treatments from the recordkeeping requirements. * * * The AFL-CIO 
believes that first aid should be limited to one time treatments as 
is the current practice, so that serious conditions which require 
multiple treatments are recorded on the log. We strongly urge OSHA 
to maintain the definition of first aid in the current recordkeeping 
guidelines and to use the listed conditions as examples of first aid 
(15: 418).

The Tosco Corporation proposed an alternative, recommending that hot/
cold treatments for musculoskeletal disorders be considered first aid 
for the first four treatments (Ex. 15: 246).
    In the final rule, OSHA has included hot and cold treatment as 
first aid treatment, regardless of the number of times it is applied, 
where it is applied, or the injury or illness to which it is applied. 
The Agency has decided that hot or cold therapy must be defined as 
either first aid or medical treatment regardless of the condition being 
treated, a decision that departs from the proposal. It is OSHA's 
judgment that hot and cold treatment is simple to apply, does not 
require special training, and is rarely used as the only treatment for 
any significant injury or illness. If the worker has sustained a 
significant injury or illness, the case almost always involves some 
other form of medical treatment (such as prescription drugs, physical 
therapy, or chiropractic treatment); restricted work; or days away from 
work. Therefore, there is no need to consider hot and cold therapy to 
be medical treatment, in and of itself. Considering hot and cold 
therapy to be first aid also clarifies and simplifies the rule, because 
it means that employers will not need to consider whether to record 
when an employee uses hot or cold therapy without the direction or 
guidance of a physician or other licensed health care professional.
    Item 9 listed in the NPRM definition of first aid was ``[u]se of 
any totally non-rigid, non-immobilizing means of support (e.g. elastic 
bandages).'' The proposal reflected OSHA's guidance to employers under 
past interpretations. The Recordkeeping Guidelines defined first aid 
treatment as ``use of elastic bandage(s) during first visit to medical 
personnel'' (Ex. 2, p. 43). The Guidelines do not provide specific 
guidance on the use of other types of orthopedic devices such as 
splints, casts, or braces. In response to requests from the public to 
clarify the issue of which devices are medical treatment and which are 
first aid treatment, OSHA issued several letters of interpretation 
stating that the use of wraps or non-constraining devices such as 
wristlets, tennis elbow bands or elastic bandages are first aid 
treatment, regardless of how long or how often they are used. The use 
of casts, splints, or orthopedic devices designed to immobilize a body 
part to permit it to rest and recover is considered medical treatment. 
Generally, orthopedic devices used for immobilization are made rigid, 
in whole or in part, through the use of stays or non-bending supports 
(see, e.g., Exs. 70: 40, 158).
    OSHA received several comments recommending that it provide 
additional clarification of this issue (see, e.g., Exs. 15: 176, 290). 
Several commenters suggested that OSHA include wrist splints as first 
aid, on the grounds that wrist splints are used as a prophylactic 
treatment (see, e.g., Exs. 15: 332, 349, 386, 387). Other commenters 
recommended that finger splints be considered first aid (see, e.g., 
Exs. 15: 201, 349, 386). The Caterpillar Company suggested that OSHA 
``[e]xpand item 9 to include rigid finger splints, which are used only 
to prevent further injury or to maintain the cleanliness of finger 
lacerations and other minor wounds, rather than as part of the required 
medical treatment. Only splints that are used to provide rigidity as 
part of the required medical treatment should trigger recordability'' 
(Ex. 15: 201).
    Several comments centered on the issue of immobilization for 
injuries while the worker is being transported to a medical care 
facility (see, e.g., Exs. 15: 290, 347, 434). The Ford Motor Company 
remarked, ``[t]he first aid list should be expanded to include the use 
of any partially or totally rigid immobilizing means of support when 
used solely for the purpose of immobilization during initial transport 
for medical evaluation. For example, the use of a back board, stiff 
neck collar, or air splint'' (Ex. 15: 347). The American Red Cross 
added:

    While Red Cross would agree that this is ``first aid,'' it is 
unclear whether OSHA intends for use of rigid support to be 
considered ``medical treatment.'' In most traditional first aid 
classes, including those taught by Red Cross, students are taught 
that if, for example, a victim has broken a bone, any rigid means of 
support that would immobilize the limb until further medical care 
can be obtained should be utilized. Examples of rigid support 
include newspapers, magazines, sticks, boards, splints, etc., 
anything that is available to prevent further injury. This action 
may be performed by anyone who has been trained in first aid, and 
Red Cross does not believe that ``rigidity'' is the appropriate 
qualification to consider this action ``medical treatment'' (15: 
290).

    The General Electric Corporation (GE) recommended that OSHA rely, 
not on the design of the device but on whether or not the device 
resulted in restricted activity. GE recommended ``the following 
additions to the list: Use of rigid or non-rigid immobilization 
devices, if they don't result in restricted activity, e.g. wrist 
braces, finger splints, immobilization for transport'' (Ex. 15: 349).
    OSHA has included two items related to orthopedic devices in the 
final definition of first aid. Item F includes ``[u]sing any non-rigid 
means of support, such as elastic bandages, wraps, non-rigid back 
belts, etc. (devices with rigid stays or other systems designed to 
immobilize parts of the body are considered medical treatment for 
recordkeeping purposes).'' OSHA has included more examples of the 
devices (wraps and non-rigid back belts) to help make the definition 
clearer. However, OSHA believes that the use of orthopedic devices such 
as splints or casts should be considered medical treatment and not 
first aid. They are typically prescribed by licensed health care 
professionals for long term use, are typically used for serious 
injuries and illnesses, and are beyond the everyday definition of first 
aid. OSHA believes that it would be inappropriate to rely on 
``restricted activity,'' as recommended by GE, because there may be 
situations where orthopedic devices are prescribed, the worker is not 
placed on

[[Page 5991]]

restrictions, but an injury or illness warranting recording has 
occurred.
    However, OSHA agrees with those commenters who stated that the use 
of these devices during an emergency to stabilize an accident victim 
during transport to a medical facility is not medical treatment. In 
this specific situation, a splint or other device is used as temporary 
first aid treatment, may be applied by non-licensed personnel using 
common materials at hand, and often does not reflect the severity of 
the injury. OSHA has included this item as G on the first aid list: 
``[u]sing temporary immobilization devices while transporting an 
accident victim (e.g. splints, slings, neck collars, etc.)''
    Item 10 listed in the proposed definition of first aid was 
``drilling of a nail to relieve pressure for subungual hematoma.'' A 
subungual hematoma is an accumulation of blood underneath a finger or 
toenail that is normally caused by a sharp blow to the nail. When 
pressure builds beneath the nail, pain results. The normal course of 
treatment for this injury is to drill a small hole through the nail to 
relieve the pressure. In the past, OSHA considered such treatment to be 
medical treatment and not first aid. For example, a 1993 letter from 
IBP, Inc. asked whether ``[d]rilling a hole through a fingernail to 
relieve pressure (subungual hematoma) is considered medical 
treatment?'' OSHA's answer was ``Yes, the draining of any fluids or 
blood is to be considered medical treatment'' (Ex. 70: 136).
    OSHA received very few comments on this first aid item. Linda 
Ballas & Associates stated ``The drilling of a nail to relieve pressure 
for subungual hematoma should be included as medical treatment and not 
first aid'' (Ex. 15: 31, p. 5). The American Textile Manufacturers 
Institute recommended that OSHA change the item to: ``Simple relieving 
of the pressure of a subungual hematoma. The use of the word drilling 
is too restrictive. There are a number of simple procedures to relieve 
pressure that are considered first aid'' (Ex. 15:156). OSHA also 
received a similar comment from Oxychem Corporation stating that 
lancing a blister should be considered first aid (Ex. 15: 386).
    OSHA has decided to retain this item on the first aid list and to 
add the lancing of blisters as well. These are both one time treatments 
provided to relieve minor soreness caused by the pressure beneath the 
nail or in the blister. These are relatively minor procedures that are 
often performed by licensed personnel but may also be performed by the 
injured worker. More serious injuries of this type will continue to be 
captured if they meet one or more of the other recording criteria. OSHA 
has specifically mentioned finger nails and toenails to provide 
clarity. These treatments are now included as item H on the first aid 
list.
    Item 11 listed in the proposed definition of first aid was ``Use of 
eye patches.'' The Recordkeeping Guidelines did not provide specific 
guidance about eye patches. However, in a 1992 letter, OSHA provided an 
interpretation that the use of eye patches was first aid treatment; in 
that letter, ELB Inc. asked OSHA to ``[e]xplain if pressure patches on 
eyes are recordable or if a patch over an eye to prevent light from 
entering is recordable? Is the use of an eye patch recordable?'' OSHA 
answered `` The use of a normal eye patch is considered to be first 
aid. However, if the employee is unable to perform all of his/her 
normal job duties because of the patch, the case should be recorded 
based on restricted work activity. The use of a pressure eye patch is 
medical treatment'' (Ex. 70: 161) .
    OSHA received only one comment specific to this item. The National 
Institute for Occupational Safety and Health (NIOSH) stated that the 
initial use of an eye patch would generally require medical evaluation 
and should not be considered first aid (Ex. 15: 407). In the final 
rule, OSHA has included the use of eye patches as first aid in item I 
of the first aid list. Eye patches can be purchased without a 
prescription, and are used for both serious and non-serious injuries 
and illnesses. OSHA believes that the more serious injuries to the eyes 
will that NIOSH refers to require medical treatment, such as 
prescription drugs or removal of foreign material by means other than 
irrigation or a cotton swab, and will thus be recordable.
    Item 12 listed in the proposed definition of first aid was 
``removal of foreign bodies not embedded in the eye if only irrigation 
or removal with a cotton swab is required.'' The effect of including 
this item in the list of first aid treatments would be to make any case 
involving a foreign body embedded in the eye a recordable injury.
    The Recordkeeping Guidelines listed ``removal of foreign bodies 
embedded in the eye'' as medical treatment and ``removal of foreign 
bodies not embedded in eye if only irrigation is required'' as first 
aid (Ex. 2, p. 43). In subsequent letters of interpretation, the use of 
a cotton swab to remove a foreign body from the eye was interpreted to 
be first aid; injuries requiring any removal method other than 
irrigation or a cotton swab made the case recordable (Ex. 70: 92).
    OSHA received few comments on this first aid item. NIOSH stated 
that any case involving a foreign body in the eye should be recorded, 
because ``even though removal of a foreign body from the eye may be a 
first aid procedure, the presence of a work-related foreign body in the 
eye should be recordable. These procedures should not be considered 
first aid'' (Ex. 15: 407). The Ford Motor Company asked OSHA to clarify 
that a foreign body ``embedded in or adhered to'' the eye and removed 
by the methods proposed would be considered first aid. Ford added that 
``[t]he use of a prescription medication to anesthetize the eye for a 
diagnostic procedure, an assessment procedure, or flushing to remove a 
loose foreign body should not be considered medical treatment'' (Ex. 
15: 347). Countrymark Cooperative, Inc. asked that the definition of 
this item be expanded to include other means of removal, stating: ``We 
suggest wording such as * * * Removal of foreign bodies not embedded in 
the eye if only irrigation or simple removal techniques are required, 
or comparable'' (Ex. 15: 9).
    In the final rule, OSHA has included as item J ``Removing foreign 
bodies from the eye using only irrigation or a cotton swab.'' OSHA 
believes that it is often difficult for the health care professional to 
determine if the object is embedded or adhered to the eye, and has not 
included this suggested language in the final rule. In all probability, 
if the object is embedded or adhered, it will not be removed simply 
with irrigation or a cotton swab, and the case will be recorded because 
it will require additional treatment.
    OSHA believes that it is appropriate to exclude those cases from 
the Log that involve a foreign body in the eye of a worker that can be 
removed from the eye merely by rinsing it with water (irrigation) or 
touching it with a cotton swab. These cases represent minor injuries 
that do not rise to the level requiring recording. More significant eye 
injuries will be captured by the records because they involve medical 
treatment, result in work restrictions, or cause days away from work.
    Item 13, the last item listed in the proposed definition of first 
aid, was ``Removal of splinters or foreign material from areas other 
than the eyes by irrigation, tweezers, cotton swabs or other simple 
means.'' The Recordkeeping Guidelines distinguished between foreign 
body removal cases on the basis of the complexity of the removal 
technique used. According to the Guidelines, the ``removal of foreign 
bodies from a wound if the procedure is

[[Page 5992]]

complicated because of depth of embedment, size or location'' was 
medical treatment, while ``removal of foreign bodies from wound, if 
procedure is uncomplicated, and is, for example, by tweezers or other 
simple technique'' was first aid (Ex. 2, p. 43).
    OSHA received one comment specific to this proposed first aid item. 
The Muscatine Iowa Chamber of Commerce Safety Committee stated ``The 
list appears to be very inclusive of what items are currently 
understood as first aid treatments. Our only concern is the ambiguous 
ending of Number 13. ``* * * or other simple means.'' This should be 
further defined. Change number 13 to read: ``Removal of splinters or 
foreign material from areas other than the eyes by irrigation, 
tweezers, cotton swabs or by excision not to exceed the depth of the 
outer layer of skin'' (Ex. 15: 87).
    In the final rule, OSHA has decided to retain item 13 essentially 
as proposed, and this first aid treatment appears as item K on the 
first aid list. The inclusion of the phrase ``other simple means'' will 
provide some flexibility and permit simple means other than those 
listed to be considered first aid. Cases involving more complicated 
removal procedures will be captured on the Log because they will 
require medical treatment such as prescription drugs or stitches or 
will involve restricted work or days away from work. OSHA believes that 
cases involving the excision of the outer layer of skin are not 
appropriately considered first aid, as suggested by the Muscatine Iowa 
Chamber of Commerce; excision of tissue requires training and the use 
of surgical instruments.
Additions to the First Aid List Suggested by Commenters
    In addition to comments about the first aid items OSHA proposed to 
consider first aid, a number of commenters asked for additional 
clarifications or recommended additions to the first aid list. The 
items suggested included exercise, chiropractic treatment, massage, 
debridement, poison ivy, bee stings, heat disorders, and burns.
    Exercise: Several commenters requested adding exercise, performed 
either at home or at work, to the list (see, e.g., Exs. 15: 201, 308, 
349, 396). For example, Caterpillar suggested that OSHA ``[a]dd a 
listing for range of motion exercises and minor physical therapy 
performed at home'' (Ex. 15: 201). These comments described exercises 
that amount to self-administered physical therapy, and are normally 
recommended by a health care professional who trains the worker in the 
proper frequency, duration and intensity of the exercise. Physical 
therapy treatments are normally provided over an extended time as 
therapy for a serious injury or illness, and OSHA believes that such 
treatments are beyond first aid and that cases requiring them involve 
medical treatment.
    Chiropractic treatment: A few commenters believe that chiropractic 
treatment should be treated as first aid (see, e.g., Exs. 15: 154, 299, 
396). For example, the Sandoz Corporation stated ``[i]t would simplify 
our record keeping if there were better definition of the use of 
chiropractors. Is one visit counted or do you have to have multiple 
visits'' (Ex. 15: 299). OSHA does not distinguish, for recordkeeping 
purposes, between first aid and medical treatment cases on the basis of 
number of treatments administered. OSHA also does not distinguish 
between various kinds of health care professionals, assuming they are 
operating within their scope of practice. If a chiropractor provides 
observation, counseling, diagnostic procedures, or first aid procedures 
for a work-related injury or illness, the case would not be recordable. 
On the other hand, if a chiropractor provides medical treatment or 
prescribes work restrictions, the case would be recordable.
    Massage therapy: The Union Carbide company recommended the addition 
of massages and prescribed physical therapy to the first aid list (Ex. 
15: 396). OSHA believes that massages are appropriately considered 
first aid and has included them as item M in the final rule's first aid 
list. However, physical therapy or chiropractic manipulation are 
treatments used for more serious injuries, and are provided by licensed 
personnel with advanced training and therefore rise to the level of 
medical treatment beyond first aid.
    Debridement: Several commenters recommended that OSHA include 
debridement as a first aid treatment (see, e.g., Exs. 15: 201, 332, 
349, 387). Debridement is the surgical excision, or cutting away, of 
dead or contaminated tissue from a wound. The Recordkeeping Guidelines 
listed ``cutting away dead skin (surgical debridement)'' as an example 
of medical treatment (Ex. 2, p. 43). The Caterpillar Company 
recommended that OSHA ``[a]dd to the [first aid] listing provisions for 
the minor removal of nonviable tissue as first aid treatment'' (Ex. 15: 
201).
    OSHA has decided not to include debridement as a first aid 
treatment. This procedure must be performed by a highly trained 
professional using surgical instruments. Debridement is also usually 
performed in conjunction with other forms of medical treatment, such as 
sutures, prescription drugs, etc.
    Intravenous (IV) administration of glucose and saline: Two 
commenters (Exs. 15: 154, 395) argued that the intravenous 
administration of saline (salt) and glucose (sugar) should be 
considered first aid. In former letters of interpretation, OSHA 
considered these treatments first aid in injury cases (see, e.g., Exs. 
15: 154, 395). In the final rule, however, OSHA has decided not to 
include the IV administration of fluids on the first aid list because 
these treatments are used for serious medical events, such as post-
shock, dehydration or heat stroke. The administration of IVs is an 
advanced procedure that can only be administered by a person with 
advanced medical training, and is usually performed under the 
supervision of a physician.
    The Union Carbide Corporation (Ex. 15: 396) also recommended three 
additions to the first aid list: UV treatment of blisters, rashes and 
dermatitis; acupuncture, when administered by a licensed health care 
professional; and electronic stimulation. After careful consideration, 
OSHA has decided not to include these treatments as first aid. Each of 
these treatments must be provided by a person with specialized 
training, and is usually administered only after recommendation by a 
physician or other licensed health care professional.
    Several commenters asked that treatments for two specific types of 
disorders be added to the list: heat disorders and burns. OSHA has not 
added these types of conditions to the first aid list because the list 
includes treatments rather than conditions. However, OSHA has added 
fluids given by mouth for the relief of heat disorders to the list, in 
response to comments received.
    Two commenters asked about the recording of heat disorders and how 
they relate to the definition of first aid and medical treatment. Union 
Carbide recommended an addition to the first aid list to state ``fluids 
taken internally for heat stress'' (Ex. 15: 396). The Arizona Public 
Service Company remarked: ``Recordability of heat stress and heat rash 
should be addressed based on classification of treatment (first aid vs. 
medical)'' (Ex. 15: 247). Under OSHA's former recordkeeping system, 
heat stress was recordable as an occupational illness because it 
results from non-instantaneous exposures that occur over time and all 
occupational

[[Page 5993]]

illnesses, including minor ones, were considered recordable.
    In the final rule, OSHA agrees with Union Carbide that drinking 
fluids for the relief of heat disorders is a first aid rather than 
medical treatment and item N on the final first aid list is ``drinking 
fluids for relief of heat stress.'' However, as discussed above, OSHA 
believes that more extensive treatment, including the administration of 
fluids by intravenous injections (IV), are medical treatment, and more 
serious cases of heat disorders involving them must be entered into the 
records. In addition, any diagnosis by a physician or other licensed 
health care professional of heat syncope (fainting due to heat) is 
recordable under paragraph 1904.7(b)(6), Loss of Consciousness.
    Burns: Many commenters recommended that OSHA include the treatment 
of burns on the first aid list (see, e.g., Exs. 45, 170, 260, 262, 265, 
288, 301, 401, 414, 443). Teepak Inc. stated ``[s]econd degree burns 
treated by first aid measures only, with no infection or complication 
or prescription medication, should be considered first aid'' (Ex. 15: 
45). The Georgia Power Company argued that ``[t]reatment of all first 
degree burns should be added to the list of first aid treatments 
because they are minor injuries that are exempt from the requirements 
of the Act. Omission of first degree and second degree burns receiving 
only first aid treatment from this list is inconsistent with the 
recording criteria listed for burns of the skin in [proposed] Appendix 
B'' (Ex. 15: 260). The Chemical Manufacturers Association recommended 
that OSHA add ``[b]urns that require only one-time treatment. 
Subsequent observations and changing of bandages does not constitute 
medical treatment'' (Ex. 15: 301).
    The former Recordkeeping Guidelines listed the treatment of first 
degree burns as an example of first aid treatment and did not consider 
such treatment to be recordable (Ex. 2, p. 43). In the final rule, OSHA 
has decided not to include burn treatments on the first aid list. If 
first, second, or third degree burns result in days away from work, 
restricted work activity, or medical treatment beyond first aid, such 
as prescription drugs or complex removal of foreign material from the 
wound, they will rise to the level that requires recording.
    Taking this approach means that burns will be treated just as other 
types of injury are, i.e., minor burn injuries will not be recordable, 
while more serious burns will be recorded because they will involve 
medical treatment. For example, a small second degree burn to the 
forearm that is treated with nothing more than a bandage is not 
recordable. A larger or more severe second degree burn that is treated 
with prescription creams or antibiotics, or results in restricted work, 
job transfer, or days away from work is recordable. The vast majority 
of first degree burns and minor second degree burns will not be 
recorded because they will not meet the recording criteria, including 
medical treatment. However, more serious first and second degree burns 
that receive medical treatment will be recorded, and third degree burns 
should always be recorded because they require medical treatment.
Miscellaneous First Aid and Medical Treatment Issues
    The American Association of Occupational Health Nurses (AAOHN) was 
concerned that the public might interpret the fact that treatments were 
listed as first aid to mean that they did not have to be administered, 
in some cases, by a health care professional:

    OSHA must clarify that categorizing certain actions as first aid 
does not necessarily imply that these actions can be delegated to a 
non-health care professional. While a list of actions considered 
first aid treatment will offer guidance for employers in determining 
recordability of incidents, situations exist that will require the 
professional judgment of a health care professional. One example is 
the administration of tetanus/diphtheria shots. While it is 
appropriate to consider these treatments first aid for 
recordability, injections pose issues that require the judgment and 
expertise of a health care professional. One potential hazard of 
this treatment is the risk of side effects. The ability to identify 
the reaction and take appropriate measures should be handled by a 
qualified health care professional (Ex. 15: 181).

    OSHA agrees with the AAOHN that certain treatments and 
interventions require the professional judgment of a health care 
professional. The Agency believes that these matters are best left to 
state agencies and licensing boards, and the final rule's definition of 
health care professional (see Subpart G) makes this clear.
    The State of New York expressed a concern about the possible 
confusion some employers might experience between OSHA's requirements 
and those of the state workers' compensation systems. The New York 
Workers' Compensation Board stated:

    The proposed rule contains a broad list of treatments which will 
qualify as first aid, with less emphasis on the number of treatments 
or the resulting amount of lost time from work. It is possible that 
many of the items listed in the OSHA rule as first-aid treatments 
which do not require reporting under the proposed OSHA standard 
(i.e. use of splints, drilling a nail in a hematoma, use of 
compresses and non-prescription medications), may still require 
reporting under the WCL because in a particular case the treatment 
qualifies as medical treatment or because it has caused lost time 
from work beyond the working day. The only problem would be if 
employers, in complying with proposed OSHA requirements, failed to 
continue to comply with New York's recording and reporting 
requirements (Ex. 15: 68).

OSHA's reporting requirements do not in any way interfere with or have 
any impact on state workers compensation reporting requirements. 
Employers are required to record certain injuries and illnesses under 
the OSHA recordkeeping regulation and to observe certain other 
requirements under workers' compensation law. The two laws have 
separate functions: workers' compensation is designed to compensate 
injured or ill workers, while the OSH Act is designed to prevent 
injuries and illnesses and to create a body of information to improve 
understanding of their causes. Thus, certain injuries and illnesses may 
be reportable under state workers' compensation law but not under the 
OSHA recordkeeping rule, and certain injuries and illnesses may be 
reportable under the OSHA rule but not under one or more workers' 
compensation statutes. OSHA notes that employers have been following 
the requirements of both systems for years, and have generally not 
experienced difficulty in doing so.
    Several commenters remarked on the need for OSHA to update the 
first aid list in the future (see, e.g., Exs. 234, 247, 384, 407). One 
commenter remarked: ``The suggested first aid list adds and clarifies 
some treatments as first aid. There should be a mechanism for adding or 
removing treatments to first aid and medical treatment lists as new 
information becomes available'' (Ex. 15: 234). The Akzo Nobel Company 
suggested that ``[w]ith the assistance of occupational physicians, 
updates could be made quarterly and distributed via the Internet'' (Ex. 
15: 384). The National Institute for Occupational Safety and Health 
(NIOSH) recommended ``[t]he first aid list, however, should be included 
as an appendix, rather than in the rule itself, in order to allow 
revisions to be made more easily as medical practice evolves'' (Ex. 15: 
407).
    In response, OSHA notes that the list is part of a definition that 
sets mandatory recording and reporting requirements and is a part of 
the regulation itself. Including the first aid list as a non-mandatory 
appendix would

[[Page 5994]]

provide additional flexibility for future updates, but doing so would 
not meet the purposes for which the list is intended. The list is 
mandatory, and making it non-mandatory would only introduce additional 
confusion about what is or is not to be entered into the records. As a 
result, the mechanism OSHA will use to update or modify the first aid 
list will be to pursue a future rulemaking, if and when such a 
rulemaking is needed. OSHA will continue to issue letters of 
interpretation to help employers understand the requirements as they 
apply to specific situations.
Paragraph 1904.7(b)(6)  Loss of Consciousness
    The final rule, like the former rule, requires the employer to 
record any work-related injury or illness resulting in a loss of 
consciousness. The recording of occupational injuries and illnesses 
resulting in loss of consciousness is clearly required by Sections 8(c) 
and 24 of the OSH Act. The new rule differs from the former rule only 
in clearly applying the loss of consciousness criterion to illnesses as 
well as injuries. Since the former rule required the recording of all 
illnesses, illnesses involving loss of consciousness were recordable, 
and thus OSHA expects that this clarification will not change recording 
practices. Thus, any time a worker becomes unconscious as a result of a 
workplace exposure to chemicals, heat, an oxygen deficient environment, 
a blow to the head, or some other workplace hazard that causes loss of 
consciousness, the employer must record the case.
    Very few commenters addressed the issue of loss of consciousness. 
Three commenters asked OSHA to make sure that these cases are not 
recordable unless they are the result of a work-related injury or 
illness (see, e.g., Exs. 15: 102, 159, 176). The American Frozen Food 
Institute (AFFI) stated that ``[l]oss of consciousness should not be 
reported unless it is the clear result of a work related injury or 
illness'' (Ex. 15: 102). The Chemical Manufacturers Association added 
``OSHA must clearly indicate in the final recordkeeping rule that loss 
of consciousness must be induced by an occupational exposure. For 
example, if someone faints at work due to pregnancy or has an epileptic 
seizure, such loss of consciousness should not be recordable'' (Ex. 15: 
176).
    OSHA agrees with these commenters that, in order to be a recordable 
event, a loss of consciousness must be the result of a workplace event 
or exposure. Loss of consciousness is no different, in this respect, 
from any other injury or illness. The exceptions to the presumption of 
work-relationship at Sec. 1904.5(b)(2)(ii) allow the employer to 
exclude cases that ``involve signs or symptoms that surface at work but 
result solely from a non-work-related event or exposure that occurs 
outside the work environment.'' This exception allows the employer to 
exclude cases where a loss of consciousness is due solely to a personal 
health condition, such as epilepsy, diabetes, or narcolepsy.
    The American Crystal Sugar Company (Ex. 15: 363) raised the issue 
of phobias resulting in loss of consciousness:

    I would also like to suggest exempting an employee's loss of 
consciousness based on a fear-based phobia, i.e., fainting at the 
sight of blood. Occasionally an OSHA regulation may require blood 
tests, such as checking lead levels in blood. There are a few 
employees that will lose consciousness at the sight of a needle. 
These phobias are not limited to medical procedures, but may include 
spiders, snakes, etc. In several of our factories, the occupational 
health nurse will administer tetanus boosters as a service to our 
employees. Employees that have a phobia about injections can (and 
do) lose consciousness, which now makes what was intended as a 
service an OSHA recordable accident.

    The final rule does not contain an exception for loss of 
consciousness associated with phobias or first aid treatment. OSHA 
notes, however, that the exception at paragraph 1904.5(b)(2)(iii) 
allows the employer to rebut the presumption of work relationship if 
``the injury or illness results solely from voluntary participation in 
a wellness program or in a medical, fitness, or recreational activity 
such as blood donation, physical, flu shot, exercise class, 
racquetball, or baseball.'' This exception would eliminate the 
recording of fainting episodes involving voluntary vaccination 
programs, blood donations and the like. However, episodes of fainting 
from mandatory medical procedures such as blood tests mandated by OSHA 
standards, mandatory physicals, and so on would be considered work-
related events, and would be recordable on the Log if they meet one or 
more of the recording criteria. Similarly, a fainting episode involving 
a phobia stemming from an event or exposure in the work environment 
would be recordable.
    The Union Carbide Corporation (Ex. 15: 396) asked OSHA to be more 
precise about the definition of loss of consciousness, stating that 
``[m]ost people generally understand this term without a definition, 
but it can be open to interpretation. For example, is `feeling woozy' 
for a few seconds considered to be a loss of consciousness? Perhaps 
OSHA should define the term to avoid any confusion.'' In this final 
rule, OSHA has not included a separate definition for the term ``loss 
of consciousness.'' However, the language of paragraph 1904.7(b)(6) has 
been carefully crafted to address two issues. First, the paragraph 
refers to a worker becoming ``unconscious,'' which means a complete 
loss of consciousness and not a sense of disorientation, ``feeling 
woozy,'' or a other diminished level of awareness. Second, the final 
rule makes it clear that loss of consciousness does not depend on the 
amount of time the employee is unconscious. If the employee is rendered 
unconscious for any length of time, no matter how brief, the case must 
be recorded on the OSHA 300 Log.
Paragraph 1904.7(b)(7)  Recording Significant Work-Related Injuries and 
Illnesses Diagnosed by a Physician or Other Licensed Health Care 
Professional
    Paragraph 1904.7(b)(7) of this final rule requires the recording of 
any significant work-related injury or illness diagnosed by a physician 
or other licensed health care professional. Paragraph 1904.7(b)(7) 
clarifies which significant, diagnosed work-related injuries and 
illnesses OSHA requires the employer to record in those rare cases 
where a significant work-related injury or illness has not triggered 
recording under one or more of the general recording criteria, i.e, has 
not resulted in death, loss of consciousness, medical treatment beyond 
first aid, restricted work or job transfer, or days away from work. 
Based on the Agency's prior recordkeeping experience, OSHA believes 
that the great majority of significant occupational injuries and 
illnesses will be captured by one or more of the other general 
recording criteria in Section 1904.7. However, OSHA has found that 
there is a limited class of significant work-related injuries and 
illnesses that may not be captured under the other Sec. 1904.7 
criteria. Therefore, the final rule stipulates at paragraph 
1904.7(b)(7) that any significant work-related occupational injury or 
illness that is not captured by any of the general recording criteria 
but is diagnosed by a physician or other licensed health care 
professional be recorded in the employer's records.
    Under the final rule, an injury or illness case is considered 
significant if it is a work-related case involving occupational cancer 
(e.g., mesothelioma), chronic irreversible disease (e.g., chronic 
beryllium disease), a fractured or cracked bone (e.g., broken arm, 
cracked rib), or a punctured

[[Page 5995]]

eardrum. The employer must record such cases within 7 days of receiving 
a diagnosis from a physician or other licensed health care professional 
that an injury or illness of this kind has occurred. As explained in 
the note to paragraph 1904.7(b)(7), OSHA believes that the great 
majority of significant work-related injuries and illnesses will be 
recorded because they meet one or more of the other recording criteria 
listed in Sec. 1904.7(a): death, days away from work, restricted work 
or job transfer, medical treatment beyond first aid, or loss of 
consciousness. However, there are some significant injuries, such as a 
punctured eardrum or a fractured toe or rib, for which neither medical 
treatment nor work restrictions may be administered or recommended.
    There are also a number of significant occupational diseases that 
progress once the disease process begins or reaches a certain point, 
such as byssinosis, silicosis, and some types of cancer, for which 
medical treatment or work restrictions may not be recommended at the 
time of diagnosis, although medical treatment and loss of work 
certainly will occur at later stages. This provision of the final rule 
is designed to capture this small group of significant work-related 
cases. Although the employer is required to record these illnesses even 
if they manifest themselves after the employee leaves employment 
(assuming the illness meets the standards for work-relatedness that 
apply to all recordable incidents), these cases are less likely to be 
recorded once the employee has left employment. OSHA believes that 
work-related cancer, chronic irreversible diseases, fractures of bones 
or teeth and punctured eardrums are generally recognized as 
constituting significant diagnoses and, if the condition is work-
related, are appropriately recorded at the time of initial diagnosis 
even if, at that time, medical treatment or work restrictions are not 
recommended.
    As discussed in the Legal Authority section, above, OSHA has 
modified the Agency's prior position so that, under the final rule, 
minor occupational illnesses no longer are required to be recorded on 
the Log. The requirement pertaining to the recording of all significant 
diagnosed injuries and illnesses in this paragraph of the final rule, 
on the other hand, will ensure that all significant (non-minor) 
injuries and illnesses are in fact captured on the Log, as required by 
the OSH Act. Requiring significant cases involving diagnosis to be 
recorded will help to achieve several of the goals of this rulemaking. 
First, adherence to this requirement will produce better data on 
occupational injury and illness by providing for more complete 
recording of significant occupational conditions. Second, this 
requirement will produce more timely records because it provides for 
the immediate recording of significant disorders on first diagnosis. 
Many occupational illnesses manifest themselves through gradual onset 
and worsening of the condition. In some cases, a worker could be 
diagnosed with a significant illness, such as an irreversible 
respiratory disorder, not be given medical treatment because no 
effective treatment was available, not lose time from work because the 
illness was not debilitating at the time, and not have his or her case 
recorded on the Log because none of the recording criteria had been 
met. If such a worker left employment or changed employers before one 
of the other recording criteria had been met, this serious occupational 
illness case would never be recorded. The requirements in paragraph 
1904.7(b)(7) remedy this deficiency and will thus ensure the capture of 
more complete and timely data on these injuries and illnesses.
    The provisions of paragraph 1904.7(b)(7) are an outgrowth of 
Appendix B of the proposed rule, which included provisions for the 
recording of individual conditions, such as blood lead levels, 
musculoskeletal disorders, and various respiratory ailments. As OSHA 
explained in the preamble to the proposed rule (61 FR 4039-4042), the 
proposed requirements were intended to ensure the recording of 
significant non-fatal cases that did not meet the general criteria 
(days away, restricted work, medical treatment, etc.).
    Proposed Appendix B has not been included in the final rule, which 
instead includes additional separate criteria for several of the 
conditions proposed to be included in Appendix B; these criteria, which 
cover tuberculosis cases, hearing loss cases, and so on, appear in the 
final rule at Sec. 1904.8 through Sec. 1904.12. The requirements at 
paragraph 1904.7(b)(7) of the final rule, which require the recording 
of significant injuries and illnesses not meeting one or more of the 
general recording criteria, will ensure the recording of the small 
number of significant conditions that would have been covered by 
proposed Appendix B and are not elsewhere addressed in the final rule. 
Thus, OSHA believes that cases involving the conditions listed in 
proposed Appendix B will be captured either by the requirements in this 
significant diagnosed case section or by the other general recording 
criteria.
    In developing the text of paragraph 1904.7(b)(7) of the final rule, 
OSHA reviewed the following questions as they related to proposed 
Appendix B. Each of these questions, and the comments received, are 
discussed in greater detail below: (1) Are additional recording 
criteria beyond loss of consciousness, medical treatment, restricted 
work, job transfer, days away, or death needed in the final rule?; (2) 
if so, should these additional criteria address a finite list of 
specific conditions or address a broader range of disorders?; (3) how 
should the agency define ``significant'' injuries and illnesses?; and 
(4) how should the final rule ensure the work-relatedness of these 
cases?
Are Additional Recording Criteria Needed?
    Many commenters viewed proposed Appendix B as an unnecessary 
addition to the other general recording criteria and argued that OSHA 
should use the general criteria listed in the OSH Act itself for most 
if not all of the listed conditions (see, e.g., Exs. 15: 52, 146, 200, 
203, 219, 260, 262, 265, 271, 272, 303, 313, 329, 348, 352, 353, 368, 
401, 427). For example, the Atlantic Richfield Company (ARCO) stated 
that:
    [t]his broadening of the recordability criteria particularly as 
detailed in [proposed] mandatory Appendix B dilutes the significant 
data with marginal data and does not, in our view, fit with OSHA's 
stated goals for improved Log accuracy and utility. ARCO believes 
that for almost all of these specific exposures, the appropriate 
data can be captured through the normal performance criteria of 
whether the condition or exposure has caused a day away from work, 
restriction on activity, or resulted in medical treatment. It is, 
therefore, our opinion that Appendix B is unnecessary and 
appropriate for deletion (Ex. 15: 329).

    However, other commenters saw a need for and supported the 
inclusion of additional recording criteria in the final rule (see, 
e.g., Exs. 15: 201, 301, 304, 318). For example, the National 
Federation of Independent Business (NFIB) agreed that ``[t]here are 
some conditions which are serious enough to be recorded, but could 
escape the proposed recordkeeping criteria of medical treatment, 
restricted or loss workdays or job transfer'' (Ex. 15: 304). 
Caterpillar agreed ``[w]ith the basic concept proposed in Appendix B 
that additional guidelines are needed to capture some injuries and 
illnesses serious enough to be recorded, which may not be captured by 
the basic recordkeeping criteria'' (Ex. 15: 201).
    OSHA agrees with those commenters who supported the inclusion in 
the final rule of an additional mechanism to ensure the capture of 
significant work-related injuries and illnesses that are diagnosed by a 
physician or other licensed health care professional but do

[[Page 5996]]

not, at least at the time of diagnosis, meet the criteria of death, 
days away from work, restricted work or job transfer, medical treatment 
beyond first aid, or loss of consciousness. The recording of all non-
minor injuries and illnesses is consistent with the OSH Act (see the 
Legal Authority section) and has been the intent of the recordkeeping 
system for many years. The primary goal of the requirement at paragraph 
1904.7(b)(7) is to produce more accurate and complete data on non-minor 
work-related injuries and illnesses. Because the number of significant 
work-related injuries and illnesses may not be captured by one or more 
of the other general recording criteria, OSHA finds that this 
additional criterion is needed. However, OSHA believes that most cases 
will be captured by the general recording criteria.
Should Additional Criteria Address a Finite List of Specific Conditions 
or Address a Broader Range of Disorders?
    Proposed Appendix B was composed of a finite list of disorders and 
their associated recording criteria. A number of commenters were 
concerned that an inclusive list would overlook other conditions that 
did not meet the general recording criteria and were not included in 
proposed Appendix B. For example, OxyChem wrote:

    [f]or example, aniline is a substance having specific effects 
from occupational exposure, but it is not listed in Appendix B. How 
will occupational illness cases related to aniline be treated? Under 
OSHA's proposal, employers will apply the general recordability 
criteria to make a decision, and the case will very likely not be 
recorded unless it involves medical treatment, loss of 
consciousness, etc. (Ex. 15: 386)

    This issue was also raised by the International Chemical Workers, 
who wrote that ``[a]ppendix B limits the types of illnesses which are 
recordable. It needs to be textually and visually clear that this list 
is not an all inclusive list of recordable illnesses `` (Ex. 15: 415). 
Additionally, the American Industrial Hygiene Association had the 
following thoughts on this subject:

    [a]n addition should be made to the end of Appendix B to clarify 
and expand on the recording of new or emerging occupational 
illnesses as introduced by OSHA in Appendix B, second paragraph at 
the end of page 4063: ``Conditions not included in this Appendix 
that otherwise meet the criteria in the Sec. 1904.4.(c) must be 
recorded.'' Medical diagnoses, including laboratory and diagnostic 
tests should be the principal criteria for recording occupational 
illnesses.
    The above quotation ``Conditions not included in this Appendix * 
* * must be recorded'' should be reworded to include the statement 
``including symptomology with a clear workplace link'' (Ex. 15: 
153).

    OSHA generally agrees with these points. Limiting the recording of 
non-minor occupational injuries and illnesses to a finite list runs 
counter to the goal of this rule, which is to capture comprehensive 
data on all non-minor work-related injuries and illnesses, and thus 
including such a list would not meet the Agency's statutory mandate to 
collect such data. OSHA believes there will be very few injuries and 
illnesses that are not captured by the general recording criteria. For 
example, non-minor acute illnesses, such as the skin disorders 
potentially associated with aniline exposure, will be captured by the 
other criteria, particularly medical treatment beyond first aid, 
restricted work or job transfer, or days away from work. However, to 
address the gap in case capture presented by significant injury and 
illness cases that escape the general recording criteria, OSHA is 
requiring employers to record cases of chronic, irreversible disease 
under the Sec. 1904.7(b)(7) criterion. This means that if long-term 
workplace exposure to aniline results in a chronic, irreversible liver 
or kidney disease, the case would be recordable at the time of 
diagnosis, even if no medical treatment is administered at that time 
and no time is lost from work. The regulatory text of paragraph 
1904.7(b)(7) limits the types of conditions that are recordable, 
however, to significant diagnosed injury and illness cases, which are 
defined as cancer, chronic irreversible diseases, fractured or cracked 
bones, and punctured eardrums.
How Should the Agency Define ``Significant'' Injury or Illness?
    Although there was considerable support in the record for the final 
rule to include a list of conditions that might not be captured under 
the general recordkeeping criteria, there was far less agreement among 
commenters on the specific conditions that should be listed. Many 
commenters agreed with Amoco, which testified that ``[t]he criteria 
currently listed in the proposed rule would require recording of signs, 
symptoms and laboratory abnormalities; situations which are not 
disabling, serious, or significant'' (Ex. 22). Waste Management, Inc., 
commented that ``[t]he definition of an illness [in the proposal] or 
injury refers to an adverse change in the individual. This is 
interpreted to mean a change which is permanent or a change which is 
clinically demonstrable to be adverse to the individual as a result of 
occupational exposure in the workplace. Some of the guidance provided 
in Appendix B does not meet these criteria'' (Ex. 15: 389). The 
Chemical Manufacturers Association suggested that only those conditions 
``[w]hose seriousness is approximately equal to that of conditions 
captured by traditional criteria'' be included in Appendix B (Ex. 15: 
301), and the Dupont Company proposed that the conditions listed in 
Appendix B ``[i]nclude only situations that cause a permanent change to 
the body structure where medical treatment may not be given'' (Ex. 15: 
348). Dupont also stated that ``[O]SHA should provide scientific 
evidence that a change in a lab reading [laboratory tests results were 
also included in proposed Appendix B] is the equivalent of a serious or 
significant change to the body structure'' (Ex. 15: 348). Other 
commenters such as the Marathon Oil Company questioned whether OSHA had 
the legal authority ``[t]o require employers to record these non-
serious exposures. The OSHA proposed criteria do not represent serious, 
significant or disabling injuries/illnesses as required by Section 
24(a) of the Act'' (Ex. 15: 308).
    OSHA believes that the conditions that are required to be recorded 
under Sec. 1904.7(b)(7) of the final rule represent significant 
occupational injuries and illnesses as described in the OSH Act. Some 
clearly significant injuries or illnesses are not amenable to medical 
treatment, at least at the time of initial diagnosis. For example, a 
fractured rib, a broken toe, or a punctured eardrum are often, after 
being diagnosed, left to heal on their own without medical treatment 
and may not result in days away from work, but they are clearly 
significant injuries. Similarly, an untreatable occupational cancer is 
clearly a significant injury or illness. The second set of conditions 
identified in paragraph 1904.7(b)(7), chronic irreversible diseases, 
are cases that would clearly become recordable at some point in the 
future (unless the employee leaves employment before medical treatment 
is provided), when the employee's condition worsens to a point where 
medical treatment, time away from work, or restricted work are needed. 
By providing for recording at the time of diagnosis, paragraph 
1904.7(b)(7) of the final rule makes the significant, work-related 
condition recordable on discovery, a method that ensures the collection 
of timely data. This approach will result in better injury and illness 
data and also is likely to be more straightforward for employers to 
comply with, since there is no further need to track the case to

[[Page 5997]]

determine whether, and at what point, it becomes recordable.
    The core of the recording requirement codified at Sec. 1904.7(b)(7) 
is the employer's determination that a ``significant'' injury or 
illness has been diagnosed. The Agency's former Recordkeeping 
Guidelines addressed this issue in interpretations about ``non minor'' 
injuries that did not meet the general recording criteria of death, 
days away, restricted work, transfer to another job, medical treatment 
or loss of consciousness. The Guidelines stated (Ex. 2, p. 42) that:

    The distinction between medical treatment and first aid depends 
not only on the treatment provided, but also on the severity of the 
injury being treated. First aid is: (1) Limited to one-time 
treatment and subsequent observation; and (2) involves treatment of 
only minor injuries, not emergency treatment of serious injuries. 
Injuries are not minor if:
    (a) They must be treated only by a physician or licensed medical 
personnel;
    (b) They impair bodily function (i.e., normal use of senses, 
limbs, etc.);
    (c) They result in damage to the physical structure of a 
nonsuperficial nature (e.g., fractures); or
    (d) They involve complications requiring followup medical 
treatment.

    Many commenters on the proposal simply stated that the system must 
include all serious, significant or disabling injuries, and exclude 
cases that did not rise to that level (see, e.g., Exs. 25; 15: 55, 135, 
144, 154, 158, 162, 165, 193, 201, 206, 207, 211, 212, 220, 228, 238, 
240, 243, 252, 253, 257, 258, 261, 264, 267, 272, 274, 276, 286, 293, 
303, 305, 306, 309, 318, 320, 346, 354, 358, 365, 368, 375, 382, 383, 
395, 397, 408, 412, 420, 421, 427, 434). The comments of the American 
Petroleum Institute (API) reflect this view: ``[A]PI is strongly 
opposed to any provision which would require a case to be recorded 
which is not serious or which is not likely to become serious. API 
strongly disagrees that non-serious subjective signs, symptoms, 
abnormal health test results, or evidence of exposure in and of 
themselves should be recorded on the OSHA log--unless the case 
otherwise meets one of the traditional criteria (e.g., medical 
treatment, et al.) or results in, or is expected to result in a serious 
impairment'' (Ex. 15: 375).
    Many comments believed that the recordability of occupational 
illnesses should rely on the diagnosis of a health care professional. 
For example, the U.S. Small Business Administration recommended that 
``[a] recordable incident under the [proposed] `Specific Conditions' 
should be subject to a health care provider's clinical diagnosis'' (Ed. 
15: 67); Fort Howard recommended that ``[t]he Company disagrees with 
the [proposed] Mandatory Appendix B concept particularly in light of 
the statement in the Proposal that an employer can not rely solely on 
the clinical diagnosis of an injury or illness by a physician. Fort 
Howard recommends that an employer be allowed to specifically rely on 
the conclusions of those trained in this field, namely physicians'' 
(Ex. 15: 194); and Country Mark Cooperative recommended that `` [i]f an 
illness is diagnosed by a medical provider as linked to the cause 
agent, then it would be recorded as 'otherwise recordable' until such 
time as other recordable criteria are met such as days unable to work'' 
(Ex. 15: 9). BASF commented that ``[proposed] Appendix B should not 
require the recording of merely signs, symptoms, or laboratory 
abnormalities. Instead, it should also include objective findings or 
observations on the part of health care providers regarding the 
diagnosis of a serious illness or effect not otherwise subject to 
recording requirements'' (Ex. 15: 403).
    Only a few commenters suggested methods for differentiating between 
serious and non-serious cases, in the context of conditions that should 
be listed in the final rule (see, e.g., Exs. 15: 135, 176, 193, 199, 
258, 375, 396). The API suggested that, if OSHA identifies a need to 
define ``disabling, serious or significant'' explicitly, the Agency 
should consider the following criteria:

    [a]ny other case which results in a serious impairment or 
significant injury for which no effective treatment exists, or
    involves a diagnosis of a condition which in time is expected to 
result in a serious impairment (or death), e.g., certain asbestos-
related diseases; or
    involves evidence of a chemical exposure at biological levels 
where criteria in an OSHA standard requires medical removal (Ex. 15: 
375).

    Elsewhere in their comments, the API recommended criteria for 
selecting which conditions would be listed in proposed Appendix B as 
follows:

    [t]he purpose of this appendix [proposed Appendix B] is to 
provide for the mandatory recording of occupational injuries and 
illnesses which are also serious or significant--but which do not 
immediately result in medical treatment, restricted work * * *
    Such cases fall into three broad categories. They occur when the 
injury or illness either
    Results in a serious impairment (unable to perform any normal 
life activity such as walking, eating, thinking, talking, breathing, 
seeing, smelling, hearing, driving a car. Incontinence and impotence 
would also be included)
    Involves a diagnosis of a condition which in time is expected to 
result in serious impairment (or death), e.g. certain asbestos 
related diseases,
    or
    Involved evidence of a chemical exposure at biological levels 
where criteria in an OSHA standard requires medical removal (Ex. 15: 
375).

    Adapto, Inc. (Ex. 15: 258) focused on the major life activity 
concept, stating that:

    [a]s mentioned previously, Congress intended that the 
statistical data compiled under this rule be limited to cases 
involving disabling, serious, or significant injuries or illness. 
Adapto, Inc. believes this phrase generally refers to a work-related 
condition that results in a physical or mental impairment that 
substantially limits a major life activity.

    Union Carbide (Ex. 15: 396) urged that the following factors be 
used for determining the conditions that should be included in the 
final rule:

    Serious illnesses caused by exposures which are chronic and 
cumulative in nature
    Serious illnesses with a long latency period between exposure 
and recognition of the significant illness condition
    Serious illnesses which are likely to result in significant 
impairment
    Serious illnesses without a known or widely recognized medical 
treatment until advanced stages.

    The Chemical Manufacturing Association (Ex. 15: 176) restated the 
same factors articulated by Union Carbide and added another factor: 
``[s]erious illnesses that are not treatable.'' The NYNEX Corporation 
(Ex. 15: 199), the National Broiler Council (NBC), and the National 
Turkey Federation (Ex. 15: 193), in identical comments, focused on the 
idea of cases with an expectation of serious impairment or death, 
stating:

    [w]e do recognize, however, that there are some cases that do 
not meet this criteria that do have the expectation of resulting in 
serious impairment or even death. We are in agreement that cases of 
this potential seriousness should be recorded when they are 
diagnosed by a competent physician or medical professional as work-
related.

    The Macon Corporation (Ex. 15: 135) suggested using a material 
impairment test, suggesting that ``[w]e need to establish an effective 
system for the collection of data on serious work related injuries and 
illnesses which, at the time of recording, represent a material 
impairment to the health or functional capacity [of the injured or ill 
worker].'' OSHA has not adopted the material impairment alternative in 
the final rule because the term has specific meaning in the context of 
OSHA rulemaking. Section 6(b)(5) of the Act,

[[Page 5998]]

which sets forth the criteria for promulgating standards dealing with 
toxic substances or harmful physical agents, states that OSHA shall 
``set the standard which most adequately assures, to the extent 
feasible, on the basis of the best available evidence, that no employee 
will suffer material impairment of health or functional capacity even 
if such employee has regular exposure to the hazard dealt with by such 
standard for the period of his working life (emphasis added).'' OSHA 
believes that use of this term in the recordkeeping rule could cause 
confusion among employers.
    In the final rule, OSHA has adopted an approach similar to that 
suggested by the American Petroleum Institute, i.e., focusing on two 
types of injury and illness: those that may be essentially untreatable, 
at least in the early stages and perhaps never (fractured and cracked 
bones, certain types of occupational cancer, and punctured eardrums) 
and those expected to progressively worsen and become serious over time 
(chronic irreversible diseases). The final rule is also responsive to 
the many commenters who urged OSHA to adopt a definition of severity 
for this requirement that would include all serious and significant 
injuries and illnesses, while excluding less serious cases. The 
language of paragraph 1904.(b)(7) of the final rule also responds to 
comments presented by commenters on the proposal who argued that 
relying on test results or other measures as indicators of serious 
occupational injury or illness was inappropriate. Instead, the final 
rule relies exclusively on the diagnosis of a limited class of injuries 
and illnesses by a physician or other licensed health care 
professional.
Clarifying That Cases Captured by Paragraph 1904.7(b)(7) Must Be Work 
Related
    A number of commenters on the proposal expressed concern that 
proposed Appendix B was not clear enough about the fact that conditions 
must be work-related to be recordable on the OSHA forms. For example, 
several commenters asked OSHA to make sure that recordable cases of 
asthma are work-related (see, e.g., Exs. 15: 38, 78, 80, 83, 89, 105, 
157, 163, 188, 197, 203, 239, 279, 281, 297, 299, 302, 337, 345, 378, 
395, 414). The Jewel Coal and Coke Company (Ex. 15: 281) stated that 
``[asthma, in nearly all cases, is genetic and, to be recordable, we 
feel must be a direct result of something in the working OSHA 
environment. To require anything else would cause the unnecessary 
recording of cases of genetic asthma with no relationship to the 
working environment and would serve no purpose other than to balloon 
the statistics.''
    OSHA wishes to reiterate that any condition that is recordable on 
the OSHA injury and illness recordkeeping forms must be work-related, 
and Sec. 1904.7(b)(7) includes the term ``work-related'' to make this 
fact clear. In addition, because the employer will be dealing with a 
physician or other licensed health care professional, he or she may 
also be able to consult with the health care professional about the 
work-relatedness of the particular case. If the employer determines, 
based either on his or her own findings or those of the professional, 
that the symptoms are merely arising at work, but are caused by some 
non-work illness, then the case would not be recorded, under exception 
(b)(2)(ii) to the work-relatedness presumption at Sec. 1904.5(b)(2) of 
the final rule. Similarly, if workplace events or exposures contributed 
only insignificantly to the aggravation of a worker's preexisting 
condition, the case need not be recorded under Sec. 1904.5(a) and 
Sec. 1904.5(b)(3) of the final rule.
    The provisions of Sec. 1904.7(b)(7) of the final rule thus meet the 
objectives of (1) capturing significant injuries and illnesses that do 
not meet the other general recording criteria of death, days away from 
work, restricted work or job transfer, medical treatment beyond first 
aid, or loss of consciousness; (2) excluding minor injuries and 
illnesses; (3) addressing a limited range of disorders; and (4) making 
it clear that these injuries and illnesses must be work-related before 
they must be recorded.

Section 1904.8 Additional Recording Criteria for Needlestick and Sharps 
Injuries

    Section 1904.8 of the final rule being published today deals with 
the recording of a specific class of occupational injuries involving 
punctures, cuts and lacerations caused by needles or other sharp 
objects contaminated or reasonably anticipated to be contaminated with 
blood or other potentially infectious materials that may lead to 
bloodborne diseases, such as Acquired Immunodeficiency Syndrome (AIDs), 
hepatitis B or hepatitis C. The final rule uses the terms 
``contaminated,'' ``other potentially infectious material,'' and 
``occupational exposure'' as these terms are defined in OSHA's 
Bloodborne Pathogens standard (29 CFR 1910.1030). These injuries are of 
special concern to healthcare workers because they use needles and 
other sharp devices in the performance of their work duties and are 
therefore at risk of bloodborne infections caused by exposures 
involving contaminated needles and other sharps. Although healthcare 
workers are at particular risk of bloodborne infection from these 
injuries, other workers may also be at risk of contracting potentially 
fatal bloodborne disease. For example, a worker in a hospital laundry 
could be stuck by a contaminated needle left in a patient's bedding, or 
a worker in a hazardous waste treatment facility could be 
occupationally exposed to bloodborne pathogens if contaminated waste 
from a medical facility was not treated before being sent to waste 
treatment.
    Section 1904.8(a) requires employers to record on the OSHA Log all 
work-related needlestick and sharps injuries involving objects 
contaminated (or reasonably anticipated to be contaminated) with 
another person's blood or other potentially infectious material (OPIM). 
The rule prohibits the employer from entering the name of the affected 
employee on the Log to protect the individual's privacy; employees are 
understandably sensitive about others knowing that they may have 
contracted a bloodborne disease. For these cases, and other types of 
privacy concern cases, the employer simply enters ``privacy concern 
case'' in the space reserved for the employee's name. The employer then 
keeps a separate, confidential list of privacy concern cases with the 
case number from the Log and the employee's name; this list is used by 
the employer to keep track of the injury or illness so that the Log can 
later be updated, if necessary, and to ensure that the information will 
be available if a government representative needs information about 
injured or ill employees during a workplace inspection (see 
Sec. 1904.40). The regulatory text of Sec. 1904.8 refers recordkeepers 
and others to Sec. 1904.29(b)(6) through Sec. 1904.29(b)(10) of the 
rule for more information about how to record privacy concern cases of 
all types, including those involving needlesticks and sharps injuries. 
The implementation section of Sec. 1904.8(b)(1) defines ``other 
potentially infectious material'' as it is defined in OSHA's Bloodborne 
Pathogens Standard (29 CFR Sec. 1910.1030, paragraph (b)). Other 
potentially infectious materials include (i) human bodily fluids, human 
tissues and organs, and (ii) other materials infected with the HIV or 
hepatitis B (HBV) virus such as laboratory cultures or tissues from 
experimental animals. (For a complete list of OPIM, see paragraph (b) 
of 29 CFR 1910.1030.)

[[Page 5999]]

    Although the final rule requires the recording of all workplace cut 
and puncture injuries resulting from an event involving contaminated 
sharps, it does not require the recording of all cuts and punctures. 
For example, a cut made by a knife or other sharp instrument that was 
not contaminated by blood or OPIM would not generally be recordable, 
and a laceration made by a dirty tin can or greasy tool would also 
generally not be recordable, providing that the injury did not result 
from a contaminated sharp and did not meet one of the general recording 
criteria of medical treatment, restricted work, etc. Paragraph (b)(2) 
of Sec. 1904.8 contains provisions indicating which cuts and punctures 
must be recorded because they involve contaminated sharps and which 
must be recorded only if they meet the general recording criteria.
    Paragraph (b)(3) of Sec. 1904.8 contains requirements for updating 
the OSHA 300 Log when a worker experiences a wound caused by a 
contaminated needle or sharp and is later diagnosed as having a 
bloodborne illness, such as AIDS, hepatitis B or hepatitis C. The final 
rule requires the employer to update the classification of such a 
privacy concern case on the OSHA 300 Log if the outcome of the case 
changes, i.e., if it subsequently results in death, days away from 
work, restricted work, or job transfer. The employer must also update 
the case description on the Log to indicate the name of the bloodborne 
illness and to change the classification of the case from an injury 
(i.e., the needlestick) to an illness (i.e., the illness that resulted 
from the needlestick). In no case may the employer enter the employee's 
name on the Log itself, whether when initially recording the 
needlestick or sharp injury or when subsequently updating the record.
    The privacy concern provisions of the final rule make it possible, 
for the first time, for the identity of the bloodborne illness caused 
by the needlestick or sharps injury to be included on the Log. By 
excluding the name of the injured or ill employee throughout the 
recordkeeping process, employee privacy is assured. This approach will 
allow OSHA to gather valuable data about the kinds of bloodborne 
illnesses healthcare and other workers are contracting as a result of 
these occupational injuries, and will provide the most accurate and 
informative data possible, including the seroconversion status of the 
affected worker, the name of the illness he or she contracted, and, on 
the OSHA 301 Form for the original case, more detailed information 
about how the injury occurred, the equipment and materials involved, 
and so forth. Use of the privacy case concept thus meets the primary 
objective of this rulemaking, providing the best data possible, while 
simultaneously ensuring that an important public policy goal--the 
protection of privacy about medical matters--is met. OSHA recognizes 
that requiring employers to treat privacy cases differently from other 
cases adds some complexity to the recordkeeping system and imposes a 
burden on those employers whose employees experience such injuries and 
illnesses, but believes that the gain in data quality and employee 
privacy outweigh these disadvantages considerably.
    The last paragraph (paragraph (c)) of Sec. 1904.8 deals with the 
recording of cases involving workplace contact with blood or other 
potentially infectious materials that do not involve needlesticks or 
sharps, such as splashes to the eye, mucous membranes, or non-intact 
skin. The final recordkeeping rule does not require employers to record 
these incidents unless they meet the final rule's general recording 
criteria (i.e., death, medical treatment, loss of consciousness, 
restricted work or motion, days away from work, diagnosis by an HCP) or 
the employee subsequently develops an illness caused by bloodborne 
pathogens. The final rule thus provides employers, for the first time, 
with regulatory language delineating how they are to record injuries 
caused by contaminated needles and other sharps, and how they are to 
treat other exposure incidents (as defined in the Bloodborne Pathogens 
standard) involving blood or OPIM. ``Contaminated'' is defined just as 
it is in the Bloodborne Pathogens standard: ``Contaminated means the 
presence or the reasonably anticipated presence of blood or other 
potentially infectious materials on an item or surface.''
    Before issuance of this final recordkeeping rule, the OSHA 
compliance directive CPL 2-2.44C for the Bloodborne Pathogens standard, 
``Enforcement Procedures for the Occupational Exposure to Bloodborne 
Pathogens Standard, 29 CFR 1910.1030'' provided recording guidance to 
employers of occupationally exposed employees. The CPL 2-2.44C guidance 
treated cuts, lacerations and exposure incidents identically, 
classifying all of the events as injuries because they usually result 
from instantaneous events or exposures. The employer was required to 
record an incident when it met one of the following requirements:

    1. The incident is a work-related injury that involves loss of 
consciousness, transfer to another job, or restriction of work or 
motion.
    2. The incident results in the recommendation of medical 
treatment beyond first aid (e.g., gamma globulin, hepatitis B immune 
globulin, hepatitis B vaccine, or zidovudine) regardless of dosage.
    3. The incident results in a diagnosis of seroconversion. The 
serological status of the employee shall not be recorded on the OSHA 
200. If a case of seroconversion is known, it shall be recorded on 
the OSHA 200 as an injury (e.g., ``needlestick'' rather than 
``seroconversion'') in the following manner:
    a. If the date of the event or exposure is known, the original 
injury shall be recorded with the date of the event or exposure in 
column B.
    b. If there are multiple events or exposures, the most recent 
injury shall be recorded with the date that seroconversion is 
determined in column B.

    In 1999, OSHA updated CPL 2-2.44 and changed this language to 
simply refer to the Part 1904 regulation, in anticipation of the 
publication of this final recordkeeping rule.
The proposal
    In the 1996 Federal Register notice, OSHA proposed recording 
criteria for needlestick and sharps injuries that were the same as the 
criteria being set forth in this final rule. The requirements in the 
final rule have been stated in slightly different language from those 
in the proposal to be consistent with the format of the remainder of 
the rule. The only substantive difference between the approach taken in 
the proposal and that in the final rule is the way that cases are 
handled to protect the privacy of the injured or ill worker. Appendix B 
of the proposed rule (61 FR 4065) included requirements to record the 
following:

    ``any workplace bloodborne pathogen exposure 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.''


    OSHA explained in its proposal that recording these incidents was 
appropriate because these injuries are clearly non-minor, and recording 
them would be consistent with the Agency's mandate to collect 
information related to the death, illness, and injury of workers (61 FR 
4041). OSHA then requested comment on whether it would be appropriate 
to record small puncture

[[Page 6000]]

wounds and lacerations that do not lead to disease, and whether OSHA 
should require employers to record all ``exposure incidents'' involving 
exposure to blood or OPIM, not just injuries involving contaminated 
needles and sharps. The proposal also asked for comment about the 
special privacy concerns potentially associated with bloodborne 
pathogen injuries and illnesses, and asked the following questions: 
``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?''
    These proposed recording criteria for needlesticks and sharps 
injury cases prompted many comments to the rulemaking record. Very few 
of the comments supported OSHA's proposed position on this issue. 
Commenters either recommended recording all bloodborne pathogen 
exposure incidents or sharply limiting the recording of these events. A 
large number of commenters either objected specifically to the 
recording of all bloodborne pathogen exposure incidents or objected to 
the entire contents of proposed Appendix B (see, e.g., Exs. 15: 1, 37, 
38, 39, 44, 48, 52, 61, 66, 69, 74, 78, 82, 89, 100, 119, 121, 122, 
126, 133, 146, 151, 152, 154, 156, 179, 193, 197, 200, 201, 203, 204, 
213, 218, 219, 239, 254, 260, 262, 265, 271, 272, 277, 287, 297, 299, 
301, 303, 305, 308, 310, 313, 317, 322, 329, 335, 345, 346, 347, 348, 
349, 351, 352, 353, 361, 364, 373, 374, 375, 378, 392, 393, 395, 396, 
398, 401, 403, 405, 407, 408, 409, 425, 434, 435). The most frequent 
suggestion made by commenters was that the only criterion for recording 
bloodborne pathogen diseases should be a positive blood test or 
diagnosis by a health care professional (see, e.g., Exs. 15: 1, 38, 61, 
65, 78, 82, 119, 122, 133, 151, 152, 179, 201, 213, 260, 262, 265, 290, 
299, 301, 317, 345, 347, 373, 374, 393, 401, 407, 408, 435, 442). Many 
of the commenters who objected to recording all bloodborne incidents on 
the Log argued that these cases reflect exposure only and do not 
usually reflect cases that rise to the level of an injury or illness 
(see, e.g., Exs. 15: 44, 69, 78, 151, 152, 179, 197, 201, 239, 272, 
277, 287, 303, 308, 313, 345, 347, 348, 349, 351, 352, 353, 364, 373, 
374, 375, 386, 392, 395, 396, 403, 405, 423, 425, 442). Other 
commenters urged OSHA to consider these cases minor injuries if they do 
not result in disease (see, e.g., Exs. 15: 52, 290, 317, 403, 409, 
434). Many agreed with the comments submitted by Bellin Hospital, which 
stated ``[r]ecording of all Significant Exposures is unnecessary. 
Seroconversions after exposure, regardless of mode of exposure is 
appropriate recordkeeping only'' (Ex. 15: 38). Several commenters made 
similar points. For example, Atlantic Dry Dock (Ex. 15: 179) wrote that 
``[n]ot all contact [with blood or other potentially infectious 
materials] will result in an infection. There is no injury/illness 
unless an infection has actually resulted from the contact.''
    Some commenters suggested that only those cases that resulted in 
either medical treatment or seroconversion should be recorded on the 
Log (see, e.g., Exs. 15: 48, 100, 213, 310, 395, 416, 423), while 
others advocated recording lacerations and puncture wounds only if they 
met the rule's general recording criteria (see, e.g., Exs. 15: 52, 200, 
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401). As Bell 
Atlantic (Ex. 15: 128) commented, ``[s]erious lacerations and puncture 
wounds involving contact with bloodborne pathogens should be reported. 
But the mechanism driving such reporting is the severity of the wound 
and NOT the presence of bloodborne pathogens. Even with the absence of 
bloodborne pathogens, such serious injuries would be recorded.''
    The American Hospital Association and the Georgia Hospital 
Association expressed concern that bloodborne pathogen disease criteria 
require ``the recording of all instances of certain conditions that 
meet specific criteria, whether or not they meet OSHA's established 
criteria for recordability (work-relationship; involves medical 
treatment or death, loss of consciousness, or in-patient 
hospitalization, or days away from work restricted work activity, or 
job transfer)'' (Exs. 15: 100, 219).
    Several commenters stated that the recording of all bloodborne 
pathogen incidents would be redundant and unnecessary (see, e.g., Exs. 
15: 66, 121, 299, 322, 408, 435). Some commenters said that OSHA's 
bloodborne pathogen standard already requires recordkeeping and 
tracking of bloodborne pathogen exposure incidents (see, e.g., Exs. 
15:39, 89, 121, 310, 351, 378, 393, 405, 416), and others remarked that 
general medical records already contained adequate data (see, e.g., 
Exs. 15: 151, 152, 179).
    A number of commenters discussed the effect on injury and illness 
statistics that would be caused by recording all bloodborne pathogen 
incidents (see, e.g., Exs. 15: 39, 44, 48, 61, 66, 69, 126, 146, 151, 
152, 179, 201, 239, 287, 290, 308, 313, 329, 345, 352, 353, 364, 405). 
The Society of the Plastics Industry, Inc. (Ex. 15: 364) said that 
``Requiring recording of exposure incidents rather than actual 
illnesses will improperly inflate the statistics regarding these 
diseases.'' Patrick Tyson, a partner at Constangy, Brooks & Smith, LLC, 
(Ex. 15: 345) stated:

    In effect, the Proposed Recordkeeping Rule would include on the 
Log those exposure incidents where a medical follow-up examination 
actually rules out the resulting illness. I believe that the Logs 
should not be used in this fashion any more than they should be used 
to record incidents of high levels of workplace noise in the absence 
of actual hearing loss, or incidents of employee exposure to highly 
repetitive jobs in the absence of resulting musculo-skeletal 
disorders. Simply stated, the OSH Act does not contemplate or intend 
the recording of mere exposure incidents on the OSHA Log. To do so 
would artificially overstate the relative safety and health risk in 
the American workplace.

    On the other hand, a number of commenters recommended that OSHA 
require the recording of all bloodborne pathogen incidents as defined 
in the bloodborne pathogens standard (see, e.g., Exs. 24, 15: 72, 153, 
181, 196, 198, 289, 379, 380, 418). Several of these commenters urged 
the recording of all exposure incidents to improve the information on 
these injuries and promote better protection for workers (see, e.g., 
Exs. 24, 15: 72, 153, 181, 196, 289, 379, 380). The American 
Association of Occupational Health Nurses (AAOHN) remarked ``The 
benefit in keeping these detailed records of bloodborne pathogen 
exposures will be the ability to track the root cause of resultant 
injuries and illnesses, regardless of latency'' (Ex. 15: 181). The 
National Association of Operating Room Nurses (Ex. 15: 72) added 
``Reporting exposures may raise consciousness resulting in work 
practice changes and decreased hazard.''
    Two commenters cited the severity of these incidents as a reason 
for requiring the recording of all exposure incidents (Exs. 24; 15: 
379). The American Nurses Association based its arguments on the 
severity of the risk, stating ``While the Center for Disease Control 
and Prevention (CDC) Cooperative Needlestick Surveillance Group 
reported no seroconversions to HIV positive from mucous membrane or 
skin exposure, Hepatitis infections have been reported following 
exposures via these routes. The nature of the risk to HIV however small 
is very severe, deadly in fact; and the risk of Hepatitis is even 
greater. Because of the severity of the risk, we believe that all 
exposures must be recorded'' (Ex. 24). The Service Employees 
International Union (SEIU) added ``The lives of thousands of health

[[Page 6001]]

care workers each year are unnecessarily devastated by occupational 
exposure to hepatitis B, hepatitis C and HIV. A workplace exposure to 
blood or other potentially infectious materials represents a 
significant event in the life of a health care worker, regardless of 
whether or not the exposure results in infection with hepatitis B, 
hepatitis C or HIV'' (Ex. 15: 379).
    A few commenters remarked on the need for consistency between the 
bloodborne pathogens standard and the recordkeeping requirements (see, 
e.g., Exs. 15: 153, 198, 379). The National Association for Home Care 
(NAHC) stated ``NAHC believes that OSHA should maintain consistency 
between individual OSHA bloodborne pathogen requirements and general 
OSHA reporting requirements. Reporting of all exposure incidents is 
consistent with OSHA's bloodborne pathogen regulations for health care 
settings which require medical follow-up of employees for all exposure 
incidents'' (Ex. 15: 198).
    Several commenters suggested recording all incidents as a method 
for masking the identity of workers who actually contract disease as a 
result of their injury (see, e.g., Exs. 15: 379, 380, 418). The AFL-CIO 
(Ex. 15: 418) stated:

    The AFL-CIO believes that exposures to bloodborne pathogens pose 
a unique case with respect to confidentiality and privacy concerns. 
As the Agency has recognized in the Bloodborne Pathogen Standard, 29 
CFR 1910.1030, there are real and legitimate concerns about 
discrimination against individuals who have tested positive for HIV 
and other bloodborne infectious diseases. To address these 
legitimate confidentiality concerns, the AFL-CIO believes that a 
different approach to recording cases related to bloodborne 
pathogens is required. For these cases, we recommend that the Agency 
require the recording of needlestick injuries and all exposures to 
blood or blood contaminated body fluids on the Log 300 and on the 
301. Cases involving actual seroconversions should be recorded in 
the confidential medical record. This approach would be consistent 
with the approach and language in the bloodborne pathogen standard. 
It would permit the log to be used to track individual cases of 
exposure for prevention purposes, while at the same time maintaining 
the confidentiality of individuals whose health status had changed 
as a result of exposure. The AFL-CIO recognizes that this approach 
will require the recording of exposure incidents which do not result 
in the change of health status and sets different criteria for 
recording cases related to bloodborne pathogens. Given the unique 
confidentiality concerns associated with this set of conditions, we 
believe that this special treatment for these conditions is 
warranted.

    After a review of the many comments in the record on this issue, 
OSHA has decided to require the recording of all workplace injuries 
from needlesticks and sharp objects that are contaminated with another 
person's blood or other potentially infectious material (OPIM) on the 
OSHA Log. These cases must be recorded, as described above, as privacy 
concern cases, and the employer must keep a separate list of the 
injured employees' names to enable government personnel to track these 
cases. OSHA does not agree with those commenters who were of the 
opinion that contaminated needlestick and sharps injuries are minor 
injuries comparable in importance to a puncture by a sewing needle or 
leather punch. OSHA also disagrees with those commenters who believed 
these incidents are merely exposure incidents roughly comparable with 
exposure to loud noises. These incidents are clearly injuries, where 
the worker has experienced a cut or laceration wound.
    OSHA recognizes that these injuries are different from most 
workplace cuts and lacerations, whose seriousness depends largely on 
the size, location, jaggedness, or degree of contamination of the cut, 
which determines the need for medical treatment, restricted work, or 
time away for recuperation and thus the recordability of the incident. 
In contrast, all injuries from contaminated needles and sharps are 
serious because of the risk of contracting a potentially fatal 
bloodborne disease that is associated with them.
    Many commenters argued that needlestick and sharps injuries are not 
the kinds of injuries that Congress intended employers to record, as 
articulated in the OSH Act (see, e.g., Exs. 15: 239, 308, 313, 345, 
352, 353, 375, 395). As discussed earlier in the Legal Authority 
section, OSHA disagrees, believing that Congress mandated the recording 
of all non-minor injuries and illnesses as well as all injuries 
resulting in medical treatment or one of the other general recording 
criteria. OSHA finds that needlestick and sharps injuries involving 
blood or other potentially infectious materials are non-minor injuries, 
and therefore must be recorded. This conclusion is consistent with the 
Senate Committee on Appropriations report accompanying the fiscal year 
1999 Departments of Labor, Health and Human Services, and Education and 
Related Agencies Appropriation Bill, 1999 (S. 2440) which included the 
following language:

    Accidental injuries from contaminated needles and other sharps 
jeopardize the well-being of our Nation's health care workers and 
result in preventable transmission of devastating bloodborne 
illnesses, including HIV, hepatitis B, and hepatitis C. The 
committee is concerned that the OSHA 200 Log does not accurately 
reflect the occurrence of these injuries. The committee understands 
that the reporting and recordkeeping standard (29 CFR 1904) requires 
the recording on the OSHA 200 Log of injuries from potentially 
contaminated needles and other sharps that result in: the 
recommendation or administration of medical treatment beyond first 
aid; death, restriction of work or motion; loss of consciousness, 
transfer to another job, or seroconversion in the worker. Accidental 
injuries with potentially contaminated needles or other sharps 
require treatment beyond first aid. Therefore, the Committee urges 
OSHA to require the recording on the OSHA 200 log of injuries from 
needles and other sharps potentially contaminated with bloodborne 
pathogens (Senate Report 105-300).

OSHA finds that these injuries are significant injuries because of the 
risk of seroconversion, disease, and death, they pose (see the preamble 
to the OSHA Bloodborne Pathogens Standard at 56 FR 64004).
    OSHA recognizes that requiring the recording of all injuries from 
contaminated needles and sharps will result in more cases being 
recorded on employers' Logs and will increase the number of such 
injuries reflected in the Nation's statistics. However, the Agency does 
not agree that the statistics will be inappropriately inflated. 
Instead, OSHA believes that the statistics will henceforth include, for 
the first time, cases that reflect the incidence of these significant 
injuries accurately. Adding these cases to the Nation's statistics will 
create a more accurate accounting of work-related injury and illness 
cases, information that will be useful to employers, employees, the 
government and the public. In addition, the collection of this 
information at the establishment level will generate data employers and 
employees can use to analyze injury and illness patterns and make 
improvements in work practices and equipment. Recording these injuries 
will thus help to realize one of this rulemaking's primary goals, to 
improve the utility and quality of the information in the records.
    If OSHA were to adopt a final rule that only required the recording 
of seroconversion cases and cases that met the general recording 
criteria, as many commenters suggested (see, e.g., Exs. 15: 52, 200. 
203, 219, 260, 262, 265, 271, 313, 329, 348, 352, 353, 401), the 
Nation's statistics would not be as complete and accurate, and 
workplace records would not have the same preventive value for 
employees and employers. In addition, that approach would be more 
complex because it

[[Page 6002]]

would require employers to evaluate each case against several criteria 
before recording it. The approach taken in the final rule is 
considerably simpler. Recording all such injuries also helps to protect 
the privacy of workers who have been injured in this way. Needlestick 
and sharps injuries raise special privacy concerns. The comments on 
this subject show a universal concern for the privacy of a worker's 
medical information and disease status, and OSHA has taken several 
special precautions, discussed elsewhere in the preamble, to protect 
this privacy. Several commenters suggested recording all needlesticks 
and sharps incidents as a method for masking the identify of workers 
who actually contract disease (see, e.g., Exs. 15: 379, 380, 418). OSHA 
has adopted this practice in the final rule because recording all of 
these injuries will help to protect the privacy of individual workers 
as well as produce higher quality data.
    OSHA disagrees with those commenters who argued that the 
Sec. 1904.8 recording requirement would be duplicative or redundant 
with the requirements in the Bloodborne Pathogens standard (29 CFR 
1910.1030). That standard requires the employer to document the 
route(s) of exposure and the circumstances under which the exposure 
incident occurred, but does not require that it be recorded on the Log 
(instead, the standard requires only that such documentation be 
maintained with an employee's medical records). The standard also has 
no provisions requiring an employer to aggregate such information so 
that it can be analyzed and used to correct hazardous conditions before 
they result in additional exposures and/or infections. The same is true 
for other medical records kept by employers: they do not substitute for 
the OSHA Log or meet the purposes of the Log, even though they may 
contain information about a case that is also recorded on the Log.
    OSHA is requiring only that lacerations and puncture wounds that 
involve contact with another person's blood or other potentially 
infectious materials be recorded on the Log. Exposure incidents 
involving exposure of the eyes, mouth, other mucous membranes or non-
intact skin to another person's blood or OPIM need not be recorded 
unless they meet one or more of the general recording criteria, result 
in a positive blood test (seroconversion), or result in the diagnosis 
of a significant illness by a health care professional. Otherwise, 
these exposure incidents are considered only to involve exposure and 
not to constitute an injury or illness. In contrast, a needlestick 
laceration or puncture wound is clearly an injury and, if it involves 
exposure to human blood or other potentially infectious materials, it 
rises to the level of seriousness that requires recording. For splashes 
and other exposure incidents, the case does not rise to this level any 
more than a chemical exposure does. If an employee who has been exposed 
via a splash in the eye from the blood or OPIM of a person with a 
bloodborne disease actually contracts an illness, or seroconverts, the 
case would be recorded (provided that it meets one or more of the 
general recording criteria).
Privacy Issues
    There was support in the record for OSHA's proposal to record 
occupationally acquired bloodborne pathogen diseases simply as the 
initial bloodborne exposure incident to protect employee 
confidentiality. Eli Lilly and Company (Ex. 15: 434) commented:

    Lilly agrees with the Agency's proposed method of recording 
exposure incidents that result in disease. All of these recordable 
incidents should be recorded simply as the type of bloodborne 
exposure incident (e.g. needlestick) with no reference to the type 
of disease. While Lilly is concerned about protecting the privacy of 
every individual employee's medical information, Lilly concedes that 
the current social stigma resulting from bloodborne pathogen 
diseases demands a more simple recordkeeping requirement.

    Privacy issues, however, concerned many of the commenters to the 
rulemaking record. Metropolitan Edison/Pennsylvania Electric Company 
(M/P), for example, was so concerned with employee privacy that ``[d]ue 
to the sensitivity of Bloodborne Pathogenic diseases and related 
confidentiality concerns, M/P disagrees with recording these types of 
incidents'' (Ex. 15: 254). The American Automobile Manufacturers 
Association (AAMA), among others, expressed concern that the recording 
requirement for bloodborne pathogen diseases would discourage employees 
from reporting exposures and might also discourage individuals from 
seeking treatment. AAMA wrote:

    [m]any individuals who contract an infectious disease from a 
workplace event or exposure will be against having their names on 
the OSHA log for scrutiny by any employee or former employee of the 
establishment. To openly list (on the OSHA log) an individual with 
an infectious disease will discourage some employees from reporting 
exposures. It may also discourage individuals from seeking 
treatment, which may be lifesaving or which may limit the spread of 
the disease. We oppose the development of any system which directly 
or indirectly discourages individuals from seeking medical 
evaluation or treatment, for the sake of data collection (Ex. 15: 
409).

    The AAMA proposed as an alternative ``to remove all personal 
identifiers for infectious disease cases from the OSHA log. Some type 
of employer created coding system could be instituted, as long as the 
code was consistently applied. Authorized medical personnel and 
government representatives would be the only individuals permitted 
access to the personal identifiers and/or key to the coding system'' 
(Ex. 15: 409). The Quaker Oats Company and the Ford Motor Company 
supported similar alternatives (Exs. 15: 289, 347). A number of 
commenters specifically supported the use of a coding system (see, 
e.g., Exs. 15: 146, 213, 260, 262, 265, 345, 347, 409).
    OSHA shares these commenters' concern about the privacy of 
employees who seroconvert as the result of a bloodborne pathogens-
related needlestick or sharps incident and finds that these incidents 
are clearly the type of non-minor occupational injury and illness 
Congress intended to be included in the OSHA recordkeeping system. If 
the Agency were to exclude these cases categorically from the records, 
it would not be meeting the requirements of the OSH Act to produce 
accurate statistics on occupational death, injury and illness.
    The final recordkeeping rule addresses this issue by prohibiting 
the entry of the employee's name on the OSHA 300 Log for injury and 
illness cases involving blood and other potentially infectious 
material. Further, by requiring employers to record all needlestick and 
sharps incidents, regardless of the seroconversion status of the 
employee, coworkers and representatives who have access to the Log will 
be unable to ascertain the disease status of the injured worker. OSHA 
believes that the privacy concern case approach of the final rule 
obviates the need for a coding system because the case number assigned 
to the recorded injury will serve the purpose of a code, without adding 
additional complexity or burden. A discussion of access to the records 
is contained in the portion of the preamble associated with section 
1904.35, Employee Involvement.
    The College of American Pathologists objected to the inclusion of 
hepatitis C in the list of bloodborne pathogen diseases. They commented 
that ``the great majority of cases of hepatitis C lack any identifiable 
source of exposure. More cases of HCV infection occur among non-health 
care workers than among health care workers. To presume that an 
individual who is infected with

[[Page 6003]]

HCV acquired it on the job just because they work in a health care 
setting is unjustified'' (Ex. 15: 37). On the other hand, a commenter 
from Waukesha Memorial Hospital suggested that OSHA ``should include 
all blood borne pathogen disease that develops as a result of an 
exposure incident, not just HIV, Hep B, Hep C, even though those are 
the major players in a hospital setting. Since we must teach that there 
are many bloodborne pathogens, it doesn't make sense to me to only 
record some and not all'' (Ex. 15: 436). OSHA believes that hepatitis C 
cases should, like other illness cases, be tested for recordability 
using the geographic presumption that provides the principal rationale 
for determining work-relatedness throughout this rule. OSHA also agrees 
with the commenter from Waukesha Memorial Hospital that all bloodborne 
pathogen diseases resulting from events or exposures in the workplace 
should be recorded. Therefore, OSHA has modified the final regulatory 
text of paragraph 1904.8(b)(4)(i) to reflect this decision.

Section 1904.9 Additional Recording Criteria for Cases Involving 
Medical Removal Under OSHA Standards

    The final rule, in paragraph 1904.9(a), requires an employer to 
record an injury or illness case on the OSHA 300 Log when the employee 
is medically removed under the medical surveillance requirements of any 
OSHA standard. Paragraph 1904.9(b)(1) requires each such case to be 
recorded as a case involving days away from work (if the employee does 
not work during the medical removal) or as a case involving restricted 
work activity (if the employee continues to work but in an area where 
exposures are not present.) This paragraph also requires any medical 
removal related to chemical exposure to be recorded as a poisoning 
illness.
    Paragraph 1904.9(b)(2) informs employers that some OSHA standards 
have medical removal provisions and others do not. For example, the 
Bloodborne Pathogen Standard (29 CFR 1910.1030) and the Occupational 
Noise Standard (29 CFR 1910.95) do not require medical removal. Many of 
the OSHA standards that contain medical removal provisions are related 
to specific chemical substances, such as lead (29 CFR 1901.1025), 
cadmium (29 CFR 1910.1027), methylene chloride (29 CFR 1910.1052), 
formaldehyde (29 CFR 1910.1048), and benzene (29 CFR 1910.1028).
    Paragraph 1904.9(b)(3) addresses the issue of medical removals that 
are not required by an OSHA standard. In some cases employers 
voluntarily rotate employees from one job to another to reduce exposure 
to hazardous substances; job rotation is an administrative method of 
reducing exposure that is permitted in some OSHA standards. Removal 
(job transfer) of an asymptomatic employee for administrative exposure 
control reasons does not require the case to be recorded on the OSHA 
300 Log because no injury or illness--the first step in the 
recordkeeping process--exists. Paragraph 1904.9(b)(3) only applies to 
those substances with OSHA mandated medical removal criteria. For 
injuries or illnesses caused by exposure to other substances or 
hazards, the employer must look to the general requirements of 
paragraphs 1910.7(b)(3) and (4) to determine how to record the days 
away or days of restricted work.
    The provisions of Sec. 1904.9 are not the only recording criteria 
for recording injuries and illnesses from these occupational exposures. 
These provisions merely clarify the need to record specific cases, 
which are often established with medical test results, that result in 
days away from work, restricted work, or job transfer. The Sec. 1904.9 
provisions are included to produce more consistent data and provide 
needed interpretation of the requirements for employers. However, if an 
injury or illness results in the other criteria of Sec. 1904.7 (death, 
medical treatment, loss of consciousness, days away from work, 
restricted work, transfer to another job, or diagnosis as a significant 
illness or injury by a physician or other licensed health care 
professional) the case must be recorded whether or not the medical 
removal provisions of an OSHA standard have been met.
    The recording of OSHA mandated medical removals was not addressed 
in the 1996 recordkeeping proposal. OSHA has included the provisions of 
Sec. 1904.9 in the final rule to address a deficiency noted by a number 
of commenters, and as a replacement for criteria that were contemplated 
for the recording of various ailments in proposed Appendix B (61 FR 
4063-4065). For example, R. L. Powell, Personnel Safety Manager for 
Union Carbide Corporation, (Ex. 15: 396) asked about medical removal 
and restricted work:

    How does this criteria [restricted work] apply to ``medical 
removal?'' Medical removal is sometimes mandated by other OSHA 
standards under certain conditions. A similar technique may also be 
used by a physician to conduct controlled tests to assess the impact 
of workplace factors on a condition such as a chemical sensitivity.

    A number of commenters recommended the use of medical removal 
criteria as the correct recording level for various substances listed 
in proposed Appendix B (see, e.g., Exs. 22; 15: 113, 155, 192, 199, 
213, 242, 262, 272, 303, 304, 307, 326, 338, 340, 349). Many of these 
commenters suggested the medical removal criteria as a substitute for 
the proposed recording levels for lead and cadmium (Ex. 22; 15: 113, 
155, 192, 340, 349). For example, Newport News Shipbuilding (Ex. 15: 
113) said:

    The proposed regulation requires recording lead and cadmium 
cases based on biological action levels rather than on the onset of 
illness. The purpose of the biological action level is to identify 
those employees who are at greater risk of reaching the limits for 
medical removal, so that onset of illness may be prevented. The use 
of biological action levels as the basis of defining and recording 
illness is inappropriate. Rather, lead and cadmium cases should be 
recorded when medical removal is required by the specific standard.

    The Institute of Scrap Recycling Industries, Inc. (Ex. 15: 192) 
added:

    This [proposed] statement clearly subverts the clear intent of 
the OSHA lead standard that a blood lead level of 50 g/100 
g of whole blood and not 40 g/100 g of whole blood is the 
criteria for medical removal and therefore also the criteria for 
documentation on the OSHA injury and illness log. Had the scientific 
evidence on which the OSHA lead standard was based pointed clearly 
to 40 g/100 g of whole blood as the medical removal 
standard and therefore the standard for documentation on the OSHA 
injury and illness log the standard would have reflected this. 
Therefore it would clearly subvert the purpose and scope of the OSHA 
lead standard, that was based on scientific evidence and an 
exhaustive public comment period on the scientific data, to 
establish a clear benchmark for a recordable event on the injury and 
illness log without the benefit of supporting scientific study and 
data and a public comment period on such information.

    The Institute of Scrap Recycling Industries, Inc is incorrect about 
the lead standard's determination of recording criteria on the OSHA 
injury and illness log. The lead standard (Sec. 1910.1025) does not 
specifically address the recording issue, but the lead standard does 
address the medical removal issue. The Institute points to the benefit 
of using medical removal criteria for recording purposes, and OSHA 
agrees that these criteria are useful for recordkeeping purposes. The 
medical removal provisions of each standard were set using scientific 
evidence established in the record devoted to that rulemaking. OSHA 
takes care when setting the medical removal provisions of standards to 
ensure that these provision reflect a material harm, i.e., the 
existence of an abnormal condition that is non-minor and thus

[[Page 6004]]

worthy of entry in the OSHA injury and illness records.
    Other commenters urged OSHA to use the medical removal criteria as 
a replacement for all of proposed Appendix B. (see, e.g., Exs. 15: 199, 
213, 242, 262, 303, 304, 307, 326, 338, 375). For example, Southern 
Nuclear Operating Company (Ex. 15: 242) stated that:

    Mercury, Lead, Cadmium, Benzene: In these cases, it is 
appropriate to distinguish between biological markers that merely 
point to exposure versus those that relate to illness or disease. 
All of the recordability criteria for these substances are based on 
various ``action'' levels stated in their respective OSHA 
regulations. Southern Nuclear Operating Company believes that the 
appropriate criteria for recording these cases as illnesses should 
be the ``medical removal'' criteria stated in their respective 
regulations coupled with a physician's diagnosis of disease rather 
that the ``action'' levels as stated in the proposal. These 
``medical removal'' criteria are more indicative of disease or 
illness. If the ``action'' levels for these substances are used as 
the recording criteria, the number of illnesses recorded on the OSHA 
log would more accurately reflect the numbers of workers covered by 
a given exposure control program as opposed to the number of 
illnesses that result from an inadequate program.

    The American Petroleum Institute (API) argued that:

    API incorporates in its recommended Appendix B the recording of 
cases when medical removal is required by a specific OSHA standard. 
API concedes this is inconsistent with the concept of ``serious or 
significant''--and inconsistent with API's fundamental belief that 
actions by employers to prevent cases from becoming serious should 
not be recorded--because such medical removals are by design 
preventive; that is, intended to occur before a case becomes 
serious. However, API acknowledges that it is extremely difficult to 
define and get substantial agreement on any straight-forward and 
verifiable criteria when such cases are indeed ``serious''. 
Therefore, API has decided to recommend the medical-removal 
criterion for Appendix B as the best on-balance solution for 
situations involving toxic substance adsorption. (Ex. 15: 375)

    A number of commenters opposed the use of mandatory medical removal 
levels for injury and illness recording purposes (see, e.g., Exs. 25; 
15: 146, 193, 258, 261, 304, 305, 318, 346, 358). Many argued that the 
OSH Act did not support the use of medical removals (see, e.g., Exs. 
25; 15: 258, 261, 304, 358). For example, the National Association of 
Manufacturers (NAM) commented:

    There is no reference in Section 24(a) or Section 8(c)(2) of the 
OSH Act to recording exposure incidents that do not result in 
disabling, serious or significant injuries or illnesses; or is there 
any reference in those sections to medical removal provisions or 
other action levels that do not result in disabling, serious or 
significant injuries or illnesses. On the other hand, Section 
8(c)(3) does discuss--as a separate component of OSHA's occupational 
safety and health statistics program--maintaining records of 
employee exposures to toxic materials and harmful physical agents 
pursuant to standards issued under Section 6 of the OSH Act.
    This is a rulemaking about the statistical program for tracking 
disabling, serious or significant injuries and illnesses--nothing 
more and nothing less. We believe Congress determined that those are 
the criteria that OSHA should utilize for this particular component 
of its statistical program. A statistical program that aggregates 
disabling, serious or significant injuries and illnesses with other 
conditions and exposure incidents, is contrary to both the 
congressional directive and the goal of this recordkeeping system.

    While these commenters are correct in noting that the OSH Act does 
not specifically address medical removal levels and whether or not 
cases meeting these levels should be recorded, the Act also does not 
exclude them. The Act does require the recording of injuries and 
illnesses that result in ``restriction of work or motion'' or 
``transfer to another job.'' OSHA finds that cases involving a 
mandatory medical removal are cases that involve serious, significant, 
disabling illnesses resulting in restriction of work and transfer to 
another job, or both. These medical restrictions result either in days 
away from work (form of restriction) or days when the worker can work 
but is restricted from performing his or her customary duties.
    Other commenters objected to recording medical removals because 
they are precautionary in nature (Ex. 15: 146, 193, 258, 261, 305, 318, 
346). The American Foundrymen's Society, Inc. (Ex. 15: 346) argued 
that:

    An abnormally high level of a toxic material in an individual's 
blood (e.g., a lead level at or above the action level or the level 
requiring ``medical removal'' under OSHA's Lead Standard) is not and 
should not, in itself, be considered a recordable injury or illness. 
A preventive or prophylactic measure such as medical removal (as 
opposed to a restorative or curative measure) is not and should not 
be deemed medical treatment, a job transfer or restricted activity 
for purposes of recordability in the absence of a diagnosis of a 
substantial impairment of a bodily function.

    As stated previously, a ``diagnosis of substantial impairment of a 
bodily function'' is not required for a case to meet OSHA recordkeeping 
criteria, nor is it a limitation to recordability under the OSH Act. 
Many injuries and illnesses meet the recording criteria of the Act but 
lack diagnosis of a substantial impairment of a bodily function. 
Although the medical removal provisions are included in OSHA's 
standards to encourage participation in the medical program by 
employees and to prevent progression to serious and perhaps 
irreversible illness, they also reflect illnesses caused by exposures 
in the workplace and are thus themselves recordable. The workers are 
being removed not only to prevent illness, but to prevent further 
damage beyond what has already been done. Thus OSHA does not agree that 
medical removal measures are purely preventive in nature; instead, they 
are also remedial measures taken when specific biological test results 
indicate that a worker has been made ill by workplace exposures.
    OSHA has therefore included section 1904.9 in the final rule to 
provide a uniform, simple method for recording a variety of serious 
disorders that have been addressed by OSHA standards. The Sec. 1904.9 
provisions of the final rule cover all of the OSHA standards with 
medical removal provisions, regardless of whether or not those 
provisions are based on medical tests, physicians' opinions, or a 
combination of the two. Finally, by relying on the medical removal 
provisions in any OSHA standard, section 1904.9 of the final rule 
establishes recording criteria for future standards, and avoids the 
need to amend the recordkeeping rule whenever OSHA issues a standard 
containing a medical removal level.

Section 1904.10  Recording Criteria for Cases Involving Occupational 
Hearing Loss

    The recording criteria employers should use to record occupational 
hearing loss on the OSHA recordkeeping forms have been an issue since 
OSHA first proposed to require hearing conservation programs for 
general industry employers (39 FR 37775, October 24, 1974). Job-related 
hearing loss is a significant occupational safety and health issue 
because millions of workers are employed in noisy workplaces and 
thousands of workers experience noise-induced hearing loss each year. 
Noise-induced hearing loss is a serious and irreversible condition that 
may affect the safety and well-being of workers for the rest of their 
lives.
    For the nation as a whole in 1997, the BLS reported only 495 cases 
of occupational hearing loss resulting in days away from work (http://stats.bls.gov/case/ostb0684.txt; BLS Characteristics Data Table R15 of 
04/22/1999). Hearing loss is not the type of occupational injury or 
illness that typically requires days away from work for recuperation, 
as is often the case for

[[Page 6005]]

a fracture, fall, or carpal tunnel syndrome case. OSHA believes that 
there are many cases of hearing loss--probably numbering in the 
thousands--that occur every year as a result of job-related noise 
exposure but do not result in days away from work and are thus not 
captured in the BLS statistics. Because these hearing losses are often 
permanent, a large number of Americans, both working and retired, are 
currently suffering the effects of hearing loss due to occupational 
exposure.
    The changes being made to the OSHA 300 form in the final rule will 
improve the quality of the data collected nationally on this important 
occupational condition by providing consistent hearing loss recording 
criteria, thus improving the consistency of the hearing loss statistics 
generated by the BLS occupational injury and illness collection 
program. National hearing loss statistics will also be improved because 
OSHA has added a column to the OSHA 300 Log that will require 
employers, for the first time, to separately collect and summarize data 
specific to occupational hearing loss. These changes mean that the BLS 
will collect hearing loss data in future years, both for cases with and 
without days away from work, which will allow for more reliable 
published statistics concerning this widespread occupational disorder.
    Paragraph 1904.10(a) of the final rule being published today 
requires an employer to record an employee's hearing test (audiogram) 
result if that result reveals that a Standard Threshold Shift (STS) for 
that employee has occurred. If the employee is one who is covered by 
the medical surveillance requirements of OSHA's Occupational Noise 
standard (29 CFR 1910.95), compliance with the standard will generate 
the information necessary to make recording decisions.
    If the employee is not covered by the 29 CFR 1910.95 noise 
standard, OSHA rules do not require the employer to administer baseline 
or periodic audiograms, and the 1904 rule does not impose any new 
requirements for employers to obtain baseline information where it is 
not already required. However, some employers conduct such tests and 
acquire such information for other reasons. If the employer's workplace 
is a high noise environment (i.e., has noise levels that exceed 85 dBA) 
and the employer has the relevant audiogram information for an 
employee, the employer must record any identified work-related hearing 
loss equal to or greater than an OSHA-defined STS on the Log. This 
means that an employer in the construction industry, for example, who 
is aware that his or her work activities regularly generate high noise 
levels and who has audiometric data on the hearing level of the 
employees exposed to those noise levels must record on the Log any STS 
detected in those workers. OSHA believes that this approach to the 
recording of work-related hearing loss cases among these workers not 
covered by the noise standard is appropriate because it is reasonable, 
protective, and administratively straightforward.
    Paragraph 1904.10(b)(1) of the final rule defines an STS as that 
term is defined in the Occupational Noise Standard: as a change in an 
employee's hearing threshold, relative to the baseline audiogram for 
that employee, of an average of 10 decibels (dB) or more at 2000, 3000, 
and 4000 hertz in one or both ears. The Noise standard, at paragraph 
1910.95(c)(1), describes the employees in general industry who are 
covered by the required hearing conservation program as follows:

    The employer shall administer a continuing, effective hearing 
conservation program, as described in paragraphs (c) through (o) of 
this section, whenever employee noise exposures equal or exceed an 
8-hour time-weighted average sound level (TWA) of 85 decibels 
measured on the A scale (slow response) or, equivalently, a dose of 
fifty percent. For purposes of the hearing conservation program, 
employee noise exposures shall be computed in accordance with 
appendix A and Table G-16a, and without regard to any attenuation 
provided by the use of personal protective equipment.

    Paragraph 1904.10(b)( 2) of the final recordkeeping rule directs 
employers how to determine whether a recordable STS has occurred. The 
paragraph deals with two situations: (1) where the employee has not 
previously experienced such a hearing loss, and (2) where the employee 
has experienced a past recordable hearing loss. If the employee has 
never previously experienced a recordable hearing loss, the employer 
must compare the results of the employee's current audiogram with the 
employee's baseline audiogram, if the employee has a baseline 
audiogram. The employee's baseline audiogram could either be that 
employee's original baseline audiogram or a revised baseline audiogram 
adopted in accordance with paragraph (g)(9) of 29 CFR 1910.95. For 
employees who have not previously had a recordable hearing loss with 
that employer, the loss in hearing is computed using the preemployment 
hearing test result so that any hearing loss the employee may have 
experienced before obtaining employment with the employer is not 
attributed to noise exposure in that employer's workplace.
    If the employee has previously experienced a recordable hearing 
loss, the employer must compare the employee's current audiogram with 
the employee's revised baseline audiogram (i.e., the audiogram 
reflecting the prior recorded hearing loss). For employees who have had 
a previously recordable hearing loss with that employer, the final 
recordkeeping rule thus ensures that the employer does not record the 
same case of hearing loss twice, but that if a second STS occurs, the 
employer will record that additional hearing loss.
    Paragraphs 1904.10(b)(3) and (4) of the final rule allow the 
employer to take into account the hearing loss that occurs as a result 
of the aging process and to retest an employee who has an STS on an 
audiogram to ensure that the STS is permanent before recording it. The 
employer may correct the employee's audiogram results for aging, using 
the same methods allowed by the OSHA Noise standard (29 CFR 1910.95). 
Appendix F of Sec. 1910.95 provides age correction for presbycusis 
(age-induced hearing loss) in Tables F-1 (for males) and F-2 (for 
females). Further, as permitted by the Noise standard, the employer may 
obtain a second audiogram for employees whose first audiogram registers 
an STS if the second audiogram is taken within 30 days of the first 
audiogram. The employer may delay recording of the hearing loss case 
until the STS is confirmed by the second audiogram and is, or course, 
not required to record the case if the second audiogram reveals that 
the STS was not permanent.
    Paragraph 1904.10(b)(5) of the final rule establishes how employers 
are to determine the work-relatedness of hearing loss cases. This 
paragraph specifies that, in accordance with the recordkeeping rule's 
definition of work-relationship, hearing loss is presumed to be work-
related for recordkeeping purposes if the employee is exposed to noise 
in the workplace at an 8-hour time-weighted average of 85 dB(A) or 
greater, or to a total noise dose of 50 percent, as defined in 29 CFR 
1910.95. (Noise dose is defined as the amount of actual employee 
exposure to noise relative to the permissible exposure limit for noise; 
a dose greater than 100% represents exposure above the limit.) For 
hearing loss cases where the employee is not exposed to this level of 
workplace noise, or where the employee is not covered by the 
Occupational Noise standard, the employer must use the rules set out in 
Sec. 1904.5 to determine if the hearing loss is to be

[[Page 6006]]

considered work related for recordkeeping purposes.
    Paragraph 1904.10(b)(6) allows the employer not to record a hearing 
loss case if physician or other licensed health care professional 
determines that the hearing loss is not work-related or has not been 
aggravated by occupational noise exposure. This provision is consistent 
with the Occupational Noise standard, and it allows the employer not to 
record a hearing loss case that is not related to workplace events or 
exposures; examples of such cases are hearing loss cases occurring 
before the employee is hired or those unrelated to workplace noise.
    The recordkeeping provisions in section 1904.10 of the final 
recordkeeping rule thus match the provisions of the Occupational Noise 
standard by (1) covering the same employers and employees (with the 
exception of cases occurring among employees not covered by that 
standard whose employers have audiometric test results and high-noise 
workplaces); (2) using the same measurements of workplace noise; (3) 
using a common definition of hearing loss, i.e., the STS; (4) using the 
same hearing loss measurement methods; (5) using the same definitions 
of baseline audiogram and revised baseline audiogram; (6) using the 
same method to account for age correction in audiogram results; and (7) 
allowing certain temporary threshold shifts to be set aside if a 
subsequent audiogram demonstrates that they are not permanent or a 
physician or other licensed health care professional finds they are not 
related to workplace noise exposure.
The Former Rule
    The regulatory text of OSHA's former recordkeeping rule did not 
specifically address the recording of hearing loss cases, and the 
Sec. 1910.95 Occupational Noise Standard does not address the recording 
of hearing loss cases on the OSHA Log. However, the 1986 Recordkeeping 
Guidelines provided clear advice to employers to the effect that work-
related hearing loss was a recordable disorder, that it could be either 
an injury or illness, depending on the events and exposures causing the 
hearing loss, and that all hearing loss illnesses were required to be 
recorded, regardless of the industry in which the employer worked (Ex. 
2, p. 4). However, the Guidelines did not provide specific guidance on 
the kinds of hearing test or audiogram results that would constitute a 
recordable, work-related hearing loss.
    In 1990, OSHA considered issuing a Compliance Directive addressing 
the recording of hearing loss cases on employers' OSHA 200 Logs, but 
decided that the issue of the recording of hearing loss cases should be 
addressed through notice-and-comment rulemaking at the time of the 
revision of the recordkeeping rule. To address this topic in the 
interim before the final recordkeeping rule was issued, OSHA sent a 
memorandum to its field staff (June 4, 1991) to clarify its enforcement 
policy on the recording of occupational hearing loss and cumulative 
trauma disorders on the OSHA 200 Log, on the grounds that these cases 
``have received national attention and require immediate 
clarification.'' The memorandum specified that ``OSHA will issue 
citations to employers for failing to record work related shifts in 
hearing of an average of 25 dB or more at 2000, 3000, and 4000 hertz 
(Hz) in either ear on the OSHA 200 Log.'' The interim enforcement 
policy was intended to provide a conservative approach to the issue 
until the recordkeeping rulemaking was completed. The interim policy 
stated that ``The upcoming revision of the recordkeeping regulations, 
guidelines and related instructional materials will address the 
recordability criteria for all work related injuries and illnesses.'' 
The memo also mentioned the use of standard threshold shifts (STS) 
results, saying:

    Employers are presently required by 29 CFR 1910.95 to inform 
employees in writing within 21 days of the determination of a 
Standard Threshold Shift (an average of 10 dB or more at 2000, 3000 
and 4000 Hz in either ear) and to conduct specific follow-up 
procedures as required in paragraph (g) of the standard. Employers 
should be encouraged to use this information as a tracking tool for 
focusing noise reduction and hearing protection efforts.

The Proposal
    The proposed recordkeeping criterion for recording a case of 
hearing loss (61 FR 4064) was an average shift of 15 decibels (dB) or 
more at 2000, 3000, and 4000 hertz in one or both ears after the 
employee's hearing loss had been adjusted for presbycusis (age-related 
hearing loss). OSHA proposed to permit employers to delete the record 
of the hearing loss injury or illness if a retest performed within 30 
days indicated that the original shift was not permanent. Once a 15 dB 
work-related shift had occurred, however, OSHA proposed that the 
employee's baseline audiogram (for recordkeeping purposes) be adjusted 
to reflect that loss. A subsequent audiogram would have to reveal an 
additional 15 dB shift from the new or revised baseline value to be 
considered a new hearing loss injury or illness. OSHA proposed to 
presume work-relationship if an employee was exposed on the job to an 
8-hour time-weighted average noise level equaling 85 dB(A) (61 FR 
4064).
    OSHA also raised several issues related to hearing loss recording 
in the proposal (61 FR 4064):

    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?

Comments on the Proposal
    OSHA's proposed recording criterion for hearing loss received more 
comments than the proposed criterion for any other type of injury or 
illness other than musculoskeletal disorders. The hearing loss comments 
cover a wide variety of issues, including which hearing test results 
should or should not be considered an OSHA recordable illness, the 
choice of baseline audiograms, retesting and persistence of hearing 
loss, determining work relatedness, the appropriateness of correcting 
audiograms for aging (presbycusis), and the role of physicians and 
other licensed health care professionals in the determination of 
recordable hearing loss cases. The issues raised by commenters are 
organized by topic and discussed below.
The Definition of Recordable Hearing Loss
    There was limited support among commenters for OSHA's proposed 15 
dB shift recording criterion (see, e.g., Exs. 15: 50, 61, 84, 111, 113, 
156, 188, 233, 281, 289, 349, 407). However, many of these commenters 
supported the use of a 15 dB shift as the recording criterion only if 
the final recordkeeping rule also reflected other changes, such as 
eliminating the correction for aging (see, e.g., Exs. 15: 50, 188, 407) 
or limiting the recording of hearing loss to one case per worker per 
lifetime (Ex. 15: 349). For example, General Electric (Ex. 15: 349) 
suggested limiting the recording of hearing loss to one case per 
employee:

    GE supports recording an average standard threshold shift of 15 
decibels (dB) or more at 2000, 3000, and 4000 hertz in one or both 
ears, adjusted for presbycusis and with a deletion upon retest as 
described. The establishment of the recording criteria at a level 
slightly higher than STS requiring action in the noise standards 
allows the

[[Page 6007]]

employer the opportunity to take action before the STS progresses to 
a recordable injury. GE recommends, however, that, to reduce the 
administrative burden, the baseline not be revised after the shift, 
that the original baseline be maintained and the hearing loss only 
be recorded on the initial occasion of the 15 dB shift.

    George R. Cook and Omar Jaurez, occupational audiologists (Ex. 15: 
50), supported the 15dB level only if no adjustment for aging was 
allowed:

    [t]he Noise Standard has two loopholes in the identification of 
STS. First it allows for revision of baseline when the loss is 
persistent. The Standard does not identify persistence and it is 
possible to revise a baseline early and subsequent STSs would be 
postponed. The second loophole is the allowance of presbycusis which 
hides changes in hearing. Therefore, a criteria which separates the 
recording criteria from STS and protects the required STS follow-up 
is necessary. A 20 or 25 dB criteria is felt to be too much change.

    Most of the commenters, however, did not support the proposed 15 dB 
criterion (see, e.g., Exs. 22; 26; 15: 25, 45, 108, 110, 119, 137, 146, 
154, 171, 177, 201, 203, 213, 218, 246, 251, 262, 278, 295, 310, 329, 
331, 334, 343, 347, 348, 350, 358, 369, 394, 396, 405, 424). Most of 
these commenters recommended a recording criterion of a 25 dB shift, 
i.e., the criterion used in OSHA's interim enforcement policy (see, 
e.g., Exs. 22; 15: 45, 119, 137, 146, 154, 171, 177, 201, 203, 218, 
246, 262, 278, 329, 331, 334, 343, 348, 358, 395, 424). Con Edison 
wrote ``[l]owering the dB shift criteria to 15 dB [from 25 dB] would 
result in recording cases which do not meet the clinical definition of 
hearing loss'' (Ex. 15: 213), and the Amoco Corporation testified that 
OSHA should ``[r]aise the hearing loss limit to a more appropriate 
indication of material impairment'' (Ex. 22). The American Iron and 
Steel Institute (Ex. 15: 395) commented:

    The appropriate recording trigger should be the loss of hearing 
recognized by the American Medical Association (AMA) as the lowest 
indicator of any material impairment to the employee's hearing. 
According to the AMA, a person has suffered material impairment when 
testing reveals a 25 dB average hearing loss from audiometric zero 
at 500, 1000, 2000, and 3000 hertz. OSHA itself has recognized that 
this is the lowest level of hearing loss that constitutes any 
material hearing impairment. see 46 Fed. Reg. 4083 (Jan. 18, 1981). 
Below that level, an employee has suffered no noticeable injury or 
illness.

    The American Iron and Steel Institute disagreed that a 10 or a 15 
dB shift in hearing should be recorded, stating that ``While a 15 dB 
shift is arguably closer to a serious injury than a 10 dB shift, 
neither is a principled approximation of the onset of any disabling 
illness or injury, and each is inconsistent with OSHA's acknowledgment 
in Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1447 n.18 
(4th Cir. 1985), that no injury results until a person experiences a 25 
dB loss.'' (OSHA does not agree with this characterization of its 
position.)
    Similarly, the Monsanto Company commented ``OSHA acknowledges in 
the Hearing Conservation Amendment Standard that STS will occur and 
nothing is required to be done to prevent it from occurring. Therefore, 
it cannot be a measure of significantly impaired functional hearing 
capacity. In the preamble to this rule, OSHA cites several excerpts of 
testimony supporting this position'' (Ex. 15: 295).
    Vulcan Chemicals commented that it ``believes the present 
requirement [of a hearing level shift of 25 dB for recordkeeping] is 
protective and recommends that the recordable criteria should remain at 
25 decibels'' (Ex. 15: 171). New England Power justified its support 
for a 25 dB shift as the recording criteria with the comment that there 
``is far too much variability with an individual subject and the 
equipment to ensure accuracy'' (Ex. 15: 170), and Tosco, arguing in a 
similar vein, commented that the ``existing 25 dB shift provides an 
easily identifiable measurement for determining injuries, and also 
provides for variation in background noise during testing, variability 
of the employee's health/hearing capability on the day being tested, as 
well as variation in the employee's home/social lifestyle which may 
contribute to hearing loss'' (Ex. 15: 246). The Can Manufacturers 
Institute commented that a 25 dB shift criterion ``would identify as 
consequential change in hearing acuity that is irreversible and 
minimize multiple recording of change over time'' (Ex. 15: 331).
    There was also support in the rulemaking record for using a 20 dB 
shift as a criterion for recording hearing loss (see, e.g., Exs. 15: 
108, 295, 396, 405, 423). Most of the reasons given for supporting this 
level were the same as those provided as support for a 25 dB shift 
recording criterion. For example, the Westinghouse Electric Corporation 
commented that a ``20 decibel shift would not only allow for variances 
in individual audiometric tests, but would also allow for the fact that 
workplace noise levels are quite often more controlled and less severe 
than noise levels in the home environment (e.g., trap shooting, stereo 
sound levels, lawn mowing, and other types of non job-related 
activities)'' (Ex. 15: 405). Commenting that a 20 dB shift is two times 
the action level of a 10 dB shift prescribed by OSHA's Occupational 
Noise standard (29 CFR 1910.95), Brown and Root, Inc. suggested that 
this level ``would allow for a program to be initiated [at the action 
level] and working before a case becomes recordable. If the program, 
however, is not as effective as desired, the recordable level would 
require that the case be logged'' (Ex. 15: 423). Finally, Union Carbide 
Corporation argued that using a 20 dB shift as a recording criterion.

    [i]s in the direction of simplicity since this is an even 
multiple of 10 dB, which is the standard threshold shift and the 
action level for triggering certain hearing conservation 
requirements. Having an even multiple makes it much easier to track 
two different baselines one for the hearing conservation 
requirements and one for recordkeeping requirements. Our experience 
has shown that it is an administrative nightmare to track 10 dB 
baselines for hearing conservation and 25 dB baselines for 
recordkeeping (Ex. 15: 396).

    Industrial Health, Inc. (Ex. 15: 84), a mobile audiometry vendor, 
supported either a 10 dB or 15 dB persistent shift as the recording 
criterion and provided an analysis, using their data base of over 4 
million audiograms. Their comments on the merits of the 10 dB and 15 dB 
options, and whether each change is significant and noise related, are:

    Noise relatedness: Using the OSHA shift formula across 2, 3 & 4 
KHz (including OSHA's corrections for aging), a persistent shift of 
either 10dB or 15dB shows a strong correlation with audiogram 
patterns typical of exposure to noise (our samples showed more than 
85 percent of such shifts appeared to be noise related, and most of 
the remainder had been flagged by the reviewing audiologist as 
either medical referrals or cases where the employee had given a 
medically related explanation for the shift in hearing). Hence, we 
conclude that a persistent shift based on the OSHA shift formula 
with age correction, whether 10 dB or 15 dB, is a reasonably 
accurate indication of a hearing change due to noise exposure 
provided that medically related shifts are excluded.
    Significance of change: We calculated historic shifts based on 
both a 10 dB shift and a 15 dB shift on a sample industrial 
database. The following results are for persistent shifts only. The 
results showed that 15 dB shifts occurred less often than 10 dB 
shifts (as would be expected), with approximately 70% as many 15 dB 
shifts as 10 dB shifts. When both shifts occurred for an employee, 
most (over 80%) of the 15 dB shifts occurred at exactly the same 
test dates as did the 10 dB shifts, although in some cases (less 
than 20%) the 15 dB shifts occurred at later times. In general, the 
agreement was surprisingly good--much better than we had expected. 
In most (about 80%) of the instances where a 10 dB shift occurred 
but a 15 dB shift did not,

[[Page 6008]]

the significance of the 10 dB shift was questionable when the actual 
data were examined. Less than 5% of what we judged to be significant 
10 dB shifts were missed by the 15 dB rule.
    As a result, our analysis indicates the following (based again 
on all shifts having been demonstrated to be persistent):
    a. A persistent 10 dB shift with age correction is a reasonably 
good yardstick for significant change due to noise, although it does 
flag some changes which are of questionable significance (perhaps as 
high as 20% of the shifts).
    b. A persistent 15 dB shift with age correction is a better 
yardstick for significant change due to noise. In our tests it 
produced roughly 70 percent as many shifts as the 10 dB rule, but 
the difference was largely 10 dB shifts of questionable 
significance. It did report some changes later than the 10 dB rule 
and missed a few shifts (about 5%) which we judged to be of 
significance.

    Finally, there was strong support in the rulemaking record for 
using a 10 dB shift (also identified as a standard threshold shift or 
STS in the OSHA Noise standard) as a recording criterion for hearing 
loss (see, e.g., Exs. 26; 42; 15: 25, 110, 251, 310, 347, 350, 369, 
394). For example, the American College of Occupational and 
Environmental Medicine noted that the ``STS is the earliest reliable 
indication of measurable hearing loss for practical purposes. This is 
the earliest practical level of early detection and prevention of 
further loss is quite possible if the correct measures are taken'' (Ex. 
15: 251). The Ford Motor Company agreed. Commenting that it currently 
records any work-related hearing loss that results in an average loss 
of 10 dB or more, the company noted that ``[r]ecording hearing loss in 
its early stage provides Ford the information to correct hazardous 
conditions and prevent serious impairment to an employee'' (Ex. 15: 
347). Ford further stated that its ``method of recording occupational 
hearing loss is consistent with the requirement of the Hearing 
Conservation Amendment which requires notification to the employee.'' 
The Laborer's Health and Safety Fund of North America also pointed out 
the inconsistency between OSHA's proposed recording criterion in the 
recordkeeping rule and the criterion in OSHA's occupational noise 
exposure standard. The Fund commented:

    ``The noise standard defines a 10 dB shift at 2, 3, and 4K as a 
standard threshold shift and allows a revision of the baseline 
should the shift persist. Along comes the recordkeeping rule which 
says that a 15 dB shift is recordable, and a baseline revision (for 
recordkeeping purposes) can be made when a 15 dB shift occurs. This 
situation is an administrative nightmare. It is possible that a 
hearing loss will never be recordable because the 'baseline' is 
revised at a 10 dB shift. To avoid this situation, an employer would 
have to establish 2 different baselines, one for the noise standard 
provisions, and one for the recordkeeping rule provisions. This 
situation is unacceptable. We recommend that standard threshold 
shifts of 10 dB be used as the recordability criteria, since it is 
consistent with the 1910.95 noise standard'' (Ex. 15: 310).

    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Exs. 26, 42) recommended a recording policy that would capture 
instances of age-corrected STS, as defined in the OSHA noise standard, 
that are confirmed as persistent and that are determined to be work-
related. The Coalition's comments are of particular interest because 
its members include professional and scientific organizations dedicated 
to the issue of studying and preventing hearing loss. Member 
associations include the American Speech-Language-Hearing Association, 
the American Industrial Hygiene Association, the National Hearing 
Conservation Association, the Acoustical Society of America, the 
Council for Accreditation in Occupational Hearing Conservation, Self 
Help for Hard of Hearing People, Inc. and the Institute for Noise 
Control Engineering. These groups represent well over 100,000 
audiologists, acousticians, speech-language pathologists, industrial 
hygienists, safety and health professionals, and persons with hearing 
loss (Ex. 42, page 1).
    The Coalition provided the following reasons for relying on a 10 dB 
shift in hearing as an OSHA recordable condition (Ex. 42, pp. 9-13).

    1. An allowance in the recording criteria for test-retest 
variability is inappropriate (i.e. OSHA proposed the 15 dB criterion 
rather than the 10 dB criterion ``to account for variations in the 
reliability of individual audiometric results.''
    2. An age-corrected STS is a large hearing change that can 
affect communicative competence.
    3. Typical occupational noise exposures do not justify a larger 
shift criterion.
    4. Recording OSHA STSs reduces the recordkeeping burden to 
industry.
    5. Current OSHA STS rates are not high.
    6. Recording OSHA STSs will promote effective hearing 
conservation programs.

    Other commenters proposed still other criteria for recording 
hearing loss. For example, Detroit Edison stated that a shift in 
hearing level should not be used as a recording criterion for hearing 
loss because this ``is not indicative of an illness or injury, but only 
an indication that someone has had a slight change in their ability to 
hear'' and proposed instead that ``the level of hearing impairment 
should be used in recording hearing losses versus a threshold shift as 
compared to a baseline'' (Ex. 15: 377). OSHA does not agree with this 
commenter, however, because, as the record in the Noise standard 
rulemaking indicates, permanent threshold shifts do indicate a non-
minor impairment, although not all STSs are disabling.
    As is the case for many OSHA rules, the 1981 Noise standard was 
challenged in the courts, which stayed several provisions. In 1983, 
OSHA revised the hearing conservation amendment to revoke many of the 
provisions stayed by the court, lift an administrative stay implemented 
by OSHA, and make technical corrections (48 FR 9738). One of those 
provisions involved the definition of STS, which was renamed a 
``standard'' rather than ``significant'' threshold shift to help 
differentiate the two separate methods used to calculate the STS in the 
1981 and 1983 rules. Although OSHA changed the calculation method used 
to establish an STS in 1983, the role and importance of the STS concept 
in the context of a hearing conservation program was unchanged. The 
main reason for changing the definition of STS in the 1983 standard was 
to simplify the original calculation and address the concerns of 
employers and audiology professionals who wished to avoid using a 
computer to calculate an STS. The standard requires employers to take 
follow-up actions when an STS is identified, notify the affected 
employee, evaluate and refit hearing protectors, retrain the employee, 
and, if necessary, refer the employee for medical evaluation.
    The arguments put forward by the Coalition to Preserve OSHA and 
NIOSH and Protect Workers' Hearing (Exs. 26, 42) are, in OSHA's view, 
compelling reasons for requiring employers to record on their Logs any 
case of work-related hearing loss that reaches the level of an STS. 
OSHA is particularly persuaded by the Coalition's argument that ``An 
age-corrected STS is a large hearing change that can affect 
communicative competence'' because an age-corrected STS represents a 
significant amount of cumulative hearing change from baseline hearing 
levels. In the words of the Coalition, ``For an individual with normal 
hearing on the baseline audiogram, STS usually involves age-corrected 
shifts of 15-20 dB at 3000 and 4000 Hz. For an individual with pre-
existing high-frequency hearing loss on the baseline, STS usually 
involves substantial progression of the hearing loss into the critical 
speech frequencies. The absolute shift values before age corrections 
are

[[Page 6009]]

considerably larger.'' The Coalition also stressed that the method of 
averaging hearing loss at several frequencies, as is required to 
determine an STS under the OSHA Noise standard, tends to ``obscure the 
large hearing shifts at individual frequencies which usually occur 
before the average changes by a specified amount'' (Ex. 42, p. 10).
    OSHA has rejected, for recordkeeping purposes, the use of the 25 dB 
shift from audiometric zero prescribed by the American Medical 
Association Guidelines for Material Impairment. The AMA's 25 dB 
criterion is intended to be used to determine the level at which the 
employee should be compensated for hearing loss-related medical bills 
or lost time. In the context of occupational noise exposure, hearing 
loss of this magnitude reflects a serious impairment of health or 
functional capacity. As discussed in the Legal Authority section, 
however, the Congress intended the OSHA recordkeeping system to capture 
all non-minor occupational injuries and illnesses, and OSHA believes 
that an STS loss of hearing represents such an injury. An STS is an 
abnormal condition that should be recorded because it represents a 
material loss in hearing ability, beyond the normal effects of aging.
    OSHA has also rejected the 15 dB and 20 dB shift recording options, 
for several reasons. First, although OSHA suggested in the proposal 
that an additional 5 dB beyond the 10-dB STS shift was needed to 
account for variability in testing, this has not been supported by the 
record. As the Medical Educational Development Institute (Ex. 15: 25) 
stated: ``[t]est/re-test reliability of 5 dB is well established in 
hearing testing. For example, the Council on Accrediting Occupational 
Hearing Conservationists maintain this range of reliability in their 
training guidelines and this is recognized in American National 
Standard Method for Manual Pure-Tone Threshold Audiometry, S3.21--1978 
(R1992).''
    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Ex. 26) provided additional justification for dropping the 
proposed rule's 5 dB reliability margin: ``The allowance for a retest 
(or even multiple retests) should largely eliminate spurious shifts due 
to measurement error in audiometry. In fact, one of OSHA's original 
reasons for choosing a frequency-averaged shift (the OSHA STS) as a 
trigger level for employee follow-up was that the frequency averaging 
process reduces the influence of random audiometric variability.'' 
Because reliance on a frequency-averaged rather than single frequency 
shift increases the reliability of audiometric measurements, OSHA has 
not adopted NIOSH's recommendation that the hearing loss criterion 
should be a 15 dB shift at any frequency (Ex. 15: 407). Single 
frequency calculations are less reliable and may therefore lead to the 
under- or over-recording of hearing loss cases compared with the STS 
method of averaging loss over several frequencies.
    In the final recordkeeping rule, OSHA has chosen to use the 
Occupational Noise standard's STS--an average shift in either ear of 10 
dB or more at 2000, 3000, and 4000 hertz--as the shift in hearing that 
must be recorded by an employer on the OSHA log as a hearing loss case. 
An STS clearly represents a non-minor injury or illness of the type 
Congress identified as appropriate for recordkeeping purposes. The 
final rule allows the employer to adjust an employee's hearing test 
results for presbycusis (age), to retest within 30 days (the employer 
is not required to record if there is a retest within 30 days and the 
retest refutes the original test), and to have the test results 
evaluated by a physician or other licensed health care professional. 
Using the STS as the recording criterion also meets one of the primary 
purposes of this rulemaking, to improve the simplicity of the overall 
recordkeeping system. Relying on the Noise standard's STS shifts avoids 
the complexity referred to by many commenters (see, e.g., Exs. 15: 310, 
396) of maintaining multiple baselines for the Noise standard and the 
OSHA recordkeeping rule. As the Laborers' Health & Safety Fund of North 
America (Ex. 15: 310) commented:

    The noise standard defines a 10 dB shift at 2,3, and 4K as a 
standard threshold shift and allows a revision of the baseline 
should the shift persist. Along comes the recordkeeping rule which 
says that a 15 dB shift is recordable, and a baseline revision (for 
recordkeeping purposes) can be made when a 15 dB shift occurs. This 
situation is an administrative nightmare. It is possible that a 
hearing loss will never be recordable because the baseline is 
revised at a 10 dB shift. To avoid this situation, an employer would 
have to establish 2 different baselines, one for the noise standard 
provisions, and one for the recordkeeping rule provisions. This 
situation is unacceptable. We recommend that standard threshold 
shifts of 10 dB be used as the recordability criteria, since it is 
consistent with the 1910.95 noise standard.

    Several commenters (see, e.g., Exs. 15: 295, 395) argued that OSHA 
itself had discounted the significance of the 10 dB STS during the 29 
CFR 1910.95 rulemaking. OSHA disagrees with this assessment of the 
Agency's position on the importance of an STS. In the 1981 preamble to 
the Hearing Conservation Amendment, OSHA found that a 10 dB shift in 
hearing threshold is significant because it is outside the range of 
audiometric error and ``it is serious enough to warrant prompt 
attention'' (46 FR 4144). The 1983 preamble reinforces these findings. 
It states that:

    Correctly identifying standard threshold shifts will enable 
employers and employees to take corrective action so that the 
progression of hearing loss may be stopped before it becomes 
handicapping. Moreover, a standardized definition of STS will ensure 
that the protection afforded to exposed employees is uniform in 
regard to follow-up procedures. * * *
    OSHA reaffirms its position on the ideal criterion for STS which 
was articulated in the January 16, 1981 promulgation (see 46 FR 
4144). The criterion must be sensitive enough to identify meaningful 
changes in hearing level so that follow-up procedures can be 
implemented to prevent further deterioration of hearing but must not 
be so sensitive as to pick up spurious shifts (sometimes referred to 
as ``false positives''). In other words, the criterion selected must 
be outside the range of audiometric error (48 FR 9760).

    The Fourth Circuit rejected an employer's argument that a 10 dB 
shift in hearing threshold is insignificant. In its decision upholding 
OSHA's use of a 10 dB STS as an action level in the Hearing 
Conservation Amendment, the court found that:

    [t]he amendment is concerned with protecting workers before they 
sustain an irreversible shift. Consequently, it was incumbent upon 
the Agency to select a trigger level that would protect workers by 
providing an early warning yet not to be so low as to be 
insignificant or within the range of audiometric error. We find that 
the Agency struck a reasonable balance between those concerns. * * *

    Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1450 
(1985)(en banc).
    OSHA believes that many of the reasons stated in the 1983 preamble 
make the STS an appropriate recording criterion for recordkeeping 
purposes. For example, employers are familiar with the STS definition, 
which is also sensitive enough to identify a non-minor change in 
hearing. Use of the STS also reduces the confusion that would arise 
were OSHA to require employers to maintain two baselines: one required 
by the Occupational Noise standard and one required for recordkeeping 
purposes.
Baseline Audiogram
    In its proposal, OSHA also asked for comment on which baseline 
should be used as the starting point in determining recordable hearing 
loss. There was strong support in the record for using

[[Page 6010]]

the preemployment or original baseline for this purpose (see, e.g., 
Exs. 26; 15: 25, 50, 78, 108, 110, 111, 113, 146, 154, 163, 181, 188, 
218, 233, 262, 281, 295, 308, 348, 354, 402, 405), although a few 
commenters proposed using audiometric zero (see, e.g., Ex. 15: 395). 
One commenter proposed that the reviewing professional should determine 
the appropriate baseline on a case-by-case basis (Ex. 15: 175), and 
another proposed that an audiologist should determine when a change in 
baseline audiograms is warranted (Ex. 15: 203). Some commenters 
supported adjusting the employee's baseline audiogram when a recordable 
hearing loss case has been identified (see, e.g., Exs. 26; 15: 25, 108, 
111, 146, 163, 290, 354, 405, 407).
    OSHA agrees with those commenters who argued that the preemployment 
or original baseline should be used as the benchmark from which to 
determine recordable hearing loss. Using the preemployment or original 
baseline automatically corrects for any hearing loss that may have 
occurred before the worker was employed with his or her current 
employer and will prevent the recording of cases of nonoccupational 
hearing loss. This policy is also consistent with OSHA's Occupational 
Noise standard and therefore increases the simplicity of the recording 
system.
    OSHA also agrees that an employee's baseline audiogram should be 
adjusted if that employee experiences a recordable hearing loss. 
Revising the baseline by substituting the revised audiogram for the 
original audiogram after an STS has occurred will avoid a second or 
third recording of the same STS. On the other hand, recording hearing 
loss in a given worker only once would overlook the additional hearing 
loss that may occur, either in the same or the other ear, and would not 
be consistent with the definition of a ``new'' case in Section 1904.6 
of this rule, which requires employers to evaluate any ``new'' case 
that results from exposure in the workplace for recordability. 
Subsequent STS findings, i.e., further 10-dB shifts in hearing level, 
are more serious events than the first STS, because of the nonlinearity 
of the dB rating system and the progressive severity of increasing 
hearing loss. A second or third STS in a given worker is therefore also 
treated under the recordkeeping system as a recordable illness on the 
OSHA 300 Log. The final rule makes this clear by requiring the 
employee's audiogram to be compared to the preemployment baseline 
audiogram when the worker has not experienced a recordable hearing 
loss, and to the audiogram reflecting the most recent recorded hearing 
loss if the worker has experienced a prior recorded hearing loss case.
Correction for Aging
    In its proposal, OSHA included provisions allowing the employer to 
adjust the results of audiograms for presbycusis (age-related hearing 
loss), and asked for comment on whether an age correction is 
appropriate. The vast majority of commenters agreed that it was (see, 
e.g., Exs. 26; 42; 15: 39, 45, 84, 113, 137, 163, 175, 201, 203, 262, 
278, 281, 283, 331, 347, 348, 396, 405). As the Westinghouse Hanford 
Company commented, ``[t]he adjusting for presbycusis is appropriate as 
the deterioration of the hearing related to age is an important factor 
in determining the amount of hearing loss related to workplace 
hazards'' (Ex. 15: 108). Julia Royster, Ph.D. CC-A/SLP, agreed with 
this view, stating that ``Age-related hearing loss is inevitable. There 
are individual differences in the rate of age-related hearing change 
and the amount of hearing loss eventually shown due to presbycusis. 
However, most people will eventually develop age-related hearing 
changes equivalent to one or more OSHA STSs. Therefore, presbycusis 
corrections are necessary to avoid attributing age-related hearing 
change to occupational causes'' (Ex. 26, Appendix C).
    However, some commenters did not agree that the use of age 
corrections was appropriate (see, e.g., Exs. 15: 50, 110, 188, 233, 
407). For example, Occupational Audiologists (Ex. 15: 50) pointed out 
that ``[w]hen the tables [in 29 CFR 1910.95] are applied they ignore 
any hearing loss that may be present as a result of medical pathology 
or noise exposure prior to the baseline hearing test,'' and therefore 
the ``use of the presbycusis tables hides significant changes in 
hearing thus delaying the STS required procedures of follow-up, 
notification, fitting/re-fitting, educating and requiring the wearing 
of hearing protection for some individuals.'' Similarly, John P. Barry 
(Ex. 15: 110), commented:

    At the 4000 Hz test frequency where occupational hearing loss 
first occurs, application of the presbycusis correction may 
significantly reduce the noted threshold shift relative to the 
employee's baseline audiogram. However, the changes at 2000 and 3000 
Hz often are equal to or less than the presbycusis corrections. When 
these corrections are applied to actual audiometric data, they mask 
the effects of occupational noise and hinder early detection of 
noise-induced hearing loss. While hearing loss due to aging 
(presbycusis) and hearing loss due to the non occupational 
environment (sociocusis) may account for some of hearing loss noted 
in serial audiograms, there is no scientifically valid way to 
correct the data for non occupational hearing loss. * * * It is 
inappropriate use of statistics to apply median values from one 
population on a different population when no foundation has been 
developed to justify such manipulation of data.

    OSHA recognizes that using the correction for presbycusis when 
interpreting audiogram results is controversial among experts in the 
field of audiology and that NIOSH has developed a new criteria document 
on occupational noise exposure (``Criteria for a Recommended Standard; 
Occupational Noise Exposure, Revised Criteria, 1998; U.S. Department of 
Health and Human Services, Centers for Disease Control and Prevention, 
National Institute for Occupational Safety and Health; June 1998) which 
at present does not recommend applying presbycusis correction values to 
actual employee audiometric data. However, since the Occupational Noise 
standard itself permits employers to adjust the interpretation of 
audiograms for the effects of aging, it would be inconsistent and 
administratively complex to prohibit this practice in the recordkeeping 
rule. Accordingly, Sec. 1904.10(b)(3) allows the employer to adjust for 
aging when determining the recordability of hearing loss. The 
adjustment is made using Tables F-1 or F-2, as appropriate (table F-1 
applies to men and F-2 applies to women), in Appendix F of 29 CFR 
1910.95. However, use of the correction for aging is not mandatory, 
just as it is not mandatory in the Noise standard itself.
Persistence of Hearing Loss
    Yet another issue surrounding the recording of hearing loss 
involves the timing of the recording of a case on the OSHA forms when 
an audiogram has been performed on an employee. The issue is whether 
the results of an audiogram should be recorded within the interval for 
recording all cases, or whether the audiogram should be verified with a 
retest before recording is required. The proposed rule would have 
required the recording of hearing loss cases within 7 calendar days of 
the first audiogram, but then would have permitted employers to remove, 
or line out, a hearing loss case on the Log if a second audiogram taken 
on that employee within 30 days failed to show that the STS was 
persistent. Several commenters supported immediate recording with the 
30 day retest provision (see, e.g., Exs. 15: 295, 350, 394, 407). The 
Building and Construction Trades Department of the AFL-CIO (Ex. 15: 
394) noted that if a

[[Page 6011]]

retest was not performed the case would never be recorded:

    We support OSHA, however, on requiring cases to be recorded and 
then lined out later if the loss does not persist. In construction, 
where a worker may never get a follow-up test because they have 
moved to a different worksite, the case needs to be recorded and 
presumed work-related. For construction workers that is a very good 
presumption to make. These changes should lead to more accurate 
reporting of hearing loss among construction workers.

    Other commenters, however, did not agree with OSHA's proposal and 
believed the shifts should be confirmed before recording on the Log is 
required (see, e.g., Exs. 26; 42; 15: 50, 84, 175, 181, 188, 201, 203, 
331). Impact Health Services (Ex. 15: 175) expressed its opinion that

    The new hearing loss criterion should require recording of only 
confirmed work-related shifts in hearing. * * * There is no question 
that it is in the best interest of the hearing conservation program 
to identify shifts in hearing while they are still temporary so that 
follow-up action can be taken immediately to prevent permanent 
hearing loss. * * * However, requiring companies to record all 
shifts (both temporary and persistent) within six (proposed seven) 
days may have an unintended punitive effect. Companies are usually 
hesitant to record any incidents on Form 200 (proposed Form 300), 
even if lining-out the event at a later date is an option. 
Therefore, disallowing the OSHA 30-day retest for recording purposes 
may have a negative impact on programs which are designed to prevent 
hearing loss. By requiring recording of all shifts within seven 
days, companies may actually discontinue programs of conducting 
annual testing during the work shift, due to a reluctance to 
identify (and record) temporary threshold shift.

    To address the problem identified by the Building and Construction 
Trades Department of the AFL-CIO, Impact Health Services recommended 
that ``[i]f a follow-up audiogram is not administered within 30 days of 
determination, or if the follow-up audiogram confirms the shift, then 
the shift is considered persistent and if determined to be work 
related, must be recorded on Form 300'' (Ex. 15: 175). The American 
Association of Occupational Health Nurses (Ex. 15: 181) noted that it 
``would require less paperwork to record the hearing loss after 
confirmation by a re-test in thirty days, rather that recording the 
initial shift and then having to `line out' the entry if the re-test 
was not indicative of any hearing loss.''
    The Coalition to Preserve OSHA and NIOSH and Protect Workers' 
Hearing (Exs. 26; 42) stated:

    This urgency [as reflected in the proposal's provision requiring 
recording within 7 days] in recording unconfirmed shifts does not 
appear justified and creates additional burdens for the employer. 
The coalition recommends the following more efficient and suitably 
protective approach:
--Only confirmed (i.e., persistent) work-related STSs are to be 
recorded on Form 300, unless a follow-up audiogram is not 
administered.
--If a follow-up audiogram is not administered within 30 days of the 
initial determination of STS, or if the follow-up audiogram confirms 
the STS, then the shift is considered persistent, and if determined 
to be work-related, must be recorded on Form 300. * * *
--If a follow-up audiogram given within 30 days of the initial 
determination of the STS does not confirm the STS, nothing is to be 
recorded on Form 300.

    The Coalition also recommended that employers be allowed to remove, 
or line-out, recorded hearing losses that are not confirmed by 
subsequent retesting, or are found not to be work-related, within 15 
months of the initial STS identification, at the discretion of the 
reviewing professional. Such a provision would allow employers to 
remove cases if the next annual audiogram showed an improvement in 
hearing (Exs. 26; 42).
    Several commenters discussed the length of time OSHA should allow 
between the audiogram on which the STS was first detected and the 
confirmatory retest. The International Dairy Food Association suggested 
that allowing only a 30-day period ``may not be feasible in many 
situations where mobile van testing is utilized. * * * Thirty days are 
easily consumed during the compiling, mailing, interpreting, mailing, 
evaluation process'' (Ex. 15: 203). The Association recommended instead 
that ``OSHA increase the current requirement of 30 days to 45 days to 
allow employers and employees to obtain a re-test following an annual 
audiogram'' (Ex. 15: 403). For the same reasons, the Can Manufacturers 
Institute recommended that retests be permitted within 90 days of the 
original test, noting that ``[t]here is no magic regarding the current 
30 day span'' (Ex. 15: 331). Industrial Health Inc. commented that 
``there's no rush'' to retest and stated its preference for a time 
lapse longer than 30 days ``[i]n order to allow temporary [hearing 
loss] effects to subside'' (Ex. 15: 84). NIOSH (Ex. 15: 407) proposed 
that a confirmatory retest be permitted at any time provided that the 
retest was preceded by a 14-hour period of quiet.
    After a review of the record on this point, OSHA has decided to 
require that any retest the employer chooses to perform be conducted 
within 30 days. Accordingly, in the final rule, at paragraph 
1904.10(b)(4), employers are permitted, if they choose, to retest the 
employee to confirm or disprove that an STS reflected on the first 
audiogram was attributable to a cold or some other extraneous factor 
and was not persistent. If the employer elects to retest, the employer 
need not record the case until the retest is completed. If the retest 
confirms the hearing loss results, the case must be recorded within 7 
calendar days. If the retest refutes the original test, the case is not 
recordable, and the employer does not have to take further action for 
OSHA recordkeeping purposes. The 30 day limit in the final 
recordkeeping rule is consistent with the 30 day retest provision of 
Sec. 1910.95(g)(5)(ii), which allows the employer to obtain a retest 
within 30 days and consider the results of the retest as the annual 
audiogram if the STS recorded on the first test is determined not to 
persist.
    OSHA believes that the 30 day retest option allows the employer to 
exclude false positive results and temporary threshold shifts from the 
data while ensuring the timely and appropriate recording of true 
positive results. Adding language to the final recordkeeping rule to 
specify different procedures, depending on whether the employer chooses 
to conduct a re-test within 30 days, adds some complexity to the final 
rule, but OSHA finds that this added complexity is appropriate because 
it will reduce burden for some employers and improve the accuracy of 
the hearing loss data.
Work-Relationship
    One of the greatest sources of controversy in the record concerning 
OSHA's proposed criterion for recording hearing loss relates to the 
presumption of work-relationship in cases where an employee is exposed 
to an 8-hour time-weighted average sound level of noise equaling or 
exceeding 85 dB(A) (61 FR 4064). One commenter supported the 
recordkeeping proposal's approach on this matter. NIOSH (Ex. 15: 407) 
recommended that work-relationship be presumed ``if an employee is 
exposed to an 8-hour time-weighted sound level of noise equaling or 
exceeding 85 dB(A) or to peak sound levels equaling or exceeding 115 
dB(A) regardless of brevity or infrequency.'' Several commenters 
advocated presuming work-relatedness if the employee experienced 
occupational exposures to 85 dB unless medical evidence showed that the 
hearing loss was not related to work (see, e.g., Exs. 15: 39, 50, 146, 
171, 188). For example, BF Goodrich (Ex. 15: 146) asked that ``[O]SHA 
give employers the opportunity to refute the work

[[Page 6012]]

relationship for employees found to have other than noise-induced 
hearing loss. If the employee is examined by an otolaryngologist or 
other qualified health professional and found to have a medical 
condition that causes hearing loss, the case should not be 
recordable.''
    Several commenters objected to the proposed presumption of work-
relationship (see, e.g., Exs.15: 201, 263, 283, 289, 305, 318, 334, 
390). The National Association of Manufacturers commented that ``There 
is no justification for presuming that hearing loss is work-related 
simply because an employee is exposed to an 8-hour time weighted 
average sound level of noise of 85 dB(A) or higher, even if it were a 
daily exposure and particularly where it could be as infrequent as once 
per year'' (Ex. 15: 305). Many commenters agreed with Mississippi 
Power, which wrote ``[t]he presumption of work relationship does not 
consider other potentially significant noise exposures such as noisy 
hobbies, or other noisy activities not associated with occupational 
noise exposures'' (Ex. 15: 263). Deere & Company argued that ``OSHA is 
not taking into account the noise-reducing effect of an effective 
hearing conservation program nor does it take into account the often 
significant noise exposure that many employees have away from the 
workplace '' (Ex. 15: 283).
    There are numerous suggestions in the record on how best to deal 
with the presumption of work-relationship. Impact Health Services Inc., 
and others suggested that a case be considered work-related ``when in 
the judgement of the supervising audiologist or physician, the shift is 
due in full or in part to excessive noise exposure in the workplace'' 
(Ex. 15: 175). Akzo Nobel Chemicals proposed that work-relationship be 
presumed when ``there is no other reasonable non-work related 
explanation'' (Ex. 37), and the National Grain and Feed Association 
suggested ``that if an employer has an active and an enforceable 
hearing conservation program in place, the presumption should be that 
any hearing loss experienced by an employee is not work related unless 
it can be shown to be otherwise'' (Ex. 15: 119). A number of commenters 
agreed with the comment of the Edison Electric Group that ``OSHA should 
also establish a criteria of exposure to noise at or above the 85 dB(a) 
TWA action level of 30 or more days per year before the case is 
recordable'' because ``[a] single day's exposure at or below the PEL 
will not cause hearing loss'' (Ex. 15: 401), and NIOSH proposed that 
work-relationship be presumed ``if an employee is exposed to an 8-hour 
time-weighted sound level of noise equaling or exceeding 85 dB(A) or to 
peak sound levels equaling or exceeding 115 dB(A) regardless of brevity 
or infrequency'' (Ex. 15: 407).
    In the final rule, OSHA has continued to rely on a presumption of 
work-relationship for workers who are exposed to noise at or above the 
action levels specified in the Occupational Noise standard (29 CFR 
1910.95). In line with the overall concept of work relationship adopted 
in this final rule for all conditions, an injury or illness is 
considered work related if it occurs in the work environment. For 
workers who are exposed to the noise levels that require medical 
surveillance under Sec. 1910.95 (an 8-hour time-weighted average of 85 
dB(A) or greater, or a total noise dose of 50 percent), it is highly 
likely that workplace noise is the cause of or, at a minimum, has 
contributed to the observed STS. It is not necessary for the workplace 
to be the sole cause, or even the predominant cause, of the hearing 
loss in order for it to be work-related. Because the final 
recordkeeping rule relies upon the coverage of the Occupational Noise 
standard, it is also not necessary for OSHA to include a minimum time 
of exposure provision. The Occupational Noise standard does not require 
a baseline audiogram to be taken for up to six months after the 
employee is first exposed to noise in the workplace, and the next 
annual audiogram would not be taken until a year after that. For any 
worker to have an applicable change in audiogram results under the 
Occupational Noise standard, the worker would have been exposed to 
levels of noise exceeding 85 dB(A) for at least a year, and possibly 
even for 18 months.
    In addition, the provisions allowing for review by a physician or 
other licensed health care professional allow for the exclusion of 
hearing loss cases that are not caused by noise exposure, such as off 
the job traumatic injury to the ear, infections, and the like. OSHA 
notes that this presumption is consistent with a similar presumption in 
OSHA's Occupational Noise standard (in both cases, an employer is 
permitted to rebut this presumption if he or she suspects that the 
hearing loss shown on an employer's audiogram in fact has a medical 
etiology and this is confirmed by a physician or other licensed health 
care professional).
Miscellaneous Issues
    Other issues addressed by commenters to the rulemaking record on 
OSHA's proposed criterion for recording hearing loss included whether 
OSHA should treat hearing levels for each ear separately for recording 
purposes. Impact Health Services, Inc. (Ex. 15: 175) recommended that 
proposed Appendix B specify that shifts in hearing be calculated 
separately for each ear:

    Because an individual's left and right ears may be affected 
differently by noise or other occupational injury, it is important 
that Appendix B specifies that shifts in hearing are to be 
calculated separately for each ear.

    Arguing along similar lines, the Chevron Companies raised the issue 
of revising baselines for both ears when a standard threshold shift is 
recorded in only one ear. They commented:

    The proposed rule discusses an average shift in one or both ears 
and establishing a new or revised baseline for future tests to be 
evaluated against. In discussing the new or revised baseline however 
the proposed rule does not give guidance on revision when only one 
ear meets the revision criteria (15 dB or 25 dB or whatever the 
final rule states). Are the baselines for both ears revised or only 
the ear meeting the criteria? This issue should be clearly addressed 
in the final rule. Usually noise induced hearing loss is a 
symmetrical event so it would be reasonable to revise the baselines 
for both ears. If the baselines are to be revised individually one 
could anticipate more hearing losses being recorded than if they are 
revised in unison. Therefore, for Hearing Conservation Program 
statistics to be meaningful and comparable, baseline revision must 
be handled the same across industries (Ex. 15: 343).

    Shifts in hearing must be calculated separately for each ear, in 
accordance with the requirements of Sec. 1910.95. However, if a single 
audiogram reflects a loss of hearing in both ears, only one hearing 
loss case must be entered into the records. The issue of revising 
baseline audiograms to evaluate the extent of future hearing loss 
pertains to a hearing loss case that has been entered on the Log. If a 
single-ear STS loss has been recorded on the Log, then the baseline 
audiogram should be adjusted for that ear, and that ear only. If an STS 
affecting both ears has been recorded on the Log, then the baseline 
audiogram may be revised and applied to both ears. This means that 
there should be no cases where the baseline audiogram has been adjusted 
and the case has not been recorded on the Log.
    The Medical Educational Development Institute (Ex. 15: 25) made 
several recommendations for changing OSHA's noise standard, 29 CFR 
1910.95, to add specific steps to be taken when a 10 dB STS occurs, 
such as employee interviews, reevaluations with medical personnel, 
physician referral, labeling of revised baseline audiograms, and 
reassignment to quieter work for workers with a second or subsequent 
STS. These are interesting

[[Page 6013]]

recommendations, but they address issues that are beyond the scope of 
this rulemaking. This rulemaking is concerned only with the Part 1904 
requirements for recording occupational hearing loss on the OSHA 300 
Log, and does not affect any provision of the OSHA Occupational Noise 
standard.
    Phillips Petroleum (Ex. 15: 354) raised another miscellaneous issue 
when it suggested that OSHA phase in the recording of audiometric tests 
if a more protective definition of hearing loss was adopted in the 
final rule:

    [i]f OSHA insists on the recording of hearing loss at the 15 dB, 
it would artificially inflate the number of recordable hearing-loss 
cases and have a similar effect as that of the severity issue. We 
recommend that if the recordability bar is lowered from 25 dB], OSHA 
allow a transition period where a 15 dB shift is listed on the log, 
but is not counted in the recordable total. This should continue for 
a transition period of three years to allow facilities to identify 
all employees affected. Any employees who were not identified during 
the transition period would become recordables with a 15 dB hearing 
loss after the transition period.

    OSHA does not believe that a transition period is needed for the 
recording of occupational hearing loss or any other type of injury or 
illness included in the records. Adding such a provision would add 
unnecessary complexity to the rule, and would also create an additional 
change in the data that would make it difficult to compare data between 
the two years at the end of the transition. OSHA finds that it is 
better to implement the recordkeeping changes as a single event and 
reduce the impacts on the data in future years.
    As noted previously, OSHA is not making any changes to its noise 
standards in this Part 1904 rulemaking, and thus no additional 
protections are being provided in this final rule.

Section 1904.11 Additional Recording Criteria for Work-Related 
Tuberculosis Cases

    Section 1904.11 of the final rule being published today addresses 
the recording of tuberculosis (TB) infections that may occur to workers 
occupationally exposed to TB. TB is a major health concern, and nearly 
one-third of the world's population may be infected with the TB 
bacterium at the present time. There are two general stages of TB, 
tuberculosis infection and active tuberculosis disease. Individuals 
with tuberculosis infection and no active disease are not infectious; 
tuberculosis infections are asymptomatic and are only detected by a 
positive response to a tuberculin skin test. Workers in many settings 
are at risk of contracting TB infection from their clients or patients, 
and some workers are at greatly increased risk, such as workers exposed 
to TB patients in health care settings. Outbreaks have also occurred in 
a variety of workplaces, including hospitals, prisons, homeless 
shelters, nursing homes, and manufacturing facilities (62 FR 54159).
    The text of Sec. 1904.11 of the final rule states:
    (a) Basic requirement. If any of your employees has been 
occupationally exposed to anyone with a known case of active 
tuberculosis (TB), and that employee subsequently develops a 
tuberculosis infection, as evidenced by a positive skin test or 
diagnosis by a physician or other licensed health care professional, 
you must record the case on the OSHA 300 Log by checking the 
``respiratory condition'' column.
    (b) Implementation.
    (1) Do I have to record, on the Log, a positive TB skin test result 
obtained at a pre-employment physical?
    No, because the employee was not occupationally exposed to a known 
case of active tuberculosis in your workplace.
    (2) May I line-out or erase a recorded TB case if I obtain evidence 
that the case was not caused by occupational exposure?
    Yes. you may line-out or erase the case from the Log under the 
following circumstances:
    (i) The worker is living in a household with a person who has been 
diagnosed with active TB;
    (ii) The Public Health Department has identified the worker as a 
contact of an individual with a case of active TB unrelated to the 
workplace; or
    (iii) A medical investigation shows that the employee's infection 
was caused by exposure to TB away from work, or proves that the case 
was not related to the workplace TB exposure.
The Proposal
    The proposed rule included criteria for the recording of TB cases 
in proposed Appendix B. In that appendix, OSHA proposed to require the 
recording of cases of TB infection or disease at the time an employee 
first had a positive tuberculin skin test, except in those cases where 
the skin test result occurred before the employee was assigned to work 
with patients or clients. The proposal stated that cases of TB disease 
or TB infection would be presumed to be work-related if they occurred 
in an employee employed in one of the following industries: 
correctional facilities, health care facilities, homeless shelters, 
long-term care facilities for the elderly, and drug treatment centers. 
In other words, the proposal contained a ``special industries'' 
presumption for those industries known to have higher rates of 
occupational TB transmission. OSHA proposed to allow employers to rebut 
the presumption of work-relatedness if they could provide evidence that 
the employee had been exposed to active TB outside the work 
environment. Examples of such evidence would have included (1) the 
employee was living in a household with a person who had been diagnosed 
with active TB, or (2) the Public Health Department had identified the 
employee as a contact of an individual with a case of active TB. For 
employees working in industries other than the ``special'' industries, 
OSHA proposed that a positive skin test result be considered work-
related when the employee had been exposed to a person within the work 
environment who was known to have TB disease. Under the proposal, an 
employee exhibiting a positive skin test and working in industries 
other than those listed would otherwise not be presumed to have 
acquired the infection in the work environment (61 FR 4041). As noted 
in the proposal, these recording criteria for TB were consistent with 
those published previously in OSHA directives to the field (February 
26, 1993 memo to Regional Administrators). The final rule permits 
employers to rebut the presumption of work-relatedness in cases of TB 
infection among employees but does not rely on the ``special 
industries'' approach taken by OSHA in the proposal, for reasons 
explained below.
Positive Skin Tests
    Several comments in the record supported OSHA's proposed recording 
criteria for occupational TB cases (see, e.g., Exs. 15: 72, 133, 198). 
A number of commenters, however, questioned whether a positive 
tuberculin skin test reaction should be considered a recordable 
occupational illness (Ex. 15: 146, 188, 200). For example, BF Goodrich 
wrote:

    We disagree with a positive skin test reaction as the criterion 
for recording a TB case. Such tests are only indicative of a past 
exposure, not necessarily an illness or a condition. OSHA should 
allow diagnosing medical professionals to use their professional 
judgement to confirm active TB cases and restrict recordability to 
those cases (Ex. 15: 146).

    Kaiser Permanente (Ex. 15: 200) argued:

    The presumption that an initial positive skin test result or 
diagnosed tuberculosis in a health care employee is occupationally 
based is not warranted. While there have been outbreaks in health 
care facilities

[[Page 6014]]

documented in the literature, and while skin test conversion does 
occur in health care workers and may in given cases be 
occupationally related, the Kaiser Permanente experience has not 
been characterized by outbreaks or significant rates of skin test 
conversion. Diagnosed cases of tuberculosis among Kaiser Permanente 
health care workers are extremely rare.

    OSHA views the situation differently. A positive tuberculin skin 
test indicates that the employee has been exposed to Mycobacterium 
tuberculosis and has been infected with the bacterium. Although the 
worker may or may not have active tuberculosis disease, the worker has 
become infected. Otherwise, his or her body would not have formed 
antibodies against these pathogens. (OSHA is aware that, in rare 
situations, a positive skin test result may indicate a prior 
inoculation against TB rather than an infection.)
    OSHA believes that TB infection is a significant change in the 
health status of an individual, and, if occupational in origin, is 
precisely the type of illness Congress envisioned including in the OSHA 
injury and illness statistics. Contracting a TB infection from a 
patient, client, detainee, or other person in the workplace would cause 
serious concern, in OSHA's view, in any reasonable person. Once a 
worker has contracted the TB infection, he or she will harbor the 
infection for life. At some time in the future, the infection can 
progress to become active disease, with pulmonary infiltration, 
cavitation, and fibrosis, and may lead to permanent lung damage and 
death. An employee harboring TB infection is particularly likely to 
develop the full-blown disease if he or she must undergo chemotherapy, 
contracts another disease, or experiences poor health. According to 
OSHA's proposed TB rule (62 FR 54159), approximately 10% of all TB 
infections progress at some point to active disease, and it is not 
possible to predict in advance which individuals will do so.
    OSHA also believes that it is important to require employers to 
record TB cases when an employee experiences a positive skin test 
because doing so will create more timely and complete statistics. If, 
for example, OSHA were to require recording only when the worker 
develops active TB, many cases that were in fact occupational in origin 
would go unrecorded. In such cases, if the worker had retired or moved 
on to other employment, the employer would generally not know that the 
employee had contracted active TB disease, and the case would never be 
included in the Nation's occupational injury and illness statistics and 
important information would be lost. Thus, requiring the recording of a 
case at the infection stage will create more accurate, complete and 
useful statistics, one of the major goals of this rulemaking.
    Several commenters suggested that TB should not be recorded at all 
because, in their view, acquiring TB infection is not within the 
control of the employer and is not amenable to control by an employer's 
safety and health program (see, e.g., Exs. 15: 316, 348, 414, 423). For 
example, Raytheon Engineers & Constructors (Ex. 15: 414) argued that TB 
infection and disease should not be recorded because it ``is not due to 
a condition of the work environment under the control of the 
employer.'' Dupont argued along similar lines:

    It does not make sense to record tuberculosis cases where an 
infectious worker infects co-workers. That has nothing to do with 
job activity or with the workplace except as an accidental exposure. 
The same type of thinking could apply to flu symptoms, ``colds'', 
conjunctivitis, etc., where lack of personal hygiene or a strong 
``germ'' migrated through the workplace. If the exposure is not part 
of the job activity, none of the cases mentioned, including 
tuberculosis, should be recorded (Ex. 15: 348).

    As discussed elsewhere in this document (see the Legal Authority 
section above), Congress did not intend OSHA's recordkeeping system 
only to capture conditions over which the employer has complete control 
or the ability to prevent the condition. The Act thus supports a 
presumption of work-relatedness for illnesses resulting from exposure 
in the workplace, and the OSHA recordkeeping system has always 
reflected this position (although a few specific exceptions to that 
presumption are permitted, including an exception for common colds and 
flu). In accordance with that presumption, when an employee is exposed 
to an infectious agent in the workplace, such as TB, chicken pox, etc., 
either by a co-worker, client, patient, or any other person, and the 
employee becomes ill, workplace conditions have either caused or 
contributed to the illness and it is therefore work-related. Since, as 
discussed above, TB infection is clearly a serious condition, it is 
non-minor and must be recorded.
Employee-to-Employee Transmission
    Two commenters argued that transmission from employee to employee 
should not be considered work-related (Exs. 15: 39, 348). The RR 
Donnelley & Sons Company (Ex. 15: 39) pointed out that an employer 
``may never know that a fellow employee has tuberculosis. To record 
personal transmission from one employee to another goes beyond the 
scope of work relatedness.'' Other commenters agreed with OSHA that, at 
least under certain circumstances, employee-to-employee transmission 
should be considered work-related (see, e.g., Exs. 15: 78, 218, 361, 
398, 407). For example, Alliant Techsystems (Ex. 15: 78) stated that 
``[i]f a worker with infectious tuberculosis disease infected their co-
worker, the co-workers' infection/disease would be recordable.''
    Again, as discussed above, OSHA believes, under the positional 
theory of causality, that non-minor illnesses resulting from an 
exposure in the work environment are work-related and therefore 
recordable unless a specific exemption to the presumption applies. 
Infection from exposure to another employee at work is no different, in 
terms of the geographic presumption, from infection resulting from 
exposure to a client, patient, or any other person who is present in 
the workplace. The transmission of TB infection from one employee to 
another person at work, including a co-worker, clearly is non-minor and 
is squarely within the presumption.
Special Industry Presumptions
    Many of the commenters supported OSHA's proposed approach of 
assuming work-relatedness for TB cases if the infection occurred in 
workers employed in certain special industries (see, e.g., Exs. 24, 15: 
78, 345, 376, 407). Other commenters suggested that OSHA abandon the 
proposed special industry presumption (see, e.g., Exs. 15: 197, 200, 
225, 259, 279, 302, 341, 431, 436). In the proposed rule, OSHA proposed 
different work-relatedness criteria for different work environments, 
i.e., in industries in which published reports of TB outbreaks were 
available from the Centers for Disease Control and Prevention (CDC), a 
special presumption would prevail, while in industries in which 
occupational transmission had not been documented it would not.
    Kaiser Permanente commented that the CDC ``Guidelines for 
Preventing the Transmission of Mycobacterium Tuberculosis in Health-
Care Facilities establish facility risk levels for occupational 
transmission of tuberculosis based upon assessment of a range of 
relevant criteria such as job duties, incidence of TB patients treated, 
and community TB rates'' and urged OSHA to follow these in the final 
rule (Ex. 15: 200).
    Two commenters objected to the inclusion of nursing homes in the 
list of

[[Page 6015]]

industries in which the special industry presumption would apply (Exs. 
15: 259, 341). For example, the American Health Care Association (AHCA) 
suggested:

    [i]t should not be presumed that exposure is work-related in all 
long term care facilities for the elderly. Depending upon the 
facility and/or its location, the incidence of TB infection/disease 
in the facility may be less than that of the general public. The 
Centers for Disease Control and Prevention recognizes that even 
within certain settings, there are varying levels of risk (minimal 
to high). TB linkage to the facility should be based on the level of 
risk using the CDC assessment system, with work relatedness assigned 
to facilities within the moderate to high risk classification (Ex. 
15: 341).

    Two commenters suggested OSHA add more industries to the proposed 
list of industries to which the special industry presumption would 
apply. The American Nurses Association (ANA) told the Agency that 
``There should be no question on the inclusion of the home health arena 
under the rubric of health care facilities. The risk of transmission 
exists in all health care work sites including home health sites and 
must not be limited to traditional health care facilities' (Ex. 15: 
376). Alliant Techsystems (Ex. 15: 78) suggested adding ``Industries 
that causes exposure outside the United States such as the airline 
sector.''
    Some commenters argued that recording should be limited only to TB 
cases occurring in workers in specific industries, i.e., that no case 
of TB in other industries, no matter how transmitted or when diagnosed, 
should be recordable (see, e.g., Exs. 15: 351, 378, 396). Westinghouse 
Electric Corporation recommended that ``Tuberculosis exposure or 
disease cases outside of listed industries where cases would be 
prevalent (such as health care facilities, long-term care facilities, 
etc.) should not be recordable as an occupational illness. The logical 
source of exposure would be non work-related and outside the premises 
of the employer's establishment.'' Likewise, the Air Transport 
Association (Ex. 15: 378) suggested that TB recording ``[s]hould be 
limited to medical work environments rather than general industry. The 
administrative burden far exceeds the expected benefits.''
    OSHA is aware that the relative risk of TB, and of all occupational 
injuries and illnesses, varies widely from industry to industry and 
from occupation to occupation. However, OSHA does not consider this 
circumstance relevant for recordkeeping purposes. The fact that 
ironworkers experience a higher incidence of falls from elevation than 
do carpenters does not mean that carpenters' injuries from such falls 
should not be recorded. Congress clearly intended information such as 
this to be used by individual employers and to be captured in the 
national statistical program. Again, because TB infection is a 
significant illness wherever in the workplace it occurs, and because no 
exemption applies, it must be recorded in all covered workplaces. 
Accordingly, in the final rule being published today, TB cases are 
recordable without regard to the relative risk present in a given 
industry, providing only that the employee with the infection has been 
occupationally exposed to someone with a known case of active 
tuberculosis. Employers may rebut the presumption only if a medical 
investigation or other special circumstances reveal that the case is 
not work-related.
    In the final rule, OSHA has not adopted the ``special industries'' 
presumption, for several reasons. First, doing so would be inconsistent 
with the approach taken by the Agency in other parts of the rule, i.e., 
specific industries have not been singled out for special treatment 
elsewhere. Second, a ``special industries'' presumption is not needed 
because the approach OSHA has taken in this section will provide 
employers with better ways of rebutting work-relatedness when that is 
appropriate. Finally, the special industries approach is not 
sufficiently accurate or well enough targeted to achieve the intended 
goal. Many cases of occupationally transmitted TB occur among employees 
in industries other than the ``special industries,'' and evidence shows 
that the risk of TB infection varies greatly among facilities in the 
special industries.
Other Suggestions for Determining the Work-Relatedness of TB Cases
    A number of commenters provided other suggestions for determining 
the work-relatedness of TB cases (see, e.g., Exs. 15: 39, 154, 181, 
188, 200, 218, 226, 335, 393, 407, 431, 436).
    The Society for Human Resource Management stated:

    Workers are exposed to tuberculosis in many places other than 
the work site: it would be unduly burdensome to require employers to 
provide evidence that the employee has had non-work exposure. Since 
the employee is in the best position to retrace his or her 
activities, he or she should be required to provide evidence to 
establish work-relatedness (Ex. 15: 431).

    OSHA does not agree that the employee is in a better position than 
the employer to know whether an employee has been exposed to TB at 
work. For example, the worker is not as likely to know whether a co-
worker, patient, client, or other work contact has an active TB case. 
To determine whether exposure to an active case of TB has occurred at 
work, the employer may interview the employee to obtain additional 
information, or initiate a medical investigation of the case, but it 
would be inappropriate to place the burden of providing evidence of 
work-relationship on the employee.
    The American Ambulance Association (Ex. 15: 226) did not support 
the proposed approach of reporting an employee's positive tuberculin 
skin test reaction ``unless there has [also] been documentation of a 
work-related exposure.'' The American Network of Community Options and 
Resources (ANCOR) argued ``ANCOR strongly opposes the inclusion of 
tuberculosis unless the infection is known to have been caused at work 
due to a known, active carrier'' (Ex. 15: 393). The American 
Association of Occupational Health Nurses (AAOHN) proposed that the 
criteria for recording TB infection or illness be ``[a]n employee tests 
positive for tuberculosis infection after being exposed to a person 
within the work environment known to have tuberculosis disease and the 
positive test results are determined to be caused by the person in the 
workplace with tuberculosis disease'' (Ex. 15: 188).
    Several commenters suggested that the first case of TB occurring in 
the workplace should not be recordable (see, e.g., Exs. 15: 218, 361, 
398). In two separate comments, the Association for Professionals in 
Infection Control (APIC) recommended:

    [a]s an acceptable rebuttal to the presumption of work 
relationship when an employee is found to be infected with 
tuberculosis or to have active disease. The employer is able to 
demonstrate that no other employee with similar duties and patient 
assignments as the infected employee was found to have tuberculosis 
infection or active disease (Exs. 15: 361, 398).

    In addition, Bell Atlantic (Ex. 15: 218) proposed that public 
health agencies be charged with determining the work-relationship of 
cases of TB in the workplace. Bell Atlantic's comments to the 
rulemaking record were as follows:

    Bell Atlantic does not agree that tuberculosis cases should be 
inherently reported. The first identified incidence of tuberculosis 
in an employee group probably was not contracted in the workplace. 
However, if Public Health Officials deem it necessary to require TB 
testing in the facility as a preventive measure, and new cases are 
found, these may be recordable. The criteria here is one of public 
health, and where the disease initiated. The Public Health Agencies

[[Page 6016]]

would be charged with investigation of family members, friends, and 
the community away from work.

    A number of commenters misunderstood the proposal as allowing the 
geographic presumption of work-relationship only to be rebutted in 
certain ``high risk'' industries. For example, Alcoa commented that 
``OSHA seems to conclude * * * that if someone in your workforce has TB 
then each person in the workplace who tests positive is now considered 
as having work-related TB due to the incidental exposure potential'' 
(Ex. 15: 65). ALCOA suggested that the final rule allow the geographic 
presumption of work-relationship to be rebutted for ``all other 
industries.''
    OSHA agrees that a case of TB should be recorded only when an 
employee has been exposed to TB in the workplace (i.e., that the 
positional theory of causation applies to these cases just as it does 
to all others). OSHA has added an additional recording criterion in 
this case: for a TB case occurring in an employee to be recordable, 
that employee must have been exposed at work to someone with a known 
case of active tuberculosis. The language of the final rule addresses 
these concerns: ``If any of your employees has been occupationally 
exposed to anyone with a known case of active tuberculosis, * * *'' 
Under the final rule, if a worker reports a case of TB but the worker 
has not been exposed to an active case of the disease at work, the case 
is not recordable. However, OSHA sees no need for the employer to 
document such workplace exposure, or for the Agency to require a higher 
level of proof that workplace exposure has occurred in these compared 
with other cases. Further, OSHA knows of no justification for excluding 
cases simply because they are the first or only case discovered in the 
workplace. If a worker contracted the disease from contact with a co-
worker, patient, client, customer or other work contact, the case would 
be work-related, even though it was the first case detected. Many work-
related injury and illness cases would be excluded from the 
recordkeeping system if cases were only considered to be work-related 
when they occurred in clusters or epidemics. This was clearly not 
Congress's intent.
    The final rule's criteria for recording TB cases include three 
provisions designed to help employers rule out cases where occupational 
exposure is not the cause of the infection in the employee (i.e., where 
the infection was caused by exposure outside the work environment). An 
employer is not required to record a case involving an employee who has 
a positive skin test and who is exposed at work if (1) the worker is 
living in a household with a person who has been diagnosed with active 
TB, (2) the Public Health Department has identified the worker as a 
contact of a case of active TB unrelated to the workplace, or (3) a 
medical investigation shows that the employee's infection was caused by 
exposure to TB away from work or proves that the case was not related 
to the workplace TB exposure.
    The final rule thus envisions a special role for public health 
departments that may investigate TB outbreaks but does not permit 
employers to wait to record a case until a public health department 
confirms the work-relatedness of the case. In addition, the final 
rule's provisions for excluding cases apply in all industries covered 
by the recordkeeping rule, just as the recording requirements apply to 
all industries. The final rule thus does not include the ``special 
industries'' approach of the proposal. As discussed above, the Agency 
has rejected this proposed approach because it would not have been 
consistent with the approach OSHA has taken elsewhere in the rule, 
which is not industry-specific; it is not necessary to attain the 
intended goal; and it would not, in any case, have achieved that goal 
with the appropriate degree of accuracy or specificity.
    A few commenters stressed that employers should not be required to 
record cases where the employee was infected with TB before employment 
(see, e.g., Exs. 15: 65, 407, 414). For example, Alcoa (Ex. 15: 65) 
proposed that employers not be required to consider as work-related any 
case where ``the employee has previously had a positive PPD [Purified 
Protein Derivative] test result.'' In response to this suggestion, OSHA 
has added an implementation question to the final rule to make sure 
that employers understand that pre-employment skin test results for TB 
are not work-related and do not have to be recorded. These results are 
not considered work-related for the purposes of the current employer's 
Log because the test result cannot be the result of an event or 
exposure in the current employer's work environment.
    NIOSH proposed to expand the recording criteria for TB infection or 
disease to include the criterion that ``regardless of the industry or 
source of infection, a case of active TB disease is presumed to be 
work-related if the affected employee has silicosis attributable to 
crystalline silica exposure in the employer's establishment'' (Ex. 15: 
407). OSHA has chosen not to include this criterion in the final rule 
because in NIOSH's example the case would previously have been entered 
into the records as a case of silicosis. Adopting the NIOSH criterion 
would result in the same illness being recorded twice.
    Kaiser Permanente recommended that OSHA adopt a method for 
determining the work relationship of TB cases that Kaiser Permanente 
currently uses in California to evaluate whether cases are recordable, 
in accordance with an agreement with the California Division of 
Occupational Safety and Health (Ex. 15: 200):

    1. The employer shall promptly investigate all tuberculin skin 
test conversions according to the ``Guidelines for Preventing the 
Transmission of Mycobacterium tuberculosis in Health-Care 
Facilities'' published by the Centers for Disease Control and 
Prevention (CDC Guidelines).
    2. Probable exposure to Mycobacterium tuberculosis unrelated to 
work environment. The conversion shall not be recorded on the log 
if, after investigation, the employer reasonably determines that the 
employee probably converted as a result of exposure unrelated to the 
employee's work duties.
    3. Probable exposure to Mycobacterium tuberculosis related to 
work environment. The conversion shall be recorded on the log if, 
after investigation, the employer reasonably determines that the 
employee probably converted as a result of exposure related to the 
employee's work duties.
    4. Inability to determine probable cause of exposure. If, after 
reasonably thorough investigation, the employer is unable to 
determine whether the employee probably converted as a result of 
exposure related to the employee's work duties, the following shall 
be done:
    a. The conversion shall not be recorded on the log if the 
employee was, at all times during which the conversion could have 
occurred, assigned to a unit or job classification, which met the 
minimal risk, low risk, or very low risk criteria specified in the 
CDC Guidelines.
    b. In all other cases, the conversion shall be recorded on the 
log.

    As an initial matter, OSHA notes that the States are not authorized 
to provide employers with variances to the Part 1904 regulations, under 
either the rule being published today or the former rule. The issuing 
of such variances is exclusively reserved to Federal OSHA, to help 
ensure the consistency of the data nationwide and to make the data 
comparable from state-to-state. OSHA has not adopted the approach 
suggested by Kaiser Permanente because the approach is too complex, 
does not apply equally to health care and non-health care settings, and 
does not provide the clear guidance needed for a regulatory 
requirement. However, because the final rule allows employers to rebut 
the presumption of work-relatedness if a

[[Page 6017]]

medical evaluation concludes that the TB infection did not arise as a 
result of occupational exposure, a physician or other licensed health 
care professional could use the CDC Guidelines or another method to 
investigate the origin of the case. If such an investigation resulted 
in information that demonstrates that the case is not related to a 
workplace exposure, the employer need not record the case. For example, 
such an investigation might reveal that the employee had been 
vaccinated in childhood with the BCG vaccine. The employer may wish, in 
such cases, to keep records of the investigation and determination.

Section 1904.12  Recording Criteria for Cases Involving Work-Related 
Musculoskeletal Disorders

    Section 1904.12, entitled ``Recording criteria for cases involving 
work-related musculoskeletal disorders,'' provides requirements for 
recording work-related musculoskeletal disorders (MSDs). MSDs are 
defined in the final recordkeeping rule as ``injuries and disorders of 
the muscles, nerves, tendons, ligaments, joints, cartilage, and spinal 
discs.''
    Paragraph 1904.12(a) establishes the employer's basic obligation to 
enter recordable musculoskeletal disorders on the Log and to check the 
musculoskeletal disorder column on the right side of the Log when such 
a case occurs. The paragraph states that, ``[i]f any of your employees 
experiences a recordable work-related musculoskeletal disorder (MSD), 
you must record it on the OSHA 300 Log by checking the 
``musculoskeletal disorder'' column.'' Paragraph 1904.12(b)(1) contains 
the definition of `musculoskeletal disorder' used for recordkeeping 
purposes. Paragraphs 1904.12(b)(2) and 1904.12(b)(3) provide answers to 
questions that may arise in implementing the basic requirement, 
including questions on the work-relatedness of MSDs.
The Proposal
    The proposal defined MSDs as ``injuries and illnesses * * * 
result[ing] from ergonomic hazards,'' such as lifting, repeated motion, 
and repetitive strain and stress on the musculoskeletal system. (61 FR 
4046) This language was derived, in part, from the definition of the 
term ``cumulative trauma disorders (CTDs),'' used in OSHA's Ergonomics 
Program Management Guidelines For Meatpacking Plants (hereafter 
``Meatpacking Guidelines''). The 1990 Meatpacking Guidelines used the 
term CTDs to cover ``health disorders arising from repeated 
biomechanical stress due to ergonomic hazards.'' (Ex. 11 at p. 20.)
    Appendix B to the recordkeeping rule proposed requirements for 
employers to follow when recording MSDs. The proposed requirements 
would have required recording: (1) whenever an MSD was diagnosed by a 
health care provider, or (2) whenever an employee presented with one or 
more of the objective signs of such disorders, such as swelling, 
redness indicative of inflammation, or deformity. When either of these 
two criteria was met, or when an employee experienced subjective 
symptoms, such as pain, and one or more of the general criteria for 
recording injuries and illnesses (i.e., death, loss of consciousness, 
days away from work, restricted work, job transfer, or medical 
treatment) were met, an MSD case would have been recordable under the 
proposal.
    The proposal also contained special provisions for determining 
whether hot and cold treatments administered to alleviate the signs and 
symptoms of MSDs would be considered first aid or medical treatment. 
Under the former recordkeeping rule, the application of hot and cold 
treatment on the first visit to medical personnel was considered first 
aid, while the application of such treatment on the second or 
subsequent visit was considered to constitute medical treatment. OSHA 
proposed to revise this provision to consider hot or cold therapy to be 
first aid for all injuries and illnesses except MSDs, but to consider 
two or more applications of such therapy medical treatment if used for 
an MSD case (61 FR 4064). Whether hot and cold therapies constitute 
first aid or medical treatment is addressed in detail in section 1904.7 
of the final recordkeeping rule. As discussed in that section, under 
the final rule, hot and cold therapies are considered first aid, 
regardless of the type of injury or illness to which they are applied 
or the number of times such therapy is applied.
The Final Rule's Definition of Musculoskeletal Disorder
    The preamble to the proposal described an MSD as an injury or 
disorder ``resulting from'' ergonomic hazards. However, OSHA has not 
carried this approach forward in the final rule because it would rely 
on an assessment of the cause of the injury, rather than the nature of 
the injury or illness itself.
    Paragraph 1904.12(b)(1) of the final rule therefore states, in 
pertinent part, that MSDs ``are injuries and disorders of the muscles, 
nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs do 
not include injuries caused by slips, trips, falls, or other similar 
accidents.'' This language clarifies that, for recordkeeping purposes, 
OSHA is not defining MSDs as injuries or disorders caused by particular 
risk factors in the workplace. Instead, the Agency defines MSDs as 
including all injuries to the listed soft tissues and structures of the 
body regardless of physical cause, unless those injuries resulted from 
slips, trips, falls, motor vehicle accidents, or similar accidents. To 
provide examples of injuries and disorders that are included in the 
definition of MSD used in the final rule, Section 1904.12(b)(1) 
contains a list of examples of MSDs; however, musculoskeletal 
conditions not on this list may also meet the final rule's definition 
of MSD.
Determining the Work-Relatedness of MSDs
    Section 1904.12(b)(2) provides that ``[t]here are no special 
criteria for determining which musculoskeletal disorders to record. An 
MSD case is recorded using the same process you would use for any other 
injury or illness.'' This means that employers must apply the criteria 
set out in sections 1904.5-1904.7 of the final rule to determine 
whether a reported MSD is ``work-related,'' is a ``new case,'' and then 
meets one or more of the general recording criteria. The following 
discussion supplements the information provided in the summary and 
explanation accompanying section 1904.5, to assist employers in 
deciding which MSDs are work-related.
    For MSDs, as for all other types of injuries and illnesses, the 
threshold question is whether the geographic presumption established in 
paragraph 1904.5(a) applies. The presumption applies whenever an MSD or 
other type of injury or illness ``results from an event or exposure in 
the work environment.'' For recordkeeping purposes, an ``event'' or 
``exposure'' includes any identifiable incident, occurrence, activity, 
or bodily movement that occurs in the work environment. If an MSD can 
be attributed to such an event or exposure, the case is work related, 
regardless of the nature or extent of the ergonomic risk factors 
present in the workplace or the worker's job.
    This position is not new to the final rule; it is clearly reflected 
in the 1986 BLS Recordkeeping Guidelines. The Guidelines contain the 
following discussion of the applicability of the work-relatedness 
presumption to back injuries and hernia cases, which reflects OSHA's 
position under this final rule:

    Back and hernia cases should be evaluated in the same manner as 
any other case.

[[Page 6018]]

Questions concerning the recordability of these cases usually 
revolve around: (1) The impact of a previous back or hernia 
condition on the recordability of the case, or (2) whether or not 
the back injury or hernia was work-related.
    Preexisting conditions generally do not impact the recordability 
of cases under the OSHA system. * * * For a back or hernia case to 
be considered work-related, it must have resulted from a work-
related event or exposure in the work environment. Employers may 
sometimes be able to distinguish between back injuries that result 
from an event in the work environment, and back injuries that are 
caused elsewhere and merely surface in the work environment. The 
former are recordable; the latter are not. This test should be 
applied to all injuries and illnesses, not just back and hernia 
cases. Guidelines at p. 32 (emphasis in original).

    The Guidelines provide the following question and answer to 
illustrate that MSDs may be attributable to events or exposures in the 
work environment that pose little apparent ergonomic risk:

    B-16 Q. An employee's back goes out while performing routine 
activity at work. Assuming the employee was not involved in any 
stressful activity, such as lifting a heavy object, is the case 
recordable?
    A. Particularly stressful activity is not required. If an event 
(such as a * * * sharp twist, etc.) occurred in the work environment 
that caused or contributed to the injury, the case would be 
recordable, assuming it meets the other requirements for 
recordability. Guidelines at p. 32 (emphasis in original).

    OSHA believes that, in most cases, an employee who reports an MSD 
at work will be able to identify the activity or bodily movements (such 
as lifting, twisting, or repetitive motions) that produced the MSD. If 
the activity or movements that precipitated the disorder occurred at 
work, the presumption of work-relatedness is established without the 
need for further analysis. However, cases may arise in which it is 
unclear whether the MSD results from an event or exposure in the work 
environment. In these cases, paragraph 1904.5(b)(3) of the final rule 
directs the employer to evaluate the employee's work activities to 
determine whether it is likely that one or more events or exposures in 
the work environment caused or contributed to the disorder. In this 
situation the employer would consider the employee report, the 
ergonomic risk factors present in the employee's job, and other 
available information to determine work-relationship.
    In evaluating job activities and work conditions to identify 
whether ergonomic risk factors are present, employers may turn to 
readily available sources of information for assistance, such as 
materials made available by OSHA on its web site, current scientific 
evidence, available industry guidelines, and other pertinent sources. 
This final rule does not establish new or different criteria for 
determining whether an MSD is more likely than not to have resulted 
from work activities or job conditions, i.e., from exposure to 
ergonomic risk factors at work. As is the case for all injuries and 
illnesses, the employer must make a good faith determination about 
work-relatedness in each case, based on the available evidence.
    The preamble discussion for paragraph 1904.5(b)(3) contains some 
examples to assist employers in making this determination. In addition, 
the BLS Guidelines contain the following examples:

    Q. Must there be an identifiable event or exposure in the work 
environment for there to be a recordable case? What if someone 
experiences a backache, but cannot identify the particular movement 
which caused the injury?
    A. Usually, there will be an identifiable event or exposure to 
which the employer or employee can attribute the injury or illness. 
However, this is not necessary for recordkeeping purposes. If it 
seems likely that an event or exposure in the work environment 
either caused or contributed to the case, the case is recordable, 
even though the exact time or location of the particular event or 
exposure cannot be identified.
    If the backache is known to result from some nonwork-related 
activity outside the work environment and merely surfaces at work, 
then the employer need not record the case. In these situations, 
employers may want to document the reasons they feel the case is not 
work related. (BLS Guidelines, p. 32.)

Comments on Other Approaches to Recording MSDs
    Commenters provided OSHA with several suggestions for recording 
musculoskeletal disorders: requiring diagnosis by a health care 
professional, recording symptoms lasting seven days, and eliminating 
special criteria for recording MSD cases. These are discussed below.
Eliminating Special Criteria for Recording MSD Cases
    A large number of commenters suggested that the recordkeeping rule 
should not contain criteria for recording MSD cases that were different 
from those for recording all injuries and illnesses, arguing that they 
should be captured using the criteria for all other types of injuries 
and illnesses (see, e.g., Exs. 15: 9, 44, 76, 109, 122, 123, 130, 145, 
146, 176, 188, 199, 201, 218, 235, 272, 273, 288, 289, 301, 303, 304, 
347, 351, 359, 368, 386, 392, 395, 396, 409, 425, 427). The comments of 
PPG Industries, Inc. (Ex. 15: 109) are representative of these views: 
``The system for evaluating all cases should be consistent. When 
evaluating musculoskeletal disorders, the normal recordkeeping criteria 
should be used.'' The Voluntary Protection Programs Participants' 
Association (VPPPA) also recommended that ``MSDs should be treated as 
any other injury or illness. If the problem arises to the level of 
seriousness that it is a recordable injury or illness, then it should 
be recorded on the log'' (Ex. 15: 425). The National Safety Council 
(Ex. 15: 359) recommended that ``if an employee has pain, he or she 
should report it. It then becomes recordable or not recordable based on 
the usual criteria. The employer makes a decision on a case by case 
basis.''
    OSHA agrees with these commenters that MSD cases should be recorded 
in the same way as other injuries and illnesses, and should not have 
separate recordability criteria. Using the same criteria for these 
cases, which constitute one-third of all occupational injuries and 
illnesses, simplifies the final rule and makes the system easier for 
employers and employees to use. Employing consistent recording criteria 
thus helps to achieve one of OSHA's major goals in this rulemaking, 
simplification. Section 1904.12 has been included in the final rule not 
to impose different recording criteria on MSDs, but to emphasize that 
employers are to record MSD cases like all other injuries and 
illnesses. OSHA believes that this approach to the recording of MSDs 
will yield statistics on musculoskeletal disorders that are reliable 
and complete.
Requiring Diagnosis by a Health Care Professional
    A number of commenters recommended that OSHA require the recording 
of musculoskeletal disorders only when they are diagnosed by a health 
care professional or identified by a medical test result (see, e.g., 
Exs. 15: 20, 22, 39, 42, 44, 57, 60, 78, 82, 121, 126, 146, 173, 199, 
201, 218, 225, 242, 246, 247, 248, 259, 272, 288, 289, 303, 318, 324, 
332, 335, 341, 342, 348, 351, 355, 356, 357, 364, 366, 378, 384, 397, 
414, 424, 440, 441). The National Electrical Contractors Association 
(NECA) requested that ``OSHA modify the current criteria to state 
``Positive x-ray showing broken bones or fracture, diagnosis of broken 
teeth, or diagnosis of acute soft tissue damages'' (Ex. 15: 126). The 
United Technologies Company (UTC) agreed that ``MSDs should only be 
recorded if the diagnosis is made by a health care provider operating 
within the scope of his or her specialty'' (Ex. 15: 440). The National

[[Page 6019]]

Coalition on Ergonomics (Ex. 15: 366) urged OSHA to limit the recording 
of MSD cases to those diagnosed by highly qualified health care 
professionals:

    [O]SHA should not encourage unqualified individuals to 
``diagnose'' musculoskeletal disorders given the present state of 
medical knowledge of their causes and cures. * * * Therefore, OSHA 
should limit in the definition of musculoskeletal disorders the 
diagnosis to qualified and trained physicians, and such other 
practitioners as are accepted by the medical community as having the 
training and skill necessary to adequately and appropriately treat 
these cases.

    Other commenters expressed similar opinions, arguing that the work 
relationship of a given case should be determined by a health care 
professional (see, e.g., Exs. 15: 9, 105, 248, 249, 250, 262, 272, 288, 
303, 304, 324, 366, 397, 408, 440). The Footwear Industries of America 
(Ex. 15: 249) recommended that ``An MSD should be recordable only if it 
is diagnosed by a health-care provider based on a determination that 
the MSD is clearly work-related--that is, caused by the work 
environment.'' The American Dental Association (Ex. 15: 408) suggested 
that ``OSHA should not require employers to keep records of 
musculoskeletal disorders unless and until a physician identifies work 
as the ``predominant cause'' in a given case.'' United Technologies 
Company recommended that the health care provider use a check list to 
make this determination: ``UTC also believes that the provider should 
be required to complete a check list regarding work relatedness with 
the language changed to include predominantly caused by the work 
environment and the submittal of information by the employer'' (Ex. 15: 
440).
    The Northrop Grumman Association (Ex. 15: 42) suggested that 
``Recordability should only be based on objective, documented findings 
by a licensed physician. In [proposed] mandatory Appendix B, 
recordability is defined as diagnosis by a health care provider and/or 
objective findings. The `or' should be deleted. Only positive test 
findings should denote recordability. There are physicians who diagnose 
cases without any objective tests to confirm their diagnosis.'' Other 
commenters (see, e.g., Exs. 15: 44, 386, 330, 332) recommended that MSD 
cases be recorded only when they are diagnosed by a health care 
provider and/or are identified by a positive test result and meet the 
general recording criteria.
    A few commenters argued that a health care professional's diagnosis 
should not be considered evidence of work-relatedness (see, e.g., Exs. 
15: 347, 363, 409). For example, the American Automobile Manufacturers 
Association (AAMA) remarked that ``[w]e strongly oppose the recording 
of a musculoskeletal disorder based solely on the diagnosis by a health 
care provider. A diagnosis, in and of itself, does not reflect whether 
a musculoskeletal disorder is significant or serious in nature. Health 
care providers record a description or diagnosis of an employee's 
complaint whether minor or serious.'' On the other hand, the American 
Federation of State, County, and Municipal Employees (Ex. 15: 362) 
argued that ``[w]orkers may not see a health care professional until 
after they have endured symptoms for an extended period * * * The 
reality of the situation is that a great number of workers who suffer 
from symptoms will not be diagnosed by a health care provider unless or 
until their condition becomes severe and/or disabling.''
    As discussed in the preamble to the work relationship section of 
the final rule (Sec. 1904.5), an employer is always free to consult a 
physician or other licensed health care professional to assist in 
making the determination of work relationship in individual injury or 
illness cases, including musculoskeletal disorders. If a physician or 
other licensed health care professional has knowledge of the employee's 
current job activities and work conditions, work history, and the work 
environment, he or she can often use that information, along with the 
results of a medical evaluation of the worker, to reach a conclusion 
about the work-relatedness of the condition. Relying on the expertise 
of a knowledgeable health care professional can be invaluable to the 
employer in those infrequent cases for which it is not clear whether 
workplace events or exposures caused or contributed to the MSD or 
significantly aggravated pre-existing symptoms. Employers may also 
obtain useful information from ergonomists, industrial engineers, or 
other safety and health professionals who have training and experience 
in relevant fields and can evaluate the workplace for the presence of 
ergonomic risk factors.
    However, OSHA does not require employers to consult with a 
physician or other licensed health care professional or to have the 
employee undergo medical tests when making work-relationship 
determinations. The Agency finds that doing so would be both 
unnecessary and impractical in the great majority of cases and would 
result both in delaying the recording of occupational MSD cases and 
increasing medical costs for employers.
    In most situations, an evaluation by a physician or other licensed 
health care professional is simply not needed in order to make a 
recording decision. For example, if a worker strains a muscle in his or 
her back lifting a heavy object, and the back injury results in days 
away from work, there is no doubt either about the work-relationship of 
the case or its meeting of the recording criteria. Similarly, if a 
worker performing a job that has resulted in MSDs of the wrist in other 
employees reports wrist pain and restricted motion, and the employer 
places the employee on restricted work, the case is recordable and 
there is no need to await a clinical diagnosis.
Recording of MSD Symptoms
    In the preamble to the proposed rule (61 FR 4047), OSHA asked:

    There is a concern that the proposed criteria [for recording 
MSDs] 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.

    Some commenters urged OSHA to require employers to record MSD cases 
where an employee reports symptoms that have persisted for at least 7 
calendar days (see, e.g., Exs. 15: 87, 129, 186, 362, 369, 371, 374, 
380). The American Federation of State County and Municipal Employees, 
AFL-CIO (AFSCME) recommended:

    Under-reporting of MSDs will increase if OSHA adopts this 
proposal. It has been AFSCME's experience that workers experiencing 
pain, soreness, tenderness, numbness, tingling and other sensations 
in their extremities or back do not immediately report these 
symptoms to their employer. Rather, most employees first attempt to 
alleviate their symptoms on their own: they ingest medications, use 
topical solutions, apply heat or cold to affected areas, or utilize 
other remedies in their attempt to relieve pain, aches, stiffness, 
or other symptoms. OSHA should require that these cases be recorded 
when symptoms last for seven consecutive days.
    Investigations conducted by AFSCME repeatedly demonstrate that 
inclusion of the additional criterion is necessary in order to 
ascertain accurately the number of work-related MSDs. Employer 
records typically show MSD rates at or even well below ten percent 
of employees at risk for these injuries. However, results of AFSCME-
conducted symptom surveys show that it is common for a third or more 
of the employees to respond that they have felt pain, numbness, 
tingling, or other symptoms that have persisted for more than seven 
days.* * *

[[Page 6020]]

    AFSCME wishes to emphasize that accurate and complete recording 
of MSDs is critically important. Early detection, proper medical 
intervention, and appropriate measures to address ergonomic risk 
factors in the workplace are all necessary to prevent and manage 
MSDs (Ex. 15: 362).

    Many commenters objected to the proposed 7-day symptom recording 
concept (see, e.g., Exs. 15: 9, 20, 39, 122, 127, 128, 170, 230, 246, 
248, 281, 289, 324, 330, 332, 341, 359, 378, 397, 406, 434). David E. 
Jones of the law firm of Ogletree, Deakins, Nash, Smoak & Stewart (Ex. 
15: 406) stated that this provision was unnecessary because ``[t]he 
prevalent experience has shown that employers typically record those 
symptoms when they result in medical treatment, restricted work 
activity, or days away from work.'' The Eli Lilly Company (Ex. 15: 434) 
also observed that ``[b]ased on input from [our] occupational health 
physicians, the vast majority of MSD-type cases would manifest into 
objective findings or a MSD diagnosis after 7 calendar days of 
legitimate subjective symptoms.''
    Other objections to the proposal's 7-day symptom trigger were based 
on practical considerations. Many commenters were opposed to recording 
undiagnosed conditions that persist for seven days on the grounds that 
the seriousness or veracity of the complaint of pain or other symptoms 
could not be established by the employer (see, e.g., Exs. 15: 9, 20, 
39, 121, 122, 127, 128, 170, 218, 230, 246, 248, 281, 289, 359, 366, 
397). For example, the Dayton Hudson Corporation (Ex. 15: 121) stated: 
``[s]elf-reporting of symptoms with no medical findings or evaluation 
is an invitation for abuse. Are these cases work-related or serious? 
Are they even real?'' Clariant Corporation held the view that 
``[d]isgruntled employees could use subjective findings as a means of 
avoidance. It could be used to prevent them from doing a job or task 
they do not like'' (Ex. 15: 217). The National Coalition on Ergonomics 
(Ex. 15: 366) opposed any recordation based on symptoms alone, stating:

    First, persistent pain is a symptom, not a disorder, and 
therefore cannot be a case. There is often no indication that 
persistent pain is work-related, except that as the person becomes 
more fatigued, the pain may appear or become more intense. Further, 
because pain is subjective, there is no way to quantify it so as to 
focus only on serious cases. Finally, pain can exist without an 
underlying pathology. Pain in and of itself cannot be a case in the 
absence of a diagnosis by a qualified medical practitioner, provided 
that the case is serious, disabling or significant.
    Second, other symptoms mentioned in OSHA's question do not 
represent cases either. As we discuss below, individual symptoms are 
not illnesses; symptoms, in conjunction with appropriate signs and/
or laboratory results are essential to diagnose specific conditions.
    Since symptoms do not define cases, OSHA cannot--indeed, should 
not--require employers to record complaints of uncertain validity 
and non-specific origin. It is perhaps true that such employees 
should see a trained physician or other practitioner, but only after 
this event will there be a case to record, if one exists at all.

    Linda Ballas & Associates (Ex. 15: 31) expressed a different 
concern, namely that ``[i]f an employee is experiencing pain, or 
reports symptoms--the clock should not have to click to 7 days before 
the case is recordable. This will lead to under recording and under 
reporting * * * .''
    In response to the comments on this issue, OSHA finds that pain 
and/or other MSD symptoms, of and by themselves, may indicate an injury 
or illness. In this regard, MSD cases are not different from other 
types of injury or illness. As discussed in the preamble to the 
definitions section of the final rule (Subpart G), symptoms such as 
pain are one of the primary ways that injuries and illnesses manifest 
themselves. If an employee reports pain or other symptoms affecting the 
muscles, nerves, tendons, etc., the incident must be evaluated for 
work-relatedness, and, if determined by the employer to be work-
related, must be tested against the recording criteria to determine its 
recordability. If it is determined by the employer to be recordable, it 
must be recorded as an MSD on the OSHA 300 Log.
    The ICD-9-CM manual, the International Classification of Diseases, 
Clinical Modification (ICD-CM), the official system of assigning codes 
to diagnoses of disease, injury and illness, lists several MSD 
conditions that consist only of pain. That is, when health care 
professionals diagnose these disease states, they do so on the basis of 
employee-reported pain (health care professionals often evaluate and 
confirm such reports by physical examination when making a diagnosis). 
According to the National Center for Health Statistics (NCHS), the 
agency responsible for the coordination of all official disease 
classification activities in the United States relating to the 
International Classification of Diseases (ICD), the ICD-CM is the 
official system of assigning codes to diagnoses and procedures 
associated with hospital utilization in the United States, and is used 
to code and classify morbidity data from inpatient and outpatient 
records, physicians' offices, and most NCHS surveys. The following 
table includes a few illustrative examples of ICD illness codes for 
pain-related disorders that would be considered MSD cases under OSHA's 
definition and would thus warrant an evaluation of work-relatedness by 
the employer.

------------------------------------------------------------------------
                ICD code                       Name and description
------------------------------------------------------------------------
723.1..................................  Cervicalgia--Pain in neck.
724.1..................................  Pain in thoracic spine.
724.2..................................  Lumbago--Low back pain.
724.5..................................  Backache, unspecified.
------------------------------------------------------------------------

    (NCHS Internet home page, http://www.cdc.gov/nchswww/about/otheract/icd9)
    Pain is a symptom that generally indicates the existence of some 
underlying physiological condition, such as inflammation, damage to a 
spinal disc, or other biomechanical damage. The occurrence of pain or 
other symptoms (such as, in the case of MSDs, tingling, burning, 
numbness, etc.) is thus indicative of an incident that warrants 
investigation by the employer for work-relatedness, the first step in 
the injury and illness reporting and recording process. The occurrence 
of pain or other symptoms, however, is not enough, in the absence of an 
injury or illness that meets one or more of the recording criteria, to 
make any injury or illness (including an MSD case) recordable under 
Part 1904. Employers are not required to record symptoms unless they 
are work-related and the injury or illness reaches the seriousness 
indicated by the general recording criteria, which for MSD cases will 
almost always be days away from work, restricted work, medical 
treatment, or job transfer. Thus, the requirements governing the 
recording of all injuries and illnesses will work to ensure that 
symptoms such as the aches and pains that most people experience from 
time to time during their lives, are not automatically recorded on the 
OSHA Log. These same recording requirements will also ensure that those 
MSDs that are determined by the employer to be work-related and that 
also meet one or more of the recording criteria will be captured in the 
national statistics.
    If the employer is concerned that the case is not work-related, he 
or she can refer the employee to a health care professional for a 
determination, evaluation, or treatment. In this situation, or when the 
employee has already obtained medical attention, the physician or other 
licensed health care professional can help to differentiate between 
work-related and non-work-related cases, minor aches and pains, or 
inappropriate employee reports. This is no different for MSD cases than 
for

[[Page 6021]]

other types of injuries and illnesses, and does not represent a new 
problem in the determination of work-related injury and illness. There 
have always been disputes between workers and employers over the 
existence of an injury or illness and whether it is work-related. If an 
employer subsequently demonstrates that a worker is malingering or 
determines that an injury or illness or is not work-related (using 
OSHA's definition of work-related), the employer may remove the 
recorded entry from the OSHA 300 Log.
    Although OSHA believes that pain or other symptoms indicate an 
injury or illness that warrants additional analysis, the final rule has 
not adopted persistent symptoms alone, whether lasting for 7 days or 
any other set time period, as an automatic recording criterion. OSHA is 
concerned about workers who experience persistent pain for any reason, 
and such pain, if work-related, may well warrant an inquiry into the 
employee's work conditions and the taking of administrative actions. 
However, pain or other symptoms, standing alone, have not ordinarily 
been captured by the OSHA recordkeeping system, and OSHA has 
accordingly not adopted persistent musculoskeletal pain as a recording 
criterion, for the following reasons.
    First, as discussed earlier, OSHA does not believe that MSD cases 
should receive differential treatment for recording purposes, and the 
final rule does not contain different criteria for recording MSD cases; 
instead, it relies on the general criteria of Sec. 1904.7 to capture 
MSD cases. OSHA finds that, for recordkeeping purposes, MSD pain is no 
different in nature than the pain caused by a bruise, cut, burn or any 
other type of occupational injury or illness. For example, the OSHA 
rule does not contain a criterion requiring that if a burn, cut or 
bruise results in pain for seven days it is automatically recordable. 
Creating a special provision for MSD pain would create an inconsistency 
in the rule.
    Further, OSHA believes that the provisions of the final 
recordkeeping rule, taken together will appropriately capture reliable, 
consistent, and accurate data on MSD cases. Incorporating a clear 
definition of MSDs, clarifying the rule's requirements for determining 
work-relatedness; and refining the definitions of restricted work, 
first aid and medical treatment; will all work together to improve the 
quality of the Log data on MSDs. OSHA concludes, based on an analysis 
of the record evidence on MSDs, that the general recording criteria 
will enhance the data on work-related, non-minor MSDs occurring in the 
workplace, and that an additional ``persistent pain'' criterion is 
unnecessary for purposes of the recordkeeping system.
New hires
    Some commenters encouraged OSHA to find a way to exclude MSD cases 
that involve minor muscle soreness in newly hired employees, i.e., to 
allow employers to not record MSDs occurring during a ``break-in'' 
period (see, e.g., Exs. 15: 27, 31, 39, 82, 87, 105, 186, 198, 204, 
221, 239, 272, 283, 289, 303, 330, 359, 374, 412, 440). For example, 
the American Meat Institute (Ex. 15: 330) remarked: ``Employees 
returning from vacation, or other extended break periods from the job 
function, could have normal muscle aches to which hot/cold packs could 
provide relief. Recording such cases would not meet the purpose [of the 
OSHA Act] either.'' On the same topic, the National Safety Council (Ex. 
15: 359) wrote:

    The concept of forgiveness for a short period of adjustment to 
return to work makes good sense in industries that are traditionally 
very resistant to early return to work programs. If allowing for a 
short ``break-in'' period helps get workers safely and comfortably 
back to full productivity and earning capacity it should be 
seriously considered. The Council recommends, however, that no 
specific method be developed in the proposed rule because situations 
may vary greatly from industry to industry.

    The Harsco Corporation (Ex. 15: 105) suggested ``Construction 
activities can be a physically demanding occupation. If a person hasn't 
worked in a period of time, the first couple of days can be very tough. 
To transfer a person to a different task which would allow for the 
affected body part to rest should have no bearing on recordability if 
no other treatment is required.''
    Other commenters disagreed, however, that a recording exemption for 
injuries occurring during a break-in period was appropriate (see, e.g., 
Exs. 15: 68, 359, 371). For example, the State of New York Workers' 
Compensation Board (Ex. 15: 68) stated that:

    As to the exclusion of minor soreness commonly occurring to 
newly hired employees or employees on a rehab assignment during a 
``break-in stage'', we do not envision any reason to exclude 
reporting solely on this basis. The criteria should not be to whom 
the injury happens, but rather whether the injury would otherwise be 
reportable regardless of who is injured.

    The United Food and Commercial Workers Union (UFCW) argued:

    We could not disagree more with the agency. The current proposal 
in fact screens out all fleeting cases, and includes only those 
cases that are serious, have progressed and become debilitating. 
Only those cases with serious medical findings, lost workdays, 
restricted days and those receiving medical treatment are currently 
recordable--not those with fleeting pain that goes away with a good 
nights rest (Ex. 15: 371).

    After a review of the record on this topic, OSHA finds that no 
special provision for newly hired or transferred workers should be 
included in the final rule. As the National Safety Council stated, it 
would be very difficult to identify a single industry-wide method for 
dealing with break-in or work conditioning periods. Any method of 
exempting such cases would risk excluding legitimate work-related, 
serious MSD cases. A newly hired employee can be injured just as easily 
as a worker who has been on the job for many years. In fact, 
inexperience on the job may contribute to an MSD injury or illness. For 
example, a new worker who is not aware of the need to get assistance to 
move a heavy load or perform a strenuous function may attempt to do the 
task without help and be hurt in the process. Cases of this type, if 
determined to be work-related, are appropriately included in national 
statistics on occupational injuries and illnesses.
    OSHA notes that minor muscle soreness, aches, or pains that do not 
meet one or more of the general recording criteria will not be recorded 
on the OSHA 300 Log. Therefore, the system already excludes minor aches 
and pains that may occur when employees are newly hired, change jobs, 
or return from an extended absence. These cases will be recorded only 
if they reach the level of seriousness that requires recording. The 
final rule's definition of first aid includes hot/cold treatments and 
the administration of non-prescription strength analgesics, two of the 
most common and conservative methods for treating minor muscle 
soreness. Thus, the final rule allows newly hired workers to receive 
these first aid treatments for minor soreness without the case being 
recordable.
The Ergonomics Rulemaking
    Many of the comments OSHA received on the proposed recordkeeping 
rule referred to OSHA's efforts to develop an ergonomics standard. 
Several commenters argued that OSHA was trying, through the 
recordkeeping rule, to collect data to support an ergonomics standard 
(see, e.g., Exs. 22, 183, 215, 304, 346, 397). Typical of these views 
was that of the National Beer Wholesalers Association (NBWA) (Ex. 15: 
215):


[[Page 6022]]


    NBWA is especially troubled by the likelihood that the new 
definitions of what injuries must be recorded and reported in the 
current proposed rule are intended artificially to inflate the 
number of reported musculoskeletal disorders, whether work-related 
or not. Such a surge in MSDs could be used to justify additional 
work on a workplace ergonomics rule despite the notable lack of a 
scientific basis for regulation in this area.

    Other commenters believed that OSHA was using the recordkeeping 
rule to conduct a ``backdoor rulemaking'' to control ergonomics hazards 
in the workplace (see, e.g., Exs. 15: 86, 215, 287, 304, 404, 412, 
426). For example, the Reynolds Aluminum Company stated that:

    Reynolds supports the inclusion of musculo-skeletal disorders 
(MSDs) on the OSHA log, but does not support the industry-wide 
application of the Ergonomics Program Management Guidelines For 
Meatpacking Plants as the criteria for determining recordability. By 
incorporating these guidelines into Appendix B, OSHA would be 
implementing an ergonomics program. It would be inappropriate and 
without legal or scientific basis to burden all industries with 
ergonomic guidelines designed for a specific, unique industry (Ex. 
15: 426).

    Several commenters stated that the injury and illness recordkeeping 
rules should not address musculoskeletal disorders until after an 
ergonomics standard has been completed (see, e.g., Exs. 15: 13, 95, 
393). For example, Entergy Services, Inc. (Ex. 15: 13) expressed the 
following concerns:

    This area is of concern since there is no standard that really 
covers this issue except the meat packers standard * * * It is 
believed that to record this type case, a standard should be in 
place or language should be written to look at true disorders with 
long term effect as compared to short term symptoms.

    Many commenters also made comments on the overall debate about 
ergonomics, i.e., that the medical community has not reached consensus 
on what constitutes an MSD (see, e.g., Exs. 15: 116, 1267, 323, 355), 
that there is too much scientific uncertainty about the issue of 
ergonomics (see, e.g., Exs. 15: 57, 215, 304, 312, 342, 344, 355, 393, 
397, 412, 424), that science and medicine cannot tell what is work-
related and what is not (see, e.g., Exs. 15: 204, 207, 218, 323, 341, 
342, 3546, 408, 412, 424, 443), that OSHA needs to do more research 
before issuing a rule (Ex. 15: 234), that ``musculoskeletal disorder'' 
is a vague category (Ex. 15: 393), and that OSHA should drop the issue 
until the science is better (Ex. 15: 204).
    OSHA does not agree that the provisions on the recording of MSDs 
contained in this recordkeeping rule would conflict in any way with 
OSHA's ergonomics rulemaking. Unlike the proposed ergonomics standard, 
the final ergonomics standard does not use an OSHA recordable case as a 
``trigger'' that would require an employer to implement an ergonomics 
program. As a result, a recordable musculoskeletal disorder does not 
necessarily mean that the employer is required to implement an 
ergonomics program. The recordkeeping rule's provisions on the 
reporting of MSDs simply address the most consistent and appropriate 
way to record injury and illness data on these disorders. MSDs, like 
all other injuries and illnesses, must be evaluated for their work-
relatedness and their recordability under the recordkeeping rule's 
general recording criteria; only if the MSD meets these tests is the 
case recordable. Additionally, OSHA has required the recording of MSDs 
for many years.
    The recordkeeping rule and the ergonomics standard treat MSDs 
somewhat differently because the purpose of the two rules is different. 
Thus, although many of the requirements in the two rules are the same, 
some requirements reflect the different purposes of the two 
rulemakings. For example, the recordkeeping rule defines MSDs more 
broadly than the ergonomics rule because one of the purposes of the 
Part 1904 recordkeeping system is to gather broad information about 
injuries and illnesses; the ergonomics standard, in contrast, is 
designed to protect workers from those MSD hazards the employer has 
identified in their job. Another difference between the two rules is 
that the ergonomics standard requires employers to evaluate employee 
reports of MSD signs and symptoms that last for seven consecutive days, 
although the recordkeeping rule does not require employers to record 
signs and symptoms that last for seven consecutive days unless such 
signs or symptoms involve medical treatment, days of restricted work, 
or days away from work. The record in the ergonomics rulemaking 
strongly supported early reporting of MSD signs and symptoms because 
such early reporting reduces disability, medical costs, and lost 
productivity. However, evidence in the recordkeeping rulemaking did not 
support a requirement that persistent signs and symptoms of all 
occupational injuries and illnesses be recorded on the OSHA Log, and 
the final recordkeeping rule accordingly contains no such requirement.
Section 1904.29 Forms
    Section 1904.29, titled ``Forms,'' establishes the requirements for 
the forms (OSHA 300 Log, OSHA 300A Annual Summary, and OSHA 301 
Incident Report) an employer must use to keep OSHA Part 1904 injury and 
illness records, the time limit for recording an injury or illness 
case, the use of substitute forms, the use of computer equipment to 
keep the records, and privacy protections for certain information 
recorded on the OSHA 300 Log.
    Paragraph 1904.29(a) sets out the basic requirements of this 
section. It directs the employer to use the OSHA 300 (Log), 300A 
(Summary), and 301 (Incident Report) forms, or equivalent forms, to 
record all recordable occupational injuries and illnesses. Paragraph 
1904.29(b) contains requirements in the form of questions and answers 
to explain how employers are to implement this basic requirement. 
Paragraph 1904.29(b)(1) states the requirements for: (1) Completing the 
establishment information at the top of the OSHA 300 Log, (2) making a 
one- or two-line entry for each recordable injury and illness case, and 
(3) summarizing the data at the end of the year. Paragraph 
1904.29(b)(2) sets out the requirements for employers to complete the 
OSHA 301 Incident Report form (or equivalent) for each recordable case 
entered on the OSHA 300 Log. The requirements for completing the annual 
summary on the Form 300A are found at Section 1904.32 of the final 
rule.
Required Forms
    OSHA proposed to continue to require employers to keep both a Log 
(Form 300) and an Incident Report form (Form 301) for recordkeeping 
purposes, just as they have been doing under the former rule. OSHA 
received no comments on the use of two forms for recordkeeping 
purposes, i.e., a Log with a one-line entry for each case and a 
supplemental report that requires greater detail about each injury or 
illness case. OSHA has therefore continued to require two recordkeeping 
forms in the final rule, although these have been renumbered (they were 
formerly designated as the OSHA 200 Log and the OSHA 101 Supplementary 
Report).
    In addition to establishing the basic requirements for employers to 
keep records on the OSHA 300 Log and OSHA 301 Incident Report and 
providing basic instructions on how to complete these forms, this 
section of the rule states that employers may use two lines of the OSHA 
300 Log to describe

[[Page 6023]]

an injury or illness, if necessary. Permitting employers to use two 
lines when they need more space and specifying this information in the 
rule and on the Log responds to several comments (see, e.g., Exs. 37; 
15: 138, 389) about the lack of adequate space for descriptive 
information on the proposed OSHA 300 Log form. OSHA believes that most 
injury and illness cases can be recorded using only one line of the 
Log. However, for those cases requiring more space, this addition to 
the Log makes it clear that two lines may be used to describe the case. 
The OSHA 300 Log is designed to be a scannable document that employers, 
employees and government representatives can use to review a fairly 
large number of cases in a brief time, and OSHA believes that employers 
will not need more than two lines to describe a given case. Employers 
should enter more detailed information about each case on the OSHA 301 
form, which is designed to accommodate lengthier information.
Deadline for Entering a Case
    Paragraph 1904.29(b)(3) establishes the requirement for how quickly 
each recordable injury or illness must be recorded into the records. It 
states that the employer must enter each case on the OSHA 300 Log and 
OSHA 301 Form within 7 calendar days of receiving information that a 
recordable injury or illness has occurred. In the vast majority of 
cases, employers know immediately or within a short time that a 
recordable case has occurred. In a few cases, however, it may be 
several days before the employer is informed that an employee's injury 
or illness meets one or more of the recording criteria.
    The former recordkeeping rule required each injury or illness to be 
entered on the OSHA Log and Summary no later than six working days 
after the employer received information about the case. OSHA proposed 
to change this interval to 7 calendar days. Several commenters agreed 
that allowing 7 calendar days would simplify the reporting time 
requirement and reduce confusion for employers (see, e.g., Exs. 36; 15: 
9, 36, 65, 107, 154, 179, 181, 203, 332, 369, 387). Other commenters 
(see, e.g., Exs. 15: 46, 60, 82, 89, 184, 204, 225, 230, 239, 283, 288, 
305, 348, 375, 390, 346, 347, 348, 358, 389, 409, 423, 424, 431) 
objected to the proposed 7 calendar-day requirement, principally on the 
grounds that the proposed 7 calendar-day time limit would actually be 
shorter than the former rule's 6 working-day limit in some situations, 
such as if a long holiday weekend intervened (see, e.g., Exs. 15: 9, 
60, 230, 272, 375).
    One commenter urged OSHA to adopt a 21-day period because 
conducting a thorough investigation to determine whether a case is 
work-related or a recurrence of an old case can sometimes take longer 
than 7 or even 10 days (Ex. 15: 184). In the final rule, OSHA is 
adopting a 7 calendar-day time limit for the recording of an injury or 
illness that meets the rule's recording criteria. For many employers, 
the 7 day calendar period will be longer than the former 6 working day 
period. Although it is true that, in other cases, a 7 calendar-day 
limit may be slightly shorter than the former rule's 6 working-day 
limit, the Agency believes that the 7 calendar-day rule will provide 
employers sufficient time to receive information and record the case. 
In addition, a simple ``within a week'' rule will be easier for 
employers to remember and apply, and is consistent with OSHA's 
decision, in this rule, to move from workdays to calendar days whenever 
possible. The Agency believes that 7 calendar days is ample time for 
recording, particularly since the final rule, like the former rule, 
allows employers to revise an entry simply by lining it out or amending 
it if further information justifying the revision becomes available. 
The final rule does contain one exception for the 7 day recording 
period: if an employee experiences a recordable hearing loss, and the 
employer elects to retest the employee's hearing within 30 days, the 
employer can wait for the results of the retest before recording.
Equivalent Forms and Computerized Records
    Commenters were unanimous in urging OSHA to facilitate the use of 
computers and to allow the use of alternative forms in OSHA 
recordkeeping (see, e.g., Exs. 21, 22, 15:9, 11, 45, 72, 95, 111, 184, 
262, 271, 288, 305, 318, 341, 346, 389, 390, 396, 405, 424, 434, 438). 
The comments of the U.S. West Company (Ex. 15:184) are representative 
of these views:

    U S WEST strongly supports provisions in the proposed rule that 
allow ``equivalent'' forms instead of the OSHA Forms 300 and 301. U 
S WEST also supports the provisions that would allow use of data 
processing equipment and computer printouts of equivalent forms. 
These provisions allow employers considerable flexibility and 
greatly reduced paperwork burdens and costs, especially for larger 
multi-site employers.

    Accordingly, paragraphs 1904.29(b)(4) and (b)(5) of the final rule 
make clear that employers are permitted to record the required 
information on electronic media or on paper forms that are different 
from the OSHA 300 Log, provided that the electronic record or paper 
forms are equivalent to the OSHA 300 Log. A form is deemed to be 
``equivalent'' to the OSHA 300 Log if it can be read and understood as 
easily as the OSHA form and contains at least as much information as 
the OSHA 300 Log. In addition, the equivalent form must be completed in 
accordance with the instructions used to complete the OSHA 300 Log. 
These provisions are intended to balance OSHA's obligation, as set 
forth in Section 8(d) of the OSH Act, to reduce information collection 
burdens on employers as much as possible, on the one hand, with the 
need, on the other hand, to maintain uniformity of the data recorded 
and provide employers flexibility in meeting OSHA's recordkeeping 
requirements. These provisions also help to achieve one of OSHA's goals 
for this rulemaking: to allow employers to take full advantage of 
modern technology and computers to meet their OSHA recordkeeping 
obligations.
    Several commenters were concerned that computerized records would 
make it more difficult for employees to access the records (see, e.g., 
Exs. 15:379, 380, 418, 438). Representative of these views is a comment 
from the United Auto Workers (UAW):

    Electronic data collection is an essential step to moving 
forward, especially regarding data analysis for large worksites. 
However, as it works today electronic collection can also be an 
obstacle to prompt availability to persons without direct access to 
the computer system. For this reason, OSHA should require the 
availability of electronic information to employees and employee 
representatives in the same time interval as hard copy information, 
regardless of whether the computer system is maintained at the site 
(Ex. 15: 438).

    OSHA does not believe that computerization of the records will 
compromise timely employee, employer or government representative 
access to the records. To ensure that this is the case, paragraph 
Sec. 1904.29(b)(5) of the final rule allows the employer to keep 
records on computer equipment only if the computer system can produce 
paper copies of equivalent forms when access to them is needed by a 
government representative, an employee or former employee, or an 
employee representative, as required by Secs. 1904.35 or 1904.40, 
respectively. Of course, if the employee requesting access to the 
information agrees to receive it by e-mail, this is acceptable under 
the 1904 rule.
    OSHA also proposed specifically to require that, on any equivalent 
form, three of the questions on the form asking for details of the 
injury or illness

[[Page 6024]]

(proposed questions 16, 17, and 18) be positioned on the form in the 
same order and be phrased in identical language to that used on the 
OSHA 301 Incident Report. The three questions were all designed to 
obtain more detailed information about how the injury or illness 
occurred, what equipment or materials the employee was using at the 
time of the injury or illness, and the activity the employee was 
engaged in at the time of the injury or illness.
    A number of commenters objected to the proposed requirement that, 
on any equivalent form, these three questions be asked in the same 
order and be phrased in the same language as on the OSHA Incident 
Report (see, e.g., Exs. 33; 37; 15: 9, 41, 44, 59, 60, 119, 132, 156, 
176, 201, 231, 281, 283, 301, 312, 318, 322, 329, 334, 335, 346). In 
addition to arguing that such a requirement would be burdensome and 
prescriptive, these commenters pointed out that the proposed OSHA 
recordkeeping form was not identical to many State workers' 
compensation forms (the forms most often used as alternatives to the 
OSHA forms), which would mean that employers in these States would, in 
effect, be forced to use the OSHA forms (Ex. 15: 334). Other commenters 
argued that being required to use a certain format would hamper 
employers' internal accident investigations (see, e.g., Exs. 15: 44, 
176, 322). For example, the Kodak Company remarked:

    In [proposed] section 1904.5(b)(2)--``Questions 16, 17 & 18 must 
be asked in the same order and using identical language from the 
Form 301.'' Companies, like Kodak, have well established techniques 
to ascertain the cause of the injury and illness. This requirement 
would actually hamper our ability to find the root cause of an 
accident. This requirement should be eliminated from the rule. (Ex. 
15: 322)

    The final rule does not include a requirement that certain 
questions on an equivalent form be asked in the same order and be 
phrased in language identical to that used on the OSHA 301 form. 
Instead, OSHA has decided, based on a review of the record evidence, 
that employers may use any substitute form that contains the same 
information and follows the same recording directions as the OSHA 301 
form, and the final rule clearly allows this. Although the consistency 
of the data on the OSHA 301 form might be improved somewhat if the 
questions asking for further details were phrased and positioned in an 
identical way on all employers' forms, OSHA has concluded that the 
additional burden such a requirement would impose on employers and 
workers' compensation agencies outweighs this consideration.
    OSHA has revised the wording of these three questions on the final 
OSHA 301 form to match the phraseology used by the Bureau of Labor 
Statistics (BLS) in its Annual Survey of Occupational Injuries and 
Illnesses. By ensuring consistency across both the BLS and OSHA forms, 
this change will help those employers who respond both to the BLS 
Annual Survey and keep OSHA records.
Handling of Privacy Concern Cases
    Paragraphs 1904.29(b)(6) through (b)(10) of the final rule are new 
and are designed to address privacy concerns raised by many commenters 
to the record. Paragraph 1904.29(b)(6) requires the employer to 
withhold the injured or ill employee's name from the OSHA 300 Log for 
injuries and illnesses defined by the rule as ``privacy concern cases'' 
and instead to enter ``privacy concern case'' in the space where the 
employee's name would normally be entered if an injury or illness 
meeting the definition of a privacy concern case occurs. This approach 
will allow the employer to provide OSHA 300 Log data to employees, 
former employees and employee representatives, as required by 
Sec. 1904.35, while at the same time protecting the privacy of workers 
who have experienced occupational injuries and illnesses that raise 
privacy concerns. The employer must also keep a separate, confidential 
list of these privacy concern cases, and the list must include the 
employee's name and the case number from the OSHA 300 Log. This 
separate listing is needed to allow a government representative to 
obtain the employee's name during a workplace inspection in case 
further investigation is warranted and to assist employers to keep 
track of such cases in the event that future revisions to the entry 
become necessary.
    Paragraph 1904.29(b)(7) defines ``privacy concern cases'' as those 
involving: (i) An injury or illness to an intimate body part or the 
reproductive system; (ii) an injury or illness resulting from a sexual 
assault; (iii) a mental illness; (iv) a work-related HIV infection, 
hepatitis case, or tuberculosis case; (v) needlestick injuries and cuts 
from sharp objects that are contaminated with another person's blood or 
other potentially infectious material, or (vi) any other illness, if 
the employee independently and voluntarily requests that his or her 
name not be entered on the log. Paragraph 1904.29(b)(8) establishes 
that these are the only types of occupational injuries and illnesses 
that the employer may consider privacy concern cases for recordkeeping 
purposes.
    Paragraph 1904.29(b)(9) permits employers discretion in recording 
case information if the employer believes that doing so could 
compromise the privacy of the employee's identity, even though the 
employee's name has not been entered. This clause has been added 
because OSHA recognizes that, for specific situations, coworkers who 
are allowed to access the log may be able to deduce the identity of the 
injured or ill worker and obtain innapropriate knowledge of a privacy-
sensitive injury or illness. OSHA believes that these situations are 
relatively infrequent, but still exist. For example, if knowing the 
department in which the employee works would inadvertently divulge the 
person's identity, or recording the gender of the injured employee 
would identifying that person (because, for example, only one woman 
works at the plant), the employer has discretion to mask or withhold 
this information both on the Log and Incident Report.
    The rule requires the employer to enter enough information to 
identify the cause of the incident and the general severity of the 
injury or illness, but allows the employer to exclude details of an 
intimate or private nature. The rule includes two examples; a sexual 
assault case could be described simply as ``injury from assault,'' or 
an injury to a reproductive organ could be described as ``lower 
abdominal injury.'' Likewise, a work-related diagnosis of post 
traumatic stress disorder could be described as ``emotional 
difficulty.'' Reproductive disorders, certain cancers, contagious 
diseases and other disorders that are intimate and private in nature 
may also be described in a general way to avoid privacy concerns. This 
allows the employer to avoid overly graphic descriptions that may be 
offensive, without sacrificing the descriptive value of the recorded 
information.
    Paragraph 1904.29(b)(10) protects employee privacy if the employer 
decides voluntarily to disclose the OSHA 300 and 301 forms to persons 
other than those who have a mandatory right of access under the final 
rule. The paragraph requires the employer to remove or hide employees' 
names or other personally identifying information before disclosing the 
forms to persons other than government representatives, employees, 
former employees or authorized representatives, as required by 
paragraphs 1904.40 and 1904.35, except in three cases. The employer may 
disclose the forms, complete with personally identifying information, 
(2) only: (i) to an auditor or consultant

[[Page 6025]]

hired by the employer to evaluate the safety and health program; (ii) 
to the extent necessary for processing a claim for workers' 
compensation or other insurance benefits; or (iii) to a public health 
authority or law enforcement agency for uses and disclosures for which 
consent , an authorization, or opportunity to agree or object is not 
required under section 164.512 of the final rule on Standards for 
Privacy of Individually Identifiable Health Information, 45 CFR 
164.512.
    These requirements have been included in Sec. 1904.29 rather than 
in Sec. 1904.35, which establishes requirements for records access, 
because waiting until access is requested to remove identifying 
information from the OSHA 300 Log could unwittingly compromise the 
injured or ill worker's privacy and result in unnecessary delays. The 
final rule's overall approach to handling privacy issues is discussed 
more fully in the preamble discussion of the employee access provisions 
in Sec. 1904.35.

The Treatment of Occupational Illness and Injury Data on the Forms

    The treatment of occupational injury and illness data on the OSHA 
forms is a key issue in this rulemaking. Although the forms themselves 
are not printed in the Code of Federal Regulations (CFR), they are the 
method OSHA's recordkeeping regulation uses to meet the Agency's goal 
of tracking and reporting occupational injury and illness data. As 
such, the forms are a central component of the recordkeeping system and 
mirror the requirements of the Part 1904 regulation. The final Part 
1904 rule requires employers to use three forms to track occupational 
injuries and illnesses: the OSHA 300, 300A, and 301 forms, which 
replace the OSHA 200 and 101 forms called for under the former 
recordkeeping rule, as follows:
    1. The OSHA Form 300, Log of Work-Related Injuries and Illnesses, 
replaces the Log portion of the former OSHA Form 200 Log and Summary of 
Occupational Injuries and Illnesses. The OSHA 300 Log contains space 
for a description of the establishment name, city and state, followed 
by a one-line space for the entry for each recordable injury and 
illness.
    2. The OSHA Form 300A, Summary of Work-Related Injuries and 
Illnesses, replaces the Summary portion of the former OSHA Form 200 Log 
and Summary of Occupational Injuries and Illnesses. The Form 300A is 
used to summarize the entries from the Form 300 Log at the end of the 
year and is then posted from February 1 through April 30 of the 
following year so that employees can be aware of the occupational 
injury and illness experience of the establishment in which they work. 
The form contains space for entries for each of the columns from the 
Form 300, along with information about the establishment, and the 
average number of employees who worked there the previous year, and the 
recordkeeper's and corporate officer's certification of the accuracy of 
the data recorded on the summary. (These requirements are addressed 
further in Section 1904.32 of the final rule and its associated 
preamble.)
    3. The OSHA Form 301, Injury and Illness Report, replaces the 
former OSHA 101 Form. Covered employers are required to fill out a one-
page form for each injury and illness recorded on the Form 300. The 
form contains space for more detailed information about the injured or 
ill employee, the physician or other health care professional who cared 
for the employee (if medical treatment was necessary), the treatment 
(if any) of the employee at an emergency room or hospital, and 
descriptive information telling what the employee was doing when 
injured or ill, how the incident occurred, the specific details of the 
injury or illness, and the object or substance that harmed the 
employee. (Most employers use a workers' compensation form as a 
replacement for the OSHA 301 Incident Report.)
    The use of a three-form system for recordkeeping is not a new 
concept. The OSHA recordkeeping system used a separate summary form 
from 1972 to 1977, when the Log and Summary forms were combined into 
the former OSHA Form 200 (42 FR 65165). OSHA has decided that the 
three-form system (the 300 Log, the 300A summary, and the 301 Incident 
Report) has several advantages. First, it provides space for more cases 
to be entered on the Log but keeps the Log to a manageable size. 
Second, it helps to ensure that an injured or ill employee's name is 
not posted in a public place. When the forms were combined in 1977 into 
a single form, employers occasionally neglected to shield an employee's 
name on the final sheet of the 200 Log, even though the annual summary 
form was designed to mask personal identifiers. The use of a separate 
300A summary form precludes this possibility. Third, the use of a 
separate summary form (the final rule's Form 300A) allows the data to 
be posted in a user-friendly format that will be easy for employees and 
employers to use. Fourth, a separate 300A Form provides extra space for 
information about an employee's right to access the Log, information 
about the establishment and its employees, and the dual certifications 
required by Sec. 1904.32 of the rule. Finally, a separate 300A Form 
makes it easier to attach to the reverse side of the form worksheets 
that are designed to help the employer calculate the average number of 
employees and hours worked by all employees during the year.
    The majority of the changes to the final forms (compared with the 
forms used with the former rule and the proposed forms) have been made 
to reflect the requirements of the final rule and are needed to align 
the forms with the final regulatory requirements. All of the other 
changes to the forms reflect formatting and editorial changes made to 
simplify the forms, make them easier to understand and complete, and 
facilitate use of the data. The forms have been incorporated into an 
information package that provides individual employers with several 
copies of the OSHA 300, 300A, and 301 forms; general instructions for 
filling out the forms and definitions of key terms; an example showing 
how to fill out the 300 Log; a worksheet to assist employers in 
computing the average number of employees and the total number of hours 
worked by employees at the establishment in the previous year; a non-
mandatory worksheet to help the employer compute an occupational injury 
and illness rate; and instructions telling an employer how to get 
additional help by (1) accessing the OSHA Internet home page, or (2) by 
calling the appropriate Federal OSHA regional office or the OSHA 
approved State-Plan with jurisdiction. The package is included in final 
rule Section VI, Forms, later in this preamble.

The Size of the OSHA Recordkeeping Forms

    The OSHA recordkeeping forms required by the final Part 1904 
recordkeeping rule are printed on legal size paper (8\1/2\" x 14"). The 
former rule's Log was an 11 by 17-inch form, the equivalent of two 
standard 8\1/2\ by 11-inch pages. The former 200 Log was criticized 
because it was unwieldy to copy and file and contained 12 columns for 
recording occupational injury and occupational illness cases. The 
proposed OSHA 300 Log and Summary would have fit on a single 8\1/2\ by 
11-inch sheet of paper (61 FR 4050), a change that would have been made 
possible by the proposed elimination of redundancies on the former 200 
Log and of certain data elements that provided counts of restricted 
workdays and separate data on occupational injury and illness cases. 
The proposed OSHA 300 Form was favorably received by a

[[Page 6026]]

large number of commenters (see, e.g., Exs. 19, 44, 15: 48, 157, 246, 
307, 347, 351, 373, 374, 378, 384, 391, 395, 396, 427, 434, 441, 443). 
For example, the National Association of Plumbing-Heating-Cooling 
Contractors (NAPHCC) stated:

    NAPHCC applauds the Agency's efforts to simplify the Injury and 
Illness Log and Summary in the form of a new Form 300 and Form 301. 
Employers will be more comfortable with the one-page forms--they 
appear less ominous than the oversized 200 Form and therefore have a 
better chance of being completed in a timely and accurate manner 
(Ex. 15: 443, p. 6).

    A number of commenters were concerned that proposed the 300 form 
would fail to capture important data and argued that the former Log 
should be retained (see, e.g., Exs. 15:15, 47, 283, 369, 429, 438). The 
primary argument of this group of commenters was that the size of the 
form should not determine which data elements were included on the Log 
and which were not. The comment of the International Union, United 
Automobile, Aerospace & Agricultural Implement Workers of America--UAW 
summed up this position: ``The UAW uses this data on a yearly basis 
when it becomes available at the national level, and on a daily basis 
at the plant level. Compared to the value of the summary data and data 
series, the goal of reducing the size of the form to something easily 
Xeroxed is silly'' (Ex. 15: 438, p. 2). The International Brotherhood 
of Teamsters commented ``OSHA believes the change results in a 
simplified form that fits on a standard sheet of paper that can be 
easily copied and kept on a personal computer. * * * The storage 
capacity of an additional page in a personal computer is hardly 
burdensome. The amount of information that can be collected should 
always be need based, and never be limited to what an 8\1/2\" x 11" 
sheet of paper can hold'' (Ex. 15: 369, p. 49).
    OSHA agrees that the proposed Log would have resulted in a 
significant loss of useful data and has therefore maintained several 
data fields on the final OSHA 300 Log to capture counts of restricted 
work days and collect separate data on occupational injuries and 
several types of occupational illness. However, there is a limit to the 
information that can be collected by any one form. OSHA wishes to 
continue to make it possible for those employers, especially smaller 
employers, who wish to keep records in paper form to do so. It is also 
important that the Log be user-friendly, easily copied and filed, and 
otherwise manageable. Although a form 8\1/2\ x 11 inches in size would 
be even easier to manage, OSHA has concluded that a form of that size 
is too small to accommodate the data fields required for complete and 
accurate reporting.
    Accordingly, OSHA has redesigned the OSHA 300 Log to fit on a legal 
size (8\1/2\ x 14 inches) piece of paper and to clarify that employers 
may use two lines to enter a case if the information does not fit 
easily on one line. The OSHA forms 300A and 301, and the remainder of 
the recordkeeping package, have also been designed to fit on the same-
size paper as the OSHA 300 Log. For those employers who use 
computerized systems (where handwriting space is not as important) 
equivalent computer-generated forms can be printed out on 8\1/2\ x 11 
sheets of paper if the printed copies are legible and are as readable 
as the OSHA forms.
    Commenters raised four major issues concerning the OSHA 300 Log: 
(1) Defining lost workdays (discussed below); (2) collecting separate 
data on occupational injury and occupational illness (discussed below); 
(3) collecting separate data on musculoskeletal disorders (discussed 
below and in the summary and explanation associated with Sec. 1904.12; 
and (4) recurrences (discussed in the summary and explanation 
associated with Sec. 1904.6, Determination of new cases). In addition, 
commenters raised numerous minor issues concerning the 300 Log data 
elements and forms design; these are discussed later in this section.

Defining Lost Workdays

    OSHA proposed to eliminate the term ``lost workdays,'' by replacing 
it with ``days away from work'' (61 FR 4033). The OSHA recordkeeping 
system has historically defined lost workdays as including both days 
away from work and days of restricted work activity, and the 
Recordkeeping Guidelines discussed how to properly record lost workday 
cases with days away from work and lost workday cases with days of 
restricted work activity (Ex. 2, p. 47, 48). However, many use the term 
``lost workday'' in a manner that is synonymous with ``day away from 
work,'' and the term has been used inconsistently for many years. Many 
commenters on the proposal agreed that the term ``lost workday'' should 
be deleted from the forms and the recordkeeping system because of this 
confusion (see, e.g., Exs. 33; 37; 15: 9, 26, 69, 70, 105, 107, 136, 
137, 141, 146, 176, 184, 204, 224, 231, 266, 271, 272, 273, 278, 281, 
287, 288, 301, 303, 305, 347, 384, 414, 428). The Akzo Nobel Chemicals 
Company (Ex. 37) simply commented ``[a] big ATTA BOY for removing 
restricted work cases from under the lost time umbrella. They never 
really belonged there.'' William K. Principe of the law firm of 
Constangy, Brooks & Smith, LLC, stated that:

    The elimination of the term ``lost work days'' is a good idea, 
because its use under the existing recordkeeping regulations has 
been confusing. Recordkeepers have equated ``lost work days'' with 
``days away from work,'' but have not thought that ``lost work 
days'' included days of ``restricted work activity.'' Thus, the 
elimination of ``lost work days'' will result in more understandable 
terminology.

    The Hoffman-La Roche, Inc. company agreed with OSHA's proposal to 
eliminate the term lost workdays from the system, stating that ``[t]he 
term ``lost workdays'' is confusing and does not clearly define whether 
the case involved days away from work or restricted days. However, the 
term ``lost workday case'' still has a place in defining a case that 
has either days away from work or restricted days.'' The Jewel Coal and 
Coke Company (Ex. 15: 281) remarked that:

    [w]e believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness 
of the injury or illness. However, we believe that restricted work 
duty injuries/illnesses should be placed in a separate category from 
days away from work and should not be considered as serious as 
accidents with days away from work but are in fact more serious than 
first Aid cases or other medically reportable cases. We believe that 
the listing of the date of return of the employee to full work 
activities may very well have it's place on the OSHA Form 301 or 
other supplemental forms.

    In the final rule, OSHA has eliminated the term ``lost workdays'' 
on the forms and in the regulatory text. The use of the term has been 
confusing for many years because many people equated the terms ``lost 
workday'' with ``days away from work'' and failed to recognize that the 
former OSHA term included restricted days. OSHA finds that deleting 
this term from the final rule and the forms will improve clarity and 
the consistency of the data.
    The 300 Log has four check boxes to be used to classify the case: 
death, day(s) away from work, days of restricted work or job transfer; 
and case meeting other recording criteria. The employer must check the 
single box that reflects the most severe outcome associated with a 
given injury or illness. Thus, for an injury or illness where the 
injured worker first stayed home to recuperate and then was assigned to 
restricted work for several days, the employer is required only to 
check the box for days away from work (column I). For a case with only 
job transfer or restriction, the employer must check the

[[Page 6027]]

box for days of restricted work or job transfer (Column H). However, 
the final Log still allows employers to calculate the incidence rate 
formerly referred to as a ``lost workday injury and illness rate'' 
despite the fact that it separates the data formerly captured under 
this heading into two separate categories. Because the OSHA Form 300 
has separate check boxes for days away from work cases and cases where 
the employee remained at work but was temporarily transferred to 
another job or assigned to restricted duty, it is easy to add the 
totals from these two columns together to obtain a single total to use 
in calculating an injury and illness incidence rate for total days away 
from work and restricted work cases.

Counting Days of Restricted Work or Job Transfer

    Although the final rule does not use the term ``lost workday'' 
(which formerly applied both to days away from work and days of 
restricted or transferred work), the rule continues OSHA's longstanding 
practice of requiring employers to keep track of the number of days on 
which an employee is placed on restricted work or is on job transfer 
because of an injury or illness. OSHA proposed to eliminate the 
counting of the number of days of restricted work from the proposed 300 
Log (61 FR 4046). The proposal also asked whether the elimination of 
the restricted work day count would 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 (61 FR 4046).
    A large number of commenters supported OSHA's proposal to eliminate 
the counting of restricted work days (see, e.g., Exs. 21; 26; 27; 28; 
33; 37; 51; 15: 9, 19, 26, 39, 44, 60, 65, 67, 69, 70, 76, 79, 82, 83, 
85, 87, 100, 105, 107, 111, 119, 121, 123, 136, 137, 141, 145, 146, 
154, 156, 159, 170, 171, 173, 176, 184, 188, 194, 199, 203, 204, 205, 
218, 224, 225, 229, 230, 231, 234, 235, 239, 246, 247, 260, 262, 265, 
266, 271, 272, 273, 278, 281, 283, 287, 288, 289, 298, 301, 303, 304, 
305, 307, 317, 321, 332, 334, 336, 337, 341, 345, 346, 347, 351, 364, 
368, 373, 384, 390, 391, 392, 401, 405, 409, 413, 414, 423, 424, 426, 
427, 428, 430, 434, 437, 440, 442). For example, the Union Carbide 
Corporation (Ex. 15: 391) argued that their:

    [e]xperience with tracking lost or restricted workdays the way 
it is being done today indicates that it is fruitless. The interest 
is in the number of lost workday or restricted workday cases with 
only minor attention being given to the number of days involved. 
Elimination of the term ``lost workdays'' in regard to restricted 
workdays would surely be a step in the direction of simplicity and 
focus. The severity of an injury/illness is more clearly indicated 
by the number of days away from work than by any other means. The 
inclusion of cases involving restricted work only clouds the issue.

    The Monsanto Corporation (Ex. 28) urged the Agency to do away with 
all day counts, noting that Monsanto:

    [u]ses the recordable case as the basis of our performance 
measurement system. We measure the number of days away and 
restricted but rarely look at them. We agree that OSHA should 
eliminate the number of days of restricted work from the 
requirements but we would also delete the number of days away as 
well. While the number of days are some measure of ``severity'', we 
think a better and simpler measure is just the cases rate for 
fatalities and/or days away cases.

    The commenters who argued for eliminating the counting of 
restricted workdays offered several reasons: (1) Doing away with the 
counting would simplify the recordkeeping system and reduce burden on 
employers (see, e.g., Exs. 33; 15: 69, 105, 136, 137, 141, 146, 156, 
176, 184, 188, 203, 224, 231, 239, 266, 272, 273, 278, 288, 289, 301, 
303, 304, 336, 337, 345, 346, 347, 390, 391, 409, 424, 426, 428, 430, 
442); (2) eliminating the day counts would make it easier to 
computerize the records (see, e.g., Exs. 15: 136, 137, 141, 224, 266, 
278); (3) limiting counts of restricted work would match workers' 
compensation insurance requirements, which typically count only days 
away from work (see, e.g., Exs. 15: 225, 336); (4) counts of restricted 
work have little or no value (see, e.g., Exs. 21; 15: 65, 105, 119, 
154, 170, 203, 205, 235, 260, 262, 265, 332, 347, 391, 401, 405, 409, 
430); (5) restricted workday counts are not used in safety and health 
programs and their evaluation (see, e.g., Exs. 15: 65, 119, 154, 159, 
194, 239, 271, 347, 409, 426, 428); (6) restricted workday counts are 
not a good measure of injury and illness severity (see, e.g., Exs. 15: 
336, 345); and (7) restricted workday counts are not a uniform or 
consistent measure (see, e.g., Exs. 15: 235, 288, 289, 347, 409, 442).
    For example, the National Grain and Feed Association (Ex. 15: 119) 
argued that ``[t]here is no evidence that the current restricted work 
activity day counts are being used in safety and health programs and 
there is no purpose in continuing the restricted work activity count 
requirement.'' The Tennessee Valley Authority (Ex. 15: 235) argued that 
``[o]nly days away from work or death should be recorded on the 300 
log. Recording of restricted work-day cases is difficult to 
consistently record, thereby, not providing a good data base for 
comparison.''
    However, a number of commenters opposed the proposal to eliminate 
the counting of restricted days (see, e.g., Exs. 35; 15: 31, 34, 41, 
61, 72, 74, 181, 186, 281, 310, 350, 359, 369, 371, 380, 438). For 
example, Linda Ballas & Associates (Ex. 15: 31) argued that:

    [r]estricted work days should be counted. A restricted case with 
1 restricted day would be less severe than a restricted work case 
with 30 days. The elimination of the restricted work activity day 
count will 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.* * *

    Most of these commenters argued that restricted work day data are 
needed to gauge the severity of an occupational injury or illness (see, 
e.g., Exs. 15: 31, 34, 41, 181, 186, 310, 369, 371, 438) or that such 
data are a measure of lost productivity (see, e.g., Exs. 15: 41, 61, 
281). The American Association of Occupational Health Nurses stated 
that ``[O]SHA should be aware that modifications to recording 
restricted work days will result in the loss of valuable information 
related to the severity of the injuries/illnesses.'' The Jewel Coal and 
Coke Company (Ex. 15: 281) stated that:

    We believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness 
of the injury or illness. However, we believe that restricted work 
duty injuries/illnesses should be placed in a separate category from 
days away from work and should not be considered as serious as 
accidents with days away from work but are in fact more serious than 
first Aid cases or other medically reportable cases.* * *

    The North Carolina Department of Labor (Ex. 15: 186) recommended 
that:

    [r]estricted work day counts as well as lost work day counts can 
be measures of the severity of individual illnesses/injuries. In 
addition through trend analysis lost work day rates and restricted 
work day rates may be calculated by job, department, etc. to 
identify higher risk jobs, departments, etc. and/or measure the 
effectiveness of interventions and progress in the development of a 
comprehensive ergonomics program.

    As to OSHA's question in the proposal about the incentive for 
employers to offer restricted work to employee's in order to avoid 
recording a case with days away from work, a number of commenters 
questioned whether such an incentive exists (see, e.g., Exs. 15: 13, 
26, 27, 39, 79, 136, 137, 141, 156, 181, 199, 218, 224, 229, 242, 263, 
266, 269, 270, 278, 283, 341, 364, 377, 409, 426, 434, 440). For 
example,

[[Page 6028]]

the United Technologies Company (UTC) stated that ``[U]TC does not 
believe that the recording or not recording of restricted days will 
influence management's decision to temporarily assign employees to 
restricted work. The decision to place an employee on restricted work 
is driven by workers' compensation costs rather than OSHA incidence 
rates'' (Ex. 15: 440). The American Textile Manufacturers Association 
(ATMI) agreed:

    [A]TMI believes that this will not 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. The restricted work activity day 
count is in no way related to an employer wanting to avoid having 
days away from work. Workers' compensation claims and, for the most 
part, company safety awards are based on the number of ``lost-time 
accidents.'' The counting of restricted work days has never been an 
incentive or disincentive for these two key employer safety measures 
and ATMI believes that this will not change. (Ex. 15: 156)

    Other commenters, however, believed there could be incentive 
effects (see, e.g., Exs. 15: 13, 31, 74, 111, 359, 369).
    In the final rule, OSHA has decided to require employers to record 
the number of days of restriction or transfer on the OSHA 300 Log. From 
the comments received, and based on OSHA's own experience, the Agency 
finds that counts of restricted days are a useful and needed measure of 
injury and illness severity. OSHA's decision to require the recording 
of restricted and transferred work cases on the Log was also influenced 
by the trend toward restricted work and away from days away from work. 
In a recent article, the BLS noted that occupational injuries and 
illnesses are more likely to result in days of restricted work than was 
the case in the past. From 1978 to 1986, the annual rate in private 
industry for cases involving only restricted work remained constant, at 
0.3 cases per 100 full-time workers. Since 1986, the rate has risen 
steadily to 1.2 cases per 100 workers in 1997, a fourfold increase. At 
the same time, cases with days away from work declined from 3.3 in 1986 
to 2.1 in 1997 (Monthly Labor Review, June 1999, Vol. 122. No. 6, pp. 
11-17). It is clear that employers have caused this shift by modifying 
their return-to-work policies and offering more restricted work 
opportunities to injured or ill employees. Therefore, in order to get 
an accurate picture of the extent of occupational injuries and 
illnesses, it is necessary for the OSHA Log to capture counts of days 
away from work and days of job transfer or restriction.
    The final rule thus carries forward OSHA's longstanding requirement 
for employers to count and record the number of restricted days on the 
OSHA Log. On the Log, restricted work counts are separated from days 
away from work counts, and the term ``lost workday'' is no longer used. 
OSHA believes that the burden on employers of counting these days will 
be reduced somewhat by the simplified definition of restricted work, 
the counting of calendar days rather than work days, capping of the 
counts at 180 days, and allowing the employer to stop counting 
restricted days when the employees job has been permanently modified to 
eliminate the routine job functions being restricted (see the preamble 
discussion for 1904.7 General Recording Criteria).

Separate 300 Log Data on Occupational Injury and Occupational Illness

    OSHA proposed (61 FR 4036-4037) to eliminate any differences in the 
way occupational injuries, as opposed to occupational illnesses, were 
recorded on the forms. The proposed approach would not, as many 
commenters believed, have made it impossible to determine the types and 
number of cases of occupational illnesses at the aggregated national 
level, although it would have eliminated the distinction between 
injuries and illnesses at the individual establishment level. In other 
words, the proposed approach would have involved a coding system that 
the BLS could use to project the incidences of several types of 
occupational illnesses nationally, but would not have permitted 
individual employers to calculate the incidence of illness cases at 
their establishments.
    Many commenters reacted with concern to the proposal to eliminate, 
for recording purposes, the distinction between occupational injuries 
and occupational illnesses, and to delete the columns on the Log used 
to record specific categories of illnesses (see, e.g., Exs. 15: 213, 
288, 359, 369, 407, 418, 429, 438). For example, Con Edison stated that 
``Distinguishing between injuries and illness is a fundamental and 
essential part of recordkeeping'' (Ex. 15: 21), and the National 
Institute for Occupational Safety and Health (NIOSH) discussed the 
potentially detrimental effects on the Nation's occupational injury and 
illness statistics of such a move, stating ``For occupational health 
surveillance purposes * * * NIOSH recommends that entries on the OSHA 
log continue to be categorized separately as illnesses and injuries'' 
(Ex. 15: 407).
    Many commenters also criticized OSHA's proposal to delete from the 
Log the separate columns for 7 categories of occupational illnesses 
(see, e.g., Exs. 20, 35, 15: 27, 283, 371). These commenters pointed 
out that these categories of illnesses have been part of the 
recordkeeping system for many years and that they captured data on 
illness cases in 7 categories: occupational skin diseases or disorders, 
dust diseases of the lungs, respiratory conditions due to toxic agents, 
poisoning (systemic effects of toxic materials), disorders due to 
physical agents, disorders associated with repeated trauma, and all 
other occupational illnesses. Typical of the views of commenters 
concerned about the proposal to delete these columns from the Log was 
the comment of the United Auto Workers: ``OSHA should abandon the plan 
to change the OSHA 200 form to eliminate illness categories. The 
illness categories in the summary presently provide critically 
necessary information about cumulative trauma disorders, and useful 
information about respiratory conditions'' (Ex: 15: 348).
    Several commenters supported the proposed concept of adding a 
single column to the form on which employers would enter illness codes 
that would correspond to the illness conditions listed in proposed 
Appendix B, which could then be decoded by government classifiers to 
project national illness incidence rates for coded conditions (see, 
e.g., Exs. 20, 15: 27, 369, 371). For example, the United Brotherhood 
of Carpenters and Joiners of America stated:

    The UBC would recommend [that].* * * A column should be added 
for an identification code for recordable conditions from Appendix 
B. (Eg. 1 = hearings loss, 2 = CTD's. 3 = blood lead. Etc.) (Ex. 
20).

    After a thorough review of the comments in the record, however, 
OSHA has concluded that the proposed approach, which would have 
eliminated, for recording purposes, the distinction between work-
related injuries and illnesses, is not workable in the final rule. The 
Agency finds that there is a continuing need for separately 
identifiable information on occupational illnesses and injuries, as 
well as on certain specific categories of occupational illnesses. The 
published BLS statistics have included separate estimates of the rate 
and number of occupational injuries and illnesses for many years, as 
well as the rate and number of different types of occupational 
illnesses, and employers, employees, the government, and the public 
have found this information useful and worthwhile. Separate illness

[[Page 6029]]

and injury data are particularly useful at the establishment level, 
where employers and employees can use them to evaluate the 
establishment's health experience and compare it to the national 
experience or to the experience of other employers in their industry or 
their own prior experience. The data are also useful to OSHA personnel 
performing worksite inspections, who can use this information to 
identify potential health hazards at the establishment.
    Under the final rule, the OSHA 300 form has therefore been modified 
specifically to collect information on five types of occupational 
health conditions: musculoskeletal disorders, skin diseases or 
disorders, respiratory conditions, poisoning, and hearing loss. There 
is also an ``all other illness'' column on the Log. To record cases 
falling into one of these categories, the employer simply enters a 
check mark in the appropriate column, which will allow these cases to 
be separately counted to generate establishment-level summary 
information at the end of the year.
    OSHA rejected the option suggested by the UBC and others (see, 
e.g., Exs. 20, 15: 27, 369, 371)--to add a single column that would 
include a code for different types of conditions--because such an 
approach could require employers to scan and separately tally entries 
from the column to determine the total number of each kind of illness 
case, an additional step that OSHA believes would be unduly burdensome. 
Because the scanning and tallying are complex, this approach also would 
be likely to result in computational errors.
    In the final rule, two of the illness case columns on the OSHA 300 
Log are identical to those on the former OSHA Log: a column to capture 
cases of skin diseases or disorders and one to capture cases of 
systemic poisoning. The single column for respiratory conditions on the 
new OSHA Form 300 will capture data on respiratory conditions that were 
formerly captured in two separate columns, i.e., the columns for 
respiratory conditions due to toxic agents (formerly column 7c) and for 
dust diseases of the lungs (formerly column 7b). Column 7g of the 
former OSHA Log provided space for data on all other occupational 
illnesses, and that column has also been continued on the new OSHA 300 
Log. On the other hand, column 7e from the former OSHA Log, which 
captured cases of disorders due to physical agents, is not included on 
the new OSHA Log form. The cases recorded in former column 7e primarily 
addressed heat and cold disorders, such as heat stroke and hypothermia; 
hyperbaric effects, such as caisson disease; and the effects of 
radiation, including occupational illnesses caused by x-ray exposure, 
sun exposure and welder's flash. Because space on the form is at a 
premium, and because column 7e was not used extensively in the past 
(recorded column 7e cases accounted only for approximately five percent 
of all occupational illness cases), OSHA has not continued this column 
on the new OSHA 300 Log.
    OSHA has, however, added a new column specifically to capture 
hearing loss cases on the OSHA 300 Log. The former Log included a 
column devoted to repeated trauma cases, which were defined as 
including noise-induced hearing loss cases as well as cases involving a 
variety of other conditions, including certain musculoskeletal 
disorders. Several commenters recommended that separate data be 
collected on hearing loss (see, e.g., Exs. 20, 53X, p.76, 15: 31). 
Dedicating a column to occupational hearing loss cases will provide a 
valuable new source of information on this prevalent and often 
disabling condition. Although precise estimates of the number of noise-
exposed workers vary widely by industry and the definition of noise 
dose used, the EPA estimated in 1981 that about 9 million workers in 
the manufacturing sector alone were occupationally exposed to noise 
levels above 85 dBA. Recent risk estimates suggest that exposure to 
this level of noise over a working lifetime would cause material 
hearing impairment in about 9 percent, or approximately 720,000, U.S. 
workers (NIOSH, 1998). A separate column for occupational hearing loss 
is also appropriate because the BLS occupational injury and illness 
statistics only report detailed injury characteristics information for 
those illness cases that result in days away from work. Because most 
hearing loss cases do not result in time off the job, the extent of 
occupational hearing loss has not previously been accurately reflected 
in the national statistics. By creating a separate column for 
occupational hearing loss cases, and clearly articulating in section 
1904.10 of the final rule the level of hearing loss that must be 
recorded, OSHA believes that the recordkeeping system will, in the 
future, provide accurate estimates of the incidence of work-related 
loss of hearing among America's workers.

Column on the Log for Musculoskeletal Disorders

    Column 7f of the former Log also was intended to capture cases 
involving repetitive motion conditions, such as carpal tunnel syndrome, 
tendinitis, etc. These conditions have been called by many names, 
including repetitive stress injuries, cumulative trauma disorders, and 
overuse injuries. OSHA has decided to include a separate column on the 
Log for musculoskeletal disorders (MSDs), the preferred term for 
injuries and illnesses of the muscles, nerves, tendons, ligaments, 
joints, cartilage and spinal discs, including those of the upper 
extremities, lower extremities, and back. Many MSDs are caused by 
workplace risk factors, such as lifting, repetitive motion, vibration, 
overexertion, contact stress, awkward or static postures, and/or 
excessive force. The repeated trauma column on the former OSHA Log did 
not permit an accurate count of musculoskeletal disorders, both because 
other conditions, such as occupational hearing loss, were included in 
the definition of repeated trauma and because many musculoskeletal 
disorders--including lower back injuries--were excluded. The column was 
limited to disorders classified as illnesses, but OSHA instructed 
employers to record all back cases as injuries rather than illnesses, 
even though back disorders are frequently associated with exposure to 
occupational stresses over time (Ex. 2, p. 38).
    In its proposal, OSHA asked for comment on the need for a separate 
column containing information on musculoskeletal disorder (MSD) cases 
such as low back pain, tendinitis and carpal tunnel syndrome. OSHA 
received numerous comments opposing the addition of an MSD column to 
the Log (see, e.g., Exs. 15: 9, 60, 78, 105, 122, 136, 137, 141, 201, 
218, 221, 224, 266, 278, 305, 308, 318, 346, 395, 397, 406, 414, 430). 
These commenters objected on several grounds: because they believed 
that including such a column would make the forms more complex (Ex. 15: 
414), because the column would have ``no utility'' (Ex. 15: 397), or 
because the column would only capture a small percentage of total MSD 
cases (Ex. 15: 210). Several commenters objected because they believed 
that an MSD column would duplicate information already obtained through 
the case description (see, e.g., Exs. 15: 9, 105, 210, 221, 406). For 
example, the law firm of Ogletree, Deakins, Nash, Smoak & Stewart 
offered comments on behalf of a group of employers known as the ODNSS 
Coalition, remarking that ``The log and system of OSHA recordkeeping 
would not benefit from a separate column for musculoskeletal disorders. 
The proposed rules for recording these disorders are clear, and

[[Page 6030]]

the revisions to the ``case description'' column appearing on the OSHA 
Form 300 provide for the ample identification of the disorders, which 
will enable all interested parties to track and analyze entries of that 
nature'' (Ex. 15: 406). Another group of commenters contended that a 
separate MSD column would result in an inaccurate picture of MSD 
incidence because the numbers recorded would increase as a result of 
the inclusion of lower back MSDs in the cases to be entered in the 
column (see, e.g., Exs. 15: 305, 308, 318, 346). Representative of 
these comments is one from the National Association of Manufacturers 
(NAM):

    Given the over-inclusive definitions of the terms ``work-
related,'' ``injury or illness,'' ``medical treatment'' and ``MSDs'' 
(in Appendix B), and the fact that, for the first time, back 
injuries would be included as MSDs, we strongly objected to that 
idea. Under that approach, the MSD numbers probably would have been 
huge, would have painted a grossly inaccurate and misleading picture 
as to the current prevalence of MSDs, and would have been cited as 
justification for an ergonomics standard. Unless and until those 
deficiencies are completely eliminated, the NAM remains unalterably 
opposed to the inclusion of an MSD column on the OSHA Form 300 (Ex. 
15: 305).

    OSHA also received numerous comments supporting the addition of a 
separate MSD column on the Log (see, e.g., Exs. 35; 15: 32, 156, 371, 
379, 380, 415, 418, 438). For example, the United Food and Commercial 
Workers stated that:

    Of key concern to our membership is the lack of any 
categorization for musculoskeletal disorders (MSD). A major concern 
in meatpacking and poultry plants, our committees will now be forced 
to spend endless hours poring over the logs, reading each individual 
definition and deciding whether it is a MSD. The logs are often hand 
written and xerox copies of these are difficult to read. This is a 
real burden for workers, companies, joint committees and anyone 
using the logs (Ex. 15: 371).

    After a thorough review of the record, and extensive consultation 
with NIOSH and the BLS to establish the need for such statistics, OSHA 
has concluded that including a separate column on the final OSHA 300 
Log for MSD cases is essential to obtain an accurate picture of the MSD 
problem in the United States. In 1997, more than 600,000 MSDs resulting 
in days away from work were reported to the BLS by employers, although 
determining this number has required close cooperation between OSHA and 
the BLS and several ``special runs'' by the BLS (i.e., computer 
analyses performed especially for OSHA) (see on the Internet at ftp://146.142.4.23/pub/special.requests/ocwc/osh/). OSHA believes that such a 
column on the OSHA 300 Log will not only permit more complete and 
accurate reporting of these disorders and provide information on the 
overall incidence of MSDs in the workplace, it will provide a useful 
analytical tool at the establishment level. OSHA recognizes that the 
column will add some complexity to the form, but believes that the 
additional complexity will be more than offset by the fact that all 
recordable MSDs will be captured in a single entry on the Log. Thus, 
the total count of cases in the MSD column will allow employers, 
employees, authorized representatives, and government representatives 
to determine, at a glance, what the incidence of these disorders in the 
establishment is. OSHA does not agree with those commenters who stated 
that entries in the MSD column will duplicate information recorded in 
the injury/illness description; the case description column will 
include additional information, e.g., on the particular type of MSD 
(back strain, carpal tunnel syndrome, wrist pain, tendinitis, etc.).
    OSHA also does not agree with those commenters who argued that 
including a separate column for MSDs would introduce error into the 
national statistics on the incidence of MSDs. The views of these 
commenters are not persuasive because the number of reportable lost-
workday MSDs is already being captured in national statistics, albeit 
under two categories (``injuries'' and ``illnesses'') that are 
difficult to interpret. In response to comments that including a 
separate column on the Log will provide OSHA with ``justification for 
an ergonomics standard,'' the Agency notes that it has already 
developed and proposed an ergonomics standard despite the absence of a 
single MSD column on employers' Logs.

Miscellaneous 300 Form Issues

    The proposed OSHA Form 300 contained a column designated as the 
``Employer Use'' column. Many employers keep two sets of injury and 
illness records; one for OSHA Part 1904 purposes and another for 
internal safety management system purposes. OSHA envisioned that the 
proposed Employer Use column would be used to tailor the Log to meet 
the needs of the establishment's particular safety and health program 
and reduce the practice some employers have adopted of keeping multiple 
sets of occupational injury and illness records for various purposes. 
For example, OSHA envisioned that an employer could enter codes in this 
column to collect data on occupational injuries and illnesses beyond 
what is required by the OSHA Part 1904 regulation, such as the results 
of accident investigations, whether the case was accepted by workers' 
compensation, or whether or not the employee was hospitalized for 
treatment.
    A number of commenters supported the proposed Employer Use column 
(see, e.g., Exs. 15: 87, 136, 137, 141, 170, 224, 266, 278, 359). Some 
stated that employers could utilize the column to identify cases based 
on specific criteria that could be used in their internal safety and 
health evaluations (see, e.g., Exs. 15: 136, 137, 141, 170, 224, 266, 
278, 359). For example, the National Safety Council stated ``The 
Council believes that adding the employer use column to the log will 
effectively reduce the adverse effects of accountability systems. This 
will allow employers to identify cases for which supervisors and 
managers should be held accountable, using company specific criteria'' 
(Ex. 15: 359, p. 14). Another commenter, Kathy Mull, stated ``The 
comment on possible use of the `employer use column' to note cases not 
included in internal safety statistics is a possible mechanism to defer 
pressures on internal performance measures as tied strictly to OSHA 
recordkeeping'' (Ex. 15: 278, p. 4).
    Several commenters opposed the addition to the Log of an Employer 
Use column, however (see, e.g., Exs. 15: 28, 82, 109, 132, 375). Among 
these was the American Petroleum Institute, which stated ``If the 
revised regulation meets API's recommended system objectives, the 
`employer use' column would not be needed. Cases recorded would then be 
credible, reasonable and meaningful to employers, employees (and to 
OSHA). * * * OSHA should consider the employer as the primary user of 
the system'' (Ex. 15: 375A, p. 55). Commenters also expressed concern 
that an Employer Use column could have a negative effect on the use of 
the data. For example, the Sherman Williams Company stated ``It is not 
necessary to provide column j, for ``other'' information that may be 
provided by the employer. It will lead to inconsistent utilization of 
the proposed form. Delete column j of the proposed Form 300'' (Ex. 15: 
132, p. 1).
    Several other commenters argued for the addition of new data 
requirements to the OSHA 300 Log, as follows:

[[Page 6031]]



------------------------------------------------------------------------
          Commenter                Suggested addition to the 300 Log
------------------------------------------------------------------------
G. Neil Companies (Ex. 15:     Information explaining which employers
 29).                           must keep the Log should be added to the
                                form.
Atlantic Dry Dock Corp. (Ex.   A line to carry over the totals from
 15: 179).                      previous page should be added at the top
                                of the form.
Maine Department of Labor      The form should include three columns for
 (Ex. 15: 41).                  case type: a column for days away only,
                                a column for days away and restricted,
                                and a column for restricted only to
                                differentiate the three different types
                                of cases.
Ford Motor Company (Ex. 15:    ``To facilitate identification, Ford
 347).                          proposes that the employee's last four
                                numbers of his or her social security
                                number be included on the OSHA 300 and
                                301 Forms * * * The last four numbers of
                                the social security number will greatly
                                assist in employee identification and at
                                the same time offer some measure of
                                confidentiality.''
American Trucking              ``OSHA should add a new column to the
 Associations (Ex. 15: 397).    proposed OSHA 300 form allowing
                                employers to indicate whether an injury
                                occurred off-site. This recommendation
                                is not novel [ ] the current OSHA 101
                                form asks if the injury or illness
                                occurred on the employer's premises * *
                                * the inclusion of the `off-site' column
                                is crucial in determining which fixed
                                facilities maintain abnormally high
                                rates of workplace injuries/illnesses.
                                In addition, this recommendation
                                furthers the goal of requiring motor
                                carriers to record injuries and
                                illnesses to their employees as well as
                                provides valuable information to OSHA
                                and others regarding the employer's lack
                                of control over the site of the
                                injury.''
------------------------------------------------------------------------

    OSHA has not added the fields or columns suggested by commenters to 
the final 300 or 301 forms because the available space on the form has 
been allocated to other data that OSHA considers more valuable. In 
addition, there is no requirement in the final rule for employers to 
enter any part of an employee's social security number because of the 
special privacy concerns that would be associated with that entry and 
employee access to the forms. However, employers are, of course, free 
to collect additional data on occupational injury and illness beyond 
the data required by the Agency's Part 1904 regulation.

The OSHA 301 Form

    Although the final OSHA 300 Log presents information on injuries 
and illnesses in a condensed format, the final OSHA 301 Incident Record 
allows space for employers to provide more detailed information about 
the affected worker, the injury or illness, the workplace factors 
associated with the accident, and a brief description of how the injury 
or illness occurred. Many employers use an equivalent workers' 
compensation form or internal reporting form for the purpose of 
recording more detailed information on each case, and this practice is 
allowed under paragraph 1904.29(b)(4) of the final rule.
    The OSHA Form 301 differs in several ways from the former OSHA 101 
form it replaces, although much of the information is the same as the 
information on the former 101 Form, although it has been reworded and 
reformatted for clarity and simplicity. The final Form 301 does not 
require the following data items that were included on the former OSHA 
101 to be recorded:

--The employer name and address;
--Employee social security number;
--Employee occupation;
--Department where employee normally works;
--Place of accident;
--Whether the accident occurred on the employer's premises; and
--Name and address of hospital.

    OSHA's reasons for deleting these data items from the final 301 
form is that most are included on the OSHA Form 300 and are therefore 
not necessary on the 301 form. Eliminating duplicate information 
between the two forms decreases the redundancy of the data collected 
and the burden on employers of recording the data twice. The employee 
social security number has been removed for privacy reasons. OSHA 
believes that the information found in several other data fields on the 
301 Form (e.g., the employee's name, address, and date of birth) 
provides sufficient information to identify injured or ill individuals 
while protecting the confidentiality of social security numbers.
    OSHA has also added several items to the OSHA Form 301 that were 
not on the former OSHA No. 101:

--The date the employee was hired;
--The time the employee began work;
--The time the event occurred;
--Whether the employee was treated at an emergency room; and
--Whether the employee was hospitalized overnight as an in-patient (the 
form now requires a check box entry rather than the name and address of 
the hospital).

    OSHA concludes that these data fields will provide safety and 
health professionals and researchers with important information 
regarding the occurrence of occupational injuries and illnesses. The 
questions pertaining to what the employee was doing, how the injury or 
illness occurred, what the injury or illness was, and what object or 
substance was involved have been reworded somewhat from those contained 
on the former OSHA No. 101, but do not require employers or employees 
to provide additional information.

Proposed Form 301

    The proposed OSHA 301 Injury and Illness Incident Record differed 
in minor respects from the former OSHA 101. For example, a number of 
fields would have been eliminated to reduce redundancy between the Log 
and the Incident Report, and several items would have been added to the 
Incident Report to obtain additional information about occupational 
injuries and illnesses. OSHA proposed to add to the Form 301 the 
following:

--The date the employee was hired;
--The time the employee began work;
--The time the event occurred;
--Whether the employee was treated at an emergency room;
--Whether the employee was hospitalized overnight as an in-patient;
--The equipment, materials or chemicals the employee was using when the 
event occurred; and
--The activity the employee was engaged in when the event occurred.

    In addition, the proposed regulation would have required the 
employer to ask several questions (questions 16 through 18) in the same 
order and using the same language as used on the OSHA forms, in order 
to obtain more consistent and accurate data about these data items.
    A number of commenters approved of the proposed Form 301 (see, 
e.g., Exs. 21; 15: 32, 153, 246, 324, 369, 374, 380, 396, 427, 441). 
For example, the International Brotherhood of Teamsters (Ex. 15: 369) 
stated that the union ``[s]upports the [proposed] modifications of the 
OSHA Injury and Illness Incident Record (OSHA Form

[[Page 6032]]

301) to collect more useful information.'' Other commenters preferred 
the former OSHA 101 form and urged OSHA to retain it (see, e.g., Exs. 
15: 47, 48, 122, 242). For example, the Boiling Springs Fire District 
(Ex. 15: 47) opposed any changes to the Log or 101 forms, stating 
``[W]e like the forms we are presently using and feel that the 
information in these forms is adequate. I am a great believer in the 
old saying `if it is not broke--why fix it'?''
    Many of the commenters who specifically addressed the proposed 301 
form were concerned about the privacy implications of providing 
employees, former employees, and employee representatives with access 
to the OSHA 301 forms. These concerns are addressed in detail in the 
section of this summary and explanation associated with section 
1904.35, Employee involvement. Many other commenters were concerned 
with the use of equivalent forms (discussed above) and with the 
requirement to ask certain questions in the same order and using the 
same language (also discussed above). The remaining comments relating 
to the proposed forms are grouped into three categories: comments about 
the proposed case detail questions (proposed questions 9, 10, 16, 17 
and18) and the data they would collect; the other fields OSHA proposed 
to add to the form 101/301; and comments urging the Agency to place 
additional data fields on the 301 form.

Rewording of the Proposed Case Detail Questions (questions 9, 10, 16, 
17, and 18)

    OSHA proposed to include five questions on the final OSHA 301 form 
to gather information about the details of each work-related injury or 
illness case:

--Proposed question 9 asked for information about the specific injury 
or illness (e.g., second degree burn or toxic hepatitis);
--Proposed question 10 asked for information on the body part or parts 
affected (e.g., lower right forearm);
--Proposed question 16 asked for information on all equipment, 
materials or chemicals the employee was using when the event occurred;
--Proposed question 17 asked for information on the specific activity 
the employee was engaged in when the event occurred;
--Proposed question 18 asked for information on how the injury or 
illness occurred, including a description of the sequence of events 
that led up to the incident and the objects or substances that directly 
injured or made the employee ill.

    OSHA received only one comment about the contents of the proposed 
questions: George R. Cook, Jr., of the Hearing Conservation Services 
Company, stated:

    Questions 9, 10, and 16 on the OSHA 301 form should be worded so 
that the combination of the answers to these three questions could 
be used as the answer to Question F. on the OSHA 300. Therefore, if 
a form 301 is filled out in computerized form, that information 
could then be carried over to the form 300 thus eliminating the need 
for duplicate entry (Ex. 15: 188).

    As discussed above, final Form 301 no longer requires the employer 
to include these questions on any equivalent form in the same format or 
language as that used by the OSHA 301 form. However, any employer 
wishing to take the approach suggested by Mr. Cook is free to do so.
    Several commenters objected to proposed question 16 and questioned 
why information on all of the materials, equipment or chemicals the 
employee was using when the event occurred was needed (see, e.g., Exs. 
15: 35, 205, 318, 334, 375, 424). For example, the Chocolate 
Manufacturers Association and the National Confectioners Association, 
in a joint comment (Ex. 15: 318, p. 9) , stated:

    [W]e strongly disagree with the approach reflected in Question 
16. We believe the additional information sought by Question 16 (and 
not by Question 18) is irrelevant and would not, in any event, 
justify a second set of reporting forms for every recordable 
incident subject to federal or state OSHA jurisdiction. Requiring a 
listing of ``all'' equipment, materials or chemicals an employee 
might have been using--without regard to whether they contributed to 
the injury or illness--would serve no useful purpose.

    OSHA agrees with this assessment and has not included this question 
from the final 301 form.
    The final form solicits information only on the object or substance 
that directly harmed the employee. The final 301 form contains four 
questions eliciting case detail information (i.e., what was the 
employee doing just before the incident occurred?, what happened?, what 
was the injury or illness?, and what object or substance directly 
harmed the employee?). The language of these questions on the final 301 
form has been modified slightly from that used in the proposed 
questions to be consistent with the language used on the BLS Survey of 
Occupational Injuries and Illnesses collection form. The BLS performed 
extensive testing of the language used in these questions while 
developing its survey form and has subsequently used these questions to 
collect data for many years. The BLS has found that the order in which 
these questions are presented and the wording of the questions on the 
survey form elicit the most complete answers to the relevant questions. 
OSHA believes that using the time-tested language and ordering of these 
four questions will have the same benefits for employers using the OSHA 
Form 301 as they have had for employers responding to the BLS Annual 
Survey. Matching the BLS wording and order will also result in benefits 
for those employers selected to participate in the BLS Annual Survey. 
To complete the BLS survey forms, employers will only need to copy 
information from the OSHA Injury and Illness Incident Report to the BLS 
survey form. This should be easier and less confusing than researching 
and rewording responses to the questions on two separate forms.

The Data Fields OSHA Proposed to Change on the Proposed 301 Form

    Proposed field 5, Date hired. OSHA proposed to add this data field 
to collect additional data about the work experience of the injured or 
ill worker. Such data can be very useful for employers, employees, and 
OSHA because it enables researchers to discover, for example, whether 
newly hired or inexperienced workers experience relatively more 
injuries and illnesses than more experienced workers. Several 
commenters questioned the value of the data OSHA proposed to collect in 
field 5 (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 347, 409). For 
example, Caterpillar Inc. (Ex. 15: 201) recommended that ``[i]tem 5 of 
Form 301 be deleted. The date hired is not a significant factor in 
analyzing injury causation. If any similar data is necessary, it should 
be the time on the current job, which is a better indicator of relative 
job skills or work experience.'' Several commenters asked for 
clarification of the ``date hired'' phrase (see, e.g., Exs. 15: 151, 
152, 179, 180). For example, Atlantic Marine, Inc. (Ex. 15: 180) asked 
``What date shall be recorded as the ``Date Hired'' if an employee is 
laid off, is terminated, or resigns and then is rehired? Should the 
date of initial hire or the date of rehire be recorded?'
    OSHA continues to believe that the data gathered by means of the 
``date hired'' field will have value for analyzing occupational injury 
and illness data and has therefore included this data field on the 
final OSHA 301 form. These data are useful for analyzing the incidence 
of occupational injury and illness among newly hired

[[Page 6033]]

workers and those with longer tenure. OSHA is aware that the data 
collected are not a perfect measure of job experience because, for 
example, an employee may have years of experience doing the same type 
of work for a previous employer, and that prior experience will not be 
captured by this data field. Another case where this data field may 
fail to capture perfect data could occur in the case of an employee who 
has worked for the same employer for many years but was only recently 
reassigned to new duties. Despite cases such as these, inclusion of 
this data field on the Form 301 will allow the Agency to collect valid 
data on length of time on the job for most employment situations.
    For the relatively infrequent situation where employees are hired, 
terminated, and then rehired, the employer can, at his or her 
discretion, enter the date the employee was originally hired, or the 
date of rehire.
    Proposed field 6, Name of health care provider; proposed field 7, 
If treatment off site, facility name and address; and proposed field 8, 
Hospitalized overnight as in-patient? The former OSHA Form 101 included 
similar data fields: former field 18 collected the ``name and address 
of physician,'' while former field 19 collected data on ``if 
hospitalized, name and address of hospital.'' Several commenters 
discussed these data fields and questioned their usefulness for 
analytical purposes (see, e.g., Exs. 15: 95, 151, 152, 179, 180, 347, 
409). The Pacific Maritime Association (Ex. 15: 95) noted the 
difficulty of collecting the data requested by proposed data fields 5, 
6, 7, and 13 as they pertain to longshoremen:

    Items 5, 6, 7, and 13 on the OSHA Form 301 presents problems for 
direct employers of longshoremen. Longshoremen are hired on a daily 
basis, select their own health care provider; may be treated at a 
facility of their choice, and may not return to the same employer 
when returning to work.

    Several commenters asked OSHA to clarify the data that OSHA was 
asking for in these data fields (see, e.g., Exs. 15: 51, 152, 179, 180, 
347, 409). For example, the Ford Motor Company (Ex. 15: 347) asked:

    [I]tem 6, ``Name of health care provider'' is unclear in terms 
of the general instructions. Who is considered the primary health 
care provider? Is it the individual who sees the employee on the 
initial medical visit, the individual who renders the majority of 
care for a case, or the individual who renders care if the employee 
is referred to an off-site provider on the initial visit? We feel 
that the last choice is the correct response. We also question the 
benefit of providing this information. The criteria for OSHA 
recordability focuses on the care provided, and not on the 
individual providing the care.
    Item 7, ``If treated off-site, facility name and address'' 
requires more specific instructions as to when this field must be 
completed. Is this to be completed if the employee is referred to an 
outside provider on the initial visit, or is this to be completed 
should the individual be referred out later in the course of the 
injury or illness? We feel that the former is the correct response. 
We also question the benefit of providing this information.

    OSHA has decided to continue to collect information on final Form 
301 concerning the treatment provided to the employee (proposed data 
field 7). OSHA's experience indicates that employers have not generally 
had difficulty in providing this information, either in the longshoring 
or any other industry. The data in this field is particularly useful to 
an OSHA inspector needing additional information about the medical 
condition of injured or ill employees. (OSHA does not request this 
medical information without first obtaining a medical access order 
under the provisions of 29 CFR part 1913, Rules Concerning OSHA Access 
to Employee Medical Records.) The final OSHA 301 Form therefore 
includes a data field for information on the off-site treating 
facility.
    The final 301 Form also includes a data field requesting the name 
of the health care professional seen by the injured or ill employee. 
The employer may enter the name either of the physician or other health 
care professional who provided the initial treatment or the off-site 
treatment. If OSHA needs additional data on this point, the records of 
the health care professional listed will include both the name of the 
referring physician or other health care professional as well as the 
name of the health care professional to whom the employee was referred 
for specialized treatment.
    Several commenters asked OSHA to collect data on whether a 
hospitalization involved in-patient treatment or was limited to out-
patient treatment (see, e.g., Exs. 15: 151, 152, 179, 180). For 
example, Alabama Shipyard, Inc. recommended ``Instead of asking in 
[proposed] item 8 if an employee is hospitalized overnight as in-
patient, have a check box to record whether the treatment was as an in-
patient or outpatient status'' (Ex. 15: 152). OSHA agrees that the 
additional information suggested by this commenter would be useful, and 
final OSHA Form 301 asks two hospitalization-related questions: Was 
employee treated in an emergency room?, and Was employee hospitalized 
overnight as an in-patient?
    Proposed question 13, date of return to work at full capacity: The 
proposed Injury and Illness Incident Report (Form 301) contained a data 
field requiring the date the employee returned to work at full capacity 
if the case involved restricted work activity or days away from work. 
This field was included to provide information regarding the length of 
time the employee was partially or fully incapacitated by the injury or 
illness. However, because the final rule requires employers to record 
day counts both for cases involving days away from work and cases 
involving job transfer or restriction (see discussion above), the date 
at which an employee returned to work at full capacity field is no 
longer necessary and does not appear on the final form.
    Proposed questions 14, Time of event and 15, Time employee began 
work: No commenter objected to the inclusion of proposed data field 14, 
Time of event, and only two commenters objected to proposed data field 
15, Time employee began work (see, e.g., Exs. 15: 347, 409). Both of 
these commenters, the Ford Motor Company and the American Automobile 
Manufacturers Association, stated that:

    ``Time employee began work,'' is of questionable benefit. Many 
employees perform a variety of jobs during the day or may have their 
job changed during the day (work added or subtracted). This question 
is burdensome and offers little benefit for data analysis.

    Several commenters discussed the way the proposed form collected 
the new information on the time of the accident (see, e.g., Exs. 15: 
151, 152, 179, 180, 260, 262, 265, 347, 401, 409). Several of these 
commenters suggested that OSHA do away with the am/pm designation and 
use a 24-hour clock instead (see, e.g., Exs. 15: 151, 152, 179, 180). 
The comments of Atlantic Marine (Ex. 15: 152) are representative:

    Change the form from using A.M. or P.M. to using a 24-hour 
clock. A 24-hour clock is much easier to use in drawing conclusions 
on the relationship between injuries/illnesses and the time of day 
that they occurred. OSHA may find that many employers are currently 
using a 24-hour clock system.

    Another group of commenters suggested that OSHA add am/pm boxes the 
employer could simply check off as an easier way to collect the data 
(see, e.g., Exs. 15: 260, 262, 265, 401). For example, the Edison 
Electric Institute (Ex. 15: 401) suggested that ``Questions 14 and 15 
should include a box which can be checked for AM and PM to reduce the 
possibility that this information will be omitted.''

[[Page 6034]]

    OSHA has included on the final 301 form the two questions asking 
for data on the time of the event and the time the employee began work 
so that employers, employees and the government can obtain information 
on the role fatigue plays in occupational injuries and illness. Both 
questions (i.e., on time of event and time employee began work) must be 
included to conduct this analysis. Thus, OSHA has included both fields 
on the final Form 301. In addition, the form has been designed so that 
the employer can simply circle the a.m. or p.m. designation. OSHA 
believes that this approach will provide the simplest, least burdensome 
method for capturing these data, and that using a 24 hour clock system 
would be cumbersome or confusing for most employers.
    Data fields for the name and phone number of the person completing 
the form. Both the former and proposed Incident Report forms included 
fields designed to obtain information on the person who completed the 
form. The former OSHA 101 form asked for the date of report, the name 
of the preparer, and that person's official position. The proposed form 
would have carried forward the name and title of the preparer and the 
date, and added the person's phone number. OSHA received very little 
comment on these proposed data fields. The Ford Motor Company (Ex. 15: 
347) and the American Automobile Manufacturers Association (Ex. 15: 
409) both made the following comment:

    The ``Completed by'' field could be modified to consolidate name 
and title. This would be consistent with the manner in which most 
health care professionals routinely sign their name.
    The ``Phone number required'' item should refer to the medical 
department's number or the general number of the establishment, and 
be included with the establishment's name and address at the top of 
the form. This would decrease the paperwork burden by allowing the 
use of a stamp or a pre-typed format as opposed to completing a 
phone number on each OSHA Form 301.

    The final OSHA Form 301 permits the employer to include the name 
and title in either field, as long as the information is available. As 
to the phone number, the employer may use whatever number is 
appropriate that would allow a government representative accessing the 
data to contact the individual who prepared the form.
    Case File number: The former OSHA 101 form did not include a method 
for linking the OSHA 300 and 301 forms. Any linking had to be 
accomplished via the employee's name, department, occupation, and the 
other information from the forms. OSHA proposed to add a field to the 
OSHA 301 form that would use the same case number as that on the OSHA 
300 form, thus making it easier for employers, employees and government 
representatives to match the data from the two forms. Two commenters 
objected to the addition of such a case file number (Exs. 15: 217, 
334). The American Forest & Paper Association (AF&PA) argued:

    Another issue of concern to AF&PA is the requirement for a 
unique case or file number on the Form 300 and Form 301 to 
facilitate cross-referencing between the forms. We believe there is 
sufficient data (employee name, date of birth, date of injury) on 
all existing state First Report of Injury forms to readily cross-
reference the First Report to the entry on the Form 300. A uniform 
requirement for employers to create an indexing system would serve 
no useful purpose. Furthermore, it would be unduly burdensome for 
many affected companies except in those cases when there is a reason 
to maintain the confidentiality of the affected employee's name (Ex. 
15: 334).

    OSHA continues to believe that easy linkage of the Forms 300 and 
301 will be beneficial to all users of these data. Thus, the final Form 
301 contains a space for the case file number. The file/case number is 
required on both forms to allow persons reviewing the forms to match an 
individual OSHA Form 301 with a specific entry on the OSHA Form 300. 
Access by authorized employee representatives to the information 
contained on the OSHA Form 301 is limited to the information on the 
right side of the form (see Sec. 1904.35(b)(2)(v)(B) of the final 
rule). The case/file number is the data element that makes a link to 
the OSHA Form 300 possible. OSHA believes that this requirement will 
add very little burden to the recordkeeping process, because the OSHA 
Log has always required a unique file or case number. The final Form 
301 requirement simply requires the employer to place the same number 
on the OSHA 301 form.
Suggested Fields
    Commenters submitted suggestions for other data fields that they 
believed should be included on the OSHA Form 301, as follows.

------------------------------------------------------------------------
                                          Suggested addition to the 301
              Commenter(s)                  incident report, and OSHA
                                                     response
------------------------------------------------------------------------
American Industrial Hygiene Association  ``AIHA suggests a corrective
 (AIHA) (Ex. 15: 153).                    action box on the OSHA 301.
                                          This form is often used as an
                                          employer's accident report,
                                          and this would encourage
                                          employers to seek action as
                                          appropriate to prevent
                                          reoccurrence.''
                                         OSHA has not included this
                                          suggested change because the
                                          301 form is not designed to be
                                          an accident investigation
                                          form, but is used to gather
                                          information on occupational
                                          injuries and illnesses.
                                          Corrective actions would thus
                                          not be an appropriate data
                                          field for this form.
(Exs. 15: 179, 180, 151, 152)..........  ``A space is needed for
                                          recording an employee
                                          identification number. This
                                          number is important for
                                          maintaining records. Some
                                          employers use the employee's
                                          social security number, while
                                          others have a unique, employer
                                          generated identifier for each
                                          employee.''
  .....................................  OSHA believes the combination
                                          of other data fields (case
                                          number, employee name, address
                                          and date of birth) provides
                                          the user the ability to
                                          identify individuals when
                                          necessary.
Ogletree, Deakins, Nash, Smoak &         Substituting ``regular job
 Stewart (Ex. 15: 406).                   title'' would provide for
                                          effective use of Form 301 in
                                          conducting safety and health
                                          analysis of the workplace.
                                         The OSHA 300 Log asks for the
                                          employee's job title. OSHA
                                          does not believe there is a
                                          need to ask for the data on
                                          both forms.

[[Page 6035]]

 
American Petroleum Institute (Ex. 15:    ``[t]he supplemental data
 375).                                    should contain all information
                                          necessary to make
                                          recordkeeping decisions, and
                                          to facilitate certification of
                                          the logs at year end. For this
                                          reason, the following should
                                          be added to what OSHA proposes
                                          for the supplemental data:
                                          company name, establishment
                                          name, employee social security
                                          number, regular job title,
                                          ``new injury or illness?'',
                                          ``loss of consciousness?'',
                                          days away from work, first
                                          date absent, est. duration of
                                          absence, ``date days-away
                                          cases returned to work?,''
                                          ``result in restricted
                                          activity?'', ``job
                                          transfer?'', ``termination of
                                          employment?''
                                         OSHA has not included these
                                          data fields on the final form
                                          because the Agency believes
                                          that doing so would duplicate
                                          the information on the OSHA
                                          300 form. There is also no
                                          need to use the OSHA 301 form
                                          to document all the employer's
                                          recordkeeping decisions.
Ford Motor Company and the American      ``AAMA proposes the OSHA Form
 Automobile Manufacturers Association     301 include the establishment
 (Exs. 15: 347, 409).                     name and address at the top of
                                          the form. This will assist not
                                          only the employer, but OSHA as
                                          well, to avoid any confusion
                                          over records in which one
                                          medical department may serve
                                          several establishments. Also,
                                          it will be helpful in those
                                          cases where a company
                                          employee, who works
                                          predominately at one
                                          particular facility, sustains
                                          an injury or illness at
                                          another company
                                          establishment.''
                                         The establishment name and
                                          location are included on the
                                          OSHA Form 300. In an effort to
                                          identify and eliminate
                                          duplication of data, OSHA has
                                          not included this data item on
                                          the OSHA Form 301.
Building and Construction Trades         For every potentially
 Department, AFL-CIO (Ex.15: 394).        recordable injury or illness,
                                          the employer shall record:
                                          case number, date case
                                          reported and name of employee.
                                         --Job title of employee.
                                         --Date of injury or illness.
                                         --Time of event or exposure.
                                         --Time employee began work.
                                         --Specific description of
                                          injury or illness.
                                         --Location where the accident
                                          or exposure occurred (e.g.
                                          loading dock).
                                         --Facility or Project (e.g.
                                          Hackensack factory, or
                                          Dreamwood Subdevelopment).
                                         --Body part affected.
                                         --Equipment, tools, materials,
                                          or chemicals being used.
                                         --Specific activity when
                                          injured or upon onset of
                                          illness.
                                         --How injury or illness
                                          occurred.
                                         OSHA notes that the final OSHA
                                          301 form contains many of
                                          these data elements. The
                                          Agency believes that the
                                          remaining fields are
                                          unnecessary or duplicative of
                                          information already found on
                                          the OSHA 300 Log.
------------------------------------------------------------------------

Summary
    The final forms employers will use to keep the records of those 
occupational injuries and illnesses required by the final rule to be 
recorded have been revised to reflect the changes made to the final 
rule, the record evidence gathered in the course of this rulemaking, 
and a number of changes designed to simplify recordkeeping for 
employers. In addition, the forms have been revised to facilitate the 
use of equivalent forms and employers' ability to computerize their 
records.

Subpart D. Other OSHA injury and illness recordkeeping requirements

    Subpart D of the final rule contains all of the 29 CFR Part 1904 
requirements for keeping OSHA injury and illness records that do not 
actually pertain to entering the injury and illness data on the forms. 
The nine sections of Subpart D are:

--Section 1904.30, which contains the requirements for dealing with 
multiple business establishments;
--Section 1904.31, which contains the requirements for determining 
which employees' occupational injuries and illnesses must be recorded 
by the employer;
--Section 1904.32, which requires the employer to prepare and post the 
annual summary;
--Section 1904.33, which requires the employer to retain and update the 
injury and illness records;
--Section 1904.34, which requires the employer to transfer the records 
if the business changes owners;
--Section 1904.35, which includes requirements for employee 
involvement, including employees' rights to access the OSHA injury and 
illness information;
--Section 1904.36, which prohibits an employer from discriminating 
against employees for exercising their rights under the Act;
--Section 1904.37, which sets out the state recordkeeping regulations 
in OSHA approved State-Plan states; and
--Section 1904.38, which explains how an employer may seek a variance 
from the recordkeeping rule.

Section 1904.30 Multiple Establishments

    Section 1904.30 covers the procedures for recording injuries and 
illnesses occurring in separate establishments operated by the same 
business. For many businesses, these provisions are irrelevant because 
the business has only one establishment. However, many businesses have 
two or more establishments, and thus need to know how to apply the 
recordkeeping rule to multiple establishments. In particular, this 
section applies to businesses where separate work sites create 
confusion as to where injury and illness records should be kept and 
when separate records must be kept for separate work locations, or 
establishments. OSHA recognizes that the recordkeeping system must 
accommodate operations of this type, and has adopted language in the 
final rule to provide some flexibility for employers in the 
construction, transportation, communications, electric and gas utility, 
and sanitary services industries, as well as other employers with 
geographically dispersed operations. The final rule provides, in part, 
that operations are not considered separate establishments unless they 
continue to be in operation for a year or more. This length-of-site-
operation provision increases the chances of discovering patterns of 
occupational injury and illness, eliminates the burden of creating OSHA 
300 Logs for transient work sites, and ensures that useful records are 
generated for more permanent facilities.
    OSHA's proposed rule defined an establishment as a single physical 
location that is in operation for 60 calendar days or longer (61 FR 
4059), but did not provide specific provisions covering multiple 
establishments. In the final rule, the definition of

[[Page 6036]]

establishment is included in Subpart G, Definitions.
    The basic requirement of Sec. 1904.30(a) of this final rule states 
that employers are required to keep separate OSHA 300 Logs for each 
establishment that is expected to be in business for one year or 
longer. Paragraph 1904.30(b)(1) states that for short-term 
establishments, i.e., those that will exist for less than a year, 
employers are required to keep injury and illness records, but are not 
required to keep separate OSHA 300 Logs. They may keep one OSHA 300 Log 
covering all short-term establishments, or may include the short-term 
establishment records in logs that cover individual company divisions 
or geographic regions. For example, a construction company with multi-
state operations might have separate OSHA 300 Logs for each state to 
show the injuries and illnesses of its employees engaged in short-term 
projects, as well as a separate OSHA 300 Log for each construction 
project expected to last for more than one year. If the same company 
had only one office location and none of its projects lasted for more 
than one year, the company would only be required to have one OSHA 300 
Log.
    Paragraph 1904.30(b)(2) allows the employer to keep records for 
separate establishments at the business' headquarters or another 
central location, provided that information can be transmitted from the 
establishment to headquarters or the central location within 7 days of 
the occurrence of the injury or illness, and provided that the employer 
is able to produce and send the OSHA records to each establishment when 
Sec. 1904.35 or Sec. 1904.40 requires such transmission. The sections 
of the final rule are consistent with the corresponding provisions of 
the proposed rule.
    Paragraph 1904.30(b)(3) states that each employee must be linked, 
for recordkeeping purposes, with one of the employer's establishments. 
Any injuries or illnesses sustained by the employee must be recorded on 
his or her home establishment's OSHA 300 Log, or on a general OSHA 300 
Log for short-term establishments. This provision ensures that all 
employees are included in a company's records. If the establishment is 
in an industry classification partially exempted under Sec. 1904.2 of 
the final rule, records are not required. Under paragraph 
1904.30(b)(4), if an employee is injured or made ill while visiting or 
working at another of the employer's establishments, then the injury or 
illness must be recorded on the 300 Log of the establishment at which 
the injury or illness occurred.
How Long Must an Establishment Exist to Have a Separate OSHA Log
    As previously stated, the final rule provides that an establishment 
must be one that is expected to exist for a year or longer before a 
separate OSHA log is required. Employers are permitted to keep separate 
OSHA logs for shorter term establishments if they wish to do so, but 
the rule does not require them to do so. This is a change from the 
proposed rule, which would have required an establishment to be in 
operation for 60 days to be considered an ``establishment'' for 
recordkeeping purposes. The proposed 60-day threshold would have 
changed the definition of ``establishment'' used in OSHA's former 
recordkeeping rule, because that rule included a one-year-in-operation 
threshold for defining a fixed establishment required to keep a 
separate OSHA Log (Ex. 2, p. 21). The effect of the proposed change in 
the threshold would have been to increase the number of short-duration 
operations required to maintain separate injury and illnesses records.
    The majority of the comments OSHA received on this issue opposed 
the decrease in the duration of the threshold from one year to 60 
calendar days, primarily because commenters felt that requiring 
temporary facilities to maintain records would be burdensome, costly 
and would not increase the utility of the records (see, e.g., Exs. 21, 
15: 21, 43, 78, 116, 122, 123, 145, 170, 199, 213, 225, 254, 272, 288, 
303, 304, 305, 308, 338, 346, 349, 350, 356, 358, 359, 363, 364, 375, 
389, 392, 404, 412, 413, 423, 424, 433, 437, 443, 475). For example, 
the Associated Builders and Contractors, Inc. (ABC):

    [d]isagrees that sites in existence for as little as 60 days 
need separate injury and illness records. The redefinition of 
``establishment'' will cause enormous problems for subcontractors in 
a variety of construction industries. Even employers with small 
workforces could be on the site of several projects at any one time, 
and in the course of the year could have sent crews to hundreds of 
sites. Though they may be on such sites for only brief periods of 
time, they will be required under this proposal to create separate 
logs for each site, increasing greatly their paperwork requirements 
without increasing the amount of information available to their 
employees (Ex. 15: 412).

    In addition, many of these commenters argued that a 60-day 
threshold would be especially burdensome because it would capture small 
work sites where posting of the annual summary or mailing the summary 
to employees would make little sense because so few cases would be 
captured on each Log. The majority of these commenters suggested that 
OSHA retain the former one-year duration threshold in the definition of 
establishment (see, e.g., Exs. 15: 78, 123, 225, 254, 305, 356, 389, 
404).
    Other commenters expressed concern that the proposed 60-day 
threshold would create an unreasonable burden on employers in service 
industries like telecommunications and other utilities, whose employees 
typically report to a fixed location, such as a service center or 
garage, but perform tasks at transient locations that remain in 
existence for more than 60 days. These commenters felt that classifying 
such locations as ``establishments'' and creating thousands of new OSHA 
Logs, would have ``no benefit to anyone'' (Ex. 15: 199) (see also Exs. 
15: 65, 170, 213, 218, 332, 336, 409, 424).
    In contrast, commenters who supported the 60-day threshold worried 
that injuries and illnesses occurring at transient locations would 
never be accounted for without such a provision (see, e.g., Exs. 15: 9, 
133, 310, 369, 425). Some urged OSHA to adopt an even shorter time-in-
operation threshold (see, e.g., Exs. 15: 369, 418, 429). For example, 
the International Brotherhood of Teamsters (IBT) stated that they 
``[w]ould strongly support reducing the requirement to thirty days to 
cover many low level housing construction sites, and transient 
operations, similar to mobile amusement parks'' (Ex. 15: 369). The AFL-
CIO agreed: ``* * * the 60-day time period is still too long. We 
believe that to truly capture a majority of these transient work sites, 
a 30-day time period would be more realistic. A 30-day time period as 
the trigger would capture construction activities such as trenching, 
roofing, and painting projects which will continue to be missed if a 
60-day time period is used'' (Ex. 15: 418). OSHA agrees that under the 
proposed provisions there was a potential for injuries and illnesses to 
be missed at short term establishments and for employees who did not 
report to fixed establishments. Therefore, Secs. 1904.30(b)(1) and 
(b)(3) have been added to make it clear that records (but not a 
separate log) must be kept for short-term establishments lasting less 
than one year, and that each employee must be linked to an 
establishment.
    The United Parcel Service (UPS) recommended that OSHA craft its 
rule to coincide with a company's personnel records system, stating 
``[t]he unit for which an employer maintains personnel records is 
presumptively appropriate and efficient; accordingly, OSHA should not 
mandate a rule that conflicts with a company's current personnel units 
policy'' (Ex. 15: 424). OSHA recognizes

[[Page 6037]]

that employers would prefer OSHA to allow companies to keep records in 
any way they choose. However, OSHA believes that allowing each company 
to decide how and in what format to keep injury and illness records 
would erode the value of the injury and illness records in describing 
the safety and health experience of individual workplaces and across 
different workplaces and industries. OSHA has therefore decided not to 
adopt this approach in the final rule, but to continue its longstanding 
requirement requiring records to be kept by establishment.
    OSHA has reviewed all of the comments on this issue and has 
responded by deleting any reference to a time-in-operation threshold in 
the definition of establishment but specifying a one-year threshold in 
section 1904.30(a) of the final rule. OSHA finds, based on the record 
evidence, that the one-year threshold will create useful records for 
stable establishments without imposing an unnecessary burden on the 
many establishments that remain in existence for only a few months.
Centralized Recordkeeping
    As previously stated, the proposed rule did not include a specific 
section covering multiple establishments. The proposal did require that 
records for employees not reporting to any single establishment on a 
regular basis should be kept at each transient work site, or at an 
established central location, provided that records could be obtained 
within 4 hours if requested as proposed.
    Most commenters supported provisions that would allow the employer 
to keep records at a centralized location (see, e.g., Exs. 20, 21, 15: 
9, 38, 48, 136, 137, 141, 154, 173, 203, 213, 224, 234, 235, 254, 260, 
262, 265, 266, 272, 277, 278, 288, 303, 321, 336, 350, 367, 373, 375, 
401, 409). Many, however, disagreed with the requirement that records 
be produced within 4 hours if requested by an authorized government 
official. Those comments are discussed in the preamble for 
Sec. 1904.40, Providing records to government representatives. The only 
other concern commenters expressed about centralized recordkeeping was 
that centralized records, like computerized records, would make it more 
difficult for employees to access the records (see, e.g., Exs. 15:379, 
380, 418, 438).
    OSHA does not believe that centralization of the records will 
compromise timely employee or government representative access to the 
records. To ensure that this is the case, centralization under 
Sec. 1904.30(b)(2) is allowed only if the employer can produce copies 
of the forms when access to them is needed by a government 
representative, an employee or former employee, or an employee 
representative, as required by Secs. 1904.35 and 40.
Recording Injuries and Illnesses Where They Occur
    Proposed section 1904.7, Location of records, and section 1904.11, 
Access to records, covered recordkeeping requirements for employees who 
report to one establishment but are injured or made ill at other 
locations of the same company. Specifically, these sections required 
that records for employees reporting to a particular establishment but 
becoming ill or injured at another establishment within the same 
company be kept at the establishment in which they became injured or 
ill. This was derived from OSHA's longstanding interpretation that 
employees' cases should be recorded where they occur, if it is at a 
company establishment (April 24, 1992 letter of interpretation to 
Valorie A. Ferrara of Public Service Electric and Gas Company). Several 
commenters objected to the proposed requirement that an employee's 
injury or illness be recorded on the log of the establishment where the 
injury occurred, rather than on the log of the establishment they 
normally report to (see, e.g., Exs.15: 60, 107, 146, 184, 199, 200, 
232, 242, 263, 269, 270, 329, 335, 343, 356, 375, 377). The comments of 
the B.F. Goodrich Company (Ex. 15: 146) are representative:

    [t]he requirement for a company to log a visiting employee's 
injury or illness on the log of the company establishment that they 
are visiting rather than on the log of their normal work 
establishment, is not consistent with the data collection process. 
As proposed, the rule requires the facility to record the injury or 
illness and not the hours worked by the visiting employee. These 
individuals would not normally be counted in the number of employees 
at the visited site nor in the manhours worked at that site. 
Recording of cases from visiting employees would improperly skew the 
incidence rates of both facilities. This approach is particularly 
inappropriate in the case of an illness, since the case may be a 
result of accumulated exposures which have nothing to do with the 
site visited during the onset of the illness. Alternately, an injury 
or illness could manifest after the visitor leaves the facility.

    OSHA disagrees with these commenters about where the injuries and 
illnesses should be recorded. For the vast majority of cases, the place 
where the injury or illness occurred is the most useful recording 
location. The events or exposures that caused the case are most likely 
to be present at that location, so the data are most useful for 
analysis of that location's records. If the case is recorded at the 
employee's home base, the injury or illness data have been disconnected 
from the place where the case occurred, and where analysis of the data 
may help reveal a workplace hazard. Therefore, OSHA finds that it is 
most useful to record the injury or illness at the location where the 
case occurred. Of course, if the injury or illness occurs at another 
employer's workplace, or while the employee is in transit, the case 
would be recorded on the OSHA 300 Log of the employee's home 
establishment.
    For cases of illness, two types of cases must be considered. The 
first is the case of an illness condition caused by an acute, or short 
term workplace exposure, such as skin rashes, respiratory ailments, and 
heat disorders. These illnesses generally manifest themselves quickly 
and can be linked to the workplace where they occur, which is no 
different than most injury cases. For illnesses that are caused by 
long-term exposures or which have long latency periods, the illness 
will most likely be detected during a visit to a physician or other 
health care professional, and the employee is most likely to report it 
to his or her supervisor at the home work location.
    Recording these injuries and illnesses could potentially present a 
problem with incidence rate calculations. In many situations, visiting 
employees are a minority of the workforce, their hours worked are 
relatively inconsequential, and rates are thus unaffected to any 
meaningful extent. However, if an employer relies on visiting labor to 
perform a larger amount of the work, rates could be affected. In these 
situations, the hours of these personnel should be added to the 
establishment's hours of work for rate calculation purposes.

Section 1904.31  Covered employees

Final Rule Requirements and Legal Background
    Section 1904.31 requires employers to record the injuries and 
illnesses of all their employees, whether classified as labor, 
executive, hourly, salaried, part-time, seasonal, or migrant workers. 
The section also requires the employer to record the injuries and 
illnesses of employees they supervise on a day-to-day basis, even if 
these workers are not carried on the employer's payroll.
    Implementing these requirements requires an understanding of the 
Act's definitions of ``employer'' and

[[Page 6038]]

``employee.'' The statute defines ``employer,'' in relevant part, to 
mean ``a person engaged in a business affecting interstate commerce who 
has employees.'' 29 U.S.C. 652 (5). The term ``person'' includes ``one 
or more individuals, partnerships, associations, corporations, business 
trusts, legal representatives, or any organized group of persons.'' 29 
U.S.C. 652 (4). The term ``employee'' means ``an employee of an 
employer who is employed in a business of his employer which affects 
interstate commerce.'' 29 U.S.C. 652(6). Thus, any individual or entity 
having an employment relationship with even one worker is an employer 
for purposes of this final rule, and must fulfill the recording 
requirements for each employee.
    The application of the coverage principles in this section presents 
few issues for employees who are carried on the employer's payroll, 
because the employment relationship is usually well established in 
these cases. However, issues sometimes arise when an individual or 
entity enters into a temporary relationship with a worker. The first 
question is whether the worker is an employee of the hiring party. If 
an employment relationship exists, even if temporary in duration, the 
employee's injuries and illnesses must be recorded on the OSHA 300 Log 
and 301 form. The second question, arising in connection with employees 
provided by a temporary help service or leasing agency, is which 
employer--the host firm or the temporary help service--is responsible 
for recordkeeping.
    Whether an employment relationship exists under the Act is 
determined in accordance with established common law principles of 
agency. At common law, a self-employed ``independent contractor'' is 
not an employee; therefore, injuries and illnesses sustained by 
independent contractors are not recordable under the final 
Recordkeeping rule. To determine whether a hired party is an employee 
or an independent contractor under the common law test, the hiring 
party must consider a number of factors, including the degree of 
control the hiring party asserts over the manner in which the work is 
done, and the degree of skill and independent judgment the hired party 
is expected to apply. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 942 
(9th Cir. 1994).
    Other individuals, besides independent contractors, who are not 
considered to be employees under the OSH Act are unpaid volunteers, 
sole proprietors, partners, family members of farm employers, and 
domestic workers in a residential setting. See 29 CFR Sec. 1975.4(b)(2) 
and Sec. 1975.6 for a discussion of the latter two categories of 
workers. As is the case with independent contractors, no employment 
relationship exists between these individuals and the hiring party, and 
consequently, no recording obligation arises.
    A related coverage question sometimes arises when an employer 
obtains labor from a temporary help service, employee leasing firm or 
other personnel supply service. Frequently the temporary workers are on 
the payroll of the temporary help service or leasing firm, but are 
under the day-to-day supervision of the host party. In these cases, 
Section 1904.31 places the recordkeeping obligation upon the host, or 
utilizing, employer. The final rule's allocation of recordkeeping 
responsibility to the host employer in these circumstances is 
consistent with the Act for several reasons.
    First, the host employer's exercise of day-to-day supervision of 
the temporary workers and its control over the work environment 
demonstrates a high degree of control over the temporary workers 
consistent with the presence of an employment relationship at common 
law. See Loomis Cabinet Co., 20 F.3d at 942. Thus, the temporary 
workers will ordinarily be the employees of the party exercising day-
to-day control over them, and the supervising party will be their 
employer.
    Even if daily supervision is not sufficient alone to establish that 
the host party is the employer of the temporary workers, there are 
other reasons for the final rule's allocation of recordkeeping 
responsibility. Under the OSH Act, an employer's duties and 
responsibilities are not limited only to his own employees. Cf. 
Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728-731 (10th Cir. 1999). 
Assuming that the host is an employer under the Act (because it has an 
employment relationship with someone) it reasonably should record the 
injuries of all employees, whether or not its own, that it supervises 
on a daily basis. This follows because the supervising employer is in 
the best position to obtain the necessary injury and illness 
information due to its control over the worksite and its familiarity 
with the work tasks and the work environment. As discussed further 
below, the final rule is sensible and will likely result in more 
accurate and timely recordkeeping.
The Proposed Rule
    The final rule's coverage rules are consistent with the basic 
principles embodied in the former rule and in the proposal. The 
proposed rule would have continued to require employers to record the 
injuries and illnesses of employees over whose work they exert ``day-
to-day supervision'' (61 FR 4058/3). OSHA proposed to codify this 
longstanding interpretation by adding a definition of ``employee'' 
together with a note explaining its application to Part 1904 
recordkeeping. The proposed definition restated the definition of 
employee in the OSH Act. It then explained that, for recordkeeping 
purposes, an employer should consider as its employees any persons who 
are supervised on a day-to-day basis at the establishment. The proposal 
noted that this was the test regardless of whether the persons were 
labeled as ``independent contractors,'' ``migrant workers,'' or workers 
provided by a temporary help service.
    The proposal further explained that 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'' 
(61 FR 4059/1). OSHA also noted that other classes of workers would not 
be covered because they were not considered employees, either as 
defined in the OSH Act or as set forth in regulatory interpretations. 
These included sole proprietors, partners, family members of farm 
employers, and domestic workers in a residential setting.
Response To the Proposal
    A number of commenters agreed with OSHA's approach to differentiate 
between employees and true independent contractors, and to require 
employers to keep records for employees they supervise on a day-to-day 
basis (see, e.g., Exs. 15: 61, 65, 205, 305, 322, 333, 346, 348, 351, 
369, 390, 429). The National Association of Manufacturers (NAM) stated:

    [f]or purposes of recordkeeping, OSHA has consistently taken the 
position that the term ``employee'' includes all personnel who are 
supervised on a day-to-day basis by the employer using their 
services (not only with respect to the result to be achieved, but 
also the means, methods and processes by which the work is to be 
accomplished). While this is a fact-intensive determination that 
must be made on a case-by-case basis, we commend the Agency for 
attempting to clarify the matter by making that approach an explicit 
part of the rule, presumably for purposes of both recordkeeping and 
records access (Ex. 15: 305).

    The National Association of Temporary Staffing Services (NATSS)) 
supported:


[[Page 6039]]


    [c]ontinuation of ``utilizing employer'' rule for maintaining 
records for temporary employees. Temporary help and staffing service 
firms recruit individuals with a broad range of training, education 
and skills, and then assign them to work at customer locations on a 
variety of assignments and projects. The fundamental nature of the 
service relationship is such that while staffing service firms are 
the general employers of their workers and assume a broad range of 
employer responsibilities, those responsibilities generally do not 
include direct supervision of the employees at the worksite. Hence, 
staffing firms have a limited ability to affect conditions at the 
worksite.
    In recognition of the above, OSHA's long-standing policy has 
been to require the worksite employer, not the staffing firm, to 
maintain illness and injury records of temporary workers supervised 
by the worksite employer. The proposed rules continue this policy. 
In a special ``note'' in section 1904.3, ``employee'' for record 
keeping purposes is defined to include temporary workers ``when they 
are supervised on a day-to-day basis by the employer utilizing their 
services.'' Under this definition, the worksite employer, not the 
staffing firm, would be required to maintain records for temporary 
employees supplied by a staffing firm, provided they are supervised 
by the worksite employer. As stated in the background section of the 
proposed rule, ``this is consistent with case law and the 
interpretation currently used by OSHA'' (61 F.R. 4034). NATSS 
strongly supports this proposed definition. (Ex. 15: 333)

    A number of commenters opposed OSHA's proposed approach on this 
issue (see, e.g., Exs. 15: 9, 23, 26, 64, 67, 82, 92, 119, 154, 159, 
161, 184, 185, 198, 203, 204, 225, 259, 287, 297, 299, 312, 335, 336, 
338, 341, 356, 363, 364, 370, 404, 423, 424, 427, 431, 437, 443). 
Several of these commenters thought that including temporary employees 
from temporary services, independent contractors and other leased 
personnel within the definition of employee would impose new burdens on 
employers (see, e.g., Exs. 15: 35, 67, 356, 423, 437). However, the 
proposal did not alter the long-standing meanings of the terms 
employee, employer or employment relationship. The day-to-day 
supervision test for identifying the employer who is responsible for 
compliance with Part 1904 is a continuation of OSHA's former policy, 
and is consistent with the common law test. The comments indicate that 
many employers are not aware that they need to keep records for leased 
workers, temporary workers, and workers who are inaccurately labeled 
``independent contractors'' but are in fact employees. However, these 
workers are employees under both the former rule and the final rule. 
Incorporating these requirements into the regulatory text can only help 
to improve the consistency of the data by clarifying the employer's 
responsibilities.
    Several commenters erroneously believed that they might need to 
keep records for all employees of independent contractors performing 
work in their establishment (see, e.g., Exs. 15: 161, 203, 312). The 
Battery Council International remarked:

    [i]t is unclear how this clarification would apply to employers 
in the battery industry who hire independent contractors to perform 
construction and other activities on their manufacturing facilities. 
Often times, battery manufacturers will provide the contractors with 
an orientation to the facility (which includes the facility's safety 
and health rules and location of MSDSs) [material safety data 
sheets], and monitor the work of the contractor to ensure that work 
contracted for has been completed, but do not otherwise supervise 
the details, means, methods and processes by which the work is to be 
accomplished. In these relationships, the contractors certify to the 
battery manufacturers that they comply with all OSHA requirements 
including training, which must be completed as part of the work 
contract.
    If the intent of the proposed clarification is to not require 
the reporting of injuries and illnesses to independent contractors 
under similar conditions as described above, then BCI supports this 
concept and requests further clarification on this issue. BCI will 
oppose, however, any attempt by OSHA to require the reporting of 
injuries or illnesses that occur to ``independent contractors'' 
where the employer has not otherwise supervised the details, means, 
methods and processes by which the work was accomplished (Ex. 15: 
161).

    The International Dairy Foods Association (IDFA) was concerned that 
if a dairy processing facility hired an electrical contractor to 
install new lighting and the electrical contractor's employee were 
injured while installing the lighting, the dairy might have to record 
the incident in its Part 1904 records (Ex. 15: 203).
    The 1904 rule does not require an employer to record injuries and 
illnesses that occur to workers supervised by independent contractors. 
However, the label assigned to a worker is immaterial if it does not 
reflect the economic realities of the relationship. For example, an 
employment contract that labels a hired worker as an independent 
contractor will have no legal significance for Part 1904 purposes if in 
fact the hiring employer exercises day-to-day supervision over that 
worker, including directing the worker as to the manner in which the 
details of the work are to be performed. If the contractor actually 
provides day-to-day supervision for the employee, then the contractor 
is responsible for compliance with Part 1904 as to that employee. In 
the IDFA example, unless the dairy exercised supervisory control over 
the time and manner of the electrician's work, the dairy would not be 
considered the electrician's employer and would not be required to 
record the incident.
    Some commenters argued that the injury and illness statistics would 
be more accurate or useful if the payroll employer recorded the 
injuries and illnesses, regardless of which employer controlled the 
work or the hazard (see, e.g., Exs. 15: 9, 26, 92, 161, 198, 259, 287, 
297, 299, 333, 341, 356, 364, 443). The Sandoz Corporation stated that 
``[t]he control and responsibility for reporting these injuries should 
be with the employer, i.e. the establishment that pays the employee. 
This simplifies the control and reporting. It also allows a company 
that utilizes temporary or contract services to look at the OSHA record 
of the supplier as part of the purchasing decision and thus put 
pressure on the supplier for better safety performance, thus using 
market forces to improve safety'' (Ex. 15: 299). The Battery Council 
International added ``[r]equiring employers to record the injuries and 
illnesses of independent contractors under such circumstances is unfair 
and will result in the over recording of injuries and illnesses by the 
battery industry. This will result in more OSHA inspections on the lead 
battery industry, which will in turn impose additional costs and 
burdens on BCI members'' (Ex. 15: 161). The Fertilizer Institute stated 
``[a]dopting compensation as the basis for determining the employer/
employee relationship results in simplification that is not afforded 
when one must look at day-to-day supervision'' (Ex. 15: 154).
    A few commenters recommended that the employer responsible for 
workers' compensation insurance also be required to record the injuries 
and illnesses (Ex. 15: 204, 225, 336, 364). The American Gas 
Association (Ex. 15: 225) stated that OSHA should:

    [s]trive to parallel Workers' Compensation law. The employer may 
have supervision of some types of temporary workers, e.g., daily 
office workers. However, the employer may have no control over a 
crew of construction contractors. In this case, the employer does 
not supervise the details, means, methods and processes by which the 
work accomplished. The definition of employee, along with the note 
to the definition proposed by OSHA requires a subjective 
determination to be made. 61 Fed. Reg. at 4058. We recommend OSHA 
follow a more objective test. The responsibility of reporting 
injuries and illnesses should turn on the fact of who provides the 
Workers' Compensation insurance, not necessarily daily supervision. 
This would then be an objective, rather than

[[Page 6040]]

subjective test, less likely open to interpretation and mistakes.

    OSHA has rejected the suggestions that either the payroll or 
workers' compensation employer keep the OSHA 1904 records. The Agency 
believes that in the majority of circumstances the payroll employer 
will also be the workers' compensation employer and there is no 
difference in the two suggestions. Temporary help services typically 
provide the workers' compensation insurance coverage for the employees 
they provide to other employers. Therefore, our reasons for rejecting 
these suggestions are the same. OSHA agrees that there are good 
arguments for both scenarios: 1. Including injuries and illnesses in 
the records of the leasing employer (the payroll or workers' 
compensation employer and 2. For including these cases in the records 
of the controlling employer. Requiring the payroll or workers' 
compensation employer to keep the OSHA records would certainly be a 
simple and objective method. There would be no doubt about who keeps 
the records. However, including the cases in the records of the 
temporary help agency erodes the value of the injury and illness 
records for statistical purposes, for administering safety and health 
programs at individual worksites, and for government inspectors 
conducting safety and health inspections or consultations. The benefits 
of simplification and clarity do not outweigh the potential damage to 
the informational value of the records, for the reasons discussed 
below.
    First, the employer who controls the workers and the work 
environment is in the best position to learn about all the injuries and 
illnesses that occur to those workers. Second, when the data are 
collected for enforcement and research use and for priority setting, 
the injury and illness data are clearly linked to the industrial 
setting that gave rise to them. Most important, transferring the 
recording/reporting function from the supervising employer to the 
leasing firm would undermine rather than facilitate one of the most 
important goals of Part 1904--to assure that work-related injury and 
illness information gets to the employer who can use it to abate work-
related hazards. If OSHA were to shift the recordkeeping responsibility 
from the controlling employer to the leasing firm, the records would 
not be readily available to the employer who can make best use of them. 
OSHA would need to require the leasing firm to provide the controlling 
employer with copies of the injury and illness logs and other reports 
to meet this purpose. This would be both burdensome and duplicative.
    Requiring the controlling (host) employer to record injuries and 
illnesses for employees that they control has several advantages. 
First, it assigns the injuries and illnesses to the individual 
workplace with the greatest amount of control over the working 
conditions that led to the worker's injury or illness. Although both 
the host employer and the payroll employer have safety and health 
responsibilities, the host employer generally has more control over the 
safety and health conditions where the employee is working. To the 
extent that the records connect the occupational injuries and illnesses 
to the working conditions in a given workplace, the host employer must 
include these cases to provide a full and accurate safety and health 
record for that workplace.
    If this policy were not in place, industry-wide statistics would be 
skewed. Two workplaces with identical numbers of injuries and illnesses 
would report different statistics if one relied on temporary help 
services to provide workers, while the other did not. Under OSHA's 
policy, when records are collected to generate national injury and 
illness statistics, the cases are properly assigned to the industry 
where they occurred. Assigning these injuries and illnesses to 
temporary help services would not accurately reflect the type of 
workplace that produced the injuries and illnesses. It would also be 
more difficult to compare industries. To illustrate this point, 
consider a hypothetical industry that relies on temporary help services 
to provide 10% of its labor force. Assuming that the temporary workers 
experience workplace injury and illness at the same rate as traditional 
employees, the Nation's statistics would underrepresent that industry's 
injury and illness numbers by 10%. If another industry only used 
temporary help services for 1% of the labor force, its statistics would 
be closer to the real number, but comparisons to the 10% industry would 
be highly suspect.
    The policy also makes it easier to use an industry's data to 
measure differences that occur in that industry over time. Over the 
last 20 years, the business community has relied increasingly on 
workers from temporary help services, employee leasing companies, and 
other temporary employees. If an industry sector as a whole changed its 
practices to include either more or fewer temporary workers over time, 
comparisons of the statistics over several years might show trends in 
injury and illness experience that simply reflected changing business 
practices rather than real changes in safety and health conditions.
    Some commenters objected to this aspect of the proposal because 
they thought it would require both the personnel leasing firm and the 
host employer to record injuries and illnesses. Double recording would 
lead to inaccurate statistics when both employers reported their data 
to BLS (see, e.g., Exs. 15: 9, 26, 92, 198, 259, 287, 297, 333, 341, 
356, 364, 443). The National Association of Temporary Staffing Services 
Stated:

    [i]f the exemption is not retained in the case of SIC 7363 [Help 
Supply Services] employers, it would be especially important for the 
final rules to expressly provide * * * that there is no intent to 
impose a dual reporting requirement. At least one state OSH office 
already has construed the proposed lifting of the partial exemption 
as creating an obligation on the part of staffing firms to maintain 
records for all of its employees, including temporary employees 
supervised by the worksite employer. This is clearly inconsistent 
with the intent of the proposed rule and should be clarified (Ex. 
15: 333).

    The Society of the Plastics Industry added:

    [b]ecause statistics are required to be collected for several 
years, it would take a significant effort to contact several 
independent companies on a continual basis to obtain such 
information. This would only result in a serious duplication of 
records, as both the host employer and the temporary leasing 
employer record the case. This will increase the recordkeeping 
burden for both the employer and those independent companies hired 
for a specific job by that employer (Ex. 15: 364).

    OSHA agrees with these commenters that there is a potential for 
double counting of injuries and illnesses for workers provided by a 
personnel supply service. We do not intend to require both employers to 
record each injury or illness. To solve this problem, the rule, at 
Sec. 1904.31(b)(4), specifically states that both employers are not 
required to record the case, and that the employers may coordinate 
their efforts so that each case is recorded only once--by the employer 
who provides day-to-day supervision. When the employers involved choose 
to work with each other, or when both employers understand the Part 
1904 regulations as to who is required to record the cases and who is 
not, there will not be duplicative recording and reporting. This policy 
will not completely eliminate double recording of these injuries and 
illnesses, but it provides a mechanism for minimizing the error in the 
BLS statistics.
    OSHA believes that many employers already share information about 
these

[[Page 6041]]

injuries and illnesses to help each other with their own respective 
safety and health responsibilities. For example, personnel service 
employers need information to process workers' compensation claims and 
to determine how well their safety and health efforts are working, 
especially those involving training and the use of personal protective 
equipment. The host employer needs information on conditions in the 
workplace that may have caused the injuries or illnesses.
    Many commenters objected to the requirement that the employer who 
controls the work environment record injuries and illnesses of 
temporary workers because that employer does not have adequate 
information to record the cases accurately (see, e.g., Exs. 15: 9, 23, 
184, 341, 363, 364, 370). These commenters contended that temporary 
workers supplied by personnel agencies may not have been at any given 
assignment long enough for the controlling employer to count days away 
from work accurately or to make informed judgments about the 
recordability of ongoing or recurring cases. The comments also 
contended that the controlling employer may have difficulty judging 
whether an injury or illness is related to that employer's work 
environment, to other places of employment, or is totally non-work 
related. These drawbacks in turn affect the recording employer's 
ability to certify to the completeness and accuracy of the annual 
summary of the Log. U.S. West, Inc. (Ex. 15: 184) remarked:

    [e]mployers should not be responsible for recordkeeping 
involving independent contractors, workers from temporary agencies, 
etc. A major reason for this would be the difficulties presented 
when trying to track such individuals for injuries/illnesses that 
have long periods of days away from work. In addition, it is often 
difficult to assign work relatedness for cases to a specific 
employer--an example would be upper extremity repetitive motion 
disorders for an individual from a temporary agency that works for 
several different employers in the course of a week or month. To 
avoid such problems, recordkeeping should be the responsibility of 
the individual's actual employer.

    OSHA agrees with these commenters that recording work-related 
injuries and illnesses for temporary, leased employees will sometimes 
present these difficulties. However, the solution is not, as some 
commenters urge, to require the personnel leasing agency to assume 
responsibility for Part 1904 recording and reporting. The personnel 
leasing firm will not necessarily have better information than the host 
employer about the worker's exposures or accidents in previous 
assignments, previously recorded injuries or illnesses, or the 
aftermath of an injury or illness. And the personnel leasing firm will 
certainly have less knowledge of and control over the work environment 
that may have caused, contributed to, or significantly aggravated an 
injury or illness. As described above, the two employers have shared 
responsibilities and may share information when there is a need to do 
so.
    If Part 1904 records are inaccurate due to lack of reasonably 
reliable data about leased employees, there are ways for OSHA to 
address the problem. First, the OSH Act does not impose absolutely 
strict liability on employers. The controlling employer must make 
reasonable efforts to acquire necessary information in order to satisfy 
Part 1904, but may be able to show that it is not feasible to comply 
with an OSHA recordkeeping requirement. If entries for temporary 
workers are deficient in some way, the employer can always defend 
against citation by showing that it made the efforts that a reasonable 
employer would have made under the particular circumstances to obtain 
more complete or accurate data.
    A few commenters suggested that OSHA should link the recording 
requirement to the duration of time that the contract or temporary 
employee works at a specific location (see, e.g., Exs. 15: 185, 259, 
341, 364). The National Wholesale Druggists Association (NWDA) believed 
that:

    [t]here should be a length-of-employment delineation to 
determine whether a temporary or contract employee illness or injury 
should be included in the OSHA log. OSHA should set a length of time 
that the contract or temporary employee must work in a location 
before requirements for OSHA log reporting are triggered. By setting 
a length of employment standard, OSHA will not only eliminate the 
possibility of duplicative reporting of injuries and illnesses but 
will also eliminate the reporting of those short-term temporary 
employee assignments that may be covered by the temporary agency 
(Ex. 15: 185).

    The Society of the Plastics Industry (SPI) recommended that the 
controlling firm should only keep records for permanently leased 
workers, stating ``[f]or temporary employees, the employer who pays an 
employee (with the presumption that this is for whom they work) should 
be required to keep the records. For permanently assigned, leased 
employees, SPI agrees that such cases should be recorded by the leasing 
employer'' (Ex. 15: 364). The Iowa Health Care Association asked 
whether a temporary nurse's aide who works in a facility for seven days 
to cover a vacationing permanent employee would be considered to be 
under the day-to-day supervision of the host facility (Ex. 15: 259).
    OSHA has decided not to base recording obligations on the temporary 
employee's length of employment. Recording the injuries and illnesses 
of some temporary employees and not others would not improve the value 
or accuracy of the statistics, and would make the system even more 
inconsistent and complex. In OSHA's view, the duration of the 
relationship is much less important than the element of control. In the 
example of the temporary nurse's aide, for OSHA recordkeeping purposes 
the worker would be considered an employee of the facility for the days 
he or she works under the day-to-day supervision of the host facility.
    Several commenters questioned whether or not temporary workers 
would be included in the total number of employees of that employer 
(see, e.g., Exs. 15: 67, 356, 375, 437). The number of employees is 
used in two separate areas of the recordkeeping system. The number of 
employees is used to determine the exemption for smaller employers, and 
is entered on the annual summary of occupational injuries and 
illnesses. The Small Business Administration expressed concern over 
whether counting these workers as employees would affect the exemption 
for smaller employers, stating ``[t]he definition of ``employee'' goes 
beyond the statutory intent * * * Small businesses would not only have 
new obligations for coverage, but this methodology for counting 
employees would impact the opportunity for an exemption under this 
standard'' (Exs. 15: 67, 437). The American Petroleum Institute (API) 
was concerned about how the employee count affects the way that the 
host employer completes the annual summary, particularly the entries 
for hours worked by all employees and the average number of employees:

    [u]sing the OSHA-specified approach for determining the number 
of employees and hours worked, particularly for temporary employees 
and/or smaller establishments, is not often feasible. Assumption (1) 
[that the employer already has this data] is not true for temporary 
employees. Their hours worked are maintained by their contract 
employers. Host employers have dollar costs paid to each contractor 
employer. Therefore, getting employee counts and hours worked for 
temporaries requires making assumptions and estimating (Ex. 15: 
375).

    Because OSHA is using the common law concepts to determine which 
workers are to be included in the records, a worker who is covered in

[[Page 6042]]

terms of recording an injury or illness is also covered for counting 
purposes and for the annual summary. If a given worker is an employee 
under the common law test, he or she is an employee for all OSHA 
recordkeeping purposes. Therefore, an employer must consider all of its 
employees when determining its eligibility for the small employer 
exemption, and must provide reasonable estimates for hours worked and 
average employment on the annual summary. OSHA has included 
instructions on the back of the annual summary to help with these 
calculations.
    The Texas Chemical Council argued that supervising employers should 
not have to record injuries or illnesses of agency-supplied workers 
unless the supervising employer has authority to hold these workers 
accountable for safety performance (Ex. 15: 159). According to this 
commenter, most temporary agencies limit the contracting employer to 
following the agencies' policies for corrective action for unacceptable 
performance. OSHA would simply point out that this is a matter within 
the contract arrangements between the two employers, and that OSHA 
intervention in this area is not necessary or appropriate. In any 
event, we believe that this should not determine who records 
occupational injuries and illnesses.
    The Phibro-Tech company asked ``[i]f the facility is now 
responsible for tracking these injuries on their Form 300, will this 
affect the Worker's Compensation liability?'' (Ex. 15: 35). Tracking 
injuries and illnesses for OSHA purposes does not affect an employer's 
workers' compensation liability. An employer's liability for workers' 
compensation is a separate matter that is covered by state law. 
Employers who maintain workers' compensation coverage will be 
responsible for injuries and illnesses regardless of which employer 
records them for OSHA purposes.
    Bell Atlantic Network Services asked ``[a]re contract employee OSHA 
recordable injury/illness incidents to be recorded on the same OSHA 300 
log as employer's full-time employees? Are they to be identified as 
``Contract/Temporary'' employees on the OSHA 300 Log, i.e., under the 
column E--Job Title?'' (Ex. 15: 218). OSHA's view is that a given 
establishment should have one OSHA Log and only one Log. Injuries and 
illnesses for all the employees at the establishment are entered into 
that record to create a single summary at the end of the year. OSHA 
does not require temporary workers or any other types of workers to be 
identified with special titles in the job title column, but also does 
not prohibit the practice. This column is used to list the occupation 
of the injured or ill worker, such as laborer, machine operator, or 
nursing aide. However, OSHA does encourage employers to analyze their 
injury and illness data to improve safety and health at the 
establishment. In some cases, identifying temporary or contract workers 
may help an employer to manage safety and health more effectively. Thus 
an employer may supplement the OSHA Log to identify temporary or 
contract workers, although the rule does not require it.
    OSHA received two suggestions that would provide an OSHA inspector 
with injury and illness data for temporary workers without putting 
their injuries on the host employer's OSHA 300 Log. The National Grain 
and Feed Association, Grain Elevator and Processing Society, and 
National Oilseed Processors Association jointly recommended:

    [e]mployers with employees who work under contract at a site 
other than the employer's should be required to provide a copy of 
the appropriate first report of injury or OSHA 301 to the site 
controlling employer. The site controlling employer can then 
maintain a file of Form 301's to facilitate OSHA's evaluation of 
workplace hazards (Ex. 15: 119).

    The Douglas Battery Manufacturing (Ex. 15: 82) company suggested 
the following alternative:

    [a]n option that would allow an employer of temporary workers to 
determine the incident rate of the temporaries, would be to require 
the temporary agency/ contractor to forward a copy of its OSHA log 
for workers at a particular facility, to that facility by February 
of the next calendar year. The names and other personal identifiers 
of the temporary/contract workers could be removed prior to 
submittal but the data would be available on site for agency 
inspection purposes.

    OSHA believes that neither of these alternatives would be an 
acceptable substitute for completing the 300 Log and 301 form for 
injured workers. The information would not be entered into the annual 
summary, so the establishment's statistics would not be complete. While 
these options would create a method (although a cumbersome method) for 
providing the information to a government inspector, the data would not 
be collected for statistical purposes.
    Some commenters asked OSHA about how they should deal with a 
variety of other types of workers. The American Ambulance Association 
suggested that OSHA ``[s]pecifically exclude from the definition of 
employee, students who are unpaid by the company/institution which is 
providing a clinical or practice setting'' (Ex. 15: 226). The Maine 
Department of Labor (Ex. 15: 41) asked the following question:

    [q]uestions about how to report people such as Interns, Aspire 
(welfare) program participants, prison release workers and 
volunteers are now being asked. A clear definition needs to be 
established to account for all kinds of employees. Our Public Sector 
law requires us to count all people who are permitted to work. Maybe 
you don't want that inclusive a definition, but it is something to 
consider. We had to come up with a specific definition of volunteers 
to exclude sporadic volunteers (essentially those not working at a 
specific place at a specific time on a regular basis). With some 
workplaces utilizing volunteers and with welfare reform changes 
expected, you may want to prepare for these questions now.

    These workers should be evaluated just as any other worker. If a 
student or intern is working as an unpaid volunteer, he or she would 
not be an employee under the OSH Act and an injury or illness of that 
employee would not be entered into the Part 1904 records. If the worker 
is receiving compensation for services, and meets the common law test 
discussed earlier, then there is an employer-employee relationship for 
the purposes of OSHA recordkeeping. The employer in that relationship 
must evaluate any injury or illness at the establishment and enter it 
into the records if it meets the recording criteria.

Section 1904.32  Annual Summary

    At the end of each calendar year, section 1904.32 of the final rule 
requires each covered employer to review his or her OSHA 300 Log for 
completeness and accuracy and to prepare an Annual Summary of the OSHA 
300 Log using the form OSHA 300-A, Summary of Work-Related Injuries and 
Illnesses, or an equivalent form. The summary must be certified for 
accuracy and completeness and be posted in the workplace by February 1 
of the year following the year covered by the summary. The summary must 
remain posted until April 30 of the year in which it was posted.
    Preparing the Annual Summary requires four steps: reviewing the 
OSHA 300 Log, computing and entering the summary information on the 
Form 300-A, certification, and posting. First, the employer must review 
the Log as extensively as necessary to make sure it is accurate and 
complete. Second, the employer must total the columns on the Log; 
transfer them to the summary form; and enter the calendar year covered, 
the name of the employer, the name and

[[Page 6043]]

address of the establishment, the average number of employees on the 
establishment's payroll for the calendar year, and the total hours 
worked by the covered employees. If there were no recordable cases at 
the establishment for the year covered, the summary must nevertheless 
be completed by entering zeros in the total for each column of the OSHA 
300 Log. If a form other than the OSHA 300-A is used, as permitted by 
paragraph 1904.29(b)(4), the alternate form must contain the same 
information as the OSHA 300-A form and include identical statements 
concerning employee access to the Log and Summary and employer 
penalties for falsifying the document as are found on the OSHA 300-A 
form.
    Third, the employer must certify to the accuracy and completeness 
of the Log and Summary, using a two-step process. The person or persons 
who supervise the preparation and maintenance of the Log and Summary 
(usually the person who keeps the OSHA records) must sign the 
certification statement on the form, based on their direct knowledge of 
the data on which it was based. Then, to ensure greater awareness and 
accountability of the recordkeeping process, a company executive, who 
may be an owner, a corporate officer, the highest ranking official 
working at the establishment, or that person's immediate supervisor, 
must also sign the form to certify to its accuracy and completeness. 
Certification of the summary attests that the individual making the 
certification has a reasonable belief, derived from his or her 
knowledge of the process by which the information in the Log was 
reported and recorded, that the Log and summary are ``true'' and 
``complete.''
    Fourth, the Summary must be posted no later than February 1 of the 
year following the year covered in the Summary and remain posted until 
April 30 of that year in a conspicuous place where notices are 
customarily posted. The employer must ensure that the Summary is not 
defaced or altered during the 3 month posting period.
    Changes from the former rule. Although the final rule's 
requirements for preparing the Annual Summary are generally similar to 
those of the former rule, the final rule incorporates four important 
changes that OSHA believes will strengthen the recordkeeping process by 
ensuring greater completeness and accuracy of the Log and Summary, 
providing employers and employees with better information to understand 
and evaluate the injury and illness data on the Annual Summary, and 
facilitating greater employer and employee awareness of the 
recordkeeping process.
    1. Company Executive Certification of the Annual Summary. The final 
rule carries forward the proposed rule's requirement for certification 
by a higher ranking company official, with minor revision. OSHA 
concludes that the company executive certification process will ensure 
greater completeness and accuracy of the Summary by raising 
accountability for OSHA recordkeeping to a higher managerial level than 
existed under the former rule. OSHA believes that senior management 
accountability is essential if the Log and Annual Summary are to be 
accurate and complete. The integrity of the OSHA recordkeeping system, 
which is relied on by the BLS for national injury and illness 
statistics, by OSHA and employers to understand hazards in the 
workplaces, by employees to assist in the identification and control of 
the hazards identified, and by safety and health professionals 
everywhere to analyze trends, identify emerging hazards, and develop 
solutions, is essential to these objectives. Because OSHA cannot 
oversee the preparation of the Log and Summary at each establishment 
and cannot audit more than a small sample of all covered employers' 
records, this goal is accomplished by requiring employers or company 
executives to certify the accuracy and completeness of the Log and 
Summary.
    The company executive certification requirement imposes different 
obligations depending on the structure of the company. If the company 
is a sole proprietorship or partnership, the certification may be made 
by the owner. If the company is a corporation, the certification may be 
made by a corporate officer. For any management structure, the 
certification may be made by the highest ranking company official 
working at the establishment covered by the Log (for example, the plant 
manager or site supervisor), or the latter official's supervisor (for 
example, a corporate or regional director who works at a different 
establishment, such as company headquarters).
    The company executive certification is intended to ensure that a 
high ranking company official with responsibility for the recordkeeping 
activity and the authority to ensure that the recordkeeping function is 
performed appropriately has examined the records and has a reasonable 
belief, based on his or her knowledge of that process, that the records 
are accurate and complete.
    The final rule does not specify how employers are to evaluate their 
recordkeeping systems to ensure their accuracy and completeness or what 
steps an employer must follow to certify the accuracy and completeness 
of the Log and Summary with confidence. However, to be able to certify 
that one has a reasonable belief that the records are complete and 
accurate would suggest, at a minimum, that the certifier is familiar 
with OSHA's recordkeeping requirements, and the company's recordkeeping 
practices and policies, has read the Log and Summary, and has obtained 
assurance from the staff responsible for maintaining the records (if 
the certifier does not personally keep the records) that all of OSHA's 
requirements have been met and all practices and policies followed. In 
most if not all cases, the certifier will be familiar with the details 
of some of the injuries and illnesses that have occurred at the 
establishment and will therefore be able to spot check the OSHA 300 Log 
to see if those cases have been entered correctly. In many cases, 
especially in small to medium establishments, the certifier will be 
aware of all of the injuries and illnesses that have been reported at 
the establishment and will thus be able to inspect the forms to make 
sure all of the cases that should have been entered have in fact been 
recorded.
    The certification required by the final rule may be made by signing 
and dating the certification section of the OSHA 300-A form, which 
replaces the summary portion of the former OSHA 200 form, or by signing 
and dating a separate certification statement and appending it to the 
OSHA Form 300-A. A separate certification statement must contain the 
identical penalty warnings and employee access information as found on 
the OSHA Form 300-A. A separate statement may be needed when the 
certifier works at another location and the certification is mailed or 
faxed to the location where the Summary is posted.
    The certification requirement modifies the certification provision 
of the former rule (former paragraph 1904.5(c)), which required a 
certification of the Annual Summary by the employer or an officer or 
employee who supervised the preparation of the Log and Summary. The 
former rule required that individual to sign and date the year-end 
summary on the OSHA Form 200 and to certify that the summary was true 
and complete. Alternatively, the recordkeeper could, under the former 
rule, sign a separate certification statement rather than signing the 
OSHA form.
    Both the former rule (paragraph 1904.9 (a) and (b)) and the 
proposed rule (paragraph 1904.16(a) and (b))

[[Page 6044]]

contained penalty provisions for the falsification of OSHA records or 
for the failure to record recordable cases; these provisions do not 
appear in the final rule. OSHA believes, based on the record and the 
Agency's own recordkeeping and audit experience, that this deletion 
will not affect the accuracy or completeness of the records, employers' 
recording obligations, or OSHA's enforcement powers. The criminal 
penalties referred to in paragraph 1904.9(a) of the former rule are 
authorized by section 17(g) of the OSH Act and do not need to be 
repeated in the final rule to be enforced. Similarly, the 
administrative citations and penalties referred to in paragraph 
1904.9(b) of the former rule are authorized by sections 9 and 17 of the 
OSH Act. The warning statement on the final OSHA 300-A form or its 
equivalent should be sufficient to remind those who certify the forms 
of their legal obligations under the Act.
    OSHA has revised the final rule's certification requirement in 
response to questions about its usefulness raised in the preamble to 
the proposal (61 FR 4047). In particular, the proposal noted that the 
person responsible for preparing the Log and Summary might, in some 
cases, have an incentive not to report injuries and illnesses, which 
would, of course, impair the accuracy of the Log. OSHA stated that 
``some employers mistakenly believe that recording a case implies fault 
on the part of the employer'' and thus has the potential to adversely 
affect their ability to defend workers' compensation claims or 
lawsuits. Some employers also have established ``accountability 
systems'' that are based on the number of OSHA recordables, i.e., that 
evaluate the safety performance of managers by the number of injuries 
and illnesses reported by workers in the departments or organizational 
units under their control. OSHA noted that individuals whose 
performance, promotions, compensation, and/or bonuses depend on the 
achievement of reduced injury and illness rates ``may be discouraged 
from fully and accurately recording injuries and illnesses (61 FR 4047) 
* * *'' Managers and supervisors being evaluated by the numbers'' also 
may have an incentive to avoid recording as many cases as possible.
    OSHA proposed to change the former rule's certification 
requirements. In the proposed rule, OSHA proposed to require that a 
responsible company official certify to the accuracy and completeness 
of the Log and Summary. According to the proposal, that person would 
sign the summary 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'' (61 FR 4060). 
``Responsible company official'' was defined in the proposal as ``an 
owner of the company, the highest ranking company official working at 
the establishment, or the immediate supervisor of the highest ranking 
company official working at the establishment'' (61 FR 4059). By 
requiring a high level individual to sign each establishment Log 
certification, the proposal sought to create an incentive for that 
official to take steps to ensure the accuracy and completeness of the 
information on the log or face penalties for failing to do so.
    Several commenters (see, e.g., Exs. 15: 50, 105, 415) confirmed 
that an underreporting incentive did exist under the former rule's 
certification system. For example, the International Chemical Workers' 
Union (Ex. 15: 415) and Mr. George Cook (Ex. 15: 50) noted the 
potential for this problem to arise in their comments to the record. 
Harsco Corporation (Ex. 15: 105) pointed out that a contractor's 
accident rate will affect its ability to bid for jobs, and there is 
thus an incentive to keep rates low by not recording all injuries and 
illnesses.
    There were many responses to the proposed change in the 
certification requirement. In general, a broad cross-section of 
commenters (see, e.g., Exs. 15: 70, 127, 136, 137, 141, 153, 163, 170, 
224, 266, 278, 324, 371, 407, 418, 429) gave unqualified support to the 
proposal's certification by a ``responsible corporate official.'' 
Typical of these comments was the New Jersey Department of Labor's 
statement that the proposed change would result in heightened awareness 
of health and safety problems by management, enhanced efforts to reduce 
workplace injuries and illnesses, and more accurate reporting (Ex. 15: 
70). The AFL-CIO noted that requiring top corporate officials to be 
responsible ``represents a fundamental change in the importance of data 
gathering in the workplace'' (Ex. 15: 418).
    A number of commenters expressed reservations about the definition 
of ``responsible corporate official'' and the extent of the 
responsibility and/or legal liability such certification might impose 
on certifying officials. Some commenters argued that it was 
unreasonable for a high corporate official, who might not be familiar 
with the recordkeeping function and its legal requirements, to certify 
to the accuracy and completeness of the Log and Summary. These 
commenters argued that it would be more appropriate for a high level 
management official, industrial hygienist, or director of health and 
safety to certify the Log and Summary because these individuals are 
already responsible for ensuring the accuracy and completeness of the 
Log, especially in multi-establishment businesses where recordkeeping 
is centralized (see, e.g., Exs. 21; 25; 27; 33; 15: 44, 48, 65, 122, 
132, 133, 147, 154, 161, 169, 174, 176, 193, 194, 199, 203, 231, 242, 
263, 269, 270, 272, 273, 283, 284, 289, 290, 292, 295, 297, 299, 301, 
304, 305, 317, 325, 329, 332, 341, 345, 346, 348, 364, 368, 377, 385, 
386, 387, 403, 405, 410, 412, 413, 420, 425, 442). Two commenters 
suggested that, if a high level official were to be responsible for the 
certification, he or she should only be required to certify that the 
``[c]ompany has * * * taken reasonable steps to ensure the accuracy of 
the logs'' (Exs. 15: 200, 442). Several representatives from the 
construction industry (see, e.g., Exs. 15: 126, 342, 355) urged OSHA to 
make sure that any certification provision reflect the operation of 
multi-employer construction sites. These commenters recommended that 
the certifying official either be the senior official on-site or that 
person's immediate superior.
    Other employer representatives believed that the broad nature of 
the proposed certification could make the certification vulnerable to 
legal liability (see, e.g., Exs. 20; 33; 15: 122, 133, 147, 149, 176, 
193, 199, 201, 205, 220, 231, 236, 272, 273, 284, 290, 292, 297, 301, 
304, 313, 318, 320, 335, 345, 346, 352, 353, 368, 373, 375, 389, 396, 
424, 425, 427, 428, 430). The National Association of Manufacturers 
(Ex. 15: 305), in a statement that is representative of the views of 
these commenters, said that:

    [t]he language of the certification is totally impractical and 
unreasonable in that it is written as a certification of absolute 
completeness and accuracy. This creates such an unreasonably high 
standard that no one should legitimately be asked or required to 
sign it. As a general rule, we believe an individual would be 
expected to have significantly better knowledge of the information 
on his/her personal income tax return than on the OSHA Form 300; yet 
even the certification on the personal income tax return includes 
the language ``to the best of my knowledge and belief.'' This clause 
must be added to the certifying language.

    Numerous commenters favored a dual level of accountability, with a 
first level certification by the ``responsible company official,'' as 
defined in the proposal, and a second level certification required by a 
high level corporate official with safety and health responsibilities 
(see, e.g., Exs. 20, 15: 65, 89, 182, 369, 380, 409, 415). These

[[Page 6045]]

participants recommended that OSHA require a more senior official, at a 
corporate level beyond the establishment keeping the records, 
additionally certify that the company had made a good faith effort to 
ensure accurate and complete records for all of the employer's 
establishments. The American Automobile Manufacturers Association 
(AAMA) stated that it:

    [a]grees that a corporate official responsible for health and 
safety and the highest ranking company official at an establishment 
should certify that a good faith effort for proper recordkeeping has 
taken place, and the individual responsible for day-to-day OSHA 
recordkeeping should certify the accuracy and completeness of the 
log (Ex. 15-409).

    OSHA has not adopted a dual certification requirement because one 
certification should be enough to make sure that the records are 
accurate. In addition, a dual certification requirement would increase 
the complexity and burdens of the final rule, without significantly 
adding incentives for employers to keep better records.
    Some commenters wished OSHA to maintain the former rule's approach 
to certification. These participants were generally skeptical of senior 
management certification, characterizing it as impractical, onerous, 
burdensome, unrealistic, intrusive, and infringing on the prerogative 
of management to designate the appropriate person(s) to certify the Log 
(see, e.g., Exs. 15: 9, 15, 39, 45, 60, 89, 96, 132, 149, 156, 183, 
184, 185, 195, 200, 201, 203, 204, 213, 218, 225, 239, 259, 260, 262, 
265, 271, 272, 303, 304, 313, 317, 318, 320, 332, 335, 338, 344, 352, 
353, 360, 373, 378, 389, 390, 392, 401, 406, 414, 423, 424, 427, 428, 
430, 431). According to the Battery Council International, ``[t]he 
threat of civil and criminal liability provides more than enough 
incentive to ensure the accuracy of the recordkeeping Log and Summary'' 
(Ex. 15: 161). Mallinckrodt Chemical, Inc., and the Interconnecting and 
Packaging Electronic Circuits Corporation echoed this belief (Exs. 15: 
69, 172). The Vulcan Chemical Company went so far as to recommend that 
OSHA delete certification requirements completely and rely only on the 
proposed penalty provisions (Ex. 15: 171).
    Most commenters opposing high-level management certification argued 
that management-designated, well-qualified, lower level administrative 
personnel perform the recordkeeping function and can therefore best 
certify to the accuracy of the OSHA 300 Log (see, e.g., Exs. 15: 69, 
220, 225, 227, 281, 297, 305, 313, 352, 353). According to the American 
Textile Manufacturers Institute (Ex. 15: 156), ``[a] corporate official 
(i.e., safety director, human resources director, Chief Executive 
Officer) should never be required to certify the accuracy of the logs. 
Commenters also stated that placing the responsibility on senior 
management would increase the economic and paperwork burden of the rule 
because these individuals would need additional training and would 
conduct audits, particularly at businesses with many work locations 
(see, e.g., Exs. 15 : 213, 259, 375, 395). A few commenters stated that 
none of OSHA's proposed approaches, including the Log and Summary 
certification, would significantly decrease the financial incentives 
employers have for underreporting (see, e.g., Exs. 15: 39, 199, 406). 
The Ogletree, Deakins, Nash, Smoak & Stewart Coalition (ODNSSC) said 
that ``[i]n the final analysis, the one measure that will have the 
greatest effect in fostering the maintenance of accurate logs is 
finally within the grasp of all interested parties: the promulgation of 
a final rule * * * that is well conceived, makes intuitive and 
analytical sense, and as such is largely accepted within the regulated 
community'' (Ex. 15: 406).
    Although OSHA believes that the final rule has many features that 
will enhance the accuracy and completeness of reporting, the Agency has 
included a company executive level of certification in the final rule. 
OSHA believes that company executive certification will raise employer 
awareness of the importance of the OSHA records, improve their accuracy 
and completeness (and thus utility), and decrease any underreporting 
incentive.
    The final rule therefore requires a higher level company official 
to certify to their accuracy and completeness. Thus the final rule 
reflects OSHA's agreement with those commenters who stated that the Log 
and Summary must be actively overseen by higher level management and 
that certification by such an official would make management's 
responsibility for the accuracy and completeness of the system clear 
(see, e.g., Exs. 20; 15: 31, 65, 70, 89, 127, 136, 137, 141, 153, 163, 
170, 182, 224, 266, 278, 324, 369, 371, 380, 396, 407, 409, 415, 418, 
429). As the Union Carbide Company stated, having a higher authority 
sign a qualified certification of the summary ``[w]ould encourage 
activities, such as training and periodic reviews/audits of the logs, 
to improve the accuracy and completeness of the data'' (Ex. 15: 396). 
In the words of one safety consultant, ``[u]ntil there is a Corporate 
Commitment the information will be suspect'' (Ex. 15: 31).
    OSHA has slightly modified the proposed definition of responsible 
company official in the text of the final rule. In the final rule, the 
person who must perform the certification must be a company executive. 
OSHA does not believe that an industrial hygienist or a safety officer 
is likely to have sufficient authority to ensure the integrity of a 
company's recordkeeping process. Therefore, the final rule requires 
that the certification be provided by an owner of a sole proprietorship 
or partnership, an officer of the corporation, the highest-ranking 
official at the establishment, or that person's supervisor. OSHA 
believes that this definition takes into account and addresses the 
concerns of the comments received from construction employers (see, 
e.g., Exs. 15: 105, 126.342, 355).
    OSHA is also aware that senior management officials cannot be 
expected to have hands-on experience in the details of the logs and 
summaries and therefore that their certification attests to the overall 
integrity of the recordkeeping process. In response to numerous 
comments that certification by the responsible company official be 
qualified by the addition to the certification of a clause such as ``to 
the best of my knowledge and belief'' (see, e.g., Exs. 20, 15: 122, 
193, 199, 205, 220, 272, 273, 290, 305, 320, 335, 375, 396, 424, 425, 
427, 428, 430), OSHA has added that the certification required by the 
final rule must be based on the official's ``reasonable belief'' that 
the Log and Summary are accurate and complete. Certification thus means 
that the certifying official has a general understanding of the OSHA 
recordkeeping requirements, is familiar with the company's 
recordkeeping process, and knows that the company has effective 
recordkeeping procedures and uses those procedures to produce accurate 
and complete records. The precise meaning of ``reasonable belief'' will 
be determined on a case-by-case basis because circumstances vary from 
establishment to establishment and decisions about the recordability of 
individual cases may differ, depending upon case-specific details.
    2. Number of employees and hours worked. Injury and illness records 
provide a valuable tool for OSHA, employers, and employees to determine 
where and why injuries and illnesses occur, and they are crucial in the 
development of prevention strategies. The final rule requires employers 
to include in the Annual Summary (the OSHA Form 300-A) the annual 
average number of employees covered by the

[[Page 6046]]

Log and the total hours worked by all covered employees. In the 
proposal (61 FR 4037), OSHA stated that this information would 
facilitate hazard analysis and incidence rate calculations for each 
covered establishment. A number of commenters supported the proposed 
approach and felt that it would not be a burden on employers, as long 
as OSHA granted some flexibility to employers who did not have 
sophisticated recordkeeping systems (see, e.g., Exs. 15: 48, 61, 70, 
78, 153, 163, 181, 262, 310, 350, 369, 429). For example, the Safety 
Services Administration of the City of Mesa, Arizona, a small employer, 
stated:

    [f]or most employers, the average number of employees is readily 
available; the work hour totals may, or may not be so easily 
obtained, depending upon the book keeping methodology. For salaried 
employees, where detailed hourly records are not maintained, the 
2,000 hr/yr would be used in any case. In our case, both employee 
numbers and total hours worked is available and presents no problem 
(Ex. 15: 48).

    Other commenters stated that the total number of hours worked was 
readily available through payroll records and that calculating it would 
present only a minimal burden, but were opposed to the required 
inclusion of the annual average number of employees because this number 
is highly variable, difficult to assess where employment is seasonal 
and subject to high turnover, and not important to incidence 
calculations (see, e.g., Exs. 15: 123, 145, 170, 225, 359, 375).
    Other commenters opposed including in the summary the average 
number of employees and the total number of hours worked because they 
believed the costs of compiling this information would outweigh its 
benefits, which they believed to be minimal (see, e.g., Exs. 15: 9, 44, 
184, 195, 205, 214, 247, 272, 303, 308, 313, 335, 341, 352, 353, 412, 
423, 431), especially in industries, like health care, with high 
turnover rates (Ex. 15: 341). One company estimated its cost of 
collecting data on total hours worked to be $200,000 to $300,000 and to 
take four to six months (Ex. 15: 423). Sprint Corporation proposed that 
``[i]ncidence rates continue to be calculated on an exception basis by 
the compliance officer at the time of the inspection. Larger employers, 
like Sprint, maintain such incidence rates by department or business 
unit and not by physical location as broken out on the OSHA log'' (Ex. 
15: 133).
    Some commenters recommended alternatives, including permitting 
employers to estimate the total number of hours worked, possibly by 
using the ANSI Z16.4 standard of 173.33 hours per month per employee, 
to minimize the burden (see, e.g., Exs. 15: 272, 303, 335, 359) or 
excluding establishments with fewer than 100 employees from the 
requirement altogether (Ex. 15: 375).
    OSHA's view is that the value of the total hours worked and average 
number of employees information requires its inclusion in the Summary, 
and the final rule reflects this determination. Having this information 
will enable employers and employees to calculate injury and illness 
incidence rates, which are widely regarded as the best statistical 
measure for the purpose of comparing an establishment's injury and 
illness experience with national statistics, the records of other 
establishment, or trends over several years. Having the data available 
on the Form 300-A will also make it easier for the employer to respond 
to government requests for the data, which occurs when the BLS and OSHA 
collect the data by mail, and when an OSHA or State inspector visits 
the facility. In particular, it will be easier for the employer to 
provide the OSHA inspector with the hours worked and employment data 
for past years.
    OSHA does not believe that this requirement creates the time and 
cost burden some commenters to the record suggested, because the 
information is readily available in payroll or other records required 
to be kept for other purposes, such as income tax, unemployment, and 
workers' compensation insurance records. For the approximately 10% of 
covered employers who participate in the BLS's Annual Survey of 
Occupational Injuries and Illnesses, there will be no additional burden 
because this information must already be provided to the BLS. Moreover, 
the rule does not require employers to use any particular method of 
calculating the totals, thus providing employers who do not maintain 
certain records--for example the total hours worked by salaried 
employees--or employers without sophisticated computer systems, the 
flexibility to obtain the information in any reasonable manner that 
meets the objectives of the rule. Employers who do not have the ability 
to generate precise numbers can use various estimation methods. For 
example, employers typically must estimate hours worked for workers who 
are paid on a commission or salary basis. Additionally, the 
instructions for the OSHA 300-A Summary form include a worksheet to 
help the employer calculate the total numbers of hours worked and the 
average number of.
    3. Extended posting period. The final rule's requirement increasing 
the summary Form 300-A posting period from one month to three months is 
intended to raise employee awareness of the recordkeeping process 
(especially that of new employees hired during the posting period) by 
providing greater access to the previous year's summary without having 
to request it from management. The additional two months of posting 
will triple the time employees have to observe the data without 
imposing additional burdens on the employer. The importance of employee 
awareness of and participation in the recordkeeping process is 
discussed in the preamble to sections 1904.35 and 1904.36.
    The requirement to post the Summary on February 1 is unchanged from 
the posting date required by the former rule. As OSHA stated in the 
proposal (61 FR 4037) ``one month (January) is a reasonable time period 
for completing the summary section of the form.'' Only three commenters 
disagreed (see, e.g., Exs. 15: 347, 402, 409); two of these commenters 
suggested that 60 days were required to do so (Exs. 15: 347, 409). OSHA 
believes that, since the required process is simple and 
straightforward, 30 days will be sufficient. Delaying the posting any 
further would mean that employers would not have access to the Summary 
for a longer period, thus diminishing the timeliness of the posted 
information.
    OSHA's proposal would have required employers to post the summary 
for one year, based on the Agency's preliminary conclusion that 
continuous posting presented no additional burden for employers and 
would be beneficial to employees (61 FR 4037-4038). The one-year 
posting period was unconditionally supported by a number of commenters 
(see, e.g., Exs. 15: 70, 153, 154, 199, 277) and was supported by 
others on the condition that no updating of the posted summary be 
required (see, e.g., Exs. 15: 262, 288, 435). The AAMA and the Ford 
Motor Co. supported a ten-month posting period (from March 1 to 
December 31) (Exs. 15: 347, 409).
    A number of commenters stated that a one-year posting period was 
too long and would not be justified by the minimal benefits to be 
achieved by such year-long posting. Some of these participants 
contended that the Annual Summary does not continue to provide useful, 
accurate information after its initial posting and will not enhance 
employee awareness because, although posting of a new summary is 
noticed when it is done, it becomes ``wallpaper'' shortly thereafter, 
especially if it is on a cluttered bulletin board (see, e.g., Exs. 33; 
15: 9, 23, 39, 40, 45, 60, 66, 98, 107, 119, 121, 122, 176, 203, 204, 
231, 232,

[[Page 6047]]

273, 281, 289, 301, 317, 322, 329, 335, 341, 344, 347, 348, 356, 358, 
381, 389, 399, 405, 409, 414, 428, 430, 431, 434, 441). For example, 
the Witco Corporation predicted that the 12-month posting requirement 
``[w]ill result in no one noticing the old Log's removal and the 
posting of a new one'' (Ex. 15: 107). One commenter even suggested that 
continuous posting ``[u]ndermines the Agency's intent in bringing the 
information to employees'' attention'' (Ex. 15: 428).
    Other commenters argued that year-long posting was excessive 
because it created too great a burden on employers. They stated that 
extended posting would require employers to make periodic inspections 
to ensure that the summary had not been taken down, covered, or defaced 
(see, e.g., Exs. 37, 15: 57, 80, 97, 151, 152, 179, 180, 272, 303, 335, 
346, 381, 410, 431), and that this additional administrative burden, 
especially to employers with large establishments that now voluntarily 
post Logs in multiple locations, could be significant (see, e.g., Exs. 
15: 97, 184, 239, 272, 283, 297, 303, 304, 305, 348, 395, 396, 410, 
424, 430). One suggestion made by commenters to minimize this burden 
was to post the Summary for one month at the establishment and then at 
a central location for the remaining eleven months (see, e.g., Exs. 15: 
151, 152, 179, 180) or to permit electronic posting (Ex. 15: 184). 
Other employers opposed the extended posting period on the grounds that 
a one-month period posting was sufficient to achieve OSHA's objectives 
(see, e.g., Exs. 15: 9, 15, 39, 45, 49, 57, 69, 74, 80, 89, 97, 98, 
116, 119, 133, 163, 182, 184, 195, 203, 287, 289, 335, 356, 396, 424, 
427, 428, 441, 443), especially since employees have access to the 
summary at any time during the retention period (see, e.g., Exs. 15: 9, 
15, 69, 80, 98, 119, 136, 137, 141, 161, 200, 204, 224, 225, 266, 272, 
278, 303, 312, 317, 324, 348, 374, 395, 405, 406, 410, 412, 431). Still 
other commenters thought the one-year period was too long but supported 
a two or even three-month posting period as adding little, if any, 
additional burden (see, e.g., Exs. 37, 15: 78, 89, 199, 235, 256, 277).
    After a review of all the comments received and its own extensive 
experience with the recordkeeping system and its implementation in a 
variety of workplaces, OSHA has decided to adopt a 3-month posting 
period. The additional posting period will provide employees with 
additional opportunity to review the summary information, raise 
employee awareness of the records and their right to access them, and 
generally improve employee participation in the recordkeeping system 
without creating a ``wallpaper'' posting of untimely data. In addition, 
OSHA has concluded that any additional burden on employers will be 
minimal at best and, in most cases, insignificant. All the final rule 
requires the employer to do is to leave the posting on the bulletin 
board instead of removing it at the end of the one-month period. In 
fact, many employers preferred to leave the posting on the bulletin 
board for longer than the required one-month period in the past, simply 
to provide workers with the opportunity to view the Annual Summary and 
increase their awareness of the recordkeeping system in general and the 
previous year's injury and illness data in particular. OSHA agrees that 
the 3-month posting period required by the final rule will have these 
benefits which, in the Agency's view, greatly outweigh any minimal 
burden that may be associated with such posting. The final rule thus 
requires that the Summary be posted from February 1 until April 30, a 
period of three months; OSHA believes that the 30 days in January will 
be ample, as it has been in the past, for preparing the current year's 
Summary preparatory to posting.
    4. Review of the records. The provisions of the final rule 
requiring the employer to review the Log entries before totaling them 
for the Annual Summary are intended as an additional quality control 
measure that will improve the accuracy of the information in the Annual 
Summary, which is posted to provide information to employees and is 
also used as a data source by OSHA and the BLS. Depending on the size 
of the establishment and the number of injuries and illnesses on the 
OSHA 300 Log, the employer may wish to cross-check with any other 
relevant records to make sure that all the recordable injuries and 
illnesses have been included on the Summary. These records may include 
workers' compensation injury reports, medical records, company accident 
reports, and/or time and attendance records.
    OSHA did not propose that any auditing or review provisions be 
included in the final rule. However, several commenters suggested that 
OSHA include requirements that would require employers to audit the 
OSHA 300 Log information (see, e.g., Exs. 35; 36; 15: 31, 310, 418, 
438). For example, the United Auto Workers (Ex. 15: 438) stated:

[t]he most important change OSHA could make in recordkeeping rules 
would be to require employers to conduct an independent audit of the 
completeness of the record. The purpose of the audit would be to 
determine that no case went unrecorded, and that no disabling injury 
or illness was mislabeled as non lost workday. Such requirements 
were not in the proposal, but are desperately needed.

    Linda Ballas (Ex. 15: 31), a safety consultant who performs audits 
of OSHA injury and illness records for employers, added [u]ntil there 
is Corporate Commitment the information will be suspect. * * * Audits 
are necessary.'' In fact, the Laborers' Health & Safety Fund of North 
America (Ex. 15: 310) recommended biennial third-party audits.
    In the final rule, OSHA has not adopted regulatory language that 
requires formal audits of the OSHA Part 1904 records. However, the 
final rule does require employers to review the OSHA records as 
extensively as necessary to ensure their accuracy. The Agency believes 
that including audit provisions is not necessary because the high-level 
certification requirement will ensure that recordkeeping receives the 
appropriate level of management attention.
    Some companies, especially larger ones, may choose to conduct 
audits, however, to ensure that the records are accurate and complete; 
many companies commented that they already perform records audits as 
part of their company's safety and health program. For example, the 
Ford Motor Company (Ex. 15: 347), Dow Chemical Company (Ex. 15: 335), 
and Brown & Root (Ex. 15: 423) reported that they audit their injury 
and illness records on a regular basis. Also, three commenters to the 
record were safety and health consultants who provide injury and 
illness auditing services to employers, in addition to other safety and 
health services (Exs. 15: 31, 345, 406). In the past, OSHA has entered 
into a number of corporate-wide settlement agreements with individual 
companies that included third-party audits of the employers' injury and 
illness records (e.g., Ford, General Motors, Union Carbide). OSHA 
expects that many of these companies will continue to audit their 
injury and illness records and their recordkeeping procedures, and to 
take any other quality control measures they believe to be necessary to 
ensure the quality of the records. However, OSHA has not required 
records audits in the final rule because the Agency believes that the 
combination of final rule requirements providing for employee 
participation (Sec. 1904.35), protecting employees against 
discrimination for reporting work-related injuries and illnesses to 
their employer (section

[[Page 6048]]

1904.36), requiring review by employers of the records at the end of 
the year, and mandating two level certification of the records will 
provide the quality control mechanisms needed to improve the quality of 
the OSHA records.
    Deletions from the former rule. Except for the foregoing changes 
discussed above, the final rule is generally similar to the former rule 
in its requirements for preparing, certifying and posting of the year-
end Summary. However, some provisions of the former rule related to the 
Summary have not been included in the final rule. For example, the 
former rule required employers with employees who did not report to or 
work at a single establishment, or who did not report to a fixed 
establishment on a regular basis, to hand-deliver or mail a copy of the 
Summary to those employees. OSHA proposed to maintain this requirement, 
which was supported by one commenter (Ex. 15: 298) but opposed by many 
others because of the administrative cost of preparing such mailings, 
especially in high turnover industries like construction (see, e.g., 
Exs. 15: 116, 132, 199, 200, 201, 312, 322, 329, 335, 342, 344, 355, 
375, 395, 430, 440, 441). These commenters pointed out that employees 
who do not report to a single establishment still have the right to 
view the summary at a central location and to obtain copies of it.
    In the final rule, OSHA has decided not to include the proposed 
requirement for individual mailings as unnecessary because final 
paragraph 1904.30(b)(3) requires that every employee be linked, for 
recordkeeping purposes, to at least one establishment keeping a Log and 
Summary that will be prepared and posted. In other words, every 
employee covered by the rule will have his or her injuries or illnesses 
recorded on a particular establishment's Log, even if that employee 
does not routinely report to that establishment or is temporarily 
working there. Thus every employee will have 3-month access to the Log 
and Summary at the posted location or may obtain a copy the next 
business day under paragraph 1904.35(b)(2)(iii), making the need for 
hand-delivery or mailing unnecessary.
    Under the former rule, multi-establishment employers who closed an 
establishment during the year were not obligated to post an Annual 
Summary for that establishment. OSHA believes that this requirement is 
also unnecessary because it is obvious in such cases that there is no 
physical location at which to post the Summary. Closing an 
establishment does not, however, relieve an employer of the obligation 
to prepare and certify the Summary for whatever portion of the calendar 
year the establishment was operating, retain the Summary, and make the 
Summary accessible to employees and government officials.
    Other comments. Some commenters availed themselves of the 
opportunity to comment on portions of the recordkeeping rule that OSHA 
did not propose to change. Some of these comments addressed the issue 
of whether to post a year-end Summary at all. Posting the Summary was 
almost unanimously supported, but a few commenters opposed posting on 
the grounds that posting had ``[a] de minimus effect on employee safety 
and accident prevention'' (Ex. 15: 46), was not an accurate measure of 
current safety and health conditions (see, e.g., Exs. 15: 95, 126), or 
was unnecessary and burdensome for their industry (e.g, the maritime 
industry (Ex. 15: 95), construction industry (Ex. 15: 126), and retail 
store industry (Ex. 15: 367)). Although opposed to the posting of a 
year-end summary, one company urged OSHA to require that year-end 
summaries be submitted to OSHA (Ex. 15: 63).
    Alternatives to posting were suggested by some commenters. One 
advocated annual informational meetings with employees instead (Ex. 15: 
126), while others supported mailing the summary to each employee and 
providing the summary to new employees at orientation (Ex. 15: 154) or 
by e-mail (Ex. 15: 156). Three employers recommended excluding small 
establishments (fewer than 20, 50 or 100 employees) from posting if all 
column totals on the Log were zero (see, e.g., Exs. 15: 304, 358, 375).
    OSHA believes, based on the record evidence and its own extensive 
recordkeeping experience, that posting the Summary is important to 
safety and health for all the reasons described above. Some of the 
suggested alternatives may be useful, and OSHA encourages employers to 
use any practices that they believe will enhance their own and employee 
awareness of safety and health issues, provided that they also comply 
fully with the final rule's posting requirements.
    Another issue raised by commenters was whether multi-establishment 
employers should be required to post their summaries in each 
establishment, as required by the former rule. Employers general