[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 generally 
supported posting at each establishment, although one commenter opposed 
posting at each establishment in multi-establishment companies as 
overly burdensome and without benefit (Ex. 15: 356). One construction 
employer argued that construction companies should be allowed to post 
their summaries at a centralized location and only be required to do so 
at the establishment if it was a major construction site in operation 
for at least one year (Ex. 15: 116).
    OSHA believes that permitting centralized posting only would 
substantially interfere with ready employee access to the Log, 
especially for employers operating many different sites. The record 
does not suggest that retaining the requirement for posting summaries 
at each establishment will be burdensome to employers and the final 
rule accordingly requires that multi-establishment employers post a 
Summary in each establishment relating that establishment's injury and 
illness experience for the preceding year.

Section 1904.33  Retention and Updating

    Section 1904.33 of the final rule deals with the retention and 
updating of the OSHA Part 1904 records after they have been created and 
summarized. The final rule requires the employer to save the OSHA 300 
Log, the Annual Summary, and the OSHA 301 Incident Report forms for 
five years following the end of the calendar year covered by the 
records. The final rule also requires the employer to update the 
entries on the OSHA 300 Log to include newly discovered cases and show 
changes that have occurred to previously recorded cases. The provisions 
in section 1904.33 state that the employer is not required to update 
the 300A Annual Summary or the 301 Incident Reports, although the 
employer is permitted to update these forms if he or she wishes to do 
so.
    As this section makes clear, the final rule requires employers to 
retain their OSHA 300 and 301 records for five years following the end 
of the year to which the records apply. Additionally, employers must 
update their OSHA 300 Logs under two circumstances. First, if the 
employer discovers a recordable injury or illness that has not 
previously been recorded, the case must be entered on the forms. 
Second, if a previously recorded injury or illness turns out, based on 
later information, not to have been recorded properly, the employer 
must modify the previous entry. For example, if the description or 
outcome of a case changes (a case requiring medical treatment becomes 
worse and the employee must take days off work to recuperate), the 
employer must remove or line out the original entry and enter the new 
information. The employer also has a duty to enter the date of an 
employee's return to work or the date of an injured worker's death on 
the Form 301; OSHA considers the

[[Page 6049]]

entering of this information an integral part of the recordkeeping for 
such cases. The Annual Summary and the Form 301 need not be updated, 
unless the employer wishes to do so. The requirements in this section 
1904.33 do not affect or supersede any longer retention periods 
specified in other OSHA standards and regulations, e.g., in OSHA health 
standards such as Cadmium, Benzene, or Lead (29 CFR 1910.1027, 
1910.1028, and 1910.1025, respectively).
    The proposed rule (61 FR 4030, at 4061) would have reduced the 
retention and updating periods for these records to three years. The 
language of the proposal was as follows:

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

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

    A number of commenters supported the proposed reduction in the 
retention period from five years to three years on the ground that it 
would reduce administrative burdens and costs without having any 
demonstrable effect on safety and health (see, e.g., Exs. 22, 33, 37, 
15: 9, 39, 61, 69, 82, 89, 95, 107, 121, 133, 136, 137, 141, 154, 173, 
179, 181, 184, 201, 204, 213, 224, 225, 239, 242, 263, 266, 269, 270, 
272, 278, 283, 288, 304, 307, 321, 322, 332, 334, 341, 347, 348, 368, 
375, 377, 384, 387, 390, 392, 395, 396, 397, 409, 413, 424, 425, 427, 
443). According to the American Iron and Steel Institute (AISI), whose 
views were typical of those of this group of commenters, a three-year 
retention period:

    [s]hould reduce employers' administrative costs without 
sacrificing any accuracy in the records of serious illnesses and 
injuries. Additional cost savings could be accomplished by limiting 
the time period during which an employer must update its injury and 
illness records to one year. Such a change would allow employers to 
close the books sooner on the health and safety data for a 
particular year, without resulting in any loss of accuracy. In 
AISI's experience, it is extremely rare that any new information on 
an illness or injury surfaces more than a few months after an injury 
is recorded, while the administrative cost of having to update a log 
and summary is significant for the rare cases that yield information 
after one year (Ex. 15: 395).

    Several commenters, however, opposed the three-year retention 
period and favored the former rule's five-year retention period (see, 
e.g., Exs. 20, 24, 15: 153, 350, 359, 379, 407, 415, 429). For example, 
the American Industrial Hygiene Association (AIHA) opposed the shorter 
retention period, stating:

    [A]IHA opposes OSHA's proposed change of OSHA recordkeeping 
record retention from 5 to 3 years. There is little work in record 
retention, and much information lost if they are discarded. We 
recommend maintaining the 5 year retention for OSHA Logs and 
supporting 301 forms (Ex. 15: 153.)

    According to NIOSH, which favored the longer retention period, 
retaining records for five years:

    [a]llows the aggregation of data over time that is important for 
evaluating distributions of illnesses and injuries in small 
establishments with few employees in each department/job title. 
Also, the longer retention period is important for the observation 
of trends over time in the recognition of new problems and the 
evaluation of the effectiveness of intervention in large companies. 
In addition, the longer retention period makes possible the 
assessment of trends over time or to determine if a current cluster 
of cases is unusual for that industry. Reducing the retention period 
would thus have a detrimental effect on these types of analysis, 
which are frequently used by NIOSH in field studies (Ex. 15: 407).

    The American Industrial Hygiene Association recommended a longer 
retention period (up to 30 years) for the OSHA 301 form to accommodate 
occupational diseases with long latency periods (Ex. 15: 153).
    In this final rule, OSHA has decided to retain the five-year 
retention requirement for OSHA injury and illness records because the 
longer time period will enable employers, employees, and researchers to 
obtain sufficient data to discover patterns and trends of illnesses and 
injuries and, in many cases, to demonstrate the statistical 
significance of such data.
    In addition, OSHA has concluded that the five-year retention period 
will add little additional cost or administrative burden, since 
relatively few cases will surface more than three years after the 
injury and illness occurred, and the vast majority of cases are 
resolved in a short time and do not require updating. In addition, OSHA 
believes that other provisions of the final rule (e.g., computerization 
of records, centralized recordkeeping, and the capping of day counts) 
will significantly reduce the recordkeeping costs and administrative 
burden associated with the tracking of long-term cases.
    The comments on the proposed rule's updating requirements for 
individual entries on the OSHA Form 300 reflected a considerable amount 
of confusion about the proposed rule's requirements for updating. 
Because the proposed rule did not state how frequently the form was to 
be updated, some employers interpreted the proposed rule as permitting 
quarterly updates (proposed by OSHA for year-end summaries only) during 
the retention period (see, e.g., Exs. 15: 9, 61, 89, 170, 181, 288, 
389). Some participants argued for even less frequent updating (see, 
e.g., Exs. 15: 151, 152, 179, 180, 317, 348). Several employers 
recognized that the Log is an ongoing document and that information 
must be updated on a regular basis, preferably at the same frequency as 
required for initial recording (see, e.g. Exs. 15: 65, 201, 313, 346, 
352, 353, 430). The final rule requires Log updates to be made on a 
continuing basis, i.e., as new information is discovered. For example, 
if a new case is discovered during the retention period, it must be 
recorded within 7 calendar days of discovery, the same interval 
required for the recording of any new case. If new information about an 
existing case is discovered, it should be entered within 7 days of 
receiving the new information. OSHA has also decided to require 
updating over the entire five-year retention period. OSHA believes that 
maintaining consistency in the length of the retention and updating 
periods will simplify the recordkeeping process without imposing 
additional burdens on employers, because most updating of the records 
occurs during the first year following an injury or illness.
    The comments OSHA received on the proposed quarterly updating of 
year-end summaries were mixed. Some thought that such updating would 
provide timely and accurate information to employees at little cost 
(see, e.g. Exs. 15: 9, 89, 170, 260, 262, 265, 401), while others saw 
the requirement as burdensome and costly and without commensurate value 
(see, e.g. Exs. 15: 78, 225, 289, 337, 406, 412). Typical of those 
commenters who viewed such a requirement as burdensome was the American 
Automobile Manufacturing Association (AAMA), which stated ``[u]pdating 
prior year totals on the annual summary(s) once posted, is of little 
value. The increase in total numbers is generally so modest as to not 
affect the overall magnitude of problems within an establishment'' (Ex. 
15: 409).

[[Page 6050]]

    Some commenters recommended that the summaries be updated less 
frequently, such as semi-annually (see, e.g., Exs. 37, 15: 163). The 
National Safety Council (Ex. 15: 359) recommended quarterly updates the 
first year and annual updates thereafter. Others interpreted the 
proposed rule as requiring quarterly updates and re-certification and 
re-posting of the year-end summaries after the posting period had 
ended; these commenters opposed such a requirement as being overly 
burdensome (see, e.g., Exs. 15: 181, 199, 201, 225, 272, 288, 303, 308, 
351). Lucent Technologies (Ex. 15: 272), one of these commenters, urged 
OSHA to add the following qualifier to any requirement for the updating 
of the annual summary: ``[t]he quarterly update of the summary is for 
tracking purposes only and will not require re-certification or 
posting.''
    After reviewing these comments and the evidence in the record, OSHA 
has decided not to require the updating of annual summaries. 
Eliminating this requirement from the final rule will minimize 
employers' administrative burdens and costs, avoid duplication, and 
avoid the complications associated with the certification of updated 
summaries, the replacement of posted summaries, and the transmission of 
summaries to remote sites. The Agency concludes that updating the OSHA 
Form 300 or its equivalent for a period of five years will provide a 
sufficient amount of accurate information for recordkeeping purposes. 
OSHA is persuaded that updating the year-end summary would provide 
little benefit as long as the information from which the summaries are 
derived (the OSHA Form 300) is updated for a full five-year period.
    Very few comments were received on OSHA's proposed position not to 
require the updating of the 301 form. All of the comments received 
supported OSHA's proposed approach (see, e.g., Exs. 15: 260, 262, 265, 
401). OSHA does not believe that updating the OSHA Form 301 will 
enhance the information available to employers, employees, and others 
sufficiently to warrant including such a requirement in the final rule. 
However, the final rule makes it clear that employers may, if they 
choose, update either the Summary or the Form 301.

Section 1904.34  Change in Business Ownership

    Section 1904.34 of the final rule addresses the situation that 
arises when a particular employer ceases operations at an establishment 
during a calendar year, and the establishment is then operated by a new 
employer for the remainder of the year. The phrase ``change of 
ownership,'' for the purposes of this section, is relevant only to the 
transfer of the responsibility to make and retain OSHA-required injury 
and illness records. In other words, if one employer, as defined by the 
OSH Act, transfers ownership of an establishment to a different 
employer, the new entity becomes responsible for retaining the previous 
employer's past OSHA-required records and for creating all new records 
required by this rule.
    The final rule requires the previous owner to transfer these 
records to the new owner, and it limits the recording and recordkeeping 
responsibilities of the previous employer only to the period of the 
prior owner. Specifically, section 1904.34 provides that if the 
business changes ownership, each employer is responsible for recording 
and reporting work-related injuries and illnesses only for that period 
of the year during which each employer owned the establishment. The 
selling employer is required to transfer his or her Part 1904 records 
to the new owner, and the new owner must save all records of the 
establishment kept by the prior owner. However, the new owner is not 
required to update or correct the records of the prior owner, even if 
new information about old cases becomes available.
    The former OSHA injury and illness recording and reporting rule 
also required both the selling and buying employers to record and 
report data for the portion of the year for which they owned the 
establishment. Although the former rule required the purchasing 
employer to preserve the records of the prior employer, it did not 
require the prior employer to transfer the OSHA injury and illness 
records to the new employer. Section 1904.11 of the former rule stated:

    Where an establishment has changed ownership, the employer shall 
be responsible for maintaining records and filing reports only for 
that period of the year during which he owned such establishment. 
However, in the case of any change in ownership, the employer shall 
preserve those records, if any, of the prior ownership which are 
required to be kept under this part. These records shall be retained 
at each establishment to which they relate, for the period, or 
remainder thereof, required under Sec. 1904.6.

    The section of OSHA's proposed rule addressing ``change of 
ownership'' mirrored the former rule with only slight language changes, 
as follows:

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

    Some commenters felt that this proposed section suggested that new 
owners could be held responsible for obtaining OSHA injury and illness 
records, but that the former owners were not required to provide them 
(see, e.g., Exs. 15: 119 298, 323, 356, 397, 323). This interpretation, 
which would clearly place the new owner in an untenable position, was 
not accurate. Consequently, to avoid confusion in the future, the final 
rule requires former owners to transfer their Part 1904 records to the 
new owner. This requirement ensures that the continuity of the records 
is maintained when a business changes hands.

Sections 1904.35  Employee Involvement, and 1904.36, Prohibition 
Against Discrimination

    One of the goals of the final rule is to enhance employee 
involvement in the recordkeeping process. OSHA believes that employee 
involvement is essential to the success of all aspects of an employer's 
safety and health program. This is especially true in the area of 
recordkeeping, because free and frank reporting by employees is the 
cornerstone of the system. If employees fail to report their injuries 
and illnesses, the ``picture'' of the workplace that the employer's 
OSHA forms 300 and 301 reveal will be inaccurate and misleading. This 
means, in turn, that employers and employees will not have the 
information they need to improve safety and health in the workplace.
    Section 1904.35 of the final rule therefore establishes an 
affirmative requirement for employers to involve their employees and 
employee representatives in the recordkeeping process. The employer 
must inform each employee of how to report an injury or illness, and 
must provide limited access to the injury and illness records for 
employees and their representatives. Section 1904.36 of the final rule 
makes clear that Sec. 11(c) of the Act prohibits employers from 
discriminating against employees for reporting work-related injuries 
and illnesses. Section 1904.36 does not create a new obligation on 
employers. Instead, it clarifies that the OSH Act's anti-discrimination 
protection applies to employees who seek to participate in the 
recordkeeping process.\3\
---------------------------------------------------------------------------

    \3\ The relevant language of Section 11(c) that ``No person 
shall discharge or in any manner discriminate against any employee * 
* * because of the exercise by such employee on behalf of himself or 
others of any rights afforded by this Act.''

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

[[Page 6051]]

    Under the employee involvement provisions of the final rule, 
employers are required to let employees know how and when to report 
work-related injuries and illnesses. This means that the employer must 
establish a procedure for the reporting of work-related injuries and 
illnesses and train its employees to use that procedure. The rule does 
not specify how the employer must accomplish these objectives. The size 
of the workforce, employees' language proficiency and literacy levels, 
the workplace culture, and other factors will determine what will be 
effective for any particular workplace.
    Employee involvement also requires that employees and their 
representatives have access to the establishment's injury and illness 
records. Employee involvement is further enhanced by other parts of the 
final rule, such as the extended posting period provided in section 
1904.32 and the access statements on the new 300 and 301 forms.
    These requirements are a direct outgrowth of the issues framed by 
OSHA in the 1996 proposal. In that Federal Register notice, OSHA 
proposed an employee access provision, Sec. 1904.11(b), and discussed 
the issue at length in the preamble (61 FR 4038, 4047, and 4048). OSHA 
did not propose a specific provision for employee involvement in the 
reporting process, but raised the issue for discussion in the preamble 
(61 FR 4047-48) (see Issue 7. Improving employee involvement). The 
proposed rule did contain a reference to section 11(c) of the OSH Act 
and its applicability to retaliatory discrimination by employers 
against employees who report injuries or illnesses (61 FR 4062).
    Specifically, OSHA noted in the NPRM that the Keystone Dialogue 
report (Ex. 5) advocated greater employee awareness and involvement in 
the recordkeeping process to improve the process and enhance safety and 
health efforts in general. There was agreement among members of the 
Dialogue group that, for a number of reasons, among them lack of 
knowledge, fear of reprisal, and apathy, ``employees often do not seek 
access to injury/illness logs (to a sufficient extent) * * * [and] that 
overall workplace safety and health would benefit if the information in 
the logs were more widely known. * * *'' In this regard, the group made 
several recommendations to modify the recordkeeping process and to 
involve employees in accident prevention efforts:
     OSHA should require employers to notify employees 
individually of log entries for each recordable case and their right to 
access the records, either by providing them with a copy of the 101 
form or the log, by having the employee initial or otherwise 
acknowledge the log entry, or by other means negotiated with a 
designated employee representative;
     Employers should inform employees of an affirmative duty 
to bring cases to the employer's attention;
     OSHA should add statements to the OSHA recordkeeping forms 
101 and 200 that inform employees of their right to access the 200 
form;
     OSHA should extend the posting period for the 200 form 
from one month to 12 months;
     Employers should share data with employees and members of 
safety committees;
     Employers should include more employees in accident 
investigations and analyses; and
     Detailed survey data systems should be developed so those 
employees could assist employers in evaluating accident and exposure 
risks associated with their work processes.
    OSHA also noted that the General Accounting Office (GAO) report 
(Ex. 3) identified employee lack of knowledge and understanding of the 
recordkeeping system as one cause of the underreporting of occupational 
injuries and illnesses. Based on these and other reports and OSHA's 
compliance experience, OSHA requested comment in the proposal on (1) 
whether employers should notify employees that their injuries or 
illnesses have been entered into the records, (2) if so, how employers 
could meet such a requirement and the degree of flexibility OSHA should 
give employers, (3) any other ideas for improving employee involvement 
in the recordkeeping system, and (4) the costs and benefits of 
alternate proposals.
    These issues drew considerable comment during the rulemaking. With 
few exceptions (see, e.g., Exs. 15: 13, 78, 201, 389, 406), commenters 
generally supported increasing employee awareness and involvement in 
the recordkeeping process in some form (see, e.g., Exs. 15: 26, 85, 87, 
154, 170, 199, 234, 310, 341, 357, 378, 414, 415, 418, 426). For 
example, some commenters supported increasing employee awareness by 
requiring year-round posting of the OSHA 300 Log (see, e.g., Exs. 15: 
154, 170, 199, 415, 426), adding an employee accessibility statement to 
the OSHA 300 Log (Ex. 15: 418) , and requiring employee training on 
recordkeeping issues and procedures (Ex. 15: 418). A number of 
commenters also discussed their own efforts to involve employees in 
various recordkeeping activities, such as in filling out accident forms 
(see, e.g., Exs. 15: 23, 87, 225), assisting in accident investigations 
(see, e.g., Exs. 15: 170, 357, 425), and reviewing accident data (see, 
e.g., Exs. 15: 260, 262, 265, 310, 357, 401, 414).
    However, most employers, including many who supported various 
methods to increase employee awareness and involvement in the process, 
opposed a provision requiring employers to notify individual employees 
that their injuries have been recorded on the Log because, in their 
views, such a requirement would not be likely to achieve OSHA's stated 
objective and would be too burdensome and costly for employers (see, 
e.g., Exs. 15: 9, 49, 60, 76, 82, 85, 95, 109, 123, 145, 154, 170, 172, 
199, 204, 218, 225, 262, 281, 283, 288, 324, 341, 357, 374, 393, 406, 
426). Representative of these comments were those of AT&T and Lucent 
Technologies, which pointed out that workers are currently required to 
be notified about the status of job-related incidents by workers' 
compensation regulations and company benefit programs and that separate 
notification of an OSHA 300 Log entry would therefore be confusing and 
redundant (Exs. 15: 272 and 15: 303).
    On the other hand, individual notification of employees was 
supported by commenters from the unions and professional organizations, 
as well as by some employers (see, e.g., Exs. 15: 156, 181, 233, 247, 
310, 350, 369, 414). For example, the American Association of 
Occupational Health Nurses (Ex. 15: 181) supported notification ``[a]s 
a means of improving employee cooperation and helping employees 
recognize their role in working safely and promoting a safe 
workplace.'' Those supporting notification suggested that reasonable 
means of providing such notification would be direct mail, including a 
notice in a pay envelope, or e-mailing a notice and/or the OSHA 301 
form to affected employees (see, e.g., Exs. 15: 310, 350).
    The National Safety Council's comment (Ex. 15: 359) typifies the 
views of these commenters:

    [w]e believe that employee involvement in occupational safety 
and health issues is highly desirable and that notification is one 
aspect of employee involvement. * * * If OSHA were to require 
notification, then OSHA should require each employer to create and 
comply with its own written notification policy--perhaps subject to 
some limitation such as notification within 7-14 days of entry on 
the Log. The OSHA compliance officer can verify compliance with the 
company's policy on a test basis during an inspection.


[[Page 6052]]


    Other commenters (see, e.g., Exs. 15: 234, 283, 348, 426) agreed 
that the final rule should not specify how employee notification should 
be accomplished. For example, E. I. du Pont de Nemours Corporation (Ex. 
15: 348) stated:

    [l]egislating how people communicate is confining. Many 
companies do a fine job of notifying employees about injuries, 
investigation findings, hazard reduction, and ways to contribute to 
a safer workplace. Mandating a particular method would be 
counterproductive to those organizations already doing a good job. * 
* * We suggest that unless full implications of involving employees 
in the process are clearly understood (and are not prohibited by any 
other federal agency) no guideline should be written--but perhaps 
suggestions of ways successful companies have worked with their 
employees to improve safety performance could be provided and would 
be useful.

    One participant suggested a policy of having the injured employee 
view the Log to verify its accuracy, noting that ``[t]his procedure * * 
* does not appear to place additional costs or undue burden on the 
employer'' (Ex. 15: 163). Another recommended a ``face-to-face 
advisory'' after an investigation of the accident had been completed 
(Ex. 15: 414). The American Textile Manufacturers Institute (Ex. 15: 
156) suggested more proactive approaches:

    [o]ther methods for improving employee involvement in the injury 
and illness recordkeeping system include giving employees accident 
causation and prevention information from the records. In addition, 
information about departments, accident types, injury types, hazards 
and contributing factors, etc., could and should be shared for the 
benefit of employer and employees.

    The AFL-CIO, United Auto Workers (UAW), Services Employees 
International Union (SEIU), and MassCOSH addressed the reporting 
disincentive that occurs when employees are threatened, disciplined, or 
discriminated against for reporting injuries or illnesses (Exs. 58X, 
15: 79, 418, 438). MassCOSH recounted how health care workers were 
disciplined for reporting multiple needle stick injuries, and the 
United Auto Workers noted that some injury victims were subject to drug 
testing (Ex. 15: 438). The unions recommended that discriminatory 
treatment of employees who report injuries should be presumed to be a 
violation of section 11(c), the anti-discrimination provision of the 
OSH Act (see, e.g., Exs. 48, 58X, 15: 379, 418, 438). Specifically, the 
UAW (Ex. 15: 438) recommended that the following regulatory text be 
added to the final rule:

    [r]eporting * * * an injury or illness to management is an 
activity in support of the purposes of the Act. Since an injury 
report may trigger an employer's responsibility to abate a hazard, 
such report is an exercise of an employee's right under the Act and 
therefore protected activity under Section 11(c) of the Act. Adverse 
action by an employer following such a report shall be presumed to 
be discrimination. Examples of adverse action are verbal warnings, 
disparate treatment, additional training provided only to injury 
victims, disciplinary action of any kind, or drug testing. Suffering 
an injury or illness by itself shall not be considered probable 
cause to trigger a drug test. An employer may rebut the presumption 
of discrimination by showing substantial evidence that injured 
employees receive consistent treatment to those who have not 
suffered injuries. Granting of prizes or compensation to employees 
or groups of employees who do not report injuries is discrimination 
against those employees who do report injuries. Therefore, such 
programs are violations of Section 11(c) of the Act.

    The AFL-CIO (Ex. 15: 4218) supported this language and, along with 
the Union of Needletrades, Industrial and Textile Employees (UNITE) 
(Ex. 15: 380), also recommended that the rule include a prohibition 
against retaliation or discrimination that would be enforced in the 
same manner as other violations of the recordkeeping rule (Ex. 15: 
418). The AFL-CIO (Ex. 15: 418) also requested that OSHA include in the 
final rule:

    [a]n affirmative obligation on employers to inform employees of 
their right to report injuries or illnesses without fear of reprisal 
and to gain access to the Log 300 and to the Form 301 with certain 
limitations. At a minimum, the Log 300 should contain a statement, 
which informs employees of their rights and protections afforded 
under the rule. We recommend the following language be added to the 
log: `Employees have a right to report work-related injuries and 
illnesses to their employer and to gain access to the Log 300 and 
Form 301.'

    OSHA has concluded that the rulemaking record overwhelmingly 
demonstrates that employee awareness and involvement is a crucial part 
of an effective recordkeeping program, as well as an overall safety and 
health program. There was little disagreement over this point among 
participants in the rulemaking, whether they represented management, 
labor, government or professional associations (see, e.g., Exs. 15: 26, 
85, 87, 154, 170, 199, 234, 310, 341, 357, 378, 414, 415, 426). There 
was also no disagreement with the unions' contention that employees 
should not be retaliated against for reporting work-related injuries 
and illnesses and for exercising their right of access to the Log and 
Incident Report forms. The prominent employee involvement issues in the 
rulemaking were thus not whether employee involvement should be 
strengthened but to what extent and in what ways employees should be 
brought into the process.
    In response to this support in the record, OSHA has strengthened 
the final rule to promote better injury and illness information by 
increasing employees' knowledge of their employers' recordkeeping 
program and by removing barriers that may exist to the reporting of 
work-related injuries and illnesses. To achieve this goal, the final 
rule establishes a simple two-part process for each employer who is 
required to keep records, as follows:

--Set up a way for employees to report work-related injuries and 
illnesses promptly; and
--Inform each employee of how to report work-related injuries and 
illnesses.

    OSHA agrees with commenters that employees must know and understand 
that they have an affirmative obligation to report injuries and 
illnesses. Additionally, OSHA believes that many employers already take 
these actions as a common sense approach to discovering workplace 
problems, and that the rule will thus, to a large extent, be codifying 
current industry practice, rather than breaking new ground.
    OSHA is convinced that a performance requirement, rather than 
specific requirements, will achieve this objective effectively, while 
still giving employers the flexibility they need to tailor their 
programs to the needs of their workplaces (see, e.g., Exs. 15: 234, 
283, 348, 359, 426). The Agency finds that employee awareness and 
participation in the recordkeeping process is best achieved by such 
provisions of the final rule as the requirement to extend the posting 
period for the OSHA 300 summary, the addition of accessibility 
statements on the OSHA Summary, and requirements designed to facilitate 
employee access to records.
    Many of the specific suggestions made by commenters have not been 
adopted in the final rule in favor of the more performance-based 
approach to employee involvement supported by so many commenters. For 
example, OSHA has decided not to require employers to devise a method 
of notifying individual employees when a case involving them has been 
entered on the OSHA 300 Log. An employee notification requirement would 
be very burdensome and costly, and the potential advantages of an 
employee notification system have not been shown in the record for this 
rule. Thus, OSHA is not sure that employee notification would improve 
the quality of the records enough to justify the

[[Page 6053]]

added burdens. Additionally, employees and their representatives have a 
right to access the records under the final rule, if they wish to 
review the employer's recording of a given occupational injury or 
illness case. OSHA believes that the improved recordkeeping that will 
result from the changes being made to the final rule, the enhanced 
employee involvement reflected in many of the rule's provisions, and 
the prohibition against discrimination will all work in concert to 
achieve the goal envisioned by those commenters who urged OSHA to 
require employee notification: more and better reporting and recording.
    Several of the other suggestions made by participants--such as 
including employees in accident investigations and involving employees 
in program evaluation--are beyond the scope of the Part 1904 
regulation, which simply requires employers to record and report 
occupational deaths, injuries and illnesses. OSHA encourages employers 
and employees to work together to determine how best to communicate the 
information that workers need in the context of each specific 
workplace. Moreover, OSHA encourages employers to involve their workers 
in activities such as accident investigations and the analysis of 
accident, injury and illness data, as suggested by some commenters, but 
believes that requiring these activities is beyond the scope of this 
rule.
    OSHA has also included in the final rule, in section 1904.36, a 
statement that section 11(c) of the OSH Act protects workers from 
employer retaliation for filing a complaint, reporting an injury or 
illness, seeking access to records to which they are entitled, or 
otherwise exercising their rights under the rule. This section of the 
rule does not impose any new obligations on employers or create new 
rights for employees that did not previously exist. In view of the 
evidence that retaliation against employees for reporting injuries is 
not uncommon and may be ``growing'' (see, e.g., Ex. 58X, p. 214), this 
section is intended to serve the informational needs of employees who 
might not otherwise be aware of their rights and to remind employers of 
their obligation not to discriminate. OSHA concurs with the 
International Chemical Workers Union, which, while discussing the issue 
of whether personal identifiers should be used on the Log, stated (Ex. 
15: 415), ``We have never heard of [personal identifiers] being an 
issue for our members, except when management used the reports as an 
excuse to discipline `unsafe' workers. The addition of language 
notifying workers of their rights to 11(c) protection * * * should help 
alleviate any such concerns.''
Employee access to OSHA injury and illness records
    The Part 1904 final rule continues OSHA's long-standing policy of 
allowing employees and their representatives access to the occupational 
injury and illness information kept by their employers, with some 
limitations. However, the final rule includes several changes to 
improve employees' access to the information, while at the same time 
implementing several measures to protect the privacy interests of 
injured and ill employees. Section 1904.35 requires an employer covered 
by the Part 1904 regulation to provide limited access to the OSHA 
recordkeeping forms to current and former employees, as well as to two 
types of employee representatives. The first is a personal 
representative of an employee or former employee, who is a person that 
the employee or former employee designates, in writing, as his or her 
personal representative, or is the legal representative of a deceased 
or legally incapacitated employee or former employee. The second is an 
authorized employee representative, which is defined as an authorized 
collective bargaining agent of one or more employees working at the 
employer's establishment.
    Section 1904.35 accords employees and their representatives three 
separate access rights. First, it gives any employee, former employee, 
personal representative, or authorized employee representative the 
right to a copy of the current OSHA 300 Log, and to any stored OSHA 300 
Log(s), for any establishment in which the employee or former employee 
has worked. The employer must provide one free copy of the OSHA 300 
Log(s) by the end of the next business day. The employee, former 
employee, personal representative or authorized employee representative 
is not entitled to see, or to obtain a copy of, the confidential list 
of names and case numbers for privacy cases. Second, any employee, 
former employee, or personal representative is entitled to one free 
copy of the OSHA 301 Incident Report describing an injury or illness to 
that employee by the end of the next business day. Finally, an 
authorized employee representative is entitled to copies of the right-
hand portion of all OSHA 301 forms for the establishment(s) where the 
agent represents one or more employees under a collective bargaining 
agreement. The right-hand portion of the 301 form contains the heading 
``Tell us about the case,'' and elicits information about how the 
injury occurred, including the employee's actions just prior to the 
incident, the materials and tools involved, and how the incident 
occurred, but does not contain the employee's name. No information 
other than that on the right-hand portion of the form may be disclosed 
to an authorized employee representative. The employer must provide the 
authorized employee representative with one free copy of all the 301 
forms for the establishment within 7 calendar days.
    Employee privacy is protected in the final rule in paragraphs 
1904.29(b)(7) to (10). Paragraph 1904.29(b)(7) requires the employer to 
enter the words ``privacy case'' on the OSHA 300 Log, in lieu of the 
employee's name, for recordable privacy concern cases involving the 
following types of injuries and illnesses: (i) an injury from a needle 
or sharp object contaminated by another person's blood or other 
potentially infectious material; (ii) an injury or illness to an 
intimate body part or to the reproductive system; (iii) an injury or 
illness resulting from a sexual assault; (iv) a mental illness; (v) an 
illness involving HIV, hepatitis; or tuberculosis, or (vi) any other 
illness, if the employee independently and voluntarily requests that 
his or her name not be entered on the log. Musculoskeletal disorders 
(MSDs) are not considered privacy concern cases, and thus employers are 
required to enter the names of employees experiencing these disorders 
on the log. The employer must keep a separate, confidential list of the 
case numbers and employee names for privacy cases.
    The employer may take additional action in privacy concern cases if 
warranted. Paragraph 1904.29(b)(9) allows the employer to use 
discretion in describing the nature of the injury or illness in a 
privacy concern case, if the employer has a reasonable basis to believe 
that the injured or ill employee may be identified from the records 
even though the employee's name has been removed. Only the six types of 
injuries and illnesses listed in Paragraph 1904.29(b)(7) may be 
considered privacy concern cases, and thus the additional protection 
offered by paragraph 1904.29(b)(9) applies only to such cases.
    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

[[Page 6054]]

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 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.
    The former rule. The access provisions of the former recordkeeping 
regulation required employers to provide government representatives, as 
well as employees, former employees, and their representatives, with 
access to the OSHA Logs and year-end summaries, including the names of 
all injured and ill employees. The former regulation permitted only 
government representatives to have access to the supplemental incident 
reports (the former Form 101). Id. Employees, former employees and 
their representatives had no right to inspect and copy the incident 
reports, although employers were permitted to disclose these forms if 
doing so was included in the terms of a collective bargaining 
agreement. Id.
    The proposed rule. The proposed rule would have required employers 
to provide government representatives, and employees, former employees, 
and their representatives, with access to the unredacted OSHA Logs and 
summaries (61 FR 4061). The proposal would have expanded the scope of 
the former rule's access provisions by requiring employers to make 
available the incident reports (former OSHA Form 101, renumbered Form 
301 in the final rule) to employees, former employees, and their 
designated representatives. Id. At the same time, OSHA did not intend 
to provide access to the general public. The proposed standard stated: 
``OSHA asks for input on possible methodologies for providing easy 
access to workers while restricting access to the general public'' (61 
FR 4048).
    The access provisions of the proposed rule attracted considerable 
comment. Many industry representatives argued that disclosure of 
information contained in the injury and illness records to employees, 
former employees and their representatives would violate an injured or 
ill employee's right, under the Constitution and several statutes, to 
privacy. On the other hand, a number of commenters emphasized the 
importance of the information contained in the records to employees and 
unions in their voluntary efforts to uncover and eliminate workplace 
safety and health hazards. The following paragraphs discuss privacy and 
access issues, and their relationship to the recordkeeping rule.
The Privacy Interest of the Injured or Ill Employee
    Whether, and to what extent, the U.S. Constitution grants 
individuals a right of privacy in personal information has not been 
firmly established. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme 
Court considered whether a New York law creating a central computer 
record of the names and addresses of persons taking certain dangerous 
but lawful drugs violated the constitutional privacy interest of those 
taking the drugs. The Court rejected the claim, primarily because the 
state statute required that government employees with access keep the 
information confidential and there was no basis to assume that the 
requirement would be violated. 429 U.S. at 601, 605-606. Although the 
decision does not say whether the Constitution affords protection 
against disclosure of personal information, some language suggests that 
it does, at least in some circumstances. The Court stated:

    The cases sometimes characterized as protecting ``privacy'' have 
in fact involved at least two different kinds of interests. One is 
the individual interest in avoiding disclosure of personal matters, 
and another is the interest in independence in making certain kinds 
of decisions. 429 U.S. at 598, 599.
    Recognizing that in some circumstances th[e] duty [to avoid 
unwarranted disclosure of personal matters] arguably has its roots 
in the Constitution, nevertheless New York's statutory scheme, and 
its implementing administrative procedures, evidence a proper 
concern with, and protection of, the individual's interest in 
privacy. 429 U.S. at 605

    A subsequent case, Nixon v. Administrator of General Services, 433 
U.S. 425 (1977), lends further support to the existence of a 
constitutional right of privacy in personal information. At issue in 
Nixon was a statute that required the former president to turn over 
both public and private papers to an archivist who would review them 
and return any personal materials. The Court appeared to acknowledge 
that Nixon had a Constitutionally protected privacy right in personal 
information. 433 U.S. at 457. It upheld the statute because of the 
strong public interest in preserving the documents and because the 
statute's procedural safeguards made it unlikely that truly private 
materials would be disclosed to the public.
    A number of federal circuit courts of appeals, building on Whalen 
and Nixon, have held that individuals possess a qualified 
constitutional right to confidentiality of personal information, 
including medical information. See, e.g., Paul v. Verniero, 170 F.3d 
396, 402 (3d Cir. 1999); Norman-Bloodsay v. Lawrence Berkeley 
Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998); F.E.R. v. Valdez, 58 
F.3d 1530, 1535 (10th Cir. 1995); John Doe v. City of New York, 15 F.3d 
264, 267 (2d Cir. 1994); Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir. 
1981). See also Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995) 
(noting holdings of federal circuits, including seventh circuit, 
recognizing qualified constitutional right to confidentiality in 
medical records, but finding it ``not clearly established'' that prison 
inmate enjoyed such right in 1992).
    Of the remaining circuits that have addressed the issue, only the 
Sixth has squarely rejected a general constitutional right to 
nondisclosure of personal information. E.g., J.P. v. DeSanti, 653 F.2d 
1080, 1089 (6th Cir. 1981). Two circuits have expressed skepticism as 
to the existence of such a right. See American Federation of Government 
Employees, AFL-CIO v. Department of Housing and Urban Development, 118 
F.3d 786, 788 (D.C. Cir. 1987) (expressing ``grave doubt'' whether the 
Constitution protects against disclosure of personal information); 
Borucki v. Ryan, 827 F.2d 836, 845-846 (1st Cir. 1987) (noting lack of 
concrete guidance by Supreme Court and disagreement among circuits on 
constitutional right of confidentiality). See also Ferguson v. City of 
Charleston, S.C., 186 F.3d 469, 483 (4th Cir.1999) (declining to decide 
whether individuals possess a general constitutional right to privacy, 
noting circuit conflict).
    Where the right to privacy is recognized, protection extends to 
information that the individual would reasonably expect to remain 
confidential. Fraternal Order of Police Lodge No. 5 v. City of 
Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987); Mangels v. Pena, 789 
F.2d 836, 839 (10th Cir. 1986). ``The more intimate or personal the 
information, the more justified is the expectation that it will not be 
subject to public scrutiny.'' Fraternal Order of Police, 812 F.2d at 
105. Thus, information about the state of a person's health, including 
his or her medical

[[Page 6055]]

treatment, prescription drug use, HIV status and related matters, is 
entitled to privacy protection. See Paul v. Verniero, 170 F.3d at 401-
402 (collecting cases). See also Doe v. City of New York, 15 F.3d at 
267 (``[T]here are few matters that are quite so personal as the status 
of one's health, and few matters the dissemination of which one would 
prefer to maintain greater control over.'')
    The right to privacy is not limited only to medical records. Other 
types of records containing medical information are also covered. See, 
e.g., Whalen, (computer tapes containing prescription drug 
information); Fraternal Order of Police, 812 F.2d at 112 (police 
questionnaire eliciting information about employee's physical and 
mental condition); Doe v. SEPTA, 72 F.3d 1133 (3d Cir. 1995) 
(utilization report listing prescription drugs dispensed to employees 
under employer health plan). Moreover, personal financial data and 
other types of private information may be subject to privacy protection 
in certain cases. See Nixon v. Administrator of General Services, 433 
U.S. 425, 455 (1977) (personal matters, including personal finances, 
reflected in presidential papers); Paul v. Verniero, 170 F.3d at 404 
(home address of sex offender subject to disclosure under ``Megan's 
Law''); Fadjo v. Coon, 633 F.2d at 1175 (private details contained in 
subpoenaed testimony).
    A finding that information is entitled to privacy protection is 
only the first step in determining whether a disclosure requirement is 
valid. A balancing test must be applied, which weighs the individual's 
interest in confidentiality against the public interest in disclosure. 
Fraternal Order of Police, 812 F.2d at 113. In evaluating the 
government's interest, at least two factors must be considered; the 
purpose to be served by disclosure of personal information to 
individuals authorized by law to receive it, and the adverse effect of 
unauthorized public disclosure of such information. Id. at 117, 118. 
Accord, Barry v. City of New York, 712 F.2d 1554, 1561-5162 (2d Cir. 
1983). Thus, the fact that disclosure of highly personal information to 
parties who have need for it serves an important public interest is not 
sufficient justification for a disclosure requirement in the absence of 
adequate safeguards against broader public access. Fraternal Order of 
Police, 812 F.2d at 118 (``It would be incompatible with the concept of 
privacy to permit protected information and material to be publicly 
disclosed. The fact that protected information must be disclosed to a 
party who has need for it * * * does not strip the information of its 
protection against disclosure to those who have no similar need.'')
Balancing the Interests of Privacy and Access
    OSHA historically has recognized that the Log and Incident Report 
(Forms 300 and 301, respectively) may contain information of a 
sufficiently intimate and personal nature that a reasonable person 
would wish it to remain confidential. In its 1978 records access 
regulation (29 CFR 1910.1020), OSHA addressed the privacy implications 
of its decision to grant employee access to the Log. The agency noted 
that while Log entries are intended to be brief, they may contain 
medical information, including diagnoses of specific illnesses, and 
that disclosure to other employees, former employees or their 
representatives raised a sensitive privacy issue. 43 FR 31327 (1978). 
However, OSHA concluded that disclosure of the Log to current and 
former employees and their representatives benefits these employees 
generally by increasing their awareness and understanding of the health 
and safety hazards to which they are, or have been, exposed. OSHA found 
that this knowledge ``will help employees to protect themselves from 
future occurrences,'' and that ``[i]n such cases, the right of privacy 
must be tempered by the obvious exigencies of informing employees about 
the effects of workplace hazards.'' Id. at 31327, 31328.
    The proposed rule would have expanded the right of access of 
employees, former employees, and their designated representatives 
beyond the Log to include the Incident Report (Form 301) (61 FR 4061). 
OSHA discussed the potentially conflicting interests involved, and 
explained its preliminary balancing of these interests, as follows:

    OSHA's historical practice of allowing employee access to all of 
the information on the log permits employees and their designated 
representatives to be totally informed about the employer's 
recordkeeping practices, and the occupational injuries and illnesses 
recorded in the workplace. However, this total accessibility may 
infringe on an individual employee's privacy interest. At the same 
time, the need to access individual's Incident Records to adequately 
evaluate the safety and health environment of the establishment has 
been expressed.
    These two interests--the privacy interests of the individual 
employee versus the interest in access to health and safety 
information concerning one's own workplace--are potentially at odds 
with one another. For injury and illness recordkeeping purposes, 
OSHA has taken the position that an employee's interest in access to 
health and safety information on the OSHA forms concerning one's own 
workplace carries greater weight than an individual's right to 
privacy. More complete access to the detailed injury and illness 
records has the potential for increasing employee involvement in 
workplace safety and health programs and therefore has the potential 
for improving working conditions. Analysis of injury and illness 
data provides a wealth of information for injury and illness 
prevention programs. Analysis by workers, in addition to analyses by 
the employer, lead to the potential of developing methods to 
diminish workplace hazards through additional or different 
perspectives (61 FR 4048).

    The proposal asked for comment on alternatives that would preserve 
broad access rights while protecting fundamental privacy interests, 
including requiring omission of personal identifying information for 
certain specific injury and illness cases recorded on the Log, and 
restricting non-government access to the Incident Reports to that 
portion of the Form 301 that does not contain personal information. 
Ibid.
    OSHA continues to believe that granting employees a broad right of 
access to injury and illness records serves important public interests. 
There is persuasive evidence that access by employees and their 
representatives to the Log and the Incident Report serves as a useful 
check on the accuracy of the employer's recordkeeping and promotes 
greater employee involvement in prevention programs that contribute to 
safer, more healthful workplaces. For example, the Building and 
Construction Trades Department, AFL-CIO stated that:

    In the main, the name of the employee is critically important to 
understanding and verifying recordable cases. It is often necessary 
to speak with the employee to explore the conditions that lead to 
the injury or illness, and this is impossible without employee 
names. In addition, employees and unions play an important role in 
assuring the proper administration of the recordkeeping rule, and 
they cannot audit an employer's recordkeeping performance without 
having access to employee names, which are necessary to verify that 
all properly recordable cases are actually on the log, and to verify 
that recorded cases are properly classified. (Ex. 15: 394, p. 35)

    Similarly, the American Federation of State, County and Municipal 
Employees, AFL-CIO stated that ``[w]hen employees and their 
representatives have complete access to the detailed injury and illness 
records, employee involvement in workplace safety and health programs 
increases. Worker representatives use the data on the forms to assist 
in the identification of specific hazards, as well as other

[[Page 6056]]

factors affecting workplace safety'' (Ex.15: 362, p. 7).
    The United Auto Workers (Ex. 15: 438) argued that the OSHA 301 
incident reports are as valuable as the log is in aiding voluntary 
enforcement efforts. The UAW stated:

    The OSHA 101 (proposed 301) form is an available data source on 
circumstances of an injury or illness. The collected data contains 
information for prevention, and also indicates the effectiveness of 
management's health and safety program. The information on the OSHA 
[301] relevant to hazard identification and control should be made 
available to employee representatives on the same basis as they are 
made available to OSHA compliance officers. Personal data on 
treatment details, physician's name, personal information on 
employee can be recorded on the ``other'' side of the form and 
blanked out.

    The Laborers' Health and Safety Fund (Ex. 15: 310) also emphasized 
the practical value of the information contained in the Form 301:

    We wholeheartedly support the specific language in the proposed 
rule allowing designated representatives access to the OSHA 300 and 
301 forms. In a project we administered to determine the major 
causes of serious injuries and illnesses in road construction under 
a Federal Highway Administration grant, several employers would not 
allow access to even information from the injured person's 101 
workers compensation equivalent form, because the form contained 
other information such as the employee's age and salary. The event 
information contained in the 301 form is critical in determining the 
hazards and possible preventive measures.

Other commenters also supported the proposal's approach of broadening 
employee access to records (see, e.g. Exs. 24; 36; 15: 350, 380, 418).
    Recognition of the important purpose served by granting access to 
injury and illness records does not end the analysis. The public 
interest that is served when information contained in the records is 
used to promote safety and health must be balanced against the possible 
harm that would result from the misuse of private information. There 
are two ways in which harm could occur. First, the information could be 
used for unauthorized purposes, such as to harass or embarrass 
employees. Second, employees and their representatives with access to 
records could, deliberately or inadvertently, disclose private 
information to others who have no need for it.
    Several commenters indicated concern about the unauthorized 
disclosure of private material contained in the injury and illness 
records. The joint comments filed by the National Broiler Council and 
the National Turkey Council express the view shared by many employers:

    There is universal support among employees and employers for the 
communication of information about workplace illnesses and injuries. 
It also seems apparent that there is universal opposition to the 
communication of personal information about individuals involved in 
those incidents. There are many circumstances in the workplace where 
employees have no desire for fellow employees to know the extent, 
description, or type of injury or illness they have incurred. The 
reasons for an employee's concern about his or her personal privacy 
may vary but almost always find their foundation in very strong and 
personal emotions. One example that clearly illustrates this point 
would be the employee who has experienced an exposure incident under 
the bloodborne pathogens standard. Most people would not want it to 
be known that they may have been exposed to HIV, let alone if they 
tested positive for HIV. * * * In addition to the concerns about how 
this information could be used by other individuals, employers also 
have very serious concerns about the misuse of this information by 
individuals or organizations for purposes in no way related to the 
issue of workplace health and safety (Ex. 15: 193, pp. 4-5).

    A number of commenters argued that granting access to the Log and 
Incident Report to employees, former employees and their 
representatives will deter employees from reporting their injuries and 
illnesses, especially in cases involving exposure to bloodborne 
pathogens and injuries and illnesses involving reproductive organs 
(see, e.g., Exs. 15-185, 15-193, 15-238, 15-239, 15-305). A 
representative of the Middlesex Convalescent Center wrote:

    [R]equiring employers to disclose personal identifiers (which 
include name and occupation) will result in fewer people reporting 
injuries and illnesses because employees will feel shame or 
embarrassment for being involved in an accident. * * * Additionally, 
employees who do not want co-workers to know their physical 
handicaps and other personal business will choose not to report 
accidents, including those in which the employee is not at fault 
(Ex. 15: 23 (emphasis in original)).

    There exist at present no mechanisms to protect against unwarranted 
disclosure of private information contained in OSHA records. While 
Agency policy is that employees and their representatives with access 
to records should treat the information contained therein as 
confidential except as necessary to further the purposes of the Act, 
the Secretary lacks statutory authority to enforce such a policy 
against employees and representatives (e.g. 29 U.S.C. Secs. 658, 659) 
(Act's enforcement mechanisms directed solely at employers). Nor are 
there present here other types of safeguards that have been held to be 
adequate to protect against misuse of private material. See Whalen, 589 
U.S. at 605 (``The right to collect and use [private] data for public 
purposes is typically accompanied by a concomitant statutory or 
regulatory duty to avoid unwarranted disclosures.'') See also Fraternal 
Order of Police, 812 F.2d at 118 (appropriate safeguards could include 
statutory sanctions for unauthorized disclosures, security provisions 
to prevent mishandling of files, coupled with express regulatory 
prohibition on disclosure, or procedures such as storage of private 
material in locked cabinets with automatic removal and destruction 
within six months); In re Search Warrant (Sealed), 810 F.2d 67, 72 (3d 
Cir. 1987) (district court order that medical records and related 
information be kept confidential except as disclosure was reasonably 
required in connection with criminal investigation).
    The degree of harm that could result from unauthorized use or 
disclosure of information on the Log and Incident Report varies 
depending upon the nature and sensitivity of the injury or illness 
involved. An employee might reasonably have little to fear from 
disclosure of a garden-variety injury or illness of the kind that one 
might sustain in everyday life. Cf. Wilson v. Pennsylvania State Police 
Department, 1999 WL 179692 (E.D.Pa) (vision-related information not as 
intimate as other types of medical information, and less likely to 
result in harm if disclosed to the public). However, there is a much 
greater risk that social stigma, harassment and discrimination could 
result from public knowledge that one has, or may have, AIDS, has been 
the victim of a sexual assault, or has suffered an injury to a 
reproductive organ or other intimate body part. See, e.g. Doe v. SEPTA, 
712 F.2d at 1140 (AIDS); New Jersey Bell Telephone Co. v. NLRB, 720 
F.2d 789, 790 (3d Cir. 1983) (reasons given by employees for absence or 
tardiness included colitis, insertion of urethral tubes, vaginal 
infections, scalded rectal areas, and heart problems).
    OSHA has concluded that the disclosure of occupational injury and 
illness records to employees and their representatives serves important 
public policy interests. These interests support a requirement for 
access by employees and their representatives to personally 
identifiable information for all but a limited number of cases recorded 
on the Log, and to all information on the right-hand side of the Form 
301. However, OSHA also concludes that prior Agency access policies may 
not have given

[[Page 6057]]

adequate consideration to the harm which could result from disclosure 
of intimate medical information. In the absence of effective safeguards 
against unwarranted use or disclosure of private information in the 
injury and illness records, confidentiality must be preserved for 
particularly sensitive cases. These ``privacy concern cases'' listed in 
paragraph 1904.29 (b)(7) of the final rule involve diseases, such as 
AIDS and hepatitis, other illnesses if the employee voluntarily 
requests confidentiality, as well as certain types of injuries, the 
disclosure of which could be particularly damaging or embarrassing to 
the affected employee. MSDs are not included in privacy concern cases 
because OSHA's ergonomics rule independently provides for access by 
employees and their representatives to the names of workers who report 
work-related MSDs. (See 29 CFR 1910.900(v)(1) and (2.)
    The record supports this approach. For example, API recommended 
that OSHA protect employee confidentiality for cases involving HIV, 
fertility problems, bloodborne pathogens, seroconversions, and 
impotence (Ex. 15: 375). OSHA agrees that employee confidentiality 
should be protected in these and similar cases. Therefore, the final 
rule requires that the employer withhold the employee's name from the 
OSHA 300 Log for each ``privacy concern case,'' and maintain a separate 
confidential list of employee names and case numbers. In all other 
respects, the final rule ensures full access to the OSHA Log by 
employees, former employees, personal representatives and authorized 
employee representatives.
Protections Against Broad Public Access
    In the proposal, OHSA noted that the access requirements were 
intended as a tool for employees and their representatives to affect 
safety and health conditions at the workplace, not as a mechanism for 
broad public disclosure of injury and illness information. (61 FR 
4048.) A number of commenters suggested that OSHA should include 
specific language in the final rule protecting employee confidentiality 
whenever injury and illness data are disclosed for other than safety or 
health purposes, or to persons other than those who have a legitimate 
need to know. Dow argued that:

    OSHA should allow an employer to develop a system that will 
protect personal identifiers and other non-safety or health related 
information. Further, such information should only be available for 
the specific use by an OSHA inspector who is reviewing an employer's 
logs during an inspection, medical personnel, the employer's 
incident investigation designated officials, and the individual's 
supervisor. Outside of these individuals, access should be granted 
only after written authorization from the injured or ill employee 
has been obtained. This approach would allow those individuals who 
have a legitimate ``need to know'' limited access to the information 
(Ex.. 15: 335).

Other commenters suggested requiring that employee names be shielded if 
the forms are disclosed to third parties (see, e.g., Exs. 15: 374, 
375).
    OSHA agrees that confidentiality of injury and illness records 
should be maintained except for those persons with a legitimate need to 
know the information. This is a logical extension of the agency's 
position that a balancing test is appropriate in determining the scope 
of access to be granted employees and their representatives. Under this 
test, ``the fact that protected information must be disclosed to a 
party who has need for it* * * does not strip the information of its 
protection against disclosure to those who have no similar need.'' 
Fraternal Order of Police, 812 F2d at 118.
    OSHA has determined that employees, former employees and authorized 
employee representatives have a need for the information that justifies 
their access to records, including employee names, for all except 
privacy concern cases. While the possibility exists that employees and 
their representatives with access to the records could disclose the 
information to the general public, OSHA does not believe that this risk 
is sufficient to justify restrictions on the use of the records by 
persons granted access under sections 1904.40 and 1904.35. As discussed 
in the following section, strong policy and legal considerations 
militate against placing restrictions on employees' and employee 
representatives' use of the injury and illness information.
    There is also a concern that employers may voluntarily grant access 
to OSHA records to persons outside their organization, who do not need 
the information for safety and health purposes. To protect employee 
confidentiality in these circumstances, paragraph 1904.29(b)(10) 
requires employers generally to remove or shield employee names and 
other personally identifying information when they disclose the OSHA 
forms to persons other than government representatives, employees, 
former employees or authorized employee representatives. Employers 
remain free to disclose unredacted records for purposes of evaluating a 
safety and health program or safety and health conditions at the 
workplace, processing a claim for workers' compensation or insurance 
benefits, or carrying out the public health or law enforcement 
functions described in section 164.512 of the final rule on Standards 
for Privacy of Individually Identifiable Health Information.
    OSHA believes that this provision protects employee privacy to a 
reasonable degree consistent with the legitimate business needs of 
employers and sound public policy considerations. The record does not 
demonstrate that routine access by the general public to personally 
identifiable injury and illness data is necessary or useful. Indeed, 
several prominent industry representatives stated that the OSHA log 
should not be made available to the general public. See Ex. 335 (Dow); 
Ex. 15-375 (API). Furthermore, employers are always free to seek 
authorization from employees to disclose their names in particular 
cases. Thus, employers retain a degree of flexibility to tailor their 
voluntary disclosure policies to meet exigent circumstances.
Misuse of the Records by Employees and Their Representatives
    Several commenters were concerned about inappropriate uses of the 
records once they are released to employees (see, e.g., Exs. 15: 9, 39, 
102, 185, 193, 201, 304, 305, 317, 321, 330, 341, 346, 359, 363, 375, 
389, 397, 412, 413, 423, 424, 431). The American Petroleum Institute 
stated: ``API has concerns about potentials for uncontrolled and 
unscrupulous use of these data for purposes unrelated to safety and 
health--uses such as for plaintiff-lawyer ``fishing expeditions'', in 
union organizing attempts, to create adverse publicity as contracts 
expire, or to foster other special interests'' (Ex. 15: 375). Several 
commenters stated that information requests could be used as a 
harassment by unions (see, e.g., Exs. 15: 9, 201, 317, 423, 424), and 
the Caterpillar Corporation (Ex. 15: 201) related its labor management 
difficulties during a recent strike (Ex. 15: 201). The American Crystal 
Sugar Company (Ex. 15 363) expressed concern that ``there have been 
instances where an employee is paid a finder's fee to identify possible 
cases for personal injury lawyers.'' A few commenters suggested methods 
to solve these potential misuse problems, including a requirement for 
all information requests to be made in writing (see, e.g., Exs. 15: 
163, 235, 281, 397). Two commenters suggested requirements for the 
employee or employee representative to sign a pledge not to misuse the 
information (Exs. 15: 359, 389). For example, the Waste

[[Page 6058]]

Management, Inc. Company suggested that ``OSHA should require the 
individual(s) obtaining a copy of the log or record to certify that the 
information will be maintained in confidence and will not be released 
to a third party under any circumstances under penalty of law. OSHA 
shall also promulgate severe penalties for violation'' (Ex. 15: 389).
    While there may be instances where employees share the data with 
third parties who normally would not be allowed to access the data 
directly, the final rule contains no enforceable restrictions on use by 
employees or their representatives. Employees and their representatives 
might reasonably fear that they could be found personally liable for 
violations of such restrictions. This would have a chilling effect on 
employees' willingness to use the records for safety and health 
purposes, since few employees would voluntarily risk such liability. 
Moreover, despite the concerns of commenters about abuse problems, OSHA 
has not noted any significant problems of this type in the past. This 
suggests that, if such problems exist, they are infrequent. In 
addition, as noted in the privacy discussion above, a prohibition on 
the use of the data by employees or their representatives is beyond the 
scope of OSHA's enforcement authority. For these reasons, the employer 
may not require an employee, former employee or designated employee 
representative to agree to limit the use of the records as a condition 
for viewing or obtaining copies of records.
    OSHA has added a statement to the Log and Incident Report forms 
indicating that these records contain information related to employee 
health and must be used in a manner that protects the confidentiality 
of employees to the extent possible while the information is used for 
occupational safety and health purposes. This statement is intended to 
inform employees and their representatives of the potentially sensitive 
nature of the information in the OSHA records and to encourage them to 
maintain employee confidentiality if compatible with the safety and 
health uses of the information. Encouraging parties with access to the 
forms to keep the information confidential where possible is reasonable 
and should not discourage the use of the information for safety and 
health purposes. OSHA stresses, however, that the statement does not 
reflect a regulatory requirement limiting the use of records by those 
with access under sections 1904.35 and 1904.40.
The Records Access Requirement and the ADA
    Several commenters alleged that a requirement that individually 
identifiable injury and illness records be disclosed to employees and 
union representatives would conflict with the confidentiality 
provisions of the Americans With Disabilities Act, 42 U.S.C. 
Secs. 12112 (d)(3)(B), (d)(4)(C) (1994 ed. and Supp. III) (ADA) (see, 
e.g., Exs. 15: 64, 290, 304, 315, 397).
    Section 12112(d)(3)(B) of the ADA permits an employer to require a 
job applicant to submit to a medical examination after an offer of 
employment has been made but before commencement of employment duties, 
provided that medical information obtained from the examination is kept 
in a confidential medical file and not disclosed except as necessary to 
inform supervisors, first aid and safety personnel, and government 
officials investigating compliance with the ADA. Section 12112(d)(4)(C) 
requires that the same confidentiality protection be accorded health 
information obtained from a voluntary medical examination that is part 
of an employee health program.
    By its terms, the ADA requires confidentiality for information 
obtained from medical examinations given to prospective employees, and 
from medical examinations given as part of a voluntary employee health 
program. The OSHA injury and illness records are not derived from pre-
employment or voluntary health programs. The information in the OSHA 
injury and illness records is similar to that found in workers' 
compensation forms, and may be obtained by employers by the same 
process used to record needed information for workers' compensation and 
insurance purposes. The Equal Employment Opportunity Commission (EEOC) 
recognizes a partial exception to the ADA's strict confidentiality 
requirements for medical information regarding an employee's 
occupational injury or workers' compensation claim. See EEOC 
Enforcement Guidance: Workers' Compensation and the ADA, 5 (September 
3, 1996). Therefore, it is not clear that the ADA applies to the OSHA 
injury and illness records.
    Even assuming that the OSHA injury and illness records fall within 
the literal scope of the ADA's confidentiality provisions, it does not 
follow that a conflict arises. The ADA states that ``nothing in this 
Act shall be construed to invalidate or limit the remedies, rights, and 
procedures of any Federal law. * * *'' 29 U.S.C. 12201(b). In enacting 
the ADA, Congress was aware that other federal standards imposed 
requirements for testing an employee's health, and for disseminating 
information about an employee's medical condition or history, 
determined to be necessary to preserve the health and safety of 
employees and the public. See H.R. Rep. No. 101-485 pt. 2, 101st Cong., 
2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N. 356, 357 (noting, 
e.g. medical surveillance requirements of standards promulgated under 
OSH Act and Federal Mine Safety and Health Act, and stating ``[t]he 
Committee does not intend for [the ADA] to override any medical 
standard or requirement established by Federal * * * law * * * that is 
job-related and consistent with business necessity''). See also 29 CFR 
part 1630 App. p. 356. The ADA recognizes the primacy of federal safety 
and health regulations; therefore such regulations, including mandatory 
OSHA recordkeeping requirements, pose no conflict with the ADA. Cf. 
Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999) (``When Congress 
enacted the ADA, it recognized that federal safety and health rules 
would limit application of the ADA as a matter of law.'')
    The EEOC, the agency responsible for administering the ADA, has 
recognized both in the implementing regulations at 29 CFR part 1630, 
and in interpretive guidelines, that the ADA yields to the requirements 
of other federal safety and health standards. The implementing 
regulation codified at 29 CFR 1630.15(e) explicitly states that an 
employer's compliance with another federal law or regulation may be a 
defense to a charge of violating the the ADA:

    (e) Conflict with other Federal laws. It may be a defense to a 
charge of discrimination under this part that a challenged action is 
required or necessitated by another Federal law or regulation, or 
that another Federal law or regulation prohibits an action 
(including the provision of a particular reasonable accommodation) 
that would otherwise be required by this part.

Interpretive guidance provided by the EEOC further underscores this 
point. The 1992 Technical Assistance Manual on Title I of the ADA 
states as follows:

4.6  Health and Safety Requirements of Other Federal or State Laws

    The ADA recognizes employers' obligations to comply with 
requirements of other laws that establish health and safety 
standards. However, the [ADA] gives greater weight to Federal than 
to state or local law.

1. Federal Laws and Regulations

    The ADA does not override health and safety requirements 
established under other Federal laws. If a standard is required by 
another Federal law, an employer must

[[Page 6059]]

comply with it and does not have to show that the standard is job 
related and consistent with business necessity (emphasis added).

U.S. Equal Employment Opportunity Commission, A Technical Assistance 
Manual on the Employment Provisions (Title I) of the Americans With 
Disabilities Act, IV-16 (1992) (Technical Assistance Manual). The 
Technical Assistance Manual also states that, while medical-related 
information about employees must generally be kept confidential, an 
exception applies where ``[o]ther Federal laws and regulations * * * 
require disclosure of relevant medical information.'' Assistance Manual 
at VI-12. See also Assistance Manual at VI-14-15 (actions taken by 
employers to comply with requirements imposed under the OSH Act are job 
related and consistent with business necessity). For these reasons, 
OSHA does not believe that the mandatory employee access provisions of 
the final recordkeeping rule conflict with the provisions of the ADA.
Times Allowed To Provide Records
    In its proposal, OSHA would have required the employer to allow the 
employee to view the 300 Log and the Form 301 records by the end of the 
next business day and provide copies within seven calendar days. An 
employer would have been required to provide access to the 301 forms 
for all injuries and illnesses ``in a reasonable time'' (61 FR 4061). 
Several commenters agreed with OSHA's proposed times for providing 
copies of the records to employees and their representatives (see, 
e.g., Exs. 15: 213, 277, 359). For example, Consolidated Edison (Ex. 
15: 213) stated that ``[t]he time limits in the proposal are acceptable 
but [Con Ed] recommends that a time limit of seven days be included at 
[proposed] paragraph 1904.11(b)(5) [which addressed the copying of 301 
forms] rather than the vague ``reasonable time'' included in the 
text.''
    A number of commenters disagreed with OSHA's proposed times for 
providing copies of the records (see, e.g., Exs. 15: 195, 201, 213, 
218, 226, 235, 326, 347, 369, 370, 389, 409, 423, 425, 440). These 
commenters suggested a variety of times, including four hours (Ex. 15: 
369), 24 hours (Ex. 15: 425), two workdays (Ex. 15: 226), five working 
days (Ex. 15: 235), within seven calendar days or one week (Ex. 15: 
195, 370), 15 days to match the requirements of the OSHA medical 
records access rule (Ex. 15: 218, 347, 409, 423), and 21 days (Ex. 15: 
389). The International Brotherhood of Teamsters (Ex. 15: 369) 
suggested that ``[e]mployees and their designated representatives be 
provided with the same access rule as proposed for governmental 
officials, RE: obtain copies of logs four hours after the request.''
    The Tennessee Valley Authority (TVA) argued that ``[a]ll requests 
for records should be made in writing and the information provided to 
the authorized requester within five working days. This provides the 
documentation for who received the information and reduces the burden 
on the employer'' (Ex. 15: 235). Bell Atlantic Network Services, Inc. 
(Ex. 15: 218) recommended that ``OSHA should simplify the very 
confusing and differing ``access'' and ``copies'' schedule to an 
uniform 15 working days as is the requirement in 29 CFR 1910.20, Access 
to Employee Exposure and Medical Records.''
    In addition, the Caterpillar Company (Ex. 15: 201) recommended that 
the final rule should not establish time frames at all, stating that 
``The time limit of providing access by the close of business on the 
next scheduled workday is unnecessarily restrictive. Noncompliance 
situations could be generated by simple work schedule conflicts or 
other minor difficulties. The access period should be stated as a 
reasonable time period allowing employees and employers adequate 
flexibility.''
    Under the final rule, an employer must provide a copy of the 300 
Log to an employee, former employee, personal representative or 
authorized employee representative on the business day following the 
day on which an oral or written request for records is received. 
Likewise, when an employee, former employee or personal representative 
asks for copies of the 301 form for an injury or illness to that 
employee, the employer must provide a copy by the end of the next 
business day. OSHA finds that these are appropriate time frames for 
supplying a copy of the existing forms, which in the case of the Form 
301 is a single page. The average 300 Log is also only one page, 
although employers who have a larger number of occupational injuries 
and illnesses will have more than one page.
    The final rule allows the employer seven business days to provide 
copies of the OSHA 301 forms for all occupational injuries and 
illnesses that occur at the establishment. Several commenters stated 
that there is additional burden for these large requests (see, e.g., 
Exs. 15: 172, 260, 262, 265, 294, 297, 401). For example, the Boeing 
Corporation stated that ``[s]ince Boeing is a large employer with 
several thousand employees at several sites, (up to 30,000 at one 
site), the administrative burden could be immense, particularly, if 
large numbers of records are requested by several employees. For 
example, if 100 employees requested ten thousand 301 forms, one million 
records would have to be available. This requirement is simply not 
administratively realistic.'' OSHA agrees that, because these records 
may involve more copying, the employer needs more time to produce 
copies of the 301 forms. In addition, as stated in the final rule, the 
employer may not provide the authorized employee representative with 
the information on the left side of the 301 form, so the employer needs 
additional time to redact this information. Because the final rule only 
provides a right of access to an authorized employee representative 
(authorized collective bargaining agent), the number of requests should 
not exceed the number of unions representing employees at the 
establishment. Thus, the multiple request problem envisioned by Boeing 
should not surface. In addition, OSHA expects that, in large plants 
such as the one described by Boeing, the authorized employee 
representatives will ask for the data on a periodic basis, either 
monthly or quarterly, so the data requested at one time will be 
limited. In addition, the employer must provide only one free copy. If 
additional copies are requested, the employer may charge for the 
copies.
Charging Employees for Copies of the OSHA Records
    The proposal also required the employer to provide copies without 
cost, or provide access to copying facilities without charge, or allow 
the employee or representative to take the records off site to make 
copies (61 FR 4061). Linda Ballas (Ex. 15: 31) commented that the 
copies should be provided at no cost to the employee. Several 
commenters stated that employees who access the records should pay for 
them (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 226, 317, 397, 424). 
Atlantic Marine, Inc. stated: ``Providing copies of records without 
cost to individuals may produce an undue administrative and financial 
burden for some employers. Although there is merit to providing 
information access to employees, the charging of a fee not to exceed 
the actual cost for duplicating the documents may deter unnecessary or 
frivolous requests'' (Ex. 15: 151). The United Parcel Service Company 
(Ex. 15: 424) stated that:

    [i]f expanded access to safety and health records is afforded, 
certainly such access should not be at the employer's cost. This is 
an unfair burden on the employer, and will

[[Page 6060]]

encourage improper, harassing requests. These risks are not 
alleviated by the alternative of permitting the employer to give its 
records to the requesting party to copy, Proposed 
Sec. 1904.11(b)(3)(iii), 61 Fed. Reg. at 4061, since employers often 
will be reluctant to entrust their only original copies to a current 
or former employee. (Ex. 15: 424)

    In the final rule, OSHA has implemented the proposed provision 
requiring employers to provide copies free of charge to employees who 
ask for the records. The costs of providing copies is a minimal 
expense, and employees are more likely to access the data if it is 
without cost. In addition, allowing the employer to charge for copies 
of the OSHA records would only serve to delay production of the 
records. Providing free copies for employees thus helps meet one of the 
major goals of this rulemaking; to improve employee involvement. 
However, OSHA agrees that there are some circumstances where employers 
should have the option of charging for records. After receiving an 
initial, free copy of requested records, an employee, former employee, 
or designated representative may be charged a reasonable search and 
copying fee for duplicate copies of the records. However, no fee may be 
charged for an update of a previously requested record.

Section 1904.37  State Recordkeeping Regulations

    Section 1904.37 addresses the consistency of the recordkeeping and 
reporting requirements between Federal OSHA and those States where 
occupational safety and health enforcement is provided by an OSHA-
approved State Plan. Currently, in 21 States and 2 territories, the 
State government has been granted authority to operate a State OSHA 
Plan covering both the private and public (State and local government) 
sectors under section 18 of the OSH Act (see the State Plan section of 
this preamble for a listing of these States). Two additional States 
currently operate programs limited in scope to State and local 
government employees only. State Plans, once approved, operate under 
authority of State law and provide programs of standards, regulations 
and enforcement which must be ``at least as effective'' as the Federal 
program. (State Plans must extend their coverage to State and local 
government employees, workers not otherwise covered by Federal OSHA 
regulations.) Section 1904.37 of the final rule describes what State 
Plan recordkeeping requirements must be identical to the Federal 
requirements, which State regulations may be different, and provides 
cross references to the State Plan regulations codified in Section 
1902.3(k), 1952.4, and 1956.10(i). The provisions of Subpart A of 29 
CFR part 1952 specify the regulatory discretion of the State Plans in 
general, and section 1952.4 spells out the regulatory discretion of the 
State Plans specifically for the recordkeeping regulation.
    In the final rule, OSHA has rewritten the text of the corresponding 
proposed section and moved it into Subpart D of the final rule. Under 
Section 18 of the OSH Act, a State Plan must require employers in the 
State to make reports to the Secretary in the same manner and to the 
same extent as if the Plan were not in effect. Final section 1904.37 
makes clear that States with approved State Plans must promulgate new 
regulations that are substantially identical to the final Federal rule. 
State Plans must have recording and reporting regulations that impose 
identical requirements for the recordability of occupational injuries 
and illnesses and the manner in which they are entered. These 
requirements must be the same for employers in all the States, whether 
under Federal or State Plan jurisdiction, and for State and local 
government employers covered only through State Plans, to ensure that 
the occupational injury and illness data for the entire nation are 
uniform and consistent so that statistics that allow comparisons 
between the States and between employers located in different States 
are created.
    For all of the other requirements of the Part 1904 regulations, the 
regulations adopted by the State Plans may be more stringent than or 
supplemental to the Federal regulations, pursuant to paragraph 
1952.4(b). This means that the States' recording and reporting 
regulations could differ in several ways from their Federal Part 1904 
counterparts. For example, a State Plan could require employers to keep 
records for the State, even though those employers are within an 
industry exempted by the Federal rule. A State Plan could also require 
employers to keep additional supplementary injury and illness 
information, require employers to report fatality and multiple 
hospitalization incidents within a shorter timeframe than Federal OSHA 
does, require other types of incidents to be reported as they occur, or 
impose other requirements. While a State Plan must assure that all 
employee participation and access rights are assured, the State may 
provide broader access to records by employees and their 
representatives. However, because of the unique nature of the national 
recordkeeping program, States must secure Federal OSHA approval for 
these enhancements.
    The final rule eliminates paragraph (b) of section 1904.14 of the 
proposed rule. Proposed paragraph (b) stated that records maintained 
under State Plan rules would be considered to be in compliance with the 
Federal rule. OSHA has eliminated paragraph (b) as unnecessary because 
it is redundant to state that the records kept under State law will be 
acceptable; since State regulations must be identical to, or more 
stringent than the Federal regulations, compliance by private sector 
employers with approved State laws would by definition constitute 
compliance with the Federal regulations. Paragraph (c), which deals 
with public sector recording and reporting requirements in both 
comprehensive State Plans (those covering both the private and public 
sector employees) and those which are limited to the public sector 
(State and local government), has been reworded and moved to 
1904.37(b)(3).
    Because Federal OSHA does not provide coverage to State and local 
government employees, the State-Plan States may grant State 
recordkeeping variances to the State and local governments under their 
jurisdiction. However, the State must obtain concurrence from Federal 
OSHA prior to issuing any such variances. In addition, the State-Plan 
States may not grant variances to any other employers and must 
recognize all 1904 variances granted by Federal OSHA. These steps are 
necessary to ensure that the injury and illness data requirements are 
consistent from State to State.
    Rulemaking comments on this issue were unanimous in supporting 
identical State and Federal regulations for recordkeeping. Multi-State 
employers and their representatives, such as US West, Lucent 
Technologies, AT&T, and the National Association of Manufacturers, 
thought that identical State regulations would simplify and reduce 
their recordkeeping burdens (see, e.g., Exs. 15: 194, 272, 303, 305, 
346, 348, 358, 375).
    OSHA understands the advantages to multi-State businesses of 
following identical OSHA rules in both Federal and State Plan 
jurisdictions, but also recognizes the value of allowing the States to 
have different rules to meet the needs of each State, as well as the 
States' right to impose different rules as long as the State rule is at 
least as effective as the Federal rule. Accordingly, the Part 1904 
rules impose identical requirements where they are needed to create 
consistent injury and illness statistics for the nation and allows the 
States to impose

[[Page 6061]]

supplemental or more stringent requirements where doing so will not 
interfere with the maintenance of comprehensive and uniform national 
statistics on workplace fatalities, injuries and illnesses.

Section 1904.38  Variances From the Recordkeeping Rule

    Section 1904.38 of the final rule explains the procedures employers 
must follow in those rare instances where they request that OSHA grant 
them a variance or exception to the recordkeeping rules in Part 1904. 
The rule contains these procedures to allow an employer who wishes to 
maintain records in a manner that is different from the approach 
required by the rules in Part 1904 to petition the Assistant Secretary. 
Section 1904.8 allows the employer to apply to the Assistant Secretary 
for OSHA and request a Part 1904 variance if he or she can show that 
the alternative recordkeeping system: (1) Collects the same information 
as this Part requires; (2) Meets the purposes of the Act; and (3) Does 
not interfere with the administration of the Act.
    The variance petition must include several items, namely the 
employer's name and address; a list of the State(s) where the variance 
would be used; the addresses of the business establishments involved; a 
description of why the employer is seeking a variance; a description of 
the different recordkeeping procedures the employer is proposing to 
use; a description of how the employer's proposed procedures will 
collect the same information as would be collected by the Part 1904 
requirements and achieve the purpose of the Act; and a statement that 
the employer has informed its employees of the petition by giving them 
or their authorized representative a copy of the petition and by 
posting a statement summarizing the petition in the same way notices 
are posted under paragraph 1903.2(a).
    The final rule the describes how the Assistant Secretary will 
handle the variance petition by taking the following steps:

--The Assistant Secretary will offer employees and their authorized 
representatives an opportunity to comment on the variance petition. The 
employees and their authorized representatives will be allowed to 
submit written data, views, and arguments about the petition.
--The Assistant Secretary may allow the public to comment on the 
variance petition by publishing the petition in the Federal Register. 
If the petition is published, the notice will establish a public 
comment period and may include a schedule for a public meeting on the 
petition.
--After reviewing the variance petition and any comments from employees 
and the public, the Assistant Secretary will decide whether or not the 
proposed recordkeeping procedures will meet the purposes of the Act, 
will not otherwise interfere with the Act, and will provide the same 
information as the Part 1904 regulations provide. If the procedures 
meet these criteria, the Assistant Secretary may grant the variance 
subject to such conditions as he or she finds appropriate.
--If the Assistant Secretary grants the variance petition, OSHA will 
publish a notice in the Federal Register to announce the variance. The 
notice will include the practices the variance allows, any conditions 
that apply, and the reasons for allowing the variance.

    The final rule makes clear that the employer may not use the 
proposed recordkeeping procedures while the Assistant Secretary is 
processing the variance petition and must wait until the variance is 
approved. The rule also provides that, if the Assistant Secretary 
denies the petition, the employer will receive notice of the denial 
within a reasonable time and establishes that a variance petition has 
no effect on the citation and penalty for a citation that has been 
previously issued by OSHA and that the Assistant Secretary may elect 
not to review a variance petition if it includes an element which has 
been cited and the citation is still under review by a court, an 
Administrative Law Judge (ALJ), or the OSH Review Commission.
    The final rule also states that the Assistant Secretary may revoke 
a variance at a later date if the Assistant Secretary has good cause to 
do so, and that the procedures for revoking a variance will follow the 
same process as OSHA uses for reviewing variance petitions. Except in 
cases of willfulness or where necessary for public safety, the 
Assistant Secretary will: Notify the employer in writing of the facts 
or conduct that may warrant revocation of a variance and provide the 
employer, employees, and authorized employee representatives with an 
opportunity to participate in the revocation procedures.
    The final rule differs somewhat from the variance section of the 
former rule. The text of the previous rule gave the Bureau of Labor 
Statistics authority to grant, deny, and revoke recordkeeping variances 
and exceptions. Under the former rule, applicants were required to 
petition the Regional Commissioner of the Department of Labor's Bureau 
of Labor Statistics (BLS) for the region where the establishment was 
located. Petitions that stretched beyond the regional boundary were 
referred to the BLS Assistant Commissioner. These responsibilities were 
transferred to OSHA in 1990 (Memorandum of Understanding between OSHA 
and BLS, 7/11/90) (Ex. 6), but the variance section of the rule itself 
was not amended at that time. This section of the final rule codifies 
the shift in responsibilities from the BLS to OSHA with regard to 
variances.
    Like the former variance section of the rule, the final rule does 
not specifically note that the states operating OSHA-approved state 
plans are not permitted to grant recordkeeping variances. Paragraph (b) 
of former section 1952.4, OSHA's rule governing the operation of the 
State plans, prohibited the states from granting variances, and 
paragraph (c) of that rule required the State plans to recognize any 
Federal recordkeeping variances. The same procedures continue to apply 
to variances under section 1904.37 and section 1952.4 of this final 
rule. OSHA has not included the provisions from these two sections in 
the variance sections of this recordkeeping rule, because doing so 
would be repetitive.
    The final rule adds several provisions to those of the former rule. 
They include (1) the identification of petitioning employers' pending 
citations in State plan states, (2) the discretion given to OSHA not to 
consider a petition if a citation on the same subject matter is 
pending, (3) the clarification that OSHA may provide additional notice 
via the Federal Register and opportunity for comment, (4) the 
clarification that variances have only prospective effect, (5) the 
opportunity of employees and their representatives to participate in 
revocation procedures, and (6) the voiding of all previous variances 
and exceptions.
    Variance procedures were not discussed in the Recordkeeping 
Guidelines (Ex. 2), nor have there been any letters of interpretations 
or OSHRC or court decisions on recordkeeping variances. As noted in the 
proposal, at 61 FR 4039, only one recordkeeping variance has ever been 
granted by OSHA. This variance was granted to AT&T and subsequently 
expanded to its Bell subsidiaries to enable them to centralize records 
maintenance for workers in the field.
    The final rule does not adopt the approach to variances proposed by 
OSHA in 1996 (see section 1904.15 of the proposal). OSHA proposed to 
eliminate the variance and exception procedure from the recordkeeping 
rules

[[Page 6062]]

altogether and instead to require all variances and exceptions to the 
recordkeeping rule to be processed under OSHA's general variance 
regulations, which are codified at 29 CFR Part 1905. As stated in the 
proposal, OSHA believed that this change would streamline the final 
recordkeeping rule and eliminate duplicate procedures for obtaining 
variances. OSHA also proposed to amend paragraph 1952.4(c) to make 
clear that employers were required to obtain all recordkeeping 
variances or exceptions from OSHA instead of from the BLS.
    OSHA received very few comments on the proposed changes to the 
variance procedures. Some commenters approved the proposed approach but 
did not comment on its merits (see, e.g., Exs. 15: 133, 136, 137, 141, 
224, 266, 278). The International Dairy Foods Association (IDFA) 
supported the change if ``it is indeed * * * a duplicative section'' 
and ``no significant change will occur by deleting the provision'' (Ex. 
15: 203). Another commenter stated that ``no employer should be exempt 
from record keeping and I cannot imagine what kind of variance for 
record keeping exceptions could exist. I am requesting that this 
proposal be removed from the standard'' (Ex. 15: 62). The Air Transport 
Association urged ``OSHA * * * [to] permit [airline] companies to keep 
records according to location or division * * * and without the need to 
seek and acquire variances, so long as records can be retrieved in a 
reasonable time for OSHA oversight purposes'' (Ex. 15: 378).
    OSHA has decided, after further consideration, to continue to 
include a specific recordkeeping variance section in the final rule, 
and not to require employers who wish a recordkeeping variance or 
exception to follow the more rigorous procedures in 29 CFR part 1905. 
The procedures in Part 1905, which were developed for rules issued 
under sections 6 and 16 of the OSH Act, may not be appropriate for 
rules issued under section 8 of the Act, such as this recordkeeping 
rule.
    The final rule thus retains a section on variance procedures for 
the recordkeeping rule. OSHA believes that few variances or exceptions 
will be granted under the variance procedures of the final rule because 
other provisions of the final rule already reflect many of the 
alternative recordkeeping procedures that employers have asked to use 
over the years, such as electronic storage and transmission of data, 
centralized record maintenance, and the use of alternative 
recordkeeping forms. Because these changes have been made to other 
sections of the final rule, there should be little demand for variances 
or exceptions. As OSHA noted in the proposal (61 FR 4039) in relation 
to the AT&T variance, ``[t]he centralization of records provision 
contained in this proposal [and subsequently adopted in the final rule] 
will eliminate the continued need for this variance.'' Similarly, the 
changes in paragraphs 1904.3(e) and (f) of the final rule that permit 
substitute forms and computerization of recordkeeping by employers, 
combined with the changes in paragraph 1904.30(c) that allow for 
recordkeeping at a central location will accommodate the Air Transport 
Association's request that OSHA ``permit airline companies to keep 
records according to location or division * * * without the need to 
seek and acquire variances'' (Ex. 15: 378). Under the final rule, 
companies are still required to summarize their injury and illness 
records for individual establishments, but may also produce records for 
separate administrative units if they wish to do so. Centralized and 
computerized recordkeeping systems make this a relatively simple task 
when compared to paper-driven and decentralized systems.
    The final changes to the variance section of the former rule are 
minor. The primary change is to make clear that OSHA, rather than the 
BLS, has the responsibility for granting recordkeeping variances or 
exceptions. The other changes reflected in the final rule follow from 
the proposed rule and are intended to add several provisions from 
OSHA's general variance procedures in Part 1905. For example, paragraph 
(e) of section 1904.38 of the final rule is a modification of 
Sec. 1905.11(b)(8), and paragraph (i) of this section of the final rule 
derives from section 1905.5. The objective of this paragraph is to give 
OSHA discretionary authority to decline to act on a petition where the 
petitioner has a pending citation. OSHA concludes that it would not be 
appropriate to consider granting a recordkeeping variance to an 
employer who has a pending recordkeeping violation before OSHRC or a 
State agency.
    Paragraph (i) of the final rule supports paragraph (c)(7) from this 
same section because it provides a mechanism for giving OSHA notice of 
a citation pending before a state agency. Paragraph (i) also clarifies 
that variances only apply to future events, not to past practices. 
Paragraph (j) of section 1904.38 of the final rule nullifies all prior 
variances and exceptions. OSHA believes that it is important to begin 
with a ``clean slate'' when the final recordkeeping rule goes into 
effect. Employers with existing variances can re-petition the agency if 
the final rule does not address their needs. Another addition to the 
final rule makes explicit that OSHA can provide additional public 
notice via the Federal Register and may offer additional opportunity 
for public comment. A final addition recognizes and makes clear that 
employees can participate in variance revocation proceedings.

Subpart E. Reporting Fatality, Injury and Illness Information to 
the Government

    Subpart E of this final rule consolidates those sections of the 
rule that require employers to give recordkeeping information to the 
government. In the proposed rule, these sections were not grouped 
together. OSHA believes that grouping these sections into one Subpart 
improves the overall organization of the rule and will make it easier 
for employers to find the information when needed. The four sections of 
this subpart of the final rule are:
    (a) Section 1904.39, which requires employers to report fatality 
and multiple hospitalization incidents to OSHA.
    (b) Section 1904.40, which requires an employer to provide his or 
her occupational illness and injury records to a government inspector 
during the course of a safety and health inspection.
    (c) Section 1904.41, which requires employers to send their 
occupational illness and injury records to OSHA when the Agency sends a 
written request asking for specific types of information.
    (d) Section 1904.42, which requires employers to send their 
occupational illness and injury records to the Bureau of Labor 
Statistics (BLS) when the BLS sends a survey form asking for 
information from these records.
    Each of these sections, and the record evidence pertaining to them, 
is discussed below.

Section 1904.39  Reporting Fatality or Multiple Hospitalization 
Incidents to OSHA

    Paragraph (a) of section 1904.39 of the final rule requires an 
employer to report work-related events or exposures involving 
fatalities or the in-patient hospitalization of three or more employees 
to OSHA. The final rule requires the employer, within 8 hours after the 
death of any employee from a work-related incident or the in-patient 
hospitalization of three or more

[[Page 6063]]

employees as a result of a work-related incident, to orally report the 
fatality/multiple hospitalization by telephone or in person to the Area 
Office of the Occupational Safety and Health Administration (OSHA), or 
to OSHA via the OSHA toll-free central telephone number, 1-800-321-
6742.
    The final rule makes clear in paragraph 1904.39(b)(1) that an 
employer may not report the incident by leaving a message on OSHA's 
answering machine, faxing the Area Office, or sending an e-mail, but 
may report the fatality or multiple hospitalization incident using the 
OSHA 800 number. The employer is required by paragraph 1904.39(b)(2) to 
report several items of information for each fatality or multiple 
hospitalization incident: the establishment name, the location of the 
incident, the time of the incident, the number of fatalities or 
hospitalized employees, the names of any injured employees, the 
employer's contact person and his or her phone number, and a brief 
description of the incident.
    As stipulated in paragraph 1904.39(b)(3), the final rule does not 
require an employer to call OSHA to report a fatality or multiple 
hospitalization incident if it involves a motor vehicle accident that 
occurs on a public street or highway and does not occur in a 
construction work zone. Employers are also not required to report a 
commercial airplane, train, subway or bus accident (paragraph 
1904.39(b)(4)). However, these injuries must still be recorded on the 
employer's OSHA 300 and 301 forms, if the employer is required to keep 
such forms. Because employers are often unsure about whether they must 
report a fatality caused by a heart attack at work, the final rule 
stipulates, at paragraph 1904.39(b)(5), that such heart attacks must be 
reported, and states that the local OSHA Area Office director will 
decide whether to investigate the incident, depending on the 
circumstances of the heart attack.
    Paragraph 1904.39(b)(6) of the final rule clarifies that the 
employer is not required to report a fatality or hospitalization that 
occurs more than thirty (30) days after an incident, and paragraph 
1904.39(b)(7) states that, if the employer does not learn about a 
reportable incident when it occurs, the employer must make the report 
within 8 hours of the time the incident is reported to the employer or 
to any of the employer's agents or employees.
    Section 1904.39 of the final rule includes several changes from the 
proposed rule and section 1904.17 of the former rule. First, OSHA has 
rewritten the requirements of the former rule using the same plain-
language question-and-answer format that is used throughout the rest of 
the rule. Second, this section clarifies that the report an employer 
makes to OSHA on a workplace fatality or multiple hospitalization 
incident must be an oral report. As the regulatory text makes clear, 
the employer must make such reports to OSHA by telephone (either to the 
nearest Area Office or to the toll-free 800 number) or in person. 
Third, the employer may not merely leave a message at the OSHA Area 
Office; instead, the employer must actually speak to an OSHA 
representative. Fourth, this section of the rule lists OSHA's 800 
number for the convenience of employers and to allow flexibility in the 
event that the employer has difficulty reaching the OSHA Area Office. 
Fifth, this section eliminates the former requirement that employers 
report fatalities or multiple hospitalizations that result from an 
accident on a commercial or public transportation system, such as an 
airplane accident or one that occurs in a motor vehicle accident on a 
public highway or street (except for those occurring in a construction 
work zone, which must still be reported).
    OSHA's proposal would have made three changes to the former rule: 
(1) it would have clarified the need for employers to make oral 
reports, (2) it would have included OSHA's 800 number in the text of 
the regulation, and (3) it would have required a site-controlling 
employer at a major construction site to report a multiple 
hospitalization incident if the injured workers were working at that 
site under the control of that employer.
    A number of commenters supported all three of these proposed 
changes (see, e.g., Exs. 15: 133, 136, 137, 141, 204, 224, 266, 278, 
369, 378, 429). However, many commenters discussed the changes OSHA 
proposed, raised additional issues not raised in the proposal, and made 
various suggestions for the final rule. Comments are discussed below 
for each of the proposed changes.
    Making oral reports of fatalities or multiple hospitalization 
incidents and the OSHA 800 number. The former rule required an employer 
to ``orally report'' fatality or multiple hospitalization incidents to 
OSHA by telephone or in person, although the rule did not specify that 
messages left on the Area Office answering machine or sent by e-mail 
would not suffice. Since the purpose of this notification is to alert 
OSHA to the occurrence of an accident that may warrant immediate 
investigation, such notification must be made orally to a ``live'' 
person. The changes made to the final rule are consistent with those 
proposed, except that the proposal would have required employers to 
report to the Area Office either by telephone or in person during 
normal business hours and to limit use of the toll-free 800 number to 
non-business hours.
    A few commenters suggested ways for OSHA to make the 800 number 
more available to employers and to ensure that reports are made orally 
(see, e.g., Exs. 15: 9, 154, 203, 229, 238, 239, 389). For example, the 
National Pest Control Association suggested that:

    [t]he agency print OSHA's emergency toll free number on the OSHA 
300 and 301 forms and explain that employers are to call the number 
in the case of a fatality or multiple hospitalization during non-
business hours. We would also urge OSHA to define ``non-business'' 
hours both in the regulatory text and on the forms (Ex. 15: 229).

    Waste Management, Inc. (WMI) (Ex. 15: 389) recommended full 
reliance on the 800 number, proposing that:

    [t]he 800 number be used at all times. A recent event entailing 
an attempt to report to the local area office illustrates the 
difficulty in complying with this proposal. The caller was away from 
the office out-of-town and attempted to rely on information obtained 
from the local telephone information service. No local OSHA 
telephone number was identified as the local emergency number. The 
city had multiple area offices and telephone numbers without 
adequate identification at the telephone company information desk. 
The local number which was finally identified as the local OSHA 
emergency number could not be accessed from outside the calling area 
even if the caller was willing to pay the charges. After numerous 
calls and involvement of several levels of telephone management, the 
normal business day was completed and so the 800 number in 
Washington was called. The use of a single, nationwide 800 number 
has worked for EPA and other agencies. WMI believes it would 
simplify reporting requirements and ensure more timely reporting.

    Houston Lighting and Power (Ex. 15: 239) suggested that OSHA allow 
employers to report either to the local OSHA Office or to the 800 
number:

    [r]eporting of an incident either to the nearest Area Office or 
through the use of the 1-800 number should be available alternatives 
to the reporting requirement. The proposal limits when the 1-800 
number may be used. In many cases the person reporting the incident 
may not be at the incident site. It is much more efficient to use a 
number that does not change from location to location than to 
attempt to identify each area office.

    Tri/Mark Corporation (Ex. 15: 238) asked about reporting using fax 
or e-mail: ``If a live person is available to answer the 800 number, 
there is no

[[Page 6064]]

problem with this item. Could a fax or e-mail message be an appropriate 
notification tool?''
    It is essential for OSHA to speak promptly to any employer whose 
employee(s) have experienced a fatality or multiple hospitalization 
incident to determine whether the Agency needs to begin an 
investigation. Therefore, the final rule does not permit employers 
merely to leave a message on an answering machine, send a fax, or 
transmit an e-mail message. None of these options allows an Agency 
representative to interact with the employer to clarify the particulars 
of the catastrophic incident. Additionally, if the Area Office were 
closed for the weekend, a holiday, or for some other reason, OSHA might 
not learn of the incident for several days if electronic or facsimile 
transmission were permitted. Paragraph 1904.39(b)(1) of the final rule 
makes this clear.
    As noted, OSHA allows the employer to report a fatality or multiple 
hospitalization incident by speaking to an OSHA representative at the 
local Area Office either on the phone or in person, or by using the 800 
number. This policy gives the employer flexibility to report using 
whatever mechanism is most convenient. The employer may use whatever 
method he or she chooses, at any time, as long as he or she is able to 
speak in person to an OSHA representative or the 800 number operator. 
Therefore, there is no need to define business hours or otherwise add 
additional information about when to use the 800 number; it is always 
an acceptable option for complying with this reporting requirement.
    This final rule also includes the 800 number in the text of the 
regulation. OSHA has decided to include the number in the regulatory 
text at this time to provide an easy reference for employers. OSHA will 
also continue to include the 800 number in any interpretive materials, 
guidelines or outreach materials that it publishes to help employers 
comply with the reporting requirement.
    Reporting by a site-controlling employer at a major construction 
site. The proposed rule would have required a ``site controlling 
employer or designee'' to report a case to OSHA ``if no more than two 
employees of a single employer were hospitalized but, collectively, 
three or more workers were hospitalized as in-patients.'' This 
provision was designed to capture those cases where three or more 
employees of different employers were injured and hospitalized in a 
single incident. Because a site-controlling employer was defined in the 
proposed rule as a construction firm with control of a project valued 
at $1,000,000 or more, the proposed rule would have applied only to 
those employers. Under the former rule, employers only needed to report 
if three of their own employees were hospitalized.
    A number of commenters opposed the proposed change (see, e.g., Exs. 
25, 15: 9, 126, 199, 289, 305, 312, 335, 346, 356, 389, 406, 420). 
Several commenters argued that the provision would be unworkable 
because individual employers often do not know about the post-accident 
condition of the injured employees of other employers (see, e.g., Exs. 
15: 126, 346). Other commenters objected to placing the burden of such 
reporting on the general contractor on a construction site rather than 
on the individual employers of the affected employees (see, e.g., Exs. 
15: 312, 356). Still other commenters noted that, since the term 
``site-controlling employer'' is defined by OSHA as an employer in the 
construction industry, this provision would have no apparent 
application in multi-employer settings outside the construction 
industry (see, e.g., Exs. 15: 199, 335, 346).
    After considering the issue further, OSHA agrees that it would be 
impractical to impose on one employer a duty to report cases of 
multiple hospitalizations of employees who work for other employers. 
Although such a reporting requirement would provide OSHA with 
information that the Agency could use to inspect some incidents that it 
might otherwise not know about, OSHA believes that the fatality and 
catastrophe provisions of the final rule will capture most such 
incidents. Accordingly, OSHA has not included this proposed provision 
in the final rule.
    Eight hours to report. A number of commenters asked OSHA to extend 
the 8-hour period allowed for employers to report a fatality or a 
multiple hospitalization incident to OSHA. Most of the commenters who 
believe that this interval is too short recommended a 24-or 48-hour 
reporting time (see, e.g., Exs. 33, 15: 35, 37, 176, 203, 218, 229, 
231, 273, 301, 335, 341, 423, 425). For example, the International 
Dairy Foods Association (IDFA) (Ex. 15: 203) recommended that ``the 
reporting period be extended from 8 hours to 24 hours after the event. 
We feel this is appropriate because the resultant devastation in this 
type of situation would clearly overshadow the need to inform OSHA of 
an event that, with all due respect, could not be remedied by reporting 
it within 8 hours or less.'' The American Health Care Association 
(AHCA) (Ex. 15: 341) stated:

    [r]eporting workplace fatalities or multiple employee 
hospitalization within 8 hours is unrealistic and unreasonable 
because the employer's first concern should be to the employee(s) 
injured or killed, his/her family or damage to the building when 
others may be in imminent danger (e.g., a fire in a health care 
facility may require evacuating and finding alternative placement 
for frail, elderly residents). AHCA recommends that OSHA revise the 
regulation by extending the time period for reporting fatalities or 
hospitalization of 3 or more employees to ``within 48 hours.''

    After considering these comments, and reviewing the comments 
received during the comment period for the April 1, 1994 rulemaking on 
this issue (59 FR 15594-15600), OSHA has decided to continue the 8-hour 
requirement. The 1994 rulemaking noted the support of many commenters 
for the 8-hour rule, as well as support for 4-hours, 24 hours, and 48 
hours. As OSHA discussed in the April 1, 1994 rulemaking, prompt 
reporting enables OSHA to inspect the site of the incident and 
interview personnel while their recollections are immediate, fresh and 
untainted by other events, thus providing more timely and accurate 
information about the possible causes of the incident. The 8-hour 
reporting time also makes it more likely that the incident site will be 
undisturbed, affording the investigating compliance officer a better 
view of the worksite as it appeared at the time of the incident. 
Further, from its enforcement experience, OSHA is not aware that 
employers have had difficulty complying with the 8-hour reporting 
requirement.
    Motor vehicle and public transportation accidents. Several 
commenters recommended that OSHA not require employers to report to 
OSHA fatalities and multiple hospitalization catastrophes caused by 
public transportation accidents and motor vehicle accidents (see, e.g., 
Exs. 33, 15: 176, 199, 231, 272, 273, 301, 303, 375). The comments of 
NYNEX (Ex. 15: 199) are typical:

    [t]he primary purpose of this section is to provide OSHA with 
timely information necessary to make a determination whether or not 
to investigate the scene of an incident. To NYNEX's knowledge, OSHA 
has not investigated public transportation accidents or motor 
vehicle accidents occurring on public streets or highways. In order 
to reduce unnecessary costs for both employers and OSHA, NYNEX 
recommends that fatalities and multiple hospitalizations resulting 
from these types of accidents be exempt from the reporting 
requirement.

    OSHA agrees with these commenters that there is no need for an 
employer to report a fatality or multiple hospitalization incident when 
OSHA is

[[Page 6065]]

clearly not going to make an investigation. When a worker is killed or 
injured in a motor vehicle accident on a public highway or street, OSHA 
is only likely to investigate the incident if it occurred in a highway 
construction zone. Likewise, when a worker is killed or injured in an 
airplane crash, a train wreck, or a subway accident, OSHA does not 
investigate, and there is thus no need for the employer to report the 
incident to OSHA. The text of paragraphs 1904.39(b)(3) and (4) of the 
final rule clarifies that an employer is not required to report these 
incidents to OSHA. These incidents are normally investigated by other 
agencies, including local transit authorities, local or State police, 
State transportation officials, and the U.S. Department of 
Transportation.
    However, although there is no need to report these incidents to 
OSHA under the 8-hour reporting requirement, any fatalities and 
hospitalizations caused by motor vehicle accidents, as well as 
commercial or public transportation accidents, are recordable if they 
meet OSHA's recordability criteria. These cases should be captured by 
the Nation's occupational fatality and injury statistics and be 
included on the employer's injury and illness forms. The statistics 
need to be complete, so that OSHA, BLS, and the public can see where 
and how employees are being made ill, injured and killed. Accordingly, 
the final rule includes a sentence clarifying that employers are still 
required to record work-related fatalities and injuries that occur as a 
result of public transportation accidents and injuries.
    Although commenters are correct that OSHA only rarely investigates 
motor vehicle accidents, the Agency does investigate motor vehicle 
accidents that occur at street or highway construction sites. Such 
accidents are of concern to the Agency, and OSHA seeks to learn new 
ways to prevent these accidents and protect employees who are exposed 
to them. For example, OSHA is currently participating in a Local 
Emphasis Program in the State of New Jersey that is designed to protect 
highway construction workers who are exposed to traffic hazards while 
performing construction work. Therefore, the final rule provides 
provisions that require an employer to report a fatality or multiple 
hospitalization incident that occurs in a construction zone on a public 
highway or street.
    Other issues related to the reporting of fatalities and multiple 
hospitalization incidents. Commenters also raised several issues not 
addressed in the proposed rule. The National Pest Control Association 
(NPCA) (Ex. 15: 229) asked OSHA to allow for a longer reporting time in 
those rare cases where the owner of a small business was himself or 
herself incapacitated in the accident, suggesting that:

    [l]anguage be included in the rule revisions to provide for 
additional time to report fatalities and multiple hospitalizations 
if the employer is hospitalized or otherwise incapacitated. * * * 
Typically, pest control companies are very small operations. Many 
employ five or less employees. Often times the business owner is out 
in the field as much as the employees. So, let's say an employer is 
hospitalized during a work-related incident that also claimed the 
life of an employee, who happened to be the lone employee. Can the 
employer really be expected to report the fatality within eight 
hours? In most instances the eight hour requirement is rather 
reasonable, however, in this circumstance it is not. NPCA asks that 
the agency consider adding language allowing small employers who are 
hospitalized additional time to report a multiple hospitalization or 
fatality.

    OSHA has decided that there is no need to include language to 
address this very rare occurrence. If such an unfortunate event were to 
occur, OSHA would certainly allow a certain amount of leeway for the 
employer or a representative to report the case. The OSHA inspector 
can, for good cause, provide the employer with reasonable relief from 
citation and penalty for failing to report the incident within 8 hours, 
especially if the employer reports it as soon as possible.
    Bell Atlantic (Ex. 15: 218) and the Dow Chemical Company (Ex. 15: 
335) recommended that OSHA include additional provisions for employees 
who are admitted to the hospital for observation only. Bell Atlantic's 
comments were: ``Bell Atlantic also recommends that the hospitalization 
requirement [for reporting multiple hospitalizations] be limited to 
those workers that are hospitalized overnight for treatment. The 
current proposal does not address hospitalization for observation, only 
that they are non-recordable.''
    OSHA disagrees with these comments, as it did when similar comments 
were submitted to the record in the 1994 rulemaking on this provision 
[59 FR 15596-15597]. If three or more workers are hospitalized 
overnight, whether for treatment or observation, the accident is 
clearly of a catastrophic nature, and OSHA needs to learn about it 
promptly. Additionally, the inpatient distinction provides an easy-to-
understand trigger for reporting. In many instances, a patient who is 
admitted for observation as an inpatient later receives treatment after 
the true nature and extent of the injury becomes known. At the time of 
the incident, when reporting is most useful, the employer is unlikely 
to know the details about the treatment that the worker is receiving 
(e.g., observation only or medical treatment). However, the employer 
will probably know that the employee has been admitted to the hospital 
as an inpatient.
    The United Parcel Service (UPS) (Ex. 15: 424) suggested that the 8-
hour time period for reporting apply only when a higher ranking 
official of the company learns of the fatality or catastrophe, stating:

    [U]PS supports this proposal, with one modification: the 
provision that the eight-hour limit begins to run on notice to an 
employee or agent is over broad. It may happen that workers who 
learn of the death or hospitalization of a co-worker do not notify 
the employer in sufficient time to enable the manager in charge of 
contacting OSHA to meet the deadline. The better rule, therefore, is 
to require OSHA modification within eight hours of the incident's 
being reported to a supervisor, manager, or company official. This 
allowance is particularly necessary for incidents occurring away 
from the work site.

    The issue of who within the company must learn of the incident 
before the reporting deadline was also discussed in the 1994 rulemaking 
[59 FR 15597]. As in the former rule, the final rule requires reporting 
within 8 hours of the time any agent or employee of the employer 
becomes aware of the incident. It is the employer's responsibility to 
ensure that appropriate instructions and procedures are in place so 
that corporate officers, managers, supervisors, medical/health 
personnel, safety officers, receptionists, switchboard personnel, and 
other employees or agents of the company who learn of employee deaths 
or multiple hospitalizations know that the company must make a timely 
report to OSHA.

Section 1904.40 Providing Records to Government Representatives

    Under the final rule, employers must provide a complete copy of any 
records required by Part 1904 to an authorized government 
representative, including the Form 300 (Log), the Form 300A(Summary), 
the confidential listing of privacy concern cases along with the names 
of the injured or ill privacy case workers, and the Form 301 (Incident 
Report), when the representative asks for the records during a 
workplace safety and health inspection. This requirement is unchanged 
from the corresponding requirement in OSHA's former recordkeeping rule. 
However, the

[[Page 6066]]

former rule combined the requirements governing both government 
inspectors' and employers' rights of access to the records into a 
single section, section 1904.7 ``Access to Records.'' The final rule 
separates the two. It places the requirements governing access to the 
records by government inspectors in Subpart E, along with other 
provisions requiring employers to submit their occupational injury and 
illness records to the government or to provide government personnel 
access to them. Provisions for employee access to records are now in 
section 1904.35, Employee Involvement, in Subpart D of this final rule.
    The final regulatory text of paragraph (a) of section 1904.40 
requires an employer to provide an authorized government representative 
with records kept under Part 1904 within four business hours. As stated 
in paragraph 1904.40(b)(1), the authorized government representatives 
who have a right to obtain the Part 1904 records are a representative 
of the Secretary of Labor conducting an inspection or investigation 
under the Act, a representative of the Secretary of Health and Human 
Services (including the National Institute for Occupational Safety and 
Health (NIOSH) conducting an investigation under Section 20(b) of the 
Act, or a representative of a State agency responsible for 
administering a State plan approved under section 18 of the Act. The 
government's right to ask for such records is limited by the 
jurisdiction of that Agency. For example, a representative of an OSHA 
approved State plan could only ask for the records when visiting an 
establishment within that state.
    The final rule allows the employer to take into account 
difficulties that may be encountered if the records are kept at a 
location in a different time zone from the establishment where the 
government representative has asked for the records. If the employer 
maintains the records at a location in a different time zone, OSHA will 
use the business hours of the establishment at which the records are 
located when calculating the deadline, as permitted by paragraph 
1904.40(b)(2).
    The former rule. Paragraph 1904.7(a) of the former OSHA 
recordkeeping rule required employers to provide authorized government 
representatives with access to the complete Form 200, without the 
removal of any information (unredacted). That paragraph read as 
follows:

    Each employer shall provide, upon request, records provided for 
in Secs. 1904.2, 1904.4, and 1904.5, for inspection and copying by 
any representative of the Secretary of Labor for the purpose of 
carrying out the provisions of the Act, and by representatives of 
the Secretary of Health, Education, and Welfare during any 
investigation under section 20(b) of the Act, or by any 
representative of a State accorded jurisdiction for occupational 
safety and health inspections or for statistical compilation under 
sections 18 and 24 of the Act.

    The proposal. The proposed regulation was consistent with OSHA's 
former recordkeeping regulation in that it continued to require 
employers to provide government representatives with access to the 
entire OSHA injury and illness Log and Summary (Forms 300 and 300A) and 
OSHA Incident Record (Form 301). Proposed paragraph 1904.11(a), 
``Access to Records,'' read as follows:

    Government Representatives. Each employer shall provide, upon a 
request made in person or in writing, copies of the OSHA Forms 300 
and 301 or equivalents, and year-end summaries for their own 
employees, and injury and illness records for ``subcontractor 
employees'' as required under this Part to any authorized 
representative of the Secretary of Labor or Secretary of Health and 
Human Services or to any authorized representative of a State 
accorded jurisdiction for occupational safety and health for the 
purposes of carrying out the Act.
    (1) When the request is made in person, the information must be 
provided in hard copy (paper printout) within 4 hours. If the 
information is being transmitted to the establishment from some 
other location, using telefax or other electronic transmission, the 
employer may provide a copy to the government representative present 
at the establishment or to the government representative's office.
    (2) When the request is made in writing, the information must be 
provided within 21 days of receipt of the written request, unless 
the Secretary requests otherwise.

    The proposal thus would have continued to combine the records 
access provisions for government personnel with the access provisions 
for employees, former employees and employee representatives. The 
proposed rule would have modified the former rule in several ways, 
however (61 FR 4038). First, it would have required the employer to 
provide copies of the forms, while the former rule simply required the 
employer to provide records for inspection and copying. Second, the 
proposal would have required the employer to produce the records within 
4 hours, while the former rule did not specify any time period. Third, 
the proposed rule would have allowed an employer either to provide the 
records at the inspection location, or to fax the records to the 
government inspector's home office. This would allow employers to keep 
their records at a centralized location as long as the government 
inspector could obtain the information promptly. Fourth, the proposed 
rule would have required the employer to send Part 1904 information to 
OSHA within 21 days of the date on which a written request was received 
from the Agency. This time limit for mailed survey forms was 
established in section 1904.17 of the former rule and is carried 
forward in this final rule at section 1904.40.
    The proposal also requested comment on situations where the 4-hour 
requirement might be infeasible and posed several questions for the 
public to consider:

    OSHA solicits input on these time limitations. Are they 
reasonable? Should they be shortened or extended? Should the 
requirement be restricted to business hours, and if so, to the 
business hours of the establishment to which the records pertain or 
the establishment where the records are maintained?

    Many commenters agreed with OSHA that government representatives 
should have access to the records themselves (see, e.g., Exs. 15: 78, 
163, 218, 359, 369, 405). For example, Alliant Techsystems remarked 
``[c]opies of this data should be given to OSHA personnel'' (Ex. 15: 
78). A number of commenters agreed that OSHA personnel should have 
access to the OSHA 301 records, even though they did not think that 
employees and their representatives should have access to the Form 301 
(see, e.g., Exs. 33, 15: 1, 39, 76, 82, 83, 159, 183, 185, 193, 226, 
330, 335, 338, 359, 373, 383, 385, 389, 399, 409, 423). For example, 
the American Meat Institute (AMI) (Ex. 15: 330) ``[b]elieves that it is 
imperative that personal identifiers be explicitly excluded from 
information that would be readily available to anyone, with the single 
exception of an interested government regulator.'' The Texas Chemical 
Council (Ex. 15: 159) argued: ``[L]ogs with employees'' names should 
only be accessed by selected individuals (i.e., OSHA inspectors, 
medical personnel, etc.). Posting or viewing of OSHA 300 log or 301 
reports without names should be the avenue for employees to access 
information.''
    Other commenters disagreed with one or more of the proposed access 
provisions (see, e.g., Exs. 25, 27, 15: 13, 22, 39, 60, 82, 100, 102, 
105, 111, 117, 119, 124, 139, 142, 154, 170, 174, 181, 182, 183, 193, 
215, 239, 258, 277, 294, 297, 305, 313, 315, 317, 318, 346, 347, 352, 
353, 359, 375, 378, 390, 392. 393, 395, 397, 399, 409, 425, 430, 440.) 
These commenters raised a wide range of issues. These included the 
right of OSHA inspectors to access the records; employers' Fourth 
Amendment rights; the way the government handles

[[Page 6067]]

information in its possession; employee privacy concerns; and the 
proposed requirement to produce the records within 4 hours. On the 
right of OSHA inspectors to access the records, for example, the 
Douglas Battery Manufacturing Company (Ex. 15: 82) stated:

[n]one of these records should be * * * used to conduct an OSHA 
compliance inspection. Such action would be in direct conflict with 
the purpose of the OSHA log which is to track injury and illness 
trends so corrective action can be taken by the employer.

    OSHA does not agree with this view, because government inspectors 
conducting workplace safety and health inspections need these records 
to carry out the purposes of the Act, i.e., to identify hazards that 
may harm the employees working there. The Part 1904 records provide 
information about how workers are injured or made ill at work and help 
guide the inspector to the hazards in the workplace that are causing 
injury and illness. Although these records may not cover all hazards 
that exist in a particular workplace, they help the inspector to 
identify hazards more completely during an inspection.
    Fourth amendment issues. A number of commenters argued that the 
regulatory requirement to provide records to a government inspector 
violated Fourth Amendment guarantees against unreasonable searches and 
the right to demand a warrant or subpoena before the government can 
search a citizen's property (see, e.g., Exs. 25, 27, 15: 124, 139, 154, 
174, 193, 215, 258, 305, 315, 318, 346, 375, 390, 392 395, 397). For 
example, the Workplace Safety and Health Council (Ex. 15: 313) stated:

[t]his provision would require employers to give OSHA a copy of a 
Form 300 and 301. This proposal flies in the face of court decisions 
holding that employers may not be penalized for declining to provide 
current Form 101 upon request and that, to gain access to them, OSHA 
must proceed by subpoena or inspection warrant. Secretary v. Taft 
Broadcasting Co., 849 F.2d 990 (6th Cir. 1988); Brock v. Emerson 
Electric Co., 834 F.2d 994 (11th Cir. 1987). These decisions are 
based on an employer's constitutional rights and they are not 
subject to change by OSHA regulation.

    These commenters appear to be arguing that including a subpoena or 
warrant enforcement mechanism in the text of the rule is necessary to 
adequately protect their Fourth Amendment right to privacy. This is not 
the case, however. The Fourth Amendment protects against 
``unreasonable'' intrusions by the government into private places and 
things. Reporting rules that do not depend on subpoena or warrant 
powers are not ``unreasonable'' per se. See e.g., California Bankers 
Ass'n v. Shultz, 416 U.S. 21, 67 (1974) (upholding reporting regulation 
issued under the Bank Secrecy Act of 1970 that did not provide for 
subpoenas or warrants where the ``information was sufficiently 
described and limited in nature and sufficiently related to a tenable 
Congressional determination'' that the information would have a high 
degree of usefulness in criminal, tax, or regulatory investigations or 
proceedings).
    In any event, the text of the rule is silent as to the enforcement 
mechanism OSHA will use in what OSHA hopes will be the rare case in 
which an employer does not provide a copy of the records on request. 
OSHA may proceed by applying for a warrant, or by administrative 
subpoena, or by citation where doing so is consistent with the Fourth 
Amendment. OSHA notes that employers have a Fourth Amendment right to 
require a warrant before an OSHA representative may physically enter a 
business establishment for an inspection.
    The totality of circumstances surrounding a warrantless or 
``subpoena-less'' administrative investigation or investigation program 
determines its reasonableness. For example, in McLaughlin v. A.B. 
Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a 
records access citation against an employer who refused an OSHA 
inspector access to its OSHA Logs and forms on the ground that it had a 
right to insist on a warrant or subpoena; the Court held that the 
inspector had such a right because a summary of the information was 
posted annually on the employee bulletin board and the inspector was 
lawfully on the premises to investigate a safety complaint. In New York 
v. Burger, 482 U.S. 691, 702-703 (1987), the Supreme Court noted that 
agencies may gather information without a warrant, subpoena, or consent 
if the information would serve a substantial governmental interest, a 
warrantless (or subpoena-less) inspection is necessary to further the 
regulatory scheme, and the agency acts pursuant to an inspection 
program that is limited in time, place, and scope. The Burger court 
upheld a warrantless inspection of records during an administrative 
inspection of business premises. See also Kings Island (noting that 
under Burger a warrantless or subpoena-less inspection of records might 
be reasonable, but concluding that the facts of the case did not 
satisfy Burger analysis); Emerson Electric (noting that under 
California Bankers an agency may gain access to information without a 
subpoena or warrant but concluding that the facts of that case were not 
comparable to those reviewed in California Bankers).
    Given that some warrantless and subpoena-less searches during an 
OSHA inspection may be reasonable while others may not, depending on 
the circumstances of the individual inspection, OSHA has decided not to 
include a subpoena or warrant enforcement mechanism in the text of the 
rule. However, OSHA will continue to enforce the rule within the 
parameters of applicable court decisions.
    Privacy of medical records. A number of commenters questioned the 
right of the government to access information in the records because of 
privacy concerns about medical records (see, e.g., Exs. 27, 15: 13, 22, 
39, 60, 82, 117, 119, 142, 183, 359, 378, 392, 399.) The National 
Association of Manufacturers (NAM) (Ex. 15: 142) stated that ``[t]he 
privacy interference as proposed that opens up medical records to most 
anyone is inconceivable, and should be eliminated.'' The National 
Oilseed Processors Association (Ex. 15: 119) recommended:

[t]he issue of privacy is an important one that should be handled 
carefully and with sensitivity to individual rights. We believe that 
the release of medical records of a specific employee should only be 
done after the employee whose records may be released has provided 
written permission to the employer to do so.

    This section of the final rule does not give unfettered access to 
the records by the public, but simply allows a government inspector to 
use the records during the course of a safety and health inspection. As 
discussed above in the section covering access to the records for 
employees, former employees, and employee representatives (Section 
1904.35), OSHA does not consider the Forms 300 and 301 to be medical 
records, for the following reasons. First, they do not have to be 
completed by a physician or other licensed health care professional. 
Second, they do not contain the detailed diagnostic and treatment 
information usually found in medical records. Finally, the injuries and 
illnesses found in the records are usually widely known among other 
employees at the workplace where the injured or ill worker works; in 
fact, these co-workers may even have witnessed the accident that gave 
rise to the injury or illness.
    OSHA does not agree that its inspectors should be required to 
obtain permission from all injured or ill employees before accessing 
the full records. Gaining this permission would make it essentially 
impossible to obtain

[[Page 6068]]

full access to the records, which is needed to perform a meaningful 
workplace investigation. For example, an inspector would not be able to 
obtain the names of employees who were no longer working for the 
company to perform follow-up interviews about the specifics of their 
injuries and illnesses. The names of the injured or ill workers are 
needed to allow the government inspector to interview the injured and 
ill workers and determine the hazardous circumstances that led to their 
injury or illness. The government inspector may also need the 
employee's names to access personnel and medical records if needed 
(medical records can only be accessed after the inspector obtains a 
medical access order). Additionally, refusing the inspector access to 
the names of the injured and ill workers would effectively prohibit any 
audit of the Part 1904 records by the government, a practice necessary 
to verify the accuracy of employer recordkeeping in general and to 
identify problems that employers may be having in keeping records under 
OSHA's recordkeeping rules. Adopting the inefficient access method 
suggested by these commenters would also place a substantial 
administrative burden on the employer, the employees, and the 
government. Further, since OSHA inspectors do not allow others to see 
the medical records they have accessed, the privacy of employees is not 
compromised by CSHO access to the records.
    Time for response to requests for records. Paragraphs 1904.40(a) 
and (b) of the final rule require records to be made available to a 
government inspector within 4 business hours of an oral request for the 
records, using the business hours of the establishment at which the 
records are located.
    A number of commenters opposed the proposed 4-hour records 
production requirement as being unreasonable and burdensome (see, e.g., 
Exs. 15: 89, 182, 185, 204, 213, 226, 260, 262, 265, 277, 294, 297, 
317, 324, 348, 392, 401, 409, 425). Several of these commenters 
recommended longer intervals, ranging from 8 hours (see, e.g., Exs. 15: 
9, 133, 204, 271, 294, 343), the ``next business day,'' or 24 hours 
(see, e.g., Exs. 15: 200, 225, 277, 394, 425), 72 hours (see, e.g., 
Exs. 15: 65, 154), 6 days (Ex. 15: 226), and 21 days (Ex. 15: 317). On 
the other hand, some commenters were concerned that access not be 
unduly delayed (see, e.g., Exs. 15: 350, 369, 418, 429). Two commenters 
(Exs. 15: 418, 429) recommended that the 4-hour requirement be reduced 
to two hours, except when the request would extend the reply period 
beyond regular business hours, when 4 hours would be acceptable.
    OSHA has concluded that 4 hours is a reasonable and workable length 
of time for employers to respond to governmental requests for records. 
The 4-hour time period for providing records from a centralized source 
strikes a balance between the practical limitations inherent in record 
maintenance and the government official's need to obtain these records 
and use the information to conduct a workplace inspection.
    Some commenters noted that temporary computer or fax failures could 
interfere with an employer's ability to comply with the 4-hour 
requirement (see, e.g., Exs. 15: 203, 254, 423). One commenter felt 
that additional time should be given to employers if equipment failure 
prevented the retrieval of the records within four hours (Ex. 15: 423). 
The American Society of Safety Engineers (ASSE) questioned whether four 
hours is a reasonable time frame for employers who use independent 
third parties to maintain their records (Ex. 15: 182).
    Several commenters raised concerns that other difficulties might 
make it difficult to produce the records in the allotted time. Some 
noted that the 4-hour time limit might not be adequate for large 
facilities with voluminous records (see, e.g., Exs. 15: 181, 297, 425). 
For example, the American Automobile Manufacturers Association (AAMA) 
(Ex. 15: 409) stated:

[m]any of our members' locations have only one medical person 
working, and to disrupt the normal medical care of injured or ill 
employees to produce records within a four hour period is not in the 
best interests of the health and safety of all concerned. Many 
additional factors must be taken into account in terms of the 
production of records such as locating the files, copying the files, 
having appropriate staffing to do the copying, and if the records 
are on a computer, the computer must not be on down time.

    OSHA believes that it is essential for employers to have systems 
and procedures that can produce the records within the 4-hour time. 
However, the Agency realizes that there may be unusual or unique 
circumstances where the employer cannot comply. For example, if the 
records are kept by a health care professional and that person is 
providing emergency care to an injured worker, the employer may need to 
delay production of the records. In such a situation, the OSHA 
inspector may allow the employer additional time.
    If a government representative requests records of an 
establishment, but those records are kept at another location, the 4-
hour period can be measured in accordance with the normal business 
hours at the location where the records are being kept. Some commenters 
observed that personnel at the centralized location might not be 
available to respond to requests if the 4-hour period extended outside 
the regular business hours of that location (see, e.g., Exs. 15: 105, 
111, 159, 170, 225, 239, 272, 294, 303, 332, 336, 343, 356, 359, 389, 
393, 430). This problem could arise under two different scenarios. 
First, if the centralized location were in a different time zone than 
the site whose records are requested, the business hours of the 
respective locations may differ by three or even more hours. Second, 
the business hours of a manufacturing plant or a construction site 
might differ from the business hours of the company's central offices, 
even if the operations are in the same time zone. Under the final rule, 
the employer has 4 regular business hours at the location at which the 
records are kept in which to comply with the request of a government 
representative.
    OSHA has designed the final rule to give each employer considerable 
flexibility in maintaining records. It permits an employer to 
centralize its records, to use computer and facsimile technologies, and 
to hire a third party to keep its records. However, an employer who 
chooses these options must also ensure that they are sufficiently 
reliable to comply with this rule. In other words, the flexibility 
provided to employers for recordkeeping must not impede the Agency's 
ability to obtain and use the records.
    Provide copies. Several commenters objected to the proposed 
requirement that employers provide copies of the records to government 
personnel without charging the government to do so (see, e.g., Exs. 15: 
69, 86, 100, 179, 347, 389, 397, 409). Most of these commenters cited 
the paperwork burden on employers as the primary reason for objecting. 
Several suggested that the employer be allowed to charge for copies, or 
that the government representative make their own copies (see, e.g., 
Exs. 15: 179, 347, 389, 409). This view was expressed in a comment from 
the Ford Motor Company (Ex. 15: 347):

[a]n undue burden may be placed on the establishment should a 
compliance officer ask for an inordinate amount of records or 
records which will not be utilized. Authorized government 
representatives should make their own copies and therefore will be 
diligent in asking only for those materials they will be utilizing.


[[Page 6069]]


    OSHA's experience has been that the vast majority of employers 
willingly provide copies to government representatives during safety 
and health inspections. Making copies is a routine office function in 
almost every modern workplace. With the widespread availability of 
copying technology, most workplaces have copy machines on-site or 
readily available. The cost of providing copies is minimal, usually 
less than five cents per copy. In addition, the government 
representative needs to obtain copes of records promptly, so that he or 
she can analyze the data and identify workplace hazards. Therefore, in 
this final rule, OSHA requires the employer to provide copies of the 
records requested to authorized government representatives.
    Other Section 1904.40 issues. Commenters raised additional issues 
about providing occupational illness and injury information to OSHA 
during an inspection. The American Ambulance Association (Ex. 15: 226) 
recommended that OSHA ``[p]lace greater emphasis on the fact that 
employers do not have to provide Forms 300 and 301 unless OSHA 
specifically asks for their submission.'' OSHA believes that the final 
rule is clear on this point, because it states that the employer must 
provide the records only when asked by an authorized government 
representative to do so.
    Several commenters stated that all requests for occupational safety 
and health information should be made in writing (see, e.g., Exs. 15: 
69, 317, 397). OSHA believes that it is neither appropriate nor 
necessary to require a government representative to request the 
information in writing. Government officials who are conducting 
workplace inspections may ask for any number of materials or ask 
verbally for information about various matters during the course of an 
inspection. Putting these requests in writing would impede workplace 
inspections and delay efforts to address workplace hazards.

Section 1904.41  Annual OSHA Injury and Illness Survey of Ten or More 
Employers

    Section 1904.41 of this final rule replaces section 1904.17, 
``Annual OSHA Injury and Illness Survey of Ten or More Employers,'' of 
the former rule issued on February 11, 1997. The final rule does not 
change the contents or policies of the corresponding section of the 
former rule in any way. Instead, the final rule simply rephrases the 
language of the former rule in the plain language question-and-answer 
format used in the rest of this rule. The following table shows the 
text of Section 1904.17 of the former rule, followed by the text of 
Section 1904.41 of this final rule.

------------------------------------------------------------------------
        Former sections 1904.17                New section 1904.41
------------------------------------------------------------------------
``Annual OSHA Injury and Illness Survey  ``Annual OSHA Injury and
 of Ten or More Employers''               Illness Survey of Ten or more
                                          Employers''
1904.17(a) Each employer shall, upon     1904.41(a) Basic Requirement.
 receipt of OSHA's Annual Survey Form,    If you receive OSHA's annual
 report to OSHA or OSHA's designee the    survey from, you must fill it
 number of workers it employed and        out and send it to OSHA or
 number of hours worked by its            OSHA's designee, as stated on
 employees for periods designated in      the survey form. You must
 the Survey Form and such information     report the following
 as OSHA may request from records         information for the year
 required to be created and maintained    described on the form: (1) the
 pursuant to 29 CFR Part 1904.            number of workers you
                                          employed; (2) the number of
                                          hours worked by your
                                          employees; and (3) the
                                          requested information from the
                                          records that you keep under
                                          Part 1904.
No comparable provision................  1904.41(b)(1) Does every
                                          employer have to send data to
                                          OSHA?
                                         No. Each year, OSHA sends
                                          injury and illness survey
                                          forms to employers in certain
                                          industries. In any year, some
                                          employers will receive an OSHA
                                          survey form and others will
                                          not. You do not have to send
                                          injury and illness data to
                                          OSHA unless you receive a
                                          survey form.
1904.17(b) Survey reports shall be       1904.41(b)(2) How quickly do I
 transmitted to OSHA by mail or other     need to respond to an OSHA
 remote transmission authorized by the    survey form?
 Survey Form within the time period      You must send the survey
 specified in the Survey Form, or 30      reports to OSHA, or OSHA's
 calendar days, whichever is longer..     designee, by mail or other
                                          means described in the survey
                                          form, within 30 calendar days,
                                          or by the date stated in the
                                          survey form, whichever is
                                          later.
1904.17(c) Employers exempted from       1904.41(b)(3) Do I have to
 keeping injury and illness records       respond to an OSHA survey form
 under Secs.  1904.15 and 1904.16 shall   if I am normally exempt from
 maintain injury and illness records      keeping OSHA injury and
 required by Secs.  1904.2 and 1904.4,    illness records?
 and make Survey Reports pursuant to     Yes. Even if you are exempt
 this Section, upon being notified in     from keeping injury and
 writing by OSHA, in advance of the       illness records under Sec.
 year for which injury and illness        1904.1 to Sec.  1904.3, OSHA
 records will be required, that the       may inform you in writing that
 employer has been selected to            it will be collecting injury
 participate in an information            and illness information from
 collection.''.                           you in the following year. If
                                          you receive such a survey
                                          form, you must keep the injury
                                          and illness records required
                                          by Sec.  1904.5 to Sec.
                                          1904.15 and make survey
                                          reports for the year covered
                                          by the survey.
1904.17(d) Nothing in any State plan     1904.41(b)(4) Do I have to
 approved under Section 18 of the Act     answer the OSHA survey form if
 shall affect the duties of employers     I am located in a State-Plan
 to comply with this section..            State?
                                         Yes. All employers who receive
                                          survey forms must respond to
                                          the survey, even those in
                                          State-Plan States
1904.17(e) Nothing in this section       1904.41(b)(5) Does this section
 shall affect OSHA's exercise of its      affect OSHA's authority to
 statutory authorities to investigate     inspect my workplace?
 conditions related to occupational      No. Nothing in this section
 safety and health.                       affects OSHA's statutory
                                          authority to investigate
                                          conditions related to
                                          occupational safety and
                                          health.
------------------------------------------------------------------------

    Thus, section 1904.41 of the final rule merely restates, in a plain 
language question-and-answer format, the requirements of former rule 
section 1904.17, with one minor change. The final rule adds paragraph 
1904.41(b)(1), which contains no requirements or prohibitions but 
simply informs the employer that there is no need to send in the Part 
1904 injury and illness data until the government asks for it.

Section 1904.42  Requests From the Bureau of Labor Statistics for Data

    Section 1904.42 of the final rule derives from the subpart of the 
former rule titled ``Statistical Reporting of Occupational Injuries and 
Illnesses.'' The former rule described the Bureau of Labor Statistics 
annual survey of occupational injuries and illnesses, discussed the 
duty of employers to answer the survey, and explained the effect of the 
BLS survey on the States operating their own State plans.

[[Page 6070]]

    Both OSHA and the BLS collect occupational injury and illness 
information, each for separate purposes. The BLS collects data from a 
statistical sample of employers in all industries and across all size 
classes, using the data to compile the occupational injury and illness 
statistics for the Nation. The Bureau gives each respondent a pledge of 
confidentiality (as it does on all BLS surveys), and the establishment-
specific injury and illness data are not shared with the public, other 
government agencies, or OSHA. The BLS's sole purpose is to create 
statistical data.
    OSHA collects data from employers from specific size and industry 
classes, but collects from each and every employer within those 
parameters. The establishment-specific data collected by OSHA are used 
to administer OSHA's various programs and to measure the performance of 
those programs at individual workplaces.
    OSHA proposed to replace sections 1904.20, .21, and .22 of the 
former rule with a single reporting provision that would combine the 
requirements for BLS and OSHA survey reports into a single section (61 
FR 4039). However, since the time of the proposal, OSHA has determined 
that the BLS and OSHA information collections warrant separate coverage 
because they occur at different times and collect data for different 
purposes. When OSHA published final Section 1904.17, Annual OSHA Injury 
and Illness Surveys (62 FR 6434, Feb. 11, 1997), the Agency made clear 
that its surveys are separate from any collections of injury and 
illness data by the BLS. Accordingly, the final rule includes two 
separate sections: section 1904.41, which is devoted entirely to the 
collection of employer-generated injury and illness data by OSHA, and 
section 1904.42, which is devoted to the collection of such data by the 
Bureau of Labor Statistics.
    Many commenters discussed the need for accurate government 
statistics about occupational death, injury and illness; however, very 
few of the comments specifically addressed the proposed provisions 
relating to employer participation in the BLS survey. The comments OSHA 
did receive on this point addressed the burden imposed by requests for 
employer records and the potential duplication between the data 
collections of OSHA and the BLS (see, e.g., Exs. 15: 9, 163, 184, 390, 
402). The comments of the U.S. West Company (Ex. 15: 184) are typical:

    [U]S WEST acknowledges the need for the Secretary of Labor to 
periodically request reports, including recordkeeping data, from 
employers. However, US WEST does ask that OSHA carefully consider 
the need for such reports and work to streamline the process and 
reduce redundancies. Specifically, US WEST requests that OSHA move 
to implement systems that will allow employers to electronically 
provide data, such as the data requested in the BLS Survey of 
Occupational Injuries and Illnesses. Such a method will be more 
effective, in terms of receiving consistently formatted data, and 
will be more cost efficient for both employers and the Department of 
Labor.
    In addition, the DOL should work to avoid duplicate internal 
efforts that are costly and time-consuming for the government and 
employers. By way of example, US WEST has in the past received 
requests from BLS to complete the Survey and from OSHA to complete 
the Occupational Injury and Illness Report (Form 196B) for the same 
facility. Both surveys collect similar information.

    OSHA and the BLS have worked together for many years to reduce the 
number of establishments that receive both surveys. These efforts have 
largely been successful. However, OSHA and BLS use different databases 
to select employers for their surveys. This makes it difficult to 
eliminate the overlap completely. We are continuing to work on methods 
to reduce further the numbers of employers who receive both BLS and 
OSHA survey requests.
    OSHA and BLS are also pursuing ways to allow employers to submit 
occupational injury and illness data electronically. In 1998, the OSHA 
survey allowed employers for the first time to submit their data 
electronically, and this practice will continue in future OSHA surveys. 
The BLS has not yet allowed electronic submission of these data due to 
security concerns, but continues to search for appropriate methods of 
electronic submission, and hopes to allow it in the near future.
    In this final rule, OSHA has replaced former sections 1904.20 to 
1904.22 with a new section 1904.42, which is stated in the form of a 
basic requirement and four implementing questions and answers about the 
BLS survey. Former section 1904.20 ``Description of statistical 
program,'' is not carried forward in the final rule because it merely 
described BLS's general legal authority and sampling methodology and 
contained no regulatory requirements.
    Section 1904.21 of the former rule, titled ``Duties of employers,'' 
required an employer to respond to the BLS annual survey: ``Upon 
receipt of an Occupational Injuries and Illnesses Survey Form, the 
employer shall promptly complete the form in accordance with the 
instructions contained therein, and return it in accordance with the 
aforesaid instructions.''
    Paragraphs 1904.42(a), (b)(1) and (b)(2) of the final rule being 
published today replace former section 1904.21. Paragraph 1904.42(a) 
states the general obligation of employers to report data to the BLS or 
a BLS designee. Paragraph 1904.42(b)(1) states that some employers will 
receive a BLS survey form and others will not, and that the employer 
should not send data unless asked to do so. Paragraph 1904.42(b)(2) 
directs the employer to follow the instructions on the survey form when 
completing the information and return it promptly.
    Paragraph 1904.42(b)(3) of this final rule notes that the BLS is 
authorized to collect data from all employers, even those who would 
otherwise be exempt, under section 1904.1 to section 1904.3, from 
keeping OSHA injury and illness records. This enables the BLS to 
produce comprehensive injury and illness statistics for the entire 
private sector. Paragraph 1904.42(b)(3) combines the requirements of 
former rule paragraphs 1904.15(b) and 1904.16(b) into this paragraph of 
the final rule.
    In response to the question ``Am I required to respond to a BLS 
survey form if I am normally exempt from keeping OSHA injury and 
illness records?,'' the final rule states ``Yes. Even if you are exempt 
from keeping injury and illness records under Sec. 1904.1 to 
Sec. 1904.3, the BLS may inform you in writing that it will be 
collecting injury and illness information from you in the coming year. 
If you receive such a survey form, you must keep the injury and illness 
records required by Sec. 1904.4 to Sec. 1904.12 and make survey reports 
for the year covered by the survey.''
    Paragraph 1904.42(b)(4) of this final rule replaces section 1904.22 
of the former rule. It provides that employers in the State-plan States 
are also required to fill out and submit survey forms if the BLS 
requests that they do so. The final rule thus specifies that the BLS 
has the authority to collect information on occupational fatalities, 
injuries and illnesses from: (1) employers who are required to keep 
records at all times; (2) employers who are normally exempt from 
keeping records; and (3) employers under both Federal and State plan 
jurisdiction. The information collected in the annual survey enables 
BLS to generate consistent statistics on occupational death, injury and 
illness for the entire Nation.

Subpart F. Transition From the Former Rule to the New Rule

    The transition interval from the former rule to the new rule 
involves several issues, including training and outreach to familiarize 
employers and employees about the now forms and

[[Page 6071]]

requirements, and informing employers in newly covered industries that 
they are now required to keep OSHA Part 1904 records. OSHA intends to 
make a major outreach effort, including the development of an expert 
software system, a forms package, and a compliance assistance guide, to 
assist employers and recordkeepers with the transition to the new rule. 
An additional transition issue for employers who kept records under the 
former system and will also keep records under the new system is how to 
handle the data collected under the former system during the transition 
year. Subpart F of the final rule addresses some of these transition 
issues.
    Subpart F of the new rule (sections 1904.43 and 1904.44), addresses 
what employers must do to keep the required OSHA records during the 
first five years the new system required by this final rule is in 
effect. This five-year period is called the transition period in this 
subpart. The majority of the transition requirements apply only to the 
first year, when the data from the previous year (collected under the 
former rule) must be summarized and posted during the month of 
February. For the remainder of the transition period, the employer is 
simply required to retain the records created under the former rule for 
five years and provide access to those records for the government, the 
employer's employees, and employee representatives, as required by the 
final rule at sections 1904.43 and 44.
    The proposal did not spell out the procedures that the employer 
would have to follow in the transition from the former recordkeeping 
rule to the new rule. OSHA realizes that employers will have questions 
about how they are required to handle the data collected under the 
former system during this transition interval. The final rule maintains 
the basic structure and recordkeeping practices of the former system, 
but it employs new forms and somewhat different requirements for 
recording, maintaining, posting, retaining and reporting occupational 
injury and illness information. Information collection and reporting 
under the final rule will continue to be done on a calendar year basis. 
The effective date for the new rule is January 1, 2001. OSHA agrees 
with the commenter who stated that beginning the new recordkeeping 
system on ``Any other date [but January 1] would create an 
insurmountable number of problems * * *'' (Ex. 27). Accordingly, 
employers must begin to use the new OSHA 300 and 301 forms and to 
comply with the requirements of this final rule on January 1, 2002.
    Some commenters stressed the need for an orderly transition from 
the former system to the new system, and pointed out that adequate lead 
time is needed to understand and assimilate the changes, make 
adjustments in their data management systems, and train personnel who 
have recordkeeping responsibilities (see, e.g., Exs. 15: 9, 36, 119, 
347, 409).
    The transition also raises questions about what should be done in 
the year 2002 with respect to posting, updating, and retaining the 
records employers compiled in 2001 and previous years. In the 
transition from the former rule to the present rule, OSHA intends 
employers to make a clean break with the former system. The new rule 
will replace the old rule on the effective date of the new rule, and 
OSHA will discontinue the use of all previous forms, interpretations 
and guidance on that date (see, e.g., Exs. 21, 22, 15: 184, 423). 
Employers will be required to prepare a summary of the OSHA Form 200 
for the year 2001 and to certify and post it in the same manner and for 
the same time (one month) as they have in the past. The following time 
table shows the sequence of events and postings that will occur:

------------------------------------------------------------------------
                    Date                               Activity
------------------------------------------------------------------------
2001........................................  Employers keep injury and
                                               illness information on
                                               the OSHA 200 form
January 1, 2002.............................  Employers begin keeping
                                               data on the OSHA 300 form
February 1, 2002............................  Employers post the 2001
                                               data on the OSHA 200 Form
March 1, 2002...............................  Employers may remove the
                                               2001 posting
February 1, 2003............................  Employers post the 2002
                                               data on the OSHA 300A
                                               form
May 1, 2003.................................  Employers may remove the
                                               2002 posting
------------------------------------------------------------------------

    The final rule's new requirements for dual certification and a 3-
month posting period will not apply to the Year 2000 Log and summary. 
Employers still must retain the OSHA records from 2001 and previous 
years for five years from the end of the year to which they refer. The 
employer must provide copies of the retained records to authorized 
government representatives, and to his or her employees and employee 
representatives, as required by the new rule.
    However, OSHA will no longer require employers to update the OSHA 
Log and summary forms for years before the year 2002. The former rule 
required employers to correct errors to the data on the OSHA 200 Logs 
during the five-year retention period and to add new information about 
recorded cases. The former rule also required the employer to adjust 
the totals on the Logs if changes were made to cases on them (Ex. 2, p. 
23). OSHA believes it would be confusing and burdensome for employers 
to update and adjust previous years' Logs and Summaries under the 
former system at the same time as they are learning to use the new OSHA 
occupational injury and illness recordkeeping system.

Subpart G. Definitions

    The Definitions section of the final rule contains definitions for 
five terms: ``the Act,'' ``establishment,'' ``health care 
professional,'' ``injury and illness,'' and ``you.'' To reduce the need 
for readers to move back and forth from the regulatory text to the 
Definitions section of this preamble, all other definitions used in the 
final rule are defined in the regulatory text as the term is used. OSHA 
defines the five terms in this section here because they are used in 
several places in the regulatory text.

The Act

    The Occupational Safety and Health Act of 1970 (the ``OSH Act'') is 
defined because the term is used in many places in the regulatory text. 
The final rule's definition is essentially identical to the definition 
in the proposal. OSHA received no comments on this definition. The 
definition of ``the Act'' follows:
    The Act means the Occupational Safety and Health Act of 1970 (84 
Stat. 1590 et seq., 29 U.S. 651 et seq.), as amended. The definitions 
contained in section (3) of the Act and related interpretations shall 
be applicable to such terms when used in this Part 1904.

Employee

    The proposed rule defined ``employee'' as that term is defined in 
section 3 of the Act and added a Note describing the various types of 
employees covered by this

[[Page 6072]]

recordkeeping rule (e.g., ``leased employees,'' ``seasonal 
employees''). In the final rule, OSHA has decided that it is not 
necessary to define ``employee'' because the term is defined in section 
3 of the Act and is used in this rule in accordance with that 
definition.

Employer

    The proposed rule included a definition of ``employer'' that was 
taken from section 3 of the Act's definition of that term. Because the 
final rule uses the term ``employer'' just as it is defined in the Act, 
no separate definition is included in the final rule.

Establishment

    The final rule defines an establishment as a single physical 
location where business is conducted or where services or industrial 
operations are performed. For activities where employees do not work at 
a single physical location, such as construction; transportation; 
communications, electric, gas and sanitary services; and similar 
operations, the establishment is represented by main or branch offices, 
terminals, stations, etc. that either supervise such activities or are 
the base from which personnel carry out these activities.
    The final rule also addresses whether one business location can 
include two or more establishments. Normally, one business location has 
only one establishment. However, under limited conditions, the employer 
may consider two or more separate businesses that share a single 
location to be separate establishments for recordkeeping purposes. An 
employer may divide one location into two or more establishments only 
when: each of the proposed establishments represents a distinctly 
separate business; each business is engaged in a different economic 
activity; no one industry description in the Standard Industrial 
Classification Manual (1987) applies to the joint activities of the 
proposed establishments; and separate reports are routinely prepared 
for each establishment on the number of employees, their wages and 
salaries, sales or receipts, and other business information. For 
example, if an employer operates a construction company at the same 
location as a lumber yard, the employer may consider each business to 
be a separate establishment.
    The final rule also deals with the opposite situation, and explains 
when an establishment includes more than one physical location. An 
employer may combine two or more physical locations into a single 
establishment only when the employer operates the locations as a single 
business operation under common management; the locations are all 
located in close proximity to each other; and the employer keeps one 
set of business records for the locations, such as records on the 
number of employees, their wages and salaries, sales or receipts, and 
other kinds of business information. For example, one manufacturing 
establishment might include the main plant, a warehouse serving the 
plant a block away, and an administrative services building across the 
street. The final rule also makes it clear that when an employee 
telecommutes from home, the employee's home is not a business 
establishment for recordkeeping purposes, and a separate OSHA 300 Log 
is not required.
    The definition of ``establishment'' is important in OSHA's 
recordkeeping system for many reasons. First, the establishment is the 
basic unit for which records are maintained and summarized. The 
employer must keep a separate injury and illness Log (the OSHA Form 
300), and prepare a single summary (Form 300A), for each establishment. 
Establishment-specific records are a key component of the recordkeeping 
system because each separate record represents the injury and illness 
experience of a given location, and therefore reflects the particular 
circumstances and hazards that led to the injuries and illnesses at 
that location. The establishment-specific summary, which totals the 
establishment's injury and illness experience for the preceding year, 
is posted for employees at that establishment and may also be collected 
by the government for statistical or administrative purposes.
    Second, the definition of establishment is important because 
injuries and illnesses are presumed to be work-related if they result 
from events or exposures occurring in the work environment, which 
includes the employer's establishment. The presumption that injuries 
and illnesses occurring in the work environment are by definition work-
related may be rebutted under certain circumstances, which are listed 
in the final rule and discussed in the section of this preamble devoted 
to section 1904.5, Determination of work-relatedness. Third, the 
establishment is the unit that determines whether the partial exemption 
from recordkeeping requirements permitted by the final rule for 
establishments of certain sizes or in certain industry sectors applies 
(see Subpart B of the final rule). Under the final rule's partial 
exemption, establishments classified in certain Standard Industrial 
Classification codes (SIC codes) are not required to keep injury and 
illness records except when asked by the government to do so. Because a 
given employer may operate establishments that are classified in 
different SIC codes, some employers may be required to keep OSHA injury 
and illness records for some establishments but not for others, e.g. if 
one or more of the employer's establishments falls under the final 
rule's partial exemption but others do not.
    Fourth, the definition of establishment is used to determine which 
records an employee, former employee, or authorized employee 
representative may access. According to the final rule, employees may 
ask for, and must be given, injury and illness records for the 
establishment they currently work in, or one they have worked in, 
during their employment.
    The proposed rule defined an establishment as:

    (1) A single physical location that is in operation for 60 
calendar days or longer where business is conducted or where 
services or industrial operations are performed. (For example: A 
factory, mill, grocery store, construction site, hotel, farm, ranch, 
hospital, central administrative office, or warehouse.) The 
establishment includes the primary work facility and other areas 
such as recreational and storage facilities, restrooms, hallways, 
etc. The establishment does not include company parking lots.
    (2) When distinct and separate economic activities are performed 
at a single physical location, each activity may represent a 
separate establishment. For example, contract construction 
activities conducted at the same physical location as a lumber yard 
may be treated as separate establishments. According to the Standard 
Industrial Classification (SIC) Manual, Executive Office of the 
President, Office of Management and Budget, (1987) each distinct and 
separate activity should be considered an establishment when no one 
industry description from the SIC manual includes such combined 
activities, and the employment in each such economic activity is 
significant, and separate reports can be prepared on the number of 
employees, their wages and salaries, sales or receipts, or other 
types of establishment information.

    The final rule modifies this definition in several ways: it deletes 
the ``60 days in operation'' threshold, adds language to the definition 
to address the concerns of employers who operate geographically 
dispersed establishments, describes in greater detail what OSHA means 
by separate establishments at one location, and defines which locations 
must be considered part of the establishment, and which employee 
activities must be considered work-related, for

[[Page 6073]]

recordkeeping purposes. Each of these topics is discussed below.
    Subpart G of the final rule defines ``establishment'' as ``a single 
physical location where business is conducted or where services or 
industrial operations are performed. For activities such as 
construction; transportation; communications, electric and gas utility, 
and sanitary services; and similar operations, the establishment is 
represented for recordkeeping purposes by main or branch offices, 
terminals, stations, etc. that either supervise such activities or are 
the base from which personnel carry out these activities.'' This part 
of the definition of ``establishment'' provides flexibility for 
employers whose employees (such as repairmen, meter readers, and 
construction superintendents) do not work at the same workplace but 
instead move between many different workplaces, often in the course of 
a single day.
    How the definition of ``establishment'' must be used by employers 
for recordkeeping purposes is set forth in the answers to the questions 
posed in this paragraph of Subpart G:
    (1) Can one business location include two or more establishments?
    (2) Can an establishment include more than one physical location?
    (3) If an employee telecommutes from home, is his or her home 
considered a separate establishment?
    The employer may consider two or more economic activities at a 
single location to be separate establishments (and thus keep separate 
OSHA Form 300s and Form 301s for each activity) only when: (1) Each 
such economic activity represents a separate business, (2) no one 
industry description in the Standard Industrial Classification Manual 
(1987) applies to the activities carried out at the separate locations; 
and (3) separate reports are routinely prepared on the number of 
employees, their wages and salaries, sales or receipts, and other 
business information. This part of the definition of ``establishment'' 
allows for separate establishments when an employer uses a common 
facility to house two or more separate businesses, but does not allow 
different departments or divisions of a single business to be 
considered separate establishments. However, even if the establishment 
meets the three criteria above, the employer may, if it chooses, 
consider the physical location to be one establishment.
    The definition also permits an employer to combine two or more 
physical locations into a single establishment for recordkeeping 
purposes (and thus to keep only one Form 300 and Form 301 for all of 
the locations) only when (1) the locations are all geographically close 
to each other, (2) the employer operates the locations as a single 
business operation under common management, and (3) the employer keeps 
one set of business records for the locations, such as records on the 
number of employees, their wages and salaries, sales or receipts, and 
other business information. However, even for locations meeting these 
three criteria, the employer may, if it chooses, consider the separate 
physical locations to be separate establishments. This part of the 
definition allows an employer to consider a single business operation 
to be a single establishment even when some of his or her business 
operations are carried out on separate properties, but does not allow 
for separate businesses to be joined together. For example, an employer 
operating a manufacturing business would not be allowed to consider a 
nearby storage facility to be a separate establishment, while an 
employer who operates two separate retail outlets would be required to 
consider each to be a separate establishment.
    OSHA received many comments on the proposed definition of 
``establishment.'' These are organized by topic and discussed below.
    How long must an establishment exist to have a separate OSHA Log. 
The proposed rule would have required an establishment to be in 
operation for 60 days to be considered an ``establishment'' for 
recordkeeping purposes. Under the proposed definition, employers with 
establishments in operation for a lesser period would not have been 
required to keep a log for that operation. 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 establishments 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. In particular, the proposed change would have 
affected construction employers and utility companies.
    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. A few commenters, however, supported the proposed 60-day 
rule (see, e.g., Exs. 15: 9, 133, 310, 369, 425), and some urged OSHA 
to adopt an even shorter time-in-operation threshold (see, e.g., Exs. 
15: 369, 418, 429). Typical of the comments favoring an even shorter 
period was one from the International Brotherhood of Teamsters (IBT):

[t]he International Brotherhood of Teamsters is encouraged by OSHA's 
modification to the definition of an establishment, especially 
reducing the requirement for an operation in a particular location 
from one year to sixty days. The IBT would 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: ``* * * [t]he 60-day time period is still too 
long. We believe that to truly capture a majority of these transient 
worksites, 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).
    Those commenters objecting to the proposed 60-day threshold usually 
did so on grounds that requiring temporary facilities to maintain 
records would be burdensome and 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) remarked:

    ABC agrees with OSHA's sentiment of making injury and illness 
records useful, but disagrees 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. Projects which last less 
than 90 days do not need separate logs. Requiring separate logs for 
short-term projects only increases inefficiency and costs, while 
doing nothing for safety (Ex. 15: 412).

    Many of these commenters argued that a 60-day threshold would be 
especially burdensome if it captured small work sites where posting of 
the annual summary or mailing the summary to employees would make 
little sense because so few cases would

[[Page 6074]]

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 but perform tasks at transient 
locations that remain in existence for more than 60 days and would thus 
be classified as new ``establishments'' for OSHA recordkeeping purposes 
(see, e.g., Exs. 15: 65, 170, 199, 213, 218, 332, 336, 409, 424).
    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 of the final rule. In response to comments, OSHA has 
thus continued the former one-year threshold rather than adopting the 
60-day threshold proposed. Under the final rule, employers will be 
required to maintain establishment-specific records for any workplace 
that is, or is expected to be, in operation for one year or longer. 
Employers may group injuries and illnesses occurring to workers who are 
employed at shorter term establishments onto one or more consolidated 
logs. These logs may cover the entire company; geographic regions such 
as a county, state or multi-state area; or individual divisions of the 
company. For example, a construction company with multi-state 
operations might have separate logs for each state to show the injuries 
and illnesses of short-term projects, as well as separate logs for each 
construction project expected to last for more than one year.
    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. OSHA concludes that the one-year 
threshold and permitting employers to keep one Log for geographically 
dispersed or short-term facilities will also provide more useful injury 
and illness records for workers employed in transient establishments. 
This will be the case because the records will capture more cases, 
which enhances the informational value of the data and permits analysis 
of trends.
    Geographically Dispersed Workplaces. A number of commenters raised 
issues of particular importance to the construction and utility 
industries (see, e.g., Exs. 15: 43, 116, 122, 123, 145, 170, 199, 213, 
225, 272, 288, 303, 305, 350, 359, 364, 392, 412, 433, 443). In 
addition to objections about the 60-days-in-operation threshold in the 
definition of establishment, these commenters raised concerns about the 
difficulty of keeping records for a mobile and dispersed workforce. 
Representative of these comments is the statement by Con Edison (Ex. 
15: 213):

    Con Edison believes that OSHA's proposal to tie its redefinition 
of a permanent establishment to a 60-day time frame, as opposed to 
the present one-year limit, would be costly, overly burdensome and 
in some cases unworkable. On many occasions work must be performed 
on city streets or in out of the way areas during the erection of 
overhead transmission and distribution lines. These projects may 
carry on for periods greater than the 60-day period specified above 
for designation as an establishment. No permanent structures are 
erected at these sites and to require maintenance of records there 
is impractical. Con Edison believes that the definition of 
establishment as set forth in the 1987 Standard Industrial 
Classification Manual (see below) should apply.
    ``For activities such as * * * electric * * * and similar 
physically dispersed operations, establishments are represented by 
those relatively permanent main or branch offices, terminals, 
stations, etc. that are (2) the base from which personnel operate to 
carry out these activities. Hence, the individual sites, projects, 
fields, networks, lines, or system of such dispersed activities are 
not ordinarily considered to be establishments.'' (SIC Manual, 1987, 
p. 265).

    OSHA agrees that the recordkeeping system must recognize the needs 
of 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 specifies, in Subpart G, that 
employers may consider main or branch offices, terminals, stations, 
etc. that are either (1) responsible for supervising such activities, 
or (2) the base from which personnel operate to carry out these 
activities, as individual establishments for recordkeeping purposes. 
This addition to the final rule's definition of establishment allows an 
employer to keep records for geographically dispersed operations using 
the existing management structure of the company as the recording unit. 
Use of this option will also mean that each Log will capture more 
cases, which will, as discussed above, improve the chances of 
discovering patterns of occupational injury and illness that can be 
used to make safety and health improvements. At the same time, by 
requiring records to be kept for any individual construction project 
that is expected to last for one year or longer, the final rule ensures 
that useful records are generated for more permanent facilities.
    More than one establishment at a single location. OSHA's former 
rule recognized, for recordkeeping purposes, that more than one 
establishment can exist at a single location, although most workplaces 
consist of a single establishment at a single location. The final rule 
also recognizes that, in some narrowly defined situations, a business 
may have side-by-side operations at a single location that are operated 
as separate businesses because they are engaged in different lines of 
business. In these situations, the Standard Industrial Classification 
Manual (OMB 1987) allows a single business location to be classified as 
two separate establishments, each with its own SIC code. Like all 
government agencies, OSHA follows the OMB classification method and 
makes allowances for such circumstances.
    The proposal stated that distinct, separate economic activities 
performed at a single physical location may each be classified, for 
recordkeeping purposes, as a separate establishment. The proposed 
definition stated that each distinct and separate economic activity may 
be considered an establishment when (1) no one industry description 
from the Standard Industrial Classification (SIC) manual includes such 
combined activities, (2) the employment in each economic activity is 
significant, and (3) separate reports can be prepared on the number of 
employees, their wages and salaries, sales or receipts, or other types 
of establishment information. The final rule is essentially unchanged 
from the proposal on this point, but the language has been modified to 
make it clear that the employer may employ this option only in the 
enumerated circumstances.
    Several commenters were in favor of OSHA's proposed definition of 
separate establishments as places engaged in separate economic 
activities (see, e.g., Exs. 15: 185, 297, 375) and agreed that when 
distinct and separate economic activities are performed at a single 
physical location, each activity should be considered a separate 
establishment.
    Others, however, disagreed with the proposed definition of multiple 
establishments at a single location (see, e.g., Exs. 15: 194, 305, 322, 
346, 347, 348, 389, 409, 424, 431). The comments

[[Page 6075]]

of the Ford Motor Company (Ex. 15: 347) and the American Automobile 
Manufacturing Association (AAMA) (Ex. 15: 409) are representative:

[a]ll economic activities performed at a single location should be 
allowed to be placed on a single log. Many of these locations have 
only one medical department, payroll, or management. At many of 
these locations, separate reports cannot be prepared on the number 
of employees per establishment, and at times many of the employees 
will work at separate sites within the same single physical 
location. To break down the economic activities to record injuries 
and illness on different logs is confusing, difficult, and overly 
burdensome.

United Parcel Service (UPS) (Ex. 15: 424) added:

[t]he proposal should be amended to make clear that treatment of a 
different activity as a separate establishment is optional, not 
mandatory--the proposal currently results in unnecessary ambiguity 
by saying first that separate activities ``may'' be separate 
establishments, and then describing situations in which they 
``should be'' considered an establishment. A requirement that such 
vaguely defined ``economic activities'' be treated as separate 
``establishments'' would be mistaken: employers would be left to 
guess what is an ``economic activity'' and when it is ``separate'' 
from another. Moreover, such mandatory separate recordkeeping would 
unnecessarily burden employers with determining when separate 
records are required, and with maintaining such separate records.

    These commenters understood the proposed language as requiring 
employers to keep separate logs if separate economic activities were 
being conducted at a single establishment; what OSHA intended, and the 
final rule makes clear in Subpart G, is that an employer whose 
activities meet the final rule's definition may keep separate logs if 
he or she chooses to do so. Thus the final rule includes a provision 
that allows an employer to define a single business location as two 
separate establishments only under specific, narrow conditions. The 
final rule allows the employer to keep separate records only when the 
location is shared by completely separate business operations involved 
in different business activities (Standard Industrial Classifications) 
for which separate business records are available. By providing 
specific, narrow criteria, the final rule reduces ambiguity and 
confusion about what is required and sets out the conditions that must 
be met in order for employers to deviate from the one place-one 
establishment concept.
    OSHA expects that the overwhelming majority of workplaces will 
continue to be classified as one establishment for recordkeeping 
purposes, and will keep just one Log. However, allowing some 
flexibility for the rare cases that meet the specified criteria is 
appropriate. The employer is responsible for determining whether a 
given workplace meets the criteria; OSHA will consider an employer 
meeting these criteria to be in compliance with the final rule if he or 
she keeps one set of records per facility. This policy allows an 
employer to keep one set of records for a given location and avoid the 
additional burden or inconvenience associated with keeping separate 
records.
    The McDonnell Douglas Corporation (Ex. 15: 297) and the American 
Textile Manufacturers Institute (ATMI) (Ex. 15: 156) commented on a 
different scenario, one in which a single establishment could encompass 
more than one physical location. ATMI remarked that:

    [O]SHA's definition of establishment as ``a single physical 
location'' is too restrictive. We believe that OSHA should be more 
flexible since many industries have primary facilities with 
secondary work facilities that have the same local management. For 
example, in the textile industry, a plant may use a warehouse that 
is not physically attached but the plant manager is responsible for 
the both facilities. We suggest that the text of the rule be 
modified to read: ``A single physical location or multiple physical 
locations under the same management * * *.''

    OSHA agrees that there are situations where a single establishment 
that has a satellite operation in close physical proximity to the 
primary operation may together constitute a single business operation 
and thus be a single establishment. For example, a business may have a 
storage facility in a nearby building that is simply an adjunct to the 
business operation and is not a separate business location.
    OSHA believes that there are situations where establishments in 
separate physical locations constitute a single establishment. However, 
under the final rule, employers will only be allowed to combine 
separated physical locations into a single establishment when they 
operate the combined locations as a single business operation under 
common management and keep a single set of business records for the 
combined locations, such as records on the number of employees, their 
wages and salaries, sales or receipts, and other types of business 
information.
    How OSHA defines an establishment also has implications for the way 
company parking lots and recreation facilities, such as company-
provided gymnasiums, ball fields, and the like are treated for 
recordkeeping purposes. The 1986 Guidelines excluded these areas from 
the definition of establishment and thus did not require injuries and 
illnesses occurring to employees at these locations to be recorded 
unless the employee was actually performing work in those areas (Ex. 2, 
p. 33). The final rule includes these areas in the definition of 
establishment but does not require employers to record cases occurring 
to employees engaged in certain activities at these locations. For 
example, injuries and illnesses occurring at the establishment while 
the employee is voluntarily engaged in recreation activities or 
resulting from a motor vehicle accident while the employee is commuting 
to or from work would not have to be recorded (see section 1904.5). The 
following paragraphs discuss OSHA's reasons for taking this approach to 
the recording of injuries and illnesses occurring in these locations.
    Company Parking Lots and Access Roads. Because the former rule 
excluded company parking lots and access roads from the definition of 
establishment, injuries and illnesses that occurred to their employees 
while on such parking lots and access roads were not considered work-
related and did not have to be recorded on the Log; the proposed rule 
would have continued this practice. Many commenters urged OSHA not to 
consider injuries and illnesses occurring in these locations work-
related, principally because, in the view of these commenters, 
employers have little control over safety and health conditions in 
their parking lots (see, e.g., Exs. 15: 9, 65, 78, 95, 105, 107, 111, 
119, 136, 137, 141, 154, 159, 194, 203, 204, 218, 224, 225, 260, 262, 
265, 266, 277, 278, 288, 304, 337, 389, 401). The comments of the 
American Gas Association (AGA) are representative: ``AGA agrees with 
OSHA that parking lots and access roads should be excluded from the 
definition of establishment and therefore injuries occurring there are 
not work-related. Likewise, injuries and illnesses that occur during 
commuting must also continue to be excluded'' (Ex. 15: 225). The Texas 
Chemical Council (TCC) agreed with this position: ``[T]CC supports 
continuing these exceptions. Employers have limited to no control over 
variables that contribute to incidents occurring in parking lots or 
during commutes to and from work'' (Ex. 15: 159).
    Other commenters, however, argued that cases occurring on company 
parking lots and access roads should be included in the establishment's 
Log (see, e.g., Exs. 15: 61, 157, 310, 407, 432). The Laborer's Health 
and Safety

[[Page 6076]]

Fund of North America pointed to the difficulty of separating cases 
occurring on the parking lot from those occurring at other locations 
within the establishment:

[w]e do not believe that company parking lots should be excluded 
from the definition of establishment. The parking lot exclusion 
seems to be based on the assumption that parking lots are separate 
from loading dock and other work areas. On road construction sites, 
``parking lots'' are sometimes right in the middle of the work zones 
where heavy equipment is operating. Pedestrian employees being hit 
by traffic and moving machinery are responsible for about 41.5% of 
the yearly fatalities in road construction and maintenance work. We 
believe that excluding parking lots from the definition of 
establishment would open the door to under reporting of workplace 
fatalities on construction sites, and discourage construction 
employers from establishing safe parking areas for their employees 
(Ex. 15: 310).

The National Institute for Occupational Safety and Health (NIOSH) 
presented statistical data demonstrating the importance of safety and 
health measures in employer-owned parking lots:

    [N]IOSH does not support continuing the exemption of employer-
owned parking lots from the definition of an establishment. NIOSH 
recommends that OSHA require employers to record cases meeting the 
work relationship criteria that occur in employer-owned parking 
areas. Employers have extensive control over the environmental 
conditions in their own parking areas. Environmental conditions that 
are under employer control include snow and ice accumulation in walk 
areas, vicinity lighting around parked cars and entrance ways, and 
security provisions in parking areas. In 1993, parking lots and 
garages were identified in a study of violence in the workplace as 
the location where 211 fatal injuries occurred [Toscano and Weber 
1995]. Eighty-two of these deaths were homicides. Parking lots and 
garages accounted for 3.4% of fatal injuries and 7.8% of homicides. 
Data on the total number of injuries and illnesses occurring in 
parking lots and garages is unknown. However, in 1992 the category 
``parking lots'' was listed as the source of injury or illness for 
10,000 cases involving days away from work [U.S. Department of Labor 
l995a]. The proportion of parking lots and garages owned by the 
employer where fatal and nonfatal injuries occurred is not known 
(Ex. 15: 407).

    OSHA agrees with NIOSH that company parking lots can be highly 
hazardous and that employers have considerable control over conditions 
in such lots. In addition, OSHA believes that having data on the kinds 
of injuries and illnesses occurring on company parking lots and access 
roads will permit employers to address the causes of these injuries and 
illnesses and thus to provide their employees with better protection. 
Accordingly, for recordkeeping purposes, the final rule includes 
company parking lots and access roads in the definition of 
establishment. However, the final rule recognizes that some injuries 
and illnesses occurring on company parking lots and access roads are 
not work-related and delineates those that are work-related from those 
that are not work-related on the basis of the activity the employee was 
performing at the time the injury or illness occurred. For example, 
when an employee is injured in a motor vehicle accident that occurs 
during that employee's commute to or from work, the injury is not 
considered work-related. Thus, the final rule allows the employer to 
exclude from the Log injuries and illnesses occurring on company 
parking lots and access roads while employees are commuting to or from 
work or running personal errands in their motor vehicles (see section 
1904.5). However, other injuries and illnesses occurring in parking 
lots and on access roads (such as accidents at loading docks, while 
removing snow, falls on ice, assaults, etc.) are considered work-
related and must be recorded on the establishment's Log if they meet 
the other recording criteria of the final rule (e.g., if they involve 
medical treatment, lost time, etc.).
    OSHA concludes that the activity-based approach taken in the final 
rule will be simpler for employers to use than the former rule's 
location-based approach and will result in the collection of better 
data. First, the activity-based approach eliminates the need for 
employers to determine where a parking lot begins and ends, i.e., what 
specific areas constitute the parking lot, which can be difficult in 
the case of combined, interspersed, or poorly defined parking areas. 
Second, it ensures the recording of those injuries and illnesses that 
are work-related but simply happen to occur in these areas. If parking 
lots and access roads are totally excluded from the definition of 
establishment, employers would not record any injury or illness 
occurring in such locations. For example, employers could fail to 
record an injury occurring to an employee performing work, such as 
building an attendant's booth or demarcating parking spaces, from the 
Log.
    Recreation facilities. Although the proposed rule would have 
included recreational facilities in the definition of establishment, it 
would have excluded, for recordkeeping purposes, injuries and illnesses 
occurring to employees who were voluntarily participating in wellness 
activities at fitness or recreational facilities maintained by the 
employer. As discussed above, OSHA believes that including in the final 
rule a list of activities that employers can use to rebut the 
presumption of work-relatedness for recordkeeping purposes will greatly 
simplify the system for employers and result in the collection of more 
meaningful data. Including a list of such activities in the final rule 
was supported by many commenters (see, e.g., Exs. 15: 65, 151, 152, 
170, 179, 180, 204, 246, 350, 392). The comments of the Tosco 
Corporation are representative: ``[w]e agree that the recreational 
facilities should not be automatically excluded, but rather that the 
voluntary use of the facilities govern the work relatedness as OSHA has 
indicated. This will make the OSHA regulation consistent with workers 
compensation rulings'' (Ex. 15: 246).
    An even larger number of commenters disagreed with OSHA's proposed 
approach, however, arguing that a location-based, rather than activity-
based, exclusion was more appropriate for recordkeeping purposes (see, 
e.g., Exs. 15: 9, 95, 111, 119, 136, 137, 141, 154, 156, 184, 194, 203, 
213, 218, 224, 232, 266, 271, 277, 278, 288, 304, 317, 345, 347, 389, 
409, 414, 423, 428, 431). For example, the law firm of Constangy, 
Brooks & Smith, LLC, argued that excluding facilities is simpler than 
excluding activities: ``* * * [t]he current requirements allow a more 
simplified analysis of the recreational facility issue and this 
analysis should be retained in place of the more complicated analysis 
that would be imposed under the Proposed Recordkeeping Rule'' (Ex. 15: 
345).
    Other employers stressed the concept that changing the exclusion 
for recreational facilities would reduce the incentive for employers to 
provide such facilities for their employees' use (see, e.g., Exs. 15: 
136, 137, 141, 213, 224, 266, 278). The remarks of the Society for 
Human Resource Management (SHRM) are typical: ``[t]o presume that the 
employee's usage of weight room facilities is involuntary may be 
unrealistic and would likely result in the closure of employer provided 
weight rooms, golf courses, and other facilities which benefit the 
employees * * *'' (Ex. 15: 431).
    In the final rule, OSHA has decided to include recreational areas 
in the definition of establishment but to include voluntary fitness and 
recreational activities, and other wellness activities, on the list of 
excepted activities employers may use to rebut the presumption of work-
relatedness in paragraph 1904.5(b)(2). OSHA finds that this approach is

[[Page 6077]]

simpler and will provide better injury and illness data because 
recreational facilities are often multi-use areas that are sometimes 
used as work zones and sometimes as recreational areas. Several of the 
interpretations OSHA has provided over the years address this problem. 
For example, the loading dock or warehouse at some establishments has 
an area with a basketball hoop that is used for impromptu ball games 
during breaks, while at other establishments employees may use a grassy 
area to play softball, an empty meeting room for aerobics classes, or 
the perimeter of the property as a jogging or bicycling track. 
Providing an exception based on activity will make it easier for 
employers to evaluate injuries and illnesses that occur in mixed-use 
areas of the facility.
    This approach is also consistent with OSHA's overall approach in 
the final rule of using specific activity-based exemptions to allow the 
employer to rebut the presumption of work relationship rather than 
providing exemptions by modifying the definition of establishment. OSHA 
also does not believe that this approach will provide an incentive for 
employers to eliminate recreational and fitness opportunities for their 
employees. Both approaches exempt the same injuries from recording, but 
the final rule's approach provides employers with a more 
straightforward mechanism for rebutting the presumption of work 
relationship.
    OSHA believes that injuries and illnesses occurring to employees 
who are present in recreational areas as part of their assigned work 
duties should be recorded on the Log; the final rule thus only permits 
employers to exclude recreational activities that are being performed 
by the employee voluntarily from their Logs. For example, an injury to 
an exercise instructor hired by the company to conduct classes and 
demonstrate exercises would be considered work related, as would an 
injury or illness sustained by an employee who is required to exercise 
to maintain specific fitness levels, such as a security guard.
    Private homes as an establishment. Two commenters raised the issue 
of whether or not private homes could constitute an establishment (see, 
e.g., Exs. 21, 15: 304, 358). The National Federation of Independent 
Business (NFIB) stated: ``[N]FIB believes that the definition of 
establishment as applied to extremely small work sites, including 
private homes, needs to be reexamined'' (Ex. 15: 304). The Organization 
Resource Counselors (ORC) added: ``[d]efinition of establishment as 
applied to extremely small work sites including private homes needs to 
be reexamined. The sixty day rule by itself does not seem unreasonable 
except that it captures these small work sites where the requirements 
for posting or mailing summaries make little sense'' (Ex. 21).
    In the final rule, OSHA has not excluded private homes from the 
definition of establishment because many private homes contain home 
offices or other home-based worksites, and injuries and illnesses 
occurring to employees during work activities performed there on behalf 
of their employer are recordable if the employer is required to keep a 
Log. However, the final rule makes clear that, in the case of an 
employee who telecommutes from his or her home, the home is not 
considered an establishment for OSHA recordkeeping purposes and the 
employer is not required to keep a separate Log for the home office. 
For these workers, the worker's establishment is the office to which 
they report, receive direction or supervision, collect pay, and 
otherwise stay in contact with their employer, and it is at this 
establishment that the Log is kept. For workers who are simply working 
at home instead of at the company's office, i.e., for employees who are 
telecommuting, OSHA does not consider the worker's home to be an 
establishment for recordkeeping purposes, and the definition of 
establishment makes this fact clear. OSHA has recently issued a 
compliance directive clarifying that OSHA does not and will not inspect 
home offices in the employee's home and would inspect a home-based 
worksite other than a home office only if the Agency received a 
complaint or referral. A fuller discussion concerning the determination 
of the work-relatedness of injuries and illnesses that occur when 
employees are working in their homes can be found in the discussion of 
Sec. 1904.5 Determination of work-relatedness.
    Miscellaneous issues. Two commenters recommended that OSHA consider 
excluding injuries and illnesses occurring to employees while they were 
present in other areas as well (Exs. 15: 203, 389). The International 
Dairy Foods Association (IDFA) suggested:

[i]n addition, facilities such as cafeterias/lunch/break/rest/locker 
rooms should be exempted except for the employees who work in those 
areas. While it is true that other workers may occasionally be 
injured in these areas, the inclusion of all injury/illness 
information that occurs in these areas only distorts the data. OSHA 
should be concerned with the accuracy of any information it requires 
and/or collects and should eliminate any non-relevant or extraneous 
information. We believe that this anomaly is easily correctable, and 
the result will be a more accurate assessment of hazards associated 
with a specific workplace (Ex. 15: 203).

    OSHA does not agree with this commenter that injuries and illnesses 
occurring in such areas are not work-related. For example, many 
injuries occurring in lunch rooms involve slippery floors, which the 
employer can address by establishing a system for immediate spill 
cleanup. However, the final rule does contain an exception from 
recordability of cases where the employee, for example, chokes on his 
or her food, is burned by spilling hot coffee, etc. (see paragraph 
1904.5(b)).
    The United Parcel Service (UPS) recommended that OSHA craft its 
rule to coincide with the 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 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.
    Two commenters raised the issue of centralized recordkeeping as it 
related to the proposed definition of establishment. The General 
Electric Company (GE) stated:

    [G]E does not support the redefinition of establishment to mean 
a single physical location that is in operation for 60 calendar days 
or longer. GE field staff frequently establish such establishments 
and the illness and injury recording and reporting for these sites 
has been done at central locations. The required data therefore is 
already collected but the new definition would substantially 
increase the administrative burden for employers, without providing 
any additional value. Currently, field employees can report an 
injury to one well-trained individual who is able to properly 
administer the program and keep all required documentation. Under 
this new rule, the employer would need to train a significantly 
greater number of employees on the proper method for recording 
injuries and illnesses, keeping documentation, and ensuring the 
submission of this information to the central office for long-term 
retention. Further, turnover in the field service operations 
necessitates an ongoing training program. GE would prefer to train 
field service employees on GE's

[[Page 6078]]

expectations for safe performance and how to perform their jobs 
safely, rather then training field service employees on OSHA 
recordkeeping regulations (Ex. 15: 349).

    OSHA will continue to allow employers to keep their records 
centrally and on computer equipment, and nothing in the final rule 
would preclude such electronic centralization. OSHA believes that the 
definition of establishment in the final rule will have no impact on 
the ability of the employer to keep records centrally; however, the 
final rule does continue to require employers to summarize and post the 
records for each establishment at the end of the year.
    The North Carolina Department of Labor (Ex. 15: 186) suggested that 
OSHA add a note cross-referencing the rule's exceptions for work 
relationship in parking lots, to assist readers in locating them. OSHA 
has not added a note to the definition but believes that the list of 
exceptions to the presumption of work-relationship will achieve the 
objective this commenter intended. In addition, OSHA has included a 
table showing changes from the former system to the new system in the 
compliance assistance and training materials it is distributing to 
employers and employees.
Health Care Professional
    The final rule defines health care professional (HCP) as ``a 
physician or other state licensed health care professional whose 
legally permitted scope of practice (i.e. license, registration or 
certification) allows the professional independently to provide or be 
delegated the responsibility to provide some or all of the health care 
services described by this regulation.''
    The proposed rule used the term ``health care provider,'' defined 
as a person operating within the scope of his or her health care 
license, registration or certification. The final rule uses the term 
``health care professional'' to be consistent with definitions used in 
the medical surveillance provisions of other OSHA standards (see, e.g., 
the methylene chloride final rule (29 CFR 1910.1052).
    OSHA recognizes that injured employees may be treated by a broad 
range of health care practitioners, especially if the establishment is 
located in a rural area or if the worker is employed by a small company 
that does not have the means to provide on-site access to an 
occupational nurse or a physician. Although the rule does not specify 
what medical specialty or training is necessary to provide care for 
injured or ill employees, the rule's use of the term health care 
professional is intended to ensure that those professionals providing 
treatment and making determinations about the recordability of certain 
complex cases are operating within the scope of their license, as 
defined by the appropriate state licensing agency.
    The rulemaking record reflects a wide diversity of views on this 
topic. Many commenters thought the proposed definition was much too 
broad, leaving ``[t]he door open for unqualified individuals to make 
medical diagnoses'' (see, e.g., Exs. 15: 342, 201). Many commenters 
also argued that the proposed definition could be misinterpreted (see, 
e.g., Exs. 31, 15: 131, 342, 397). Specifically, many employers thought 
the definition could be interpreted to permit untrained or unlicensed 
individuals to treat employees or to make medical diagnoses that would 
determine the recordability of certain an injuries or illnesses (see, 
e.g., Exs. 15: 304, 355, 433). Additionally, some commenters 
interpreted the proposed definition to mean that any time an individual 
who was certified or trained in cardiopulmonary resuscitation (CPR) or 
first aid administered treatment, the case would automatically be 
recordable (see, e.g., Exs. 15: 116, 132, 323, 341, 356). For example, 
the National Federation of Independent Business noted:

[u]nlike licensed practitioners, those who are registered or 
certified are not consistently judged against stringent objective 
criteria. Oftentimes registration is obtained by paying a fee and 
certification usually entails attending training courses on how to 
administer first aid. In any given place of employment it is common 
to find at least one employee who is trained and certified in first 
aid care. Simple actions on the part of such an employee could 
become recordable instances under this proposal. This would only 
serve to erroneously inflate statistics thus making the work site 
log an inaccurate reflection of occupational injuries and illnesses 
(Ex. 15: 304).

    Consequently, many commenters advocated qualifying the proposed 
definition by limiting it to providers with specific types of training, 
such as licensed physicians (see, e.g., Exs. 15: 42, 105) or other 
providers, such as dentists, psychiatrists, or clinical psychologists 
(see, e.g., Exs. 15: 126, 312, 342, 410, 433, 443) and/or practitioners 
operating under their direction, such as physician assistants and 
nurses (see, e.g., Exs. 15: 116, 131, 334, 344, 441).
    Some commenters proposed eliminating the words ``registration'' and 
``certification'' from the definition because these terms have 
different meanings in different states, and in some states, some 
providers can pay to be certified or registered even though their 
credentials are inadequate (see, e.g., Exs. 15: 199, 272, 303, 375). A 
few commenters also noted that some registrations and certifications 
are given by professional associations rather than state agencies. For 
example, according to the American Academy of Physician Assistants:

[w]hile many health care providers receive professional 
certification through a private certifying body (e.g. board 
certification in cardiology for a doctor), this ``certificate'' is 
not automatically tied to any state recognized credential or scope 
of practice permitting the provision of health care services. PAs, 
for example, are certified by the National Commission on 
Certification of Physician Assistants. This certification is not 
synonymous with a state certificate or license. As the proposed rule 
is currently worded, an NCCPA-certified PA or a physician who is 
board certified in cardiology would qualify as a ``health care 
provider.'' However, OSHA would not be assured that the PA or 
physician was practicing medicine with a license and in compliance 
with their state scope of practice. Further, it would be illegal in 
all states for a PA or a physician to provide health care services 
based solely on their professional certification (Ex. 15: 81).

Still others feared that registered or certified ``alternative 
medicine'' providers, such as acupuncturists and massage therapists, 
might influence an employer's recordkeeping decision (see, e.g., Exs. 
15: 184, 317, 430).
    The proposed definition was, however, supported by several unions, 
large and small employers, and professional associations representing 
those health care personnel who might be excluded by a more restrictive 
definition (see, e.g., Exs. 15: 9, 72, 137, 170, 204, 278). These 
commenters generally advocated a broader definition because such a 
definition would recognize the various types of health care personnel 
who may be called on to attend an injured employee (see, e.g., Exs. 15: 
181, 350, 376, 392, 417). Typical of these comments was one from The 
Fertilizer Institute:

    [O]SHA should not qualify and limit this definition to personnel 
with specific training due to the wide variation in health care 
support and training available throughout the country. Because not 
all facilities are located in large metropolitan areas where a wide 
variety of medical training is available, it may be difficult, if 
not impossible to satisfy Administration-specified minimal training 
(Ex. 15: 154).

These commenters did agree, however, that to ensure the availability of 
quality health care to employees, health care professionals must be 
licensed or

[[Page 6079]]

certified by the state(s) in which they practice and must operate 
within the scope of that license or certification (see, e.g., Exs. 24, 
15: 81, 181, 350, 417). In particular, several commenters stressed the 
need to define the term ``health care professional'' as one practicing 
``in accordance with the laws of the applicable jurisdiction'' (Ex. 15: 
409; see also Exs. 15: 308, 349).
    Additionally, the AFL-CIO cautioned that using a broad definition 
of the term ``health care provider'' in this recordkeeping rule should 
not supersede or in any way affect the provisions of many OSHA health 
standards that specifically require a physician to perform medical 
surveillance of occupationally exposed employees:

[a]ll of OSHA's 6(b) health standards, except for Bloodborne 
Pathogens, require that the medical examinations required by the 
rules be carried out by a physician or under the supervision of a 
licensed physician. Many of these standards further require that a 
physician evaluate the results of the exam and provide a diagnosis 
and opinion as to whether any adverse medical condition has been 
detected. Some standards such as lead, benzene, and formaldehyde 
also require the physician to determine whether or not an employee 
should be removed from his or her job due to occupational exposures.
    [In contrast], the proposed recordkeeping rule would allow 
diagnoses for conditions covered by these standards (e.g., lead 
poisoning, asbestosis, byssinosis) to be made by any health care 
provider operating within the scope of their license. We are 
concerned that this discrepancy and inconsistency may lead to 
confusion about the requirements for medical surveillance under 
OSHA's health standards (Ex. 15: 418).

    Therefore, the AFL-CIO recommended that OSHA insert a provision in 
the proposed recordkeeping rule that would ensure that it is not 
interpreted as superseding the requirements of those standards. OSHA 
shares this concern and does not intend the use of the term ``health 
care professional'' in this rule to modify or supersede any requirement 
of any other OSHA regulation or standard.
    On the basis of the record, OSHA finds that there is a broad 
consensus among commenters that only qualified health care 
professionals should make diagnoses and treat injured employees, and 
that state licensing agencies are best suited to determine who may 
practice and the legal scope of that practice (see, e.g., Exs. 15: 31, 
65, 95, 154, 184, 201, 288, 308, 335, 349, 409, 425). The definition in 
the final rule ensures that, although decisions about the recordability 
of a particular case may be made by a wide range of health care 
professionals, the professionals making those decisions must be 
operating within the scope of their license or certification when they 
make such decisions.
Injury or Illness
    The final rule's definition of injury or illness is based on the 
definitions of injury and illness used under the former recordkeeping 
regulation, except that it combines both definitions into a single term 
``injury or illness.'' Under the final rule, an injury or illness is an 
abnormal condition or disorder. Injuries include cases such as, but not 
limited to, a cut, fracture, sprain, or amputation. Illnesses include 
both acute and chronic illnesses, such as, but not limited to, a skin 
disease, respiratory disorder, or systemic poisoning. The definition 
also includes a note to inform employers that some injuries and 
illnesses are recordable and others are not, and that injuries and 
illnesses are recordable only if they are new, work-related cases that 
meet one or more of the final rule's recording criteria.
    Former rule's definition. The former rule also defined these terms 
broadly, as did the proposal. The text of the former recordkeeping rule 
did not include a definition of injury or illness; instead, the 
definitions for these terms were found on the back of the OSHA 200 Log 
and in the former Recordkeeping Guidelines (Ex. 2, p. 37). The 
definition of occupational injury found in the Guidelines was:

    Occupational injury is any injury such as a cut, fracture, 
sprain, amputation, etc., which results from a work accident or from 
an exposure involving a single incident in the work environment.

    Note: Conditions resulting from animal bites, such as insect or 
snake bites, or from one-time exposure to chemicals are considered 
to be injuries.

An occupational illness was defined as:

[a]ny abnormal condition or disorder, other than one resulting from 
an occupational injury, caused by exposure to environmental factors 
associated with employment. It includes acute and chronic illnesses 
or diseases which may be caused by inhalation, absorption, 
ingestion, or direct contact.

    The former rule's definitions of injury and illness captured a very 
broad range of injuries, including minor injuries such as scratches, 
bruises and so forth, which the employer then tested for work-
relatedness and their relationship to the recording criteria. The 
former rule's definition of illness was even broader, including 
virtually any abnormal occupational condition or disorder that was not 
an occupational injury. However, the recording of illnesses under the 
former rule was more inclusive than is the case for the final rule 
being published today because the former rule required employers to 
record every occupational illness, regardless of severity. The final 
rule applies the same recording criteria to occupational illnesses as 
to occupational injuries, and thus rules out minor illnesses (see the 
Legal Authority section and the preamble discussion accompanying 
section1904.4).
    The former rule's broad definition of illness was upheld in a 1989 
Occupational Safety and Health Review Commission decision concerning 
the recording of elevated levels of lead in the blood of workers 
employed at a battery plant operated by the Johnson Controls Company. 
In that decision (OSHRC 89-2614), the Occupational Safety and Health 
Review Commission found that:

[a]s the Secretary states in his brief on review ``The broad 
applicability of the term ``illness'' adopted in the BLS Guidelines 
serves this purpose [to set explicit and comprehensive recording 
requirements designed to obtain accurate and beneficial statistics 
regarding the causes of occupational disease] by including health 
related conditions which may not look like, or may not yet be, 
treatable illnesses.'' Accordingly, for the purposes of the 
Secretary's recordkeeping regulations promulgated pursuant to 
sections 8(c)(1) and (2) of the Act, we accept the Secretary's 
interpretation of ``illness'' that includes blood lead levels at or 
above 50 ug/100g.

    Proposed rule's definition. OSHA proposed a new, broad definition 
that encompassed both occupational injury and occupational illness. 
This approach was consistent with one of the goals of the proposal, to 
eliminate the distinction between injury and illness entirely for 
recordkeeping purposes. OSHA's proposed definition of an injury or 
illness was:

    ``Injury or illness'' is any sign, symptom, or laboratory 
abnormality which indicates an adverse change in an employee's 
anatomical, biochemical, physiological, functional, or psychological 
condition (61 FR 4058).

    Comments on the proposed definition. Many commenters remarked that 
the proposed definition of injury and illness was too broad and all 
encompassing (see, e.g., Exs. 25, 33, 15: 95, 120, 156, 174, 176, 199, 
201, 213, 231, 273, 282, 301, 305, 318, 331, 346, 348, 375, 383, 386, 
395, 420, 424, 425, 430). The views of the National Association of 
Manufacturers (NAM) are representative of this view:

[a] second option is to re-examine the scope of the proposed 
definition of the term ``injury or illness,'' which appears to go 
well beyond the normal understanding of the medical profession. That 
definition is so broad it includes virtually any change in the 
status of the employee. In contrast, Dorland's

[[Page 6080]]

Illustrated Medical Dictionary defines the term ``illness'' as a 
condition marked by ``pronounced deviation from the normal healthy 
state.'' Accordingly, the NAM believes the proposed definition of 
the term ``injury or illness'' would be far more accurate and 
credible if it were modified to read substantially as follows ``Any 
sign, symptom, or laboratory abnormality which evidences a 
significant adverse change in an employee's anatomical, biochemical, 
physiological, functional, or psychological condition, and which 
evidences a state of ill-health or a reasonable probability that 
ill-health will result (Exs. 25, 15: 305).
    The American Iron and Steel Instute (AISI) also objected to the 
definition, stating that:
    OSHA also fails to provide any guidance as to what constitutes a 
``change'' in an employee's condition. If a person is tired at the 
end of the day, does that constitute a change in his physical 
condition? If a person is grumpy at the end of a long shift, has he 
undergone a change in his psychological condition? If a person gains 
weight, has his ``anatomical'' condition ``changed''? OSHA's 
proposed definition would force employers to address these questions 
but provides none of the answers. * * * Finally, in addition to 
inviting gross intrusions into employees' lives, the concept of an 
``adverse'' psychological change is so vague and burdened with value 
judgments that it simply is beyond definition.

    Several other commenters urged OSHA to add the word ``significant'' 
and the phrase ``and which evidences a state of ill-health or a 
reasonable probability that ill-health will result'' to the final 
rule's definition of injury or illness (see, e.g., Exs. 15: 169, 174, 
199, 282, 305, 318, 346, 348, 375, 386, 420, 425).
    A number of commenters stated that they did not understand the word 
``functional'' in the definition, and particularly how its meaning 
differs from that of the word ``physiological'' in the definition (see, 
e.g., Exs. 15: 313, 352, 353, 424). Several commenters also suggested 
the deletion from the definition of an occupational injury or illness 
any reference to signs, symptoms or laboratory abnormalities (see, 
e.g., Exs. 33, 15: 176, 231, 273, 301). The Pacific Maritime 
Association (Ex. 15: 95) suggested that OSHA delete the proposed 
definition of injury or illness and replace it with the following: 
``[an injury or illness] is any condition diagnosed by a health care 
provider.'' Two commenters suggested excluding psychological conditions 
from the definition of injury or illness (Exs. 15: 395, 424). A 
discussion of mental conditions and OSHA's reasons for including them 
in the definition is included in the preamble discussion of work-
relationship at section 1904.5, Determination of work relatedness. OSHA 
has decided to continue to include psychological conditions in the 
final rule's definition of injury and illness because many such 
conditions are caused, contributed to, or significantly aggravated by 
events or exposures in the work environment, and the Agency would be 
remiss if it did not collect injury and illness information about 
conditions of these types that meet one or more of the final rule's 
recording criteria.
    In the final rule, OSHA has relied primarily on the former rule's 
concept of an abnormal condition or disorder. Although injury and 
illness are broadly defined, they capture only those changes that 
reflect an adverse change in the employee's condition that is of some 
significance i.e. that reach the level of an abnormal condition or 
disorder. For example, a mere change in mood or experiencing normal 
end-of-the-day tiredness would not be considered an abnormal condition 
or disorder. Similarly, a cut or obvious wound, breathing problems, 
skin rashes, blood tests with abnormal results, and the like are 
clearly abnormal conditions and disorders. Pain and other symptoms that 
are wholly subjective are also considered an abnormal condition or 
disorder. There is no need for the abnormal condition to include 
objective signs to be considered an injury or illness. However, it is 
important for employers to remember that identifying a workplace 
incident as an occupational injury or illness is only the first step in 
the determination an employer makes about the recordability of a given 
case.
    OSHA finds that this definition provides an appropriate starting 
point for decision-making about recordability, and that the 
requirements for determining which cases are work-related and which are 
not (section 1904.5), for determining which work-related cases reflect 
new injuries or illnesses rather than recurrences (section 1904.6), and 
for determining which new, work-related cases meet one or more of the 
general recording criteria or the additional criteria (sections 1904.7 
to 1904.12) together constitute a system that ensures that those cases 
that should be recorded are captured and that minor injuries and 
illnesses are excluded. In response to the desire of many commenters 
for greater clarity, OSHA has added language to the definition of 
injury and illness to make it clear that many injuries and illnesses 
are not recordable, either because they are not work-related or because 
they do not meet any of the final rule's recording criteria.
    In general, all of those commenters who opposed the proposed 
definition wished OSHA to revise the definition so that it would 
provide an initial screening mechanism for excluding minor injuries and 
illnesses, even before the status of the case vis-a-vis the geographic 
presumption or recording criteria was assessed. OSHA recognizes that 
the proposed language referring to any adverse change was too broad, 
and has returned to the former language requiring that the change reach 
the ``abnormal condition'' level. OSHA recognizes that this is still a 
broad definition--deliberately so. After reviewing this issue 
thoroughly, OSHA finds that a system that initially defines injury and 
illness broadly and then applies a series of screening mechanisms to 
narrow the number of recordable incidents to those meeting OSHA and 
statutory criteria has several advantages. First, by being inclusive, 
this system avoids the problem associated with any ``narrow gate'' 
approach: that some cases that should be evaluated are lost even before 
the evaluation process begins. Second, this approach is consistent with 
the broad definitions of these terms that OSHA has used for more than 
20 years, which means that the approach is already familiar to 
employers and their recordkeepers. Third, adding terminology like 
``significant'' and ``reasonable probability that ill-health will 
result,'' as commenters suggested, would unnecessarily complicate the 
first step in the evaluation process.
    Accordingly, the definition of injury and illness in the final rule 
differs from the former definition only in minor respects. The 
definition is based on the former rule's definitions, simply combining 
the separate definitions of injury and illness into a single category, 
to be consistent with the elimination of separate recording thresholds 
for occupational injuries and occupational illnesses. As discussed 
above, OSHA has elected to continue to use a broad definition of 
illness or injury. The definition in the final rule also makes it clear 
that each injury and illness must be evaluated for work-relatedness, to 
decide if it a new case, and to determine if it is recordable before a 
covered employer must enter the case in the OSHA recordkeeping system.
``You''
    The last definition in the final rule, of the pronoun ``you,'' has 
been added because the final rule uses the ``you'' form of the 
question-and-answer plain-language format recommended in Federal plain-
language guidance. ``You,'' as used in this rule, mean the employer, as 
that term is defined in the Act. This definition makes it clear that 
employers are responsible for implementing the requirements of this

[[Page 6081]]

final rule, as mandated by the Occupational Safety and Health Act of 
1970 (29 U.S.C. 651 et seq.)

VIII. Forms

    This section of the preamble includes a copy of the final forms 
package. For a discussion of the contents, the old forms, the proposed 
forms, and comments to the proposed forms, refer to the preamble 
discussion of Subpart C. 1904.6 Forms. The forms fit on 11" by 14" 
legal sized paper. The forms do not appear in the Federal Register due 
to printing considerations. To obtain a copy contact OSHA's 
Publications Office at (202) 693-1888, order the forms from the OSHA 
Internet home page (http://www.osha.gov) or download the forms from the 
OSHA home page.

IX. State Plans

    The 25 States and territories with their own OSHA approved 
occupational safety and health plans must adopt a rule comparable to 
the 29 CFR part 1904 recordkeeping and reporting occupational injuries 
and illnesses regulation being published today, with the exception of 
the requirements of Sec. 1904.41 Annual OSHA Injury and Illness Survey 
of Ten or More Employers. These 25 States are: Alaska, Arizona, 
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, 
Washington, and Wyoming; and Connecticut and New York (for State and 
local Government employees only).
    The former 29 CFR 1952.4 regulation required that States with 
approved State-Plans under section 18 of the OSH Act (29 U.S.C. 667) 
must adopt occupational injury and illness recording and reporting 
regulations which were ``substantially identical'' to those set forth 
in 29 CFR part 1904 because the definitions used by the Federal and 
State governments for recordkeeping purposes must be identical to 
ensure the uniformity of the collected information. In addition, former 
Sec. 1952.4 provided that employer variances or exceptions to State 
recordkeeping or reporting requirements in a State-Plan State would be 
approved by the Bureau of Labor Statistics. Similarly, a State was 
permitted to require supplemental reporting or recordkeeping data, but 
that State was required to obtain approval from the Bureau of Labor 
Statistics to ensure that the additional data would not interfere with 
``the primary uniform reporting objectives.''
    The proposed revision of 29 CFR 1952.4 would have retained the same 
substantive requirements for the State-Plan States, but reflected the 
organizational shift of some recordkeeping responsibilities from the 
Bureau of Labor Statistics to OSHA in 1990. See also the memorandum of 
understanding between OSHA and BLS effective July, 1990 (Ex. 6).
    OSHA received no comments directed specifically to proposed section 
1952.4. Section 1952.4 of the final rule parallels the provisions of 
Sec. 1904.37, State Recordkeeping Regulations, the section of the final 
rule implementing the requirements proposed as Sec. 1904.14, 
Recordkeeping Under Approved State Plans. The discussion of the 
comments and OSHA's decisions on the few issues associated with this 
section can be found in the preamble discussion for Sec. 1904.37, State 
Recordkeeping Regulations. Section 1952.4 of the final regulation 
differs from that of the former regulation in that (1) the final rule 
requires the States to consult with and obtain approval from OSHA 
rather than BLS when promulgating supplementary fatality, injury or 
illness recording and reporting requirements; (2) the final rule allows 
the State to grant variances from the fatality, injury and illness 
reporting and recording requirements for State and local governments 
with Federal approval; and (3) Federal OSHA rather than the BLS is 
responsible for issuing all private sector and federal variances from 
the 29 CFR part 1904 requirements.

OSHA Data Initiative Surveys

    In 1997, OSHA issued a final rule at Sec. 1904.17, OSHA Surveys of 
10 or More Employers that required employers to submit occupational 
injury and illness data to OSHA when sent a survey form. The 1904.17 
rule enabled the Agency to conduct a mandatory survey of the 1904 data, 
which has been named the OSHA Data Initiative. Section 1904.41 of the 
final rule, Annual OSHA Injury and Illness Survey of Ten or More 
Employers, simply carries forward the employer reporting requirements 
of the former Sec. 1904.17, with only minor editorial changes.
    When OSHA issued the 1997 rule, the Agency determined that the 
States were not required to adopt a rule comparable to the federal 
Sec. 1904.17 rule (62 FR 6441). Paragraph 1952.4(d) has been added to 
the final rule to continue to provide the States with the flexibility 
to participate in the OSHA Data Initiative under the Federal 
requirements or the State's own regulation. At its outset, Federal OSHA 
conducted the OSHA data collection in all of the states, including 
those which administer approved State-Plans. However, in recent years, 
Federal OSHA has collected data only in the State-Plan States that wish 
to participate. For example, in 2000, the states of Oregon, South 
Carolina, Washington, and Wyoming elected not to participate in the 
annual OSHA survey and employers in those States were not surveyed. 
OSHA plans to continue to allow the individual States to decide, on an 
annual basis, whether or not they will participate in the OSHA data 
collection.
    If a State elects to participate, the State may either adopt and 
enforce the requirements of section 1904.41 as an identical or more 
stringent State regulation, or may defer to the Federal regulation and 
Federal enforcement with regard to the mandatory nature of the survey. 
If the State defers to the Federal section 1904.41 regulation, OSHA's 
authority to implement the survey is not affected either by operational 
agreement with a State-Plan State or by the granting of final State-
Plan approval under section 18(e). OSHA's authority under the Act to 
take appropriate enforcement action if necessary to compel responses to 
the survey and to ensure the accuracy of the data submitted by 
employers will be exercised in consultation with the State in State-
Plan states.

X. Final Economic Analysis

1. Introduction

A. Background

    OSHA is revising its regulation on Recording and Reporting 
Occupational Injuries and Illnesses, which is codified at 29 CFR part 
1904. Executive Order 12866, issued by President Clinton on September 
30, 1993, requires OSHA to assess the benefits and costs of 
regulations, and to design regulations to impose the least burden on 
society consistent with achieving the Agency's regulatory objective. 
This economic analysis, therefore, was developed to describe the 
potential impacts of the final revisions to 29 CFR part 1904.
    The final revisions to 29 CFR part 1904 reflect the results of 
studies of occupational injury and illness reporting and recordkeeping. 
One study of the accuracy and quality of occupational safety and health 
statistics was conducted by the National Research Council of the 
National Academy of Sciences (NAS), under contract to the Bureau of 
Labor Statistics (BLS).\4\ The NAS report focused on changes to the

[[Page 6082]]

overall strategy for occupational health and safety statistics and 
reporting, rather than on specific methods for improving the existing 
recordkeeping system. Reform of the occupational health and safety 
recordkeeping system was also the topic of a conference convened by the 
Keystone Center, an independent, non-profit organization that 
specializes in mediating multi-party disputes in the areas of science, 
technology, environmental, and health concerns. The Keystone Conference 
brought together 46 representatives from labor unions, corporations, 
the health professions, government agencies, Congressional staff, and 
academia to engage in a year-long dialogue. The Conference's final 
report\5\ was an important source of ideas for some of the changes 
being made in OSHA's final recordkeeping rule.
---------------------------------------------------------------------------

    \4\ National Research Council of the National Academy of 
Sciences, Counting Injuries and Illnesses in the Workplace: Proposal 
for a Better System, 1987.
    \5\ Keystone Center, Keystone National Policy Dialogue on Work-
Related Illness and Injury Recording, 1989.
---------------------------------------------------------------------------

    In 1990, the Department of Labor transferred from the Bureau of 
Labor Statistics (BLS) to OSHA the responsibility for developing 
recordkeeping regulations and their accompanying guidelines. Although 
BLS continues to compile occupational injury and illness statistics, 
OSHA determines what information needs to be recorded by employers.
    This economic analysis measures the potential regulatory impacts of 
the final revisions to 29 CFR part 1904. Much of the data for this 
analysis derives from a study conducted for OSHA by Meridian 
Research.\6\ The data in the Meridian study, however, have been updated 
to reflect more recent data on the numbers of establishments affected 
and on rates of occupational illnesses and injuries, as well as the 
evidence submitted to the record in the course of this rulemaking.
---------------------------------------------------------------------------

    \6\ Meridian Research, Inc., Economic Analysis of Proposed 
Changes to OSHA's Recordkeeping Requirements (29 CFR 1904), 1991.
---------------------------------------------------------------------------

B. Overview of the Final Regulation

    The final regulation revises an existing rule, Recording and 
Reporting Occupational Injuries and Illnesses (29 CFR part 1904). 
Specific changes include changes in coverage, editorial and formatting 
changes, and changes in specific provisions that affect the 
requirements for recording and reporting. Changes are summarized in 
Table X-1.
(1) Editing and Format Changes
    Language and Structure of the Rule. The final regulation reflects a 
complete rewriting of 29 CFR part 1904. The new version of the rule is 
written in plain language, using a question and answer format. This 
style is designed to make the rule clearer, more accessible, and easier 
to understand. In addition, the final rule contains many questions that 
employers frequently ask about recordkeeping, and it provides answers 
to those questions. By including these questions and answers in the 
rule itself, OSHA has provided employers with a readily available 
source of information on how to record particular cases. This means 
that the quality of the data being recorded will be higher than was the 
case in the past.

            Table X-1: Changes in Recordkeeping Requirements
------------------------------------------------------------------------
                          Section of
Section of final rule   former or other            Rule change
                            source
------------------------------------------------------------------------
1904.2...............  1904.16.........  Cover parts of SICs 55, 57, 59,
                                          65, 72, 73, 83, & 84; Exempt
                                          parts of SICs 52, 54, 76, 79,
                                          & 80.
1904.5...............  Guidelines......  Include specific exemptions
                                          from recording for certain
                                          cases, such as common cold or
                                          flu.
                                         Limit parking lot exemption to
                                          commuting.
                                         Require recording of
                                          preexisting injury or illness
                                          only if workplace exposure
                                          ``significantly'' aggravates
                                          the injury or illness.
1904.7...............  1904.12.........  Replace term ``lost workdays''
                                          in recording criteria with
                                          ``days away'' or ``days
                                          restricted or transferred'';
                                          count days as calendar days,
                                          rather than scheduled work
                                          days; cap count at 180 days;
                                          do not record restricted,
                                          transferred, or lost time
                                          occurring only on day of
                                          injury or illness as
                                          restricted work, job transfer,
                                          or a day away. Define routine
                                          duties for restricted work
                                          purposes as work activities
                                          done at least once per week.
                                          Define medical treatment
                                          beyond first aid to include
                                          all non-prescription drugs
                                          given at prescription strength
                                          and first and subsequent
                                          physical therapy or
                                          chiropractic treatment and to
                                          exclude use of Steri-StripsTM
                                          and hot or cold therapy.
1904.7...............  (New)...........  Narrow criteria for recording
                                          illnesses by excluding minor
                                          illnesses.
1904.8...............  (New)...........  Record all needlestick/sharps
                                          injury cases involving
                                          exposure to blood or other
                                          potentially infectious
                                          materials.
1904.10..............  Interpretation..  Record all hearing loss cases
                                          at 10 dB shift, rather than 25
                                          dB shift.
1904.11..............  Interpretation..  Narrow criteria for recording
                                          positive tuberculosis test.
1904.12..............  1904.12.........  Make criteria for recording MSD
                                          cases the same as those for
                                          all other injuries and
                                          illnesses.
1904.29..............  1904.2..........  Replace old Log form with
                                          simplified Form 300.
                                         Require that cases be recorded
                                          within 7 calendar days rather
                                          than 6 working days.
1904.29..............  1904.4..........  Require more information on new
                                          Form 301 than on former Form
                                          101.
1904.29..............  (New)...........  Define new category of
                                          ``privacy concern cases'' and
                                          require maintenance of
                                          separate, confidential list of
                                          names for such.
1904.29..............  (New)...........  Require employer to protect
                                          privacy of injured or ill
                                          workers by withholding names,
                                          with certain exceptions.
1904.32..............  1904.5 (New)....  Post Annual Summary for 3
                                          months rather than 1 month.
                                         Review records for accuracy at
                                          end of year.
                                         Require descriptive and
                                          statistical totals in Annual
                                          Summary.
                                         Require certification of
                                          accuracy of the Log by
                                          responsible company official.
1904.34..............  1904.11.........  With change of ownership,
                                          require seller to turn over
                                          OSHA records to buyer.
1904.35..............  (New)...........  Inform employees how to report
                                          injuries or illnesses to
                                          employer.
                                         Provide union representative
                                          access to some, but not all,
                                          Form 301 information.
1904.39..............  1904.8..........  Delete requirement for common
                                          carrier and motor vehicle
                                          incidents to be reported.
------------------------------------------------------------------------


[[Page 6083]]

    The rule also has been completely restructured. Its provisions have 
been put into a logical sequence, with topics addressed as an employer 
would encounter them when complying with the rule. The numbering of 
sections within 29 CFR part 1904 has been entirely revised.
    The final rule includes considerable detail not found in the former 
rule. This detail generally reflects interpretations that OSHA has made 
over time. By including these in the rule itself, OSHA intends to make 
the rule far clearer. Interpretations and related details are formatted 
as check lists, for ease of interpretation.
(2) Specific Changes in Regulatory Provisions
(a) Changes in Coverage
    Former rule. The former rule exempted all employers with 10 or 
fewer employees and all employers in specific low-hazard retail and 
service industry sectors from routinely keeping OSHA records. The 
industry exemptions were based on injury and illness data at the 2-
digit SIC code level.
    Final rule. The final rule continues the former rule's exemption of 
all employers with 10 or fewer employees from routine recordkeeping 
requirements. The final rule also exempts all employers in specific 
lower-hazard retail and service industry sectors, as the former rule 
did, from maintaining OSHA records routinely. The final rule exempts 3-
digit SIC industries if their average lost workday injury (LWDI) rate 
was at or below 75% of the overall private sector LWDI average rate in 
the most recent BLS occupational injury and illness data.
    Change. Updating the list of exempted industry categories by 
relying on 3-digit, rather than 2-digit, data in the final rule results 
in 17 formerly exempt industries being covered under the final rule 
(see Table X-2). Employers in 16 industries that were covered by the 
former rule are exempted by the final rule (see Table X-3). The 
exemptions in the final rule are better targeted than those in the 
former rule, because high-hazard 3-digit industries embedded within 
lower-hazard 2-digit industries are not exempted, while low-hazard 3-
digit industries embedded within higher-hazard 2-digit industries are 
exempted. Employers in the newly covered industries will experience 
additional costs and benefits from these new requirements, while newly 
exempted employers will also experience changes in costs and benefits. 
These costs and benefits are quantified in this economic analysis.
(b) Changes to the OSHA Forms
    Former rule. The former rule required the employer to maintain two 
forms, the OSHA 200 Log and Summary of Occupational Injuries and 
Illnesses (one form including both a Log and Summary), and the OSHA 101 
Supplementary Record of Occupational Injuries and Illnesses. The 
employee who supervised the production of the annual summary was 
required to certify it.
    Final rule. The final rule requires the employer to maintain up to 
four records: the OSHA 300 Log of Work-Related Injuries and Illnesses, 
the OSHA 300-A Summary of Work-Related Injuries and Illnesses, the OSHA 
301 Injury and Illness Incident Report, and, if one or more employees 
experiences an injury or illness case classified as a ``privacy 
concern'' case, a confidential list of those employees. (See discussion 
of privacy provisions below.)
    Change. The new OSHA 300 Log is smaller than the Former OSHA 200 
Log, fits on legal sized pages (8 \1/2\'' x 14''), has fewer columns 
and a more logical, user friendly design. Each injury and illness must 
be recorded within 7 calendar days, rather than the 6 working days 
allowed under the former rule. Although the 300 Log requires 
essentially the same information as the former 200 Log, it is easier to 
complete, which will result in cost savings for employers. These 
savings are quantified in this economic analysis.
    The OSHA 300-A Summary Form replaces the summary portion of the 
former OSHA 200 Log and Summary Form. Each covered employer must 
complete the summary at the end of the year and post it for 3 months, 
while the former rule required posting for one month. The longer 
posting period will result in only minimal additional costs. The final 
rule also requires the employer to review the records at year end for 
accuracy before summarizing them, requires additional certification of 
accuracy by a company executive, and requires additional data on the 
average employment and hours worked at the establishment. These changes 
will result in higher quality data, and will also add costs for 
employers. These costs are quantified in this economic analysis.
    The OSHA 301 Incident Report is only slightly different from the 
OSHA 101 Form that it replaces. Some data elements have been added to 
the form. In addition, the form has been redesigned to obtain better 
responses to the questions and to accommodate employee access to the 
forms while still protecting privacy (see discussion below). Costs of 
recording additional data elements are quantified in this economic 
analysis.
(c) Changes in the Recording Criteria
    The final rule includes a number of changes that will affect the 
number of recorded cases, and thus potentially affect the costs and 
costs savings associated with the regulation. Some of these changes 
will result in more cases being recorded, as follows: (1) Changes to 
the definitions of medical treatment and first aid, (2) change to the 
criterion for recording cases of hearing loss, and (3) change to the 
criterion for recording needlestick and sharps injuries.
    Other changes will result in fewer cases being recorded, as 
follows: (1) Exemptions from the requirement to consider certain cases 
work-related, (2) elimination of different recording criteria for 
injuries and illnesses, (3) changes to the requirements for recording 
injuries and illnesses with days away or job restriction/transfer, (4) 
changes to the criteria for recording cases of tuberculosis, and (5) 
elimination of separate recording criteria for musculoskeletal 
disorders.
    Because the final rule makes a number of changes, some of which 
increase the number of recordable injuries and illnesses and some of 
which decrease the number of recordable cases, it is difficult to 
estimate the precise impact of each change. OSHA expects that these 
changes, with two exceptions, will generally have the effect of 
offsetting each other, with the result that approximately the same 
number of injury and illness cases will be recorded under the final 
rule as were recorded under the former rule. The costs and cost savings 
associated with each small definitional change have not been quantified 
in this economic analysis. However, the changes made in the recording 
of hearing loss cases and the recording of needlestick and sharps 
injury cases will result in quantifiable increases in the number of 
recorded injuries. The cost effects of these changes are specifically 
identified in this economic analysis.
    OSHA recognizes that individual employers will be affected 
differently by the changes made in the final rule and that some 
employers will record more cases under the final rule while others will 
record fewer. OSHA also finds that the overall effect of the changes 
made to the final rule is to greatly ease the determination of 
recordability, and has quantified these cost savings in this economic 
analysis.

[[Page 6084]]

(i) Changes to the Determination of Work-Relationship
    Former rule. Under the former rule, work-relationship was 
established if work either caused or contributed to the injury or 
illness, or aggravated a pre-existing condition. Injuries and illnesses 
that occurred on the employer's premises were presumed to be work-
related, with three exceptions: cases that occurred in a parking lot or 
recreational facility, cases that occurred while the employee was 
present at the workplace as a member of the general public and not as 
an employee, and cases where injury or illness symptoms arose at work 
but were the result of a non-work-related injury or illness were not 
required to be recorded.
    Final rule. Work relationship is established if work either caused 
or contributed to the injury or illness, or significantly aggravated a 
pre-existing condition. The final rule continues the former rule's 
geographic presumption of work relationship but adds several additional 
exceptions to the need to record cases involving: voluntary 
participation in wellness programs, eating and drinking food or 
beverages for personal consumption, intentionally self-inflicted 
wounds, personal grooming, or the common cold or flu. The final rule 
also contains an exception that limits the recording of mental illness 
cases.
    Change. The final rule changes the requirement to record cases in 
which any degree of aggravation of a preexisting injury or illness has 
occurred; now, the work environment must have significantly aggravated 
a pre-existing injury or illness before the case becomes work-related. 
The final rule also adds several new exceptions to the geographic 
presumption of work relationship. Both of these changes will result in 
fewer cases being recorded under the final rule.
(ii) Elimination of Different Recording Criteria for Injuries and 
Illnesses
    Former rule. Under the former rule, employers were required to 
record all work-related deaths, all illnesses, and injuries that 
resulted in days away from work, restricted work, transfer to another 
job, medical treatment beyond first aid, or loss of consciousness. The 
employer was required to decide if the case was either an injury or 
illness; injuries included all back cases and any case caused by an 
instantaneous event, while illnesses were any abnormal condition or 
disorder caused by a non-instantaneous event. The employer was required 
to record every illness case, regardless of severity.
    Final rule. Under the final rule, the employer is not required to 
determine whether a case is an injury or illness to decide whether or 
not to record the case. A case is recordable if it results in death, 
days away from work, job restriction or transfer, medical treatment 
beyond first aid, loss of consciousness, or if the case is a 
significant injury or illness diagnosed by a physician or other 
licensed health care professional. Additional criteria are included for 
cases of hearing loss, tuberculosis, and needlestick injuries and the 
rule clarifies how to record musculoskeletal disorders and cases 
involving medical removal or work restriction under OSHA's standards.
    Change. The new general recording criteria eliminate the recording 
of minor illness cases, which will result in fewer cases being recorded 
by employers, and lower costs. The new criteria for recording hearing 
loss and needlestick cases will increase the number of cases and the 
costs associated with recording.
(iii) Days Away and Job Restriction/Transfer
    Former rule. Under the former rule, employers were required to 
record lost workday cases, which were defined as any case that resulted 
in days away from work and/or days of restricted work or job transfer. 
Restricted work included any case when because of injury or illness (1) 
the employee was assigned to another job on a temporary basis, (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 his or her routine duties. Routine duties were defined as any 
activity the employee would be expected to perform even once during the 
course of the year. The employer was required to record any case that 
involved restricted work, even if the restriction occurred only on the 
day the injury or illness occurred.
    Employers were also required to count days as the number of 
scheduled days away or restricted, i.e., to use a counting system that 
included only scheduled work days and excluded any days off, such as 
weekends and days the plant was closed.
    Final Rule. The final rule continues to require employers to record 
cases with days away from work, restricted work or transfer to another 
job. For restricted work/job transfer, the final rule focuses on 
whether or not the employee is permitted to perform his or her routine 
job functions, defined as the duties he or she would have performed at 
least once per week before the injury or illness. If the work 
restriction is limited to the day of the injury or illness, and none of 
the other recording criteria are met, the case is not recordable.
    The final rule continues to require the employer to count days away 
from work and days of restricted work/job transfer. However, the days 
are counted using calendar days, and employers may stop the count at 
180 days. The employer also may stop counting restricted days if the 
employer permanently modifies the employee's job in a way that 
eliminate the routine functions the employee was restricted from 
performing.
    Change. The final rule shifts the focus of the definition of 
restricted work to the routine functions of the job and away from the 
former rule's focus on any activity the injured or ill employee might 
have performed during the work year, and eliminates the requirement to 
record cases that involve restrictions only on the day of injury or 
illness. These changes will result in fewer cases being recorded, and 
will have the effect of reducing costs for employers.
    The final rule's changes to the method of counting days, i.e., 
relying on calendar days instead of scheduled work days, will simplify 
the counting requirements and produce more reliable information on 
injury and illness severity. Both the change to the calendar day 
counting method and the capping of days away and days restricted or 
transferred at 180 days will have the effect of reducing costs for 
employers.
(iv) Changes to the Definitions of Medical Treatment and First Aid
    Former rule. The former rule defined medical treatment as any 
treatment, other than first aid treatment, administered to injured or 
ill employees. Medical treatment involved the provision of medical or 
surgical care for injuries through the application of procedures or 
systematic therapeutic measures.
    The former regulation 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. Such one-time treatment, and follow up 
visits for the purpose of observation are considered first aid even 
though provided by a physician or registered professional personnel.''
    The former Recordkeeping Guidelines provided two lists of 
treatments employers could use to determine whether a particular 
treatment was first aid or medical treatment for recordkeeping 
purposes. For example, the use of prescription drugs was generally 
considered medical treatment, except when only a single dose was

[[Page 6085]]

prescribed. Physical therapy, hot or cold therapy, or soaking therapy 
was considered medical treatment if it was used on a second or 
subsequent visit to medical personnel. Treatment of any third or second 
degree burn was considered medical treatment. The former rule's lists 
provided a useful starting point for determining which treatments were 
first aid or medical treatment, but also caused some confusion because, 
if a particular treatment was not on either list, the employer was not 
sure how to classify the treatment.
    Final rule. The final rule defines medical treatment as the 
management and care of a patient to combat disease or disorder. For the 
purposes of Part 1904, medical treatment does not include: visits to a 
physician or other licensed health care professional solely for 
observation or counseling; 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 first aid.
    The final rule then defines first aid by listing 14 first aid 
treatments, such as using non-prescription drugs at non-prescription 
strength, using bandages or butterfly bandages, using hot or cold 
therapy, using splints or slings to transport an accident victim, and 
drinking liquids for relief of heat stress.
    Change. The final rule changes the definitions of which treatments 
are considered first aid and medical treatment. Each change will result 
in some change in the number of cases that are recorded, as shown in 
the following table.

------------------------------------------------------------------------
 Changes from the former rule to the final    Impact on number of cases
                   rule                               recorded
------------------------------------------------------------------------
Medical treatment now includes all non-     More cases
 prescription drugs at prescription
 strength and any dose of a prescription
 drug.
First aid now includes hot or cold          Fewer cases
 therapy, regardless of how often applied.
Medical treatment now includes any          More cases
 physical therapy/chiropractic treatment.
First aid now includes use of butterfly     Fewer cases
 bandages and Steri-Strips for any purpose.
Medical treatment now includes any use of   More cases
 oxygen.
Second degree burns are now not             Fewer cases
 automatically recordable.
------------------------------------------------------------------------

    The overall effect of the changes to the definitions of medical 
treatment and first aid is difficult to determine. OSHA believes that 
they generally offset each other, but data to confirm this are not 
available.
(v) Changes in the Recording of Needlestick and Sharps Injuries
    Former rule. Under the former rule, an employer was required to 
record a needlestick or sharps injury involving human blood or other 
potentially infectious material if the case resulted in death, days 
away from work, restricted work, medical treatment beyond first aid, or 
loss of consciousness, or if the employee seroconverted (contracted HIV 
or hepatitis infection).
    Final rule. Under the final rule, an employer is required to record 
all needlestick or sharps injuries involving human blood or other 
potentially infectious material. These cases are recorded as privacy 
concern cases.
    Change. The final rule will require the recording of an additional 
estimated 501,640 needlestick and sharps injury cases. The costs 
associated with this change have been quantified in this economic 
analysis. This change will also significantly simplify recording for 
those employers who recorded 88,925 needlestick and sharps injuries 
under the former rule, resulting in cost savings for those cases. These 
cost savings have been quantified in this economic analysis.
(vi) Changes in the Recording of Hearing Loss
    Former rule. Under OSHA's interpretations of the former rule, an 
employer was required to record a hearing loss of 25 decibels in one or 
both ears, averaged over three frequencies, compared to the employee's 
baseline audiogram. Work-relatedness was presumed if the employee was 
exposed to noise at or above an 8-hour time weighted average of 85 
decibels.
    Final rule. The final rule requires an employer to record any 
hearing loss that reaches the level of a standard threshold shift 
(STS), defined by the occupational noise standard as a 10 decibel shift 
in hearing, averaged over three frequencies, in one or both ears, 
compared to the employee's baseline audiogram. Work-relatedness is 
presumed if the employee was exposed to noise at or above an 8-hour 
time weighted average of 85 decibels.
    The employer must check a separate box on the OSHA Log to identify 
hearing loss cases.
    Change. The additional check box will result in improved 
statistical data on occupational hearing loss. The change to a more 
sensitive threshold (10 decibel shift rather than 25 decibel shift) for 
recording occupational hearing loss will result in the recording of 
additional cases. Based on audiometric data collected from 22 companies 
in SICs 20 through 29, 33, 34, 35, 39, 49, and 90, OSHA estimated that, 
with the new threshold, 250,000 more workers in manufacturing and 
25,000 more workers elsewhere in general industry would sustain 
recordable hearing loss annually. The costs associated with this 
increase have been quantified in this economic analysis.
(vii) Changes in the Recording of Tuberculosis
    Former rule. Under OSHA's interpretation of the former rule, an 
employer was required to record an active case of tuberculosis (TB) or 
a positive TB skin test. If the employee was employed in one of five 
high risk industries, as defined by the Centers for Disease Control and 
Prevention (CDC), the case was presumed to be work related.
    Final rule. Under the final rule, a case of tuberculosis is 
recorded if the employee has active TB or has a positive skin test. The 
case is considered work-related if the employee has been occupationally 
exposed at work to another person (client, patient, co-worker) with a 
known, active case of tuberculosis. The employer may subsequently 
remove or line out the case if a medical investigation shows that the 
case was caused by a non-occupational exposure.
    Change. The final rule eliminates the ``special industries'' 
presumption of work-relatedness. OSHA believes that this change will 
reduce the number of recorded TB cases, and thus reduce costs somewhat. 
However, data to estimate the cost savings associated with this change 
are not available.
(viii) Changes in the Recording of Musculoskeletal Disorders (MSD)
    Former rule. Under the former rule, MSD cases were recorded 
differently based on whether they were occupational injuries or 
occupational illnesses. If the case was an MSD injury, it was recorded 
if it resulted in days away from work, restricted work, job transfer, 
or medical treatment beyond

[[Page 6086]]

first aid. If the case was an MSD illness, it was recorded if it 
resulted in:
    (1) Objective findings:

--A diagnosis by a health care provider (carpal tunnel, tendinitis, 
etc.)
--Positive test results (Tinel's, Finkelstein's, Phalen's, EMG)
--Signs (redness, swelling, loss of motion, deformity)

OR

    (2) Symptoms combined with days away from work, restricted work, or 
medical treatment beyond first aid.
    Injury MSD cases were considered to be ``new cases'' if they 
resulted from new (additional) workplace events or exposures. Illness 
MSD cases were treated in the same way or were subjected to a ``30 day 
rule'' whereby if an ill employee did not return to the health care 
provider for care after 30 days the case was considered resolved. If 
the same employee reported later with additional MSD problems, the case 
was evaluated for recordability as a new illness.
    Final rule. Under the final rule, MSD cases are recorded using the 
same criteria as those for other injuries and illnesses. Cases are 
recorded if they result in days away from work, restricted work/job 
transfer, or medical treatment beyond first aid. Recurrences are also 
handled just as other types of injuries and illnesses are.
    The employer must check a separate box on the Log for MSD cases to 
permit separate data on these disorders to be collected.
    Change. The final rule simplifies the recording of MSDs and 
collects improved statistical information on these disorders on the 300 
Log. Because the final rule does not require the automatic recording of 
diagnosed disorders, physical signs, and positive test results, it will 
generally require employers to record fewer MSD cases, resulting in 
some cost savings. However, the magnitude of these cost savings is not 
known.
(d) Change in Ownership
    Former rule. Under the former rule an employer who acquired a 
business establishment was required to retain the OSHA records of the 
prior owner. Each owner was responsible for the records only for that 
period of the year that each owned the business.
    Final rule. Under the final rule, when a business establishment 
changes owners, each owner is responsible for the OSHA records only for 
that period of the year that each owned the business. The prior owner 
is required to transfer the records to the new owner, and the new owner 
is responsible for retaining those records.
    Change. The final rule differs from the former rule by requiring 
the prior owner to transfer the records to the new owner. Any new costs 
imposed by this requirement are extremely small and have not been 
quantified in this economic analysis.
(e) Employee Involvement
    Former rule. The former rule involved employees in the 
recordkeeping process in two ways: through posting of the annual 
summary of occupational injuries and illnesses for one month, and by 
allowing access to the OSHA 200 Log by employees, former employees, and 
their representatives.
    Final rule. The final rule involves employees in the process to a 
greater extent than formerly: it requires the employer to set up a 
system for accepting injury and illness reports from employees and 
requires the employer to tell each employee how to report a work-
related injury or illness. The final rule also requires the employer to 
post the annual summary for three months. Employees, former employees, 
and their representatives have the right to one free copy of the 300 
Log, the injured or ill employee or a personal representative has a 
right to one free copy of the 301 (Incident Report) for his or her 
case, and authorized employee representatives have a right to one free 
copy of a portion of the 301 form for all injuries and illnesses at the 
establishment he or she represents.
    Change. The final rule will improve employee reporting of work-
related injuries and illnesses and allow improved access to the 
information in the records, including one free copy of each record 
requested. OSHA finds that these provisions will increase costs for 
employers, and these costs have been quantified in the economic 
analysis.
(f) Privacy Protections
    Former rule. The former rule had no provisions to protect the 
privacy of injured or ill workers when a coworker or employee 
representative was allowed access to the OSHA 200 Log. The employer was 
required to provide the Log with names intact.
    Final rule. The final rule protects the privacy of injured or ill 
workers when a coworker or employee representative accesses the records 
by prohibiting the employer from entering the employee's name for 
certain ``privacy concern'' cases. A separate, confidential list of 
case numbers and employee names must be kept for these cases. An 
employee representative can access only part of the information from 
the 301 form, and the employer must withhold the remainder of the 
information when providing copies. With certain exceptions, if the 
employer provides the information to anyone other than a government 
representative, an employee, a former employee, or an employee 
representative, the names and other personally identifying information 
must be removed from the forms. In addition, separation of the summary 
form will eliminate accidental disclosure of employee names during the 
posting of the summary information.
    Change. The final rule protects injured or ill employees' privacy 
in several ways, e.g., by limiting the distribution of injured or ill 
employees' names, by not recording the employee's name in privacy 
concern cases, and by providing employee representatives access to only 
part of the Form 301. The costs of keeping a separate, confidential 
list for privacy concern cases have been quantified in the economic 
analysis.
(g) Computerized and Centralized Records
    Former rule. The former rule allowed the employer to keep the OSHA 
200 Log on computer equipment or at a location other than the 
establishment, and required that the employer have available a copy of 
the Log current to within 45 calendar days. The former rule had no 
provisions for keeping the OSHA 101 form off site or on computer 
equipment.
    Final rule. The final rule allows all forms to be kept on computer 
equipment or at an alternate location, providing the employer can 
produce the data when it is needed to provide access to a government 
inspector, employee, or an employee representative. There is no need to 
keep records at the establishment at all times.
    Change. The final rule provides the employer with greater 
flexibility for keeping records on computer equipment and at off-site 
locations. These costs savings have been quantified in the economic 
analysis.
Reporting of Fatality and Catastrophe Incidents
    Former rule. The former rule required the employer to report any 
workplace fatality, or any incident involving the hospitalization of 3 
or more employees to OSHA within 8 hours.
    Final rule. The final rule requires the employer to report any 
workplace fatality, or any incident involving the hospitalization of 3 
or more employees to OSHA within 8 hours. The final rule does not 
require the employer to report to OSHA fatal or multiple 
hospitalization incidents that occur on commercial airlines, trains and 
buses; or fatality/catastrophe incidents from a

[[Page 6087]]

motor vehicle accident on a public highway.
    Change. The final rule requires employers to report fewer incidents 
to OSHA, which will result in cost savings. These cost savings have not 
been quantified in the economic analysis.
(3) Qualitative Overview of Impacts
Forms
    The largest impact of the final rule's revised provisions on 
recordkeeping at the individual establishment will be in the direction 
of cost savings and will come from the plain language rewriting of the 
rule itself and the new forms. These changes in language, organization, 
and format will reduce the burden on employers and recordkeepers in 
several ways. The clearer language and streamlining will allow the 
entire rule to be read more quickly and with greater comprehension. It 
will also be possible to obtain a good understanding of the rule in a 
single reading (which will be particularly helpful for establishments 
with very few or no recordable incidents). Finally, the organization 
and format make it far easier to get quick answers to specific 
questions, because the answers are part of the final rule itself rather 
than being included in a separate document, the Recordkeeping 
Guidelines for Occupational Injuries and Illnesses (the ``Blue Book'').

2. Industry Profile

    OSHA's former regulation for Recording and Reporting Occupational 
Injuries and Illnesses, 29 CFR part 1904, covered most industries in 
the economy. The principal exceptions were the finance, insurance, and 
real estate sector, some retail trade industries, and some service 
industries. This chapter describes the changes in coverage, as well as 
key characteristics of the industries that will be covered under the 
final rule.

A. Changes in Industries Covered

    The former rule (with one exception) covered or exempted industries 
at the two-digit SIC level. The final rule fine tunes this coverage in 
the finance, insurance, and real estate, retail trade, and service 
sectors by extending coverage to some high-hazard three-digit SICs in 
two-digit SICs that were not covered by the former rule and exempting 
some low-hazard three-digit SICs in two-digit industries that were 
covered by the former rule. These changes, by two-digit SICs, are as 
follows:
    Industries covered under the former rule that would continue to be 
covered under the final rule :\7\

    \7\ In addition, state and local government employers will 
continue to be covered in State Plan states.
---------------------------------------------------------------------------

Agriculture (SIC 01-02),
Forestry, and Fishing (SIC 07-09),
Oil & Gas Extraction (SIC 13),
Sulfur Mining (SIC 1479, part),
Construction (SIC 15-17),
Manufacturing (SIC 20-39),
Transportation (SIC 41-42),
United States Postal Service (SIC 43),
Public Utilities (SIC 44-49),
Wholesale Trade (SIC 50-51),
General Merchandise Stores (SIC 53),
Hotels and Other Lodging Places (SIC 70), and
Automotive Repair, Services, and Parking (SIC 75).

    Industries exempted under the former rule that would continue to be 
exempted:

Apparel and Accessory Stores (SIC 56),
Eating and Drinking Places (SIC 58),
Depository Institutions (SIC 60),
Nondepository Institutions (SIC 61),
Security and Commodity Brokers (SIC 62),
Insurance Carriers (SIC 63),
Insurance Agents, Brokers, and Services (SIC 64),
Holding and Other Investment Offices (SIC 67),
Motion Pictures (SIC 78),
Legal Services (SIC 81),
Educational Services (SIC 82),
Membership Organizations (SIC 86),
Engineering, Accounting, Research, Management & Related Services (SIC 
87), and
Services, not elsewhere classified (SIC 89).

    Two-digit industries that were not covered under the former rule 
but will have some three-digit industries within them covered under the 
final rule:

Automobile Dealers (SIC 55),
Furniture Stores (SIC 57),
Miscellaneous Retail Stores (SIC 59),
Real Estate (SIC 65),
Personal Services (SIC 72),
Business Services (SIC 73),
Social Services (SIC 83), and
Museums (SIC 84).

    Two-digit industries that were covered under the former rule but 
will have some or all three-digit industries within them exempted under 
the final rule:

Building Materials & Garden Supplies (SIC 52),
Food Stores (SIC 54),
Miscellaneous Repair Services (SIC 76),
Amusement and Recreation Services (SIC 79), and
Health Services (SIC 80).

    Table X-2 shows the specific three-digit industries that were 
formerly exempted and to which the final rule will extend coverage. 
Table X-3 shows the specific three-digit industries that were formerly 
covered and which the final rule will exempt.
    Exempting an industry means that employers with establishments in 
that industry do not have to keep the OSHA Form 300 (the Log of 
Occupational Injuries and Illnesses), the Annual Summary (OSHA 300-A), 
and OSHA Form 301 (the Incident Record) or their equivalents. The final 
rule does not exempt establishments from the obligation to report 
fatalities or multiple hospitalization accidents to OSHA, nor does it 
exempt an employer from the requirement to maintain records if notified 
by the Bureau of Labor Statistics that it is a participant in the 
annual Occupational Injuries and Illnesses Survey or by OSHA that it 
has been selected to report under the OSHA Data Initiative.

B. Characteristics of Covered Establishments

(1) Number of Establishments
    Table X-4 shows the estimated number of establishments, by 
industry, covered by the final regulation. Data for agriculture (SICs 
01 and 02) are taken from the 1997 Census of Agriculture. Data for the 
remaining SICs are taken from a compilation of 1996 data by the U.S. 
Census Bureau for the Small Business Administration (SBA) to reflect 
parent company control of establishments. Firms that have 10 or fewer 
employees,\8\ which are exempt from the final regulation because of 
their size, are excluded from Table X-4.
---------------------------------------------------------------------------

    \8\ The SBA data have size classes of 5-9 employees and 10-19 
employees. Establishments with 10 employees were assumed to account 
for ten percent of the 10-19-employee size class. Since the 
distribution is skewed by size, rather than being uniform, this 
assumption slightly overstates the number of establishments covered 
by the regulation.

[[Page 6088]]



Table X-2.--Formerly Exempt Industries That the Final Recordkeeping Rule
                                 Covers
------------------------------------------------------------------------
                                       Three-digit industry that OSHA's
        Two-digit industry*                   final rule covers
------------------------------------------------------------------------
SIC 55.............................  SIC 553, Auto and Home Supply
                                      Stores
                                     SIC 555, Boat Dealers
                                     SIC 556, Recreational Vehicle
                                      Dealers
SIC 57.............................  SIC 571, Home Furniture and
                                      Furnishings Stores
                                     SIC 572, Household Appliance Stores
SIC 59.............................  SIC 593, Used Merchandise Stores
                                     SIC 596, Nonstore Retailers
                                     SIC 598, Fuel Dealers
SIC 65.............................  SIC 651, Real Estate Operators and
                                      Lessors
                                     SIC 655, Subdividers and Developers
SIC 72.............................  SIC 721, Laundry, Cleaning, and
                                      Garment Service
SIC 73.............................  SIC 734, Services to Buildings
                                     SIC 735, Miscellaneous Equipment
                                      Rental/Leasing
                                     SIC 736, Personnel
SIC 83.............................  SIC 833, Job Training and Related
                                      Services
                                     SIC 836, Residential Care
SIC 84.............................  SIC 842, Botanical and Zoological
                                      Gardens
------------------------------------------------------------------------
* Only the 3-digit SICs shown in the second column are covered by the
  rule; those within the 2-digit SIC that are not listed are still
  exempt from the requirement to keep OSHA records routinely.


   Table X-3.--Formerly Covered Industries Exempted by the Final Rule
------------------------------------------------------------------------
                                       Three-digit industry that OSHA's
        Two-digit  industry                   final rule exempts
------------------------------------------------------------------------
SIC 52.............................  SIC 525, Hardware Stores
SIC 54.............................  SIC 542, Meat and Fish Markets
                                     SIC 544, Candy, Nut, and
                                      Confectionery Stores
                                     SIC 545, Dairy Product Stores
                                     SIC 546, Retail Bakeries
                                     SIC 549, Miscellaneous Food Stores
SIC 76.............................  SIC 764, Reupholstry and Furniture
                                      Repair
SIC 79.............................  SIC 791, Dance Studios, Schools,
                                      and Halls
                                     SIC 792, Producers, Orchestras, and
                                      Entertainers
                                     SIC 793, Bowling Centers
SIC 80.............................  SIC 801, Offices and Clinics of
                                      Medical Doctors
                                     SIC 802, Offices and Clinics of
                                      Dentists
                                     SIC 803, Offices of Osteopathic
                                      Physicians
                                     SIC 804, Offices of Other Health
                                      Practitioners
                                     SIC 807, Medical and Dental
                                      Laboratories
                                     SIC 809, Health and Allied
                                      Services, nec
------------------------------------------------------------------------


   Table X-4--Establishments Required by the Final Rule Routinely To Keep Occupational Injury/Illness Records
----------------------------------------------------------------------------------------------------------------
                                                                  Estimated number of      Estimated number of
       Industry  establishments                                 establishments required      recordable cases
                                                                    to keep records         annually in these
----------------------------------------------------------------------------------------------------------------
Agricultural Production...............  SIC 01-02                                56,367                   46,770
Agricultural Svcs, Forestry, Fishing..  SIC 07-09                                16,271                   54,022
Oil and Gas Extraction................  SIC 13                                    5,367                   13,851
Construction..........................  SIC 15-17                               114,470                  415,500
Manufacturing.........................  SIC 20-39                               196,643                2,060,900
Transportation, Postal, Utilities.....  SIC 41-49                               157,390                  516,653
Wholesale Trade.......................  SIC 50-51                               219,678                  403,240
Building Materials/Garden Supplies....  SIC 52a                                  22,339                   56,091
General Merchandise Stores............  SIC 53                                   28,519                  180,909
Food Stores...........................  SIC 54b                                  64,443                  126,780
Automotive Dealers....................  SIC 55c                                  23,342                   22,662
Furniture Stores......................  SIC 57d                                  25,580                   24,302
Miscellaneous Retail Stores...........  SIC 59e                                  19,913                   23,750
Real Estate...........................  SIC 65f                                  17,925                   22,702
Hotels and Other Lodging Places.......  SIC 70                                   23,956                  103,423
Personal Services.....................  SIC 72g                                  14,768                   18,072
Business Services.....................  SIC 73h                                  51,525                   58,659
Automotive Repair, Svcs, Parking......  SIC 75                                   41,575                   40,359
Miscellaneous Repair Services.........  SIC 76i                                  12,294                   17,686
Amusement and Recreation Services.....  SIC 79j                                  20,602                   79,623

[[Page 6089]]

 
Health Services.......................  SIC 80k                                  38,996                 995,122l
Social Services.......................  SIC 83m                                  25,998                   25,349
Museums...............................  SIC 84n                                     236                    2,408
State and Local Government Employers                                            167,788                  519,646
 in State Plan States.
                                                               -------------------------------------------------
      TOTAL: Final Ruleo..............                                        1,365,985                5,828,477
                                                               -------------------------------------------------
      TOTAL: Former Ruleo.............                                        1,306,418               4,907,081
----------------------------------------------------------------------------------------------------------------
a Consists of Lumber & Other Building Materials (SIC 521); Paint, Glass, & Wallpaper Stores (SIC 523); Retail
  Nurseries & Garden Stores (SIC 526); and Mobile Home Dealers (SIC 527).
b Consists of Grocery Stores (SIC 541) and Fruit and Vegetable Markets (SIC 543).
c Consists of Auto and Home Supply Stores (SIC 553); Boat Dealers (SIC 555); and Recreational Vehicle Dealers
  (SIC 556).
d Consists of Furniture & Homefurnishings Stores (SIC 571) and Household Appliance Stores (SIC 572).
e Consists of Used Merchandise Stores (SIC 593); Nonstore Retailers (SIC 596); and Fuel Dealers (SIC 598).
f Consists of Real Estate Operators and Lessors (SIC 651) and Subdividers and Developers (SIC 655).
g Consists of Laundry, Cleaning, and Garment Services (SIC 721).
h Consists of Services to Buildings (SIC 734); Miscellaneous Equipment Rental and Leasing (SIC 735); and
  Personnel Supply Services (SIC 736).
i Consists of Electrical Repair Shops (SIC 762); Watch, Clock and Jewelry Repair (SIC 763); and Miscellaneous
  Repair Shops (SIC 769).
j Consists of Commercial Sports (SIC 794) and Miscellaneous Amusement & Recreation Services (SIC 799).
k Consists of Nursing and Personal Care Facilities (SIC 805); Hospitals (SIC 806); and Home Health Care Services
  (SIC 808).
l Includes estimated 501,640 needlesticks and sharps not now recordable that are covered by the final rule.
m Consists of Job Training and Related Services (SIC 833) and Residential Care (SIC 836).
n Consists of Botanical and Zoological Gardens (SIC 842).
o Sulfur mining (part of SIC 1479) is excluded because information is not available.
Sources: U.S. Census Bureau compilation of 1996 establishment and employment data by parent firm, performed for
  the Small Business Administration; Bureau of Labor Statistics 1998 Survey of Occupational Injuries and
  Illnesses.

    The final regulation covers an estimated total of 1,365,985 
establishments belonging to 699,712 employers. The number of 
establishments covered by the rule represents a net increase of 4.6 
percent over the 1,306,418 establishments covered by the former 
regulation. This increase in the number of establishments covered 
results from the changes made to the scope of the final rule.
(2) Number of Recordable Cases
    Table X-4 also shows the number of recordable cases of occupational 
injury and illness, by industry, covered by the final regulation. These 
are taken from unpublished data from the 1998 BLS Survey of 
Occupational Injury and Illness.
    The final regulation will annually capture an estimated total of 
5,828,477 occupational injury and illness cases. Of these cases, 
275,000 represent additional hearing loss cases and 501,640 represent 
additional needlestick and sharps injuries anticipated to occur in SIC 
80. The needlestick and sharps number represents 85 percent of the 
estimated 590,165 needlestick and sharps injuries occurring in SIC 80 
(63 FR 48250, September 9, 1998; Ex. 3-172V, Docket No. H370A), since 
OSHA estimates that approximately 15 percent of such injuries were 
being recorded under the former rule. Since not all of SIC 80 is 
covered by the final rule, this figure is likely to overstate the 
number of recordable cases to some extent.
    Exclusive of the 275,000 additional hearing loss cases and the 
501,640 additional needlestick and sharps injuries, the final 
regulation will capture an estimated 5,051,837 cases annually. This is 
an increase of 3 percent over the 4,907,081 cases captured by the 
former rule. This increase in capture reflects changes in the scope of 
the rule that are designed to target the regulation more precisely to 
high-risk industries in the retail and service sectors of the economy. 
This increase in the rule's capture efficiency, or cost-effectiveness, 
is reflected by the fact that the industries that are newly covered 
under the final rule average 2.6 times as many cases per covered 
establishment as the industries the final rule would newly exempt.

3. Costs

A. Overview of the Analysis

(1) Background
    This chapter assesses the changes in compliance costs associated 
with the changes the Occupational Safety and Health Administration 
(OSHA) is making to 29 CFR part 1904, the Agency's Recording and 
Reporting Occupational Injuries and Illnesses rule, and its associated 
forms and instructions. The analysis relies in part on methodology and 
estimates provided in a study conducted for OSHA by Meridian Research, 
Inc. The Meridian analysis has been updated to reflect more recent data 
as well as changes that OSHA has made to the regulation in the interval 
since the Meridian report was prepared, and to reflect comments on the 
proposed rule.
    The great majority of the establishments covered by the rule are 
small, i.e., have fewer than 20 employees. On average, a covered 
establishment records 4 occupational injury and illness cases per year, 
and the recordkeeping decisions involved in these cases are generally 
straightforward and easy to make (e.g., the injuries involve 
lacerations, slips and falls, or fractures). Unlike other OSHA rules, 
the recordkeeping rule does not require employers to implement 
engineering controls, change employee work practices, provide 
protective equipment, or take other costly actions to protect their 
employees' safety and health. Instead, the costs of this rule are based 
on the costs associated with the time the recordkeeper and others spend 
in maintaining the records and overseeing the recordkeeping system. 
OSHA's estimates of the time necessary to perform each step of the 
recordkeeping process, including the time to consider and record each 
case, maintain the Log, and perform other recordkeeping tasks, have 
been reviewed and commented on

[[Page 6090]]

by the public and approved by the Office of Management and Budget in 
connection with the process required by the Paperwork Reduction Act of 
1995. Even if OSHA's estimates of the time involved in making, 
determining, and overseeing the records involved in the recordkeeping 
system are low, for example, by a factor of two or so, the costs 
imposed by the final rule are low in comparison with the benefits of 
the system and are readily affordable by covered establishments. (See 
the Impacts section of this economic analysis.)
    Because the final regulation makes a number of changes, some of 
which increase the amount of information employers must maintain and 
others that simplify recordkeeping and reduce the burden, it is 
difficult to estimate the precise impact of a given change on 
establishments in particular industries. Moreover, most individual 
changes have only a minor impact on burdens, whether positive or 
negative. Accordingly, the analysis groups together changes to a 
specific portion of the recordkeeping activities, such as maintaining 
the Log or filling out the individual report of injury, and (for the 
most part) assesses the net impact of the group of provisions, rather 
than the impact of each provision individually.
    The analysis reflects the fact that the final regulation is a 
revision of a former regulation. Thus many of the impacts are changes 
in the burden of doing something that is already required. Wherever 
this is the case, the burden under the former and final regulations 
will be the same if the activities are unchanged. In addition, small 
changes in burden estimates, both positive and negative, may offset 
each other.
(2) Analytical Approach
    Scope. The costs of the final rule depend in part on the scope of 
the rule, i.e., on the industries that are covered. As noted in Chapter 
II, affected industries fall into three groups, depending on their 
inclusion or exemption under the former and final rules. Impacts differ 
for each of these three groups:

--For industries covered under the former rule and the final rule, 
impacts are the costs employers will incur to comply with changes made 
in a regulatory provision.
--For industries covered by the former rule but exempted under the 
final rule, impacts consist of cost savings equal to the cost of 
compliance employers incurred under the former rule.
--For industries exempted under the former rule but covered by the 
final rule, impacts are the total cost of compliance employers will 
incur under the final rule.

    In examining the costs of this rule, it is critical to remember 
certain basic characteristics of affected facilities. On average, 
facilities subject to recordkeeping have about 50 employees and record 
about four injuries and illnesses a year. Because the size distribution 
of facilities is somewhat skewed, the majority of establishments record 
fewer than four injuries and illnesses a year and have fewer than 20 
employees. Some commenters appeared to be unaware of the small number 
of injuries and illnesses recorded by the typical affected 
establishment when commenting on the proposal. For example, the comment 
of one commenter that the typical establishment will need to train 2 to 
4 recordkeepers (Ex. 15-375) is clearly not reasonable because the 
typical establishment covered by this rule employs about 50 employees 
and records a total of four injuries and illnesses a year.
    The impacts of changes in specific regulatory provisions are 
generally related to one of two factors:
     Costs that are essentially fixed costs for an 
establishment are estimated on a per-establishment basis and multiplied 
by the number of affected establishments.
     Costs that vary with the number of cases recorded are 
estimated on a per-case-recorded basis and multiplied by the number of 
such cases recorded.
    Other Parameters. Burdens are estimated as number of minutes (per 
establishment or per case) to comply with each provision. Most of the 
costs are based on the assumption that recordkeeping tasks will be 
conducted by someone with the skill level of a personnel specialist who 
would be qualified both to obtain and to enter the necessary data. The 
wage rate for a Personnel Training and Labor Relations Specialist--
$19.03, or $26.32 including fringe benefits \9\--is used for this cost. 
Where the time of a company official is called upon, the estimated 
labor cost is based on the hourly rate for an Industrial Production 
Manager--$26.38, or $36.48 including fringe benefits.
---------------------------------------------------------------------------

    \9\ Benefits and overhead are computed at 38.3 percent of the 
hourly wage.
---------------------------------------------------------------------------

    Cost estimates for many specific tasks are also influenced by the 
fact that almost all establishments will also have to gather 
information on work-related injuries and illnesses for insurance and 
workers' compensation purposes. In many cases, the data that employers 
must collect and provide for these purposes are considerably more 
detailed than those required by OSHA. Even OSHA recordable injuries and 
illnesses that turn out, in the end, not to be workers' compensation 
claims are likely to be investigated to determine their status in 
relation to the workers' compensation system. As a result, much of the 
basic data gathering necessary to the recording of injuries and 
illnesses has already been done independent of the OSHA recordkeeping 
requirements, and, in most cases, making the OSHA record simply 
involves copying information from other sources to the OSHA form.
(3) Overview of Estimates
    The estimated net impact of the revisions to the recordkeeping rule 
is a cost of $38.6 million per year. Estimated net costs for 
establishments covered by the former rule that will continue to be 
covered by the final rule are relatively minor, and the estimated 
119,720 establishments that OSHA has exempted from the final rule will 
incur substantial savings. The chief cost increases will be to the 
179,287 establishments brought under the scope of OSHA's recordkeeping 
rule for the first time.

B. Initial Costs of Learning the Recordkeeping System

(1) Initial Costs to Establishments Already Covered of Becoming 
Familiar With the Revised Recordkeeping System
    Recordkeepers in establishments that were covered by the former 
regulation and that will continue to be covered under the final 
regulation will need to become familiar with the changes in the 
recordkeeping system associated with the final rule even before an 
injury or illness occurs. OSHA originally estimated that this initial 
familiarization would require 15 minutes per such establishment. Some 
commenters objected to this estimate as too low. (See, for example, 
Exs. 15: 119, 15: 357, 15: 375, 15: 395.) For example, one commenter 
(Ex. 15: 395) stated that ``No person could give even a superficial 
reading to this material [the proposed rule] in 15 minutes.'' Another 
commenter (Ex. 15: 375) stated that this was ``not enough time for one 
person to even read through the rule and the preamble one time.'' OSHA 
does not believe that experienced recordkeepers will need to read the 
entire preamble, or even the entire rule, in order to familiarize 
themselves with the new recordkeeping changes. For the most part, the 
new system continues the concepts, practices, and interpretations 
developed under the former rule and

[[Page 6091]]

thus is well known to recordkeepers. OSHA believes that most 
recordkeepers will avail themselves of the summaries of the changes in 
the rule provided by OSHA or by a wide variety of other sources. The 
recordkeepers' thorough knowledge of the recordkeeping system will 
suffice to cover most aspects of the rule. Nor does OSHA agree that the 
typical recordkeeper, who needs to record only 4 injuries and/or 
illnesses a year, needs to study every change. For example, a 
recordkeeper relying on OSHA's summary information on the differences 
between the former and the revised rule only needs to make a mental 
note to the effect that injuries and illnesses occurring in parking 
lots are treated differently under the revised rule, but would not have 
to know the details of the changes until (if ever) the recordkeeper 
actually has an injury or illness that occurred in a parking lot. 
Nevertheless, as a result of the comments received on the prior 
proposed time estimates, OSHA has raised its familiarization estimate 
to 20 minutes per establishment for facilities with prior OSHA 
recordkeeping experience. This estimate covers the time needed for an 
experienced recordkeeper to learn the basics of the new system, but 
assumes that such a recordkeeper, who records an average of four cases 
per year, need not learn the details of the system for dealing with 
unusual cases until, and if, they arise; instead, this recordkeeper is 
assumed to examine specific issues later and as needed, when issues 
arise in the course of the recording of actual cases. The time 
attributed in this analysis to the recording of individual cases 
(discussed below) includes the time needed to understand the details of 
the individual case. It is assumed that this subsequent learning will 
occur as recordkeepers enter the data; that is, the time that OSHA 
estimates will be initially required to complete both Form 300 and Form 
301 entries includes the time that the Agency estimates will be needed 
for additional familiarization with issues related to the entry being 
made. The costs for this subsequent recording activity are discussed in 
Part D of this section of the economic analysis. The initial 
familiarization cost is a one-time cost that will not recur. 
Accordingly, this cost was annualized over ten years using a 7 percent 
discount rate. The net annualized costs of this initial familiarization 
activity are $1,482,384.\10\
---------------------------------------------------------------------------

    \10\ $1,482,384 = (1,186,698 Establishments)  x  (20 Minutes/
Establishment)  x  ($26.32/Hr.)  x  [0.07/(1-(1/(1.07) 
10))]
---------------------------------------------------------------------------

(2) Costs of Learning the Basics of the Recordkeeping System De Novo
    Establishments required to keep OSHA records will incur the costs 
associated with learning about the recordkeeping system from scratch 
whenever a new person takes over the recordkeeping job as a result of 
staff turnover. OSHA assumes that 20 percent of covered establishments 
will experience such staff turnover in any given year. Establishments 
that are newly covered by the regulation will also incur the costs of 
learning the recordkeeping system de novo. Establishments that are 
newly exempted under the regulation, of course, will save the staff 
turnover costs formerly associated with recordkeeping.
    At the time of the proposal, OSHA estimated that, under the former 
regulation, new personnel would require a 30-minute orientation to 
learn the basics of the recordkeeping system and 25 minutes to learn 
the newer, simpler recordkeeping system. Many commenters believed that 
these estimates were too low. (See, for example, Exs. 15: 119, 15: 170, 
15: 357, 15: 375.) After reviewing the record, OSHA agrees that the 
estimates in the Preliminary Economic Analysis did not adequately 
capture the average amount of time required to learn the system for a 
person without previous knowledge of OSHA recordkeeping. OSHA has 
revised its average estimate of the time for learning the new 
recordkeeping system de novo to one hour and has revised the average 
estimate of the time it would have taken a recordkeeper to learn the 
previous recordkeeping system to 1.5 hours. (In other words, OSHA 
believes that its prior estimate of the average amount of time required 
to learn the former recordkeeping system--30 minutes--was too low.)
    Although OSHA's revised average estimates are lower than the 
estimates made by some commenters, OSHA believes that the Agency's 
estimates appropriately reflect the average amount of time new 
recordkeepers will need to learn the basics of the system. Again, new 
recordkeepers are assumed not to learn all the details of the new 
system up front, such as exactly when an off-site injury is considered 
work-related or how to classify injuries occurring in lunch rooms, 
until such a case actually arises in the workplace. Since unusual cases 
and those falling within the exceptions are relatively rare, 
recordkeepers will generally choose to obtain detailed case-specific 
information only when it is needed. New recordkeepers need only to know 
that such exceptions exist and that further study of the rule will be 
necessary in the relatively unlikely event that such an injury or 
illness occurs. OSHA's estimates of the time required to record each 
case (discussed further below) include the time for the recordkeeper to 
study the instructions to learn how to address specific issues that may 
arise when recording specific types of injuries or illnesses (e.g., 
noise-induced hearing loss or work-related TB cases).
    OSHA believes that the new system is much simpler than the old. 
Many simplifications, e.g., the use of calendar days, capping of days 
away cases, have been made to the rule to save effort. This additional 
simplicity, as well as improved outreach materials to explain the new 
regulation, will, OSHA believes, result in significantly reducing the 
length of time required to learn the system. OSHA estimates that 
learning the basics will take, on average, one hour. This will save 30 
minutes compared to the learning time that would have been required for 
the former system.

    Continuously Covered Establishments. Establishments that were 
covered under the former regulation and continue to be covered under 
the final regulation will save 30 minutes, compared with the time 
needed under the former rule, whenever staff turnover requires a new 
recordkeeper. At a 20 percent turnover rate, the net annualized 
savings for this learning activity under the final rule are 
$3,123,394.\11\
---------------------------------------------------------------------------

    \11\ $3,123,394 = (1,186,698 Establishments)  x  (0.2)  x  (30 
Minutes/Establishment)  x  ($26.32/Hour)
---------------------------------------------------------------------------

    Newly Exempted Establishments. Establishments that were covered 
under the former regulation but are exempted under the final 
regulation will incur a saving of 90 minutes whenever staff turnover 
would have required a new recordkeeper. At a 20 percent turnover 
rate, the net annualized savings of eliminating the need for this 
learning activity are $945,309.\12\
---------------------------------------------------------------------------

    \12\ $945,309 = (119,720 Establishments)  x  (0.2)  x  (90 
Minutes/Establishment)  x  ($26.32/Hour)
---------------------------------------------------------------------------

    Newly Covered Establishments. Establishments that were exempt 
under the former regulation but are covered under the final 
regulation will incur two types of costs: All establishments will 
incur an initial learning cost of one hour per establishment. Since 
this is a one-time cost that will not recur, the cost was annualized 
over ten years using a 7 percent discount rate. In addition, these 
establishments will incur an ongoing cost of 60 minutes whenever 
staff turnover requires a new recordkeeper to become familiar with 
the system. The net annualized costs of this learning activity are 
$671,856 + $943,756 = $1,615,612.\13\
---------------------------------------------------------------------------

    \13\ $1,615,612 = (179,287 Establishments)  x  (60 Minutes/
Establishment)  x  ($26.32/Hour)  x  [0.07/(1-(1/(1.07) 
10))] + (179,287 Establishments)  x  (0.2)  x  (60 
Minutes/Establishment)  x  ($26.32/Hour)

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

[[Page 6092]]

(3) Total Cost Impact

    Table X-5 summarizes the total annualized cost impacts of 
initially learning the recordkeeping system under the final 
regulation. The total net annualized impact is estimated to be a 
saving of $970,757.

C. Fixed Costs of Recordkeeping

    A number of the cost items associated with the final rule do not 
vary with the size of the establishment or the number of cases 
reported. These include the costs of setting up the Log, posting the 
Summary, certifying the Summary, and providing data from the Log to 
OSHA inspectors. Impacts in this category are related to the number 
of establishments covered and the specific changes in recordkeeping 
requirements.

                         TABLE X-5--Familiarization Costs Associated With the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                          Change in  level of
                                                          Estimated              effort
  Cost element/industry status under the final rule       number of   ---------------------------   Total cost
                                                       establishments  (Minutes)       Hours
----------------------------------------------------------------------------------------------------------------
Shift to the New Recordkeeping System:
    Formerly & Still Covered.........................       1,186,698         20         395,566   a,b$1,482,384
Initally Learn the Basics of the Recordkeeping
 System:
    Newly Covered....................................         179,287         60         179,287      a,b671,856
Re-learn the Basics of the Recordkeeping System:
    Formerly & Still Covered.........................         237,340        -30        -118,670     a-3,123,394
    Newly Exempted...................................          23,944        -90         -35,916       a-945,309
    Newly Covered....................................          35,857         60          35,857        a943,756
                                                      ----------------------------------------------------------
        Total Annual Cost............................  ..............  .........        c456,124        970,757
----------------------------------------------------------------------------------------------------------------
a Based on an hourly cost of $26.32.
b One-time cost that is annualized over 10 years at a discount rate of 7 percent.
c Includes 574,853 hours that will be required in the first year only.

(1) Setting Up the Log and Posting the Summary

    Both the former rule and the final rule require that the Log be 
set up at the beginning of the year and that the Annual Summary be 
posted on February 1 of the year following the year to which the 
data pertain. The final regulation requires that the Summary remain 
posted for three months, while the former regulation required that 
it remain posted for only one month.
    OSHA estimates that the process of setting up the Log and 
filling out and posting the Summary under the former regulation 
required 8 minutes. OSHA has no reason to believe that this burden 
will change as a result of the final rule. Most of the concern 
expressed in the comments on the proposed recordkeeping rule related 
to the burden commenters perceived to be associated with updating 
the posted Summary form when revisions were made and mailing out the 
Summary as an alternative to posting (see, e.g., Exs. 15: 288, 303, 
395). Updating the posted Summary was never OSHA's intent, and the 
final rule has dropped the mailing alternative, so that both of 
these concerns are now moot. Any possible increase in burden due to 
the longer posting periods for the Summary (posting for 3 months 
rather than 1 month) should be offset by greater simplicity in 
keeping the Log using the new forms.
    The final rule's changes in posting requirements will have no 
impact on establishments that were covered under the former rule and 
will be covered under the final rule. Establishments that are newly 
exempted by the final rule will have an annual savings of 8 minutes 
each, however. Establishments that are newly covered will incur an 
annual cost of 8 minutes each. The total estimated impact of these 
changes in scope is a net cost of -$420,146 + $629,180 = 
$209,034.\14\
---------------------------------------------------------------------------

    \14\ $209,034 = (-119,720 + 179,287 Establishments)  x  (8 
Minutes/Establishment)  x  ($26.32/Hour)
---------------------------------------------------------------------------

(2) The Annual Summary

    The final rule adds a requirement for employers to record on the 
Log Summary the average number of employees working in the 
establishment over the past year and the total hours worked by all 
employees during that year. OSHA initially estimated that recording 
these data on the Summary would add 5 minutes of labor per 
establishment to the cost of maintaining each Log. Many commenters 
noted that this step might be difficult, and some stated that it 
might be more time consuming than estimated. (See, e.g., Ex. 15: 
170.) One commenter stated that this information was sufficiently 
valuable for management purposes that firms would benefit from 
having the data if they did not already compile these data (Ex. 15: 
395). The commenters who argued that this requirement would be 
burdensome were generally large multi-establishment firms (see, 
e.g., Exs. 15: 218, 15: 423). Since OSHA's estimate of this cost is 
per establishment, these firms would indeed bear higher costs. OSHA 
does not believe that this requirement will necessitate 
modifications to data systems for the vast majority of firms; 
finding where the data are on existing systems should suffice. OSHA 
also believes that the final rule has clarified that the average 
number of employees and hours worked need not be precise and can 
simply be an estimate, which should reduce the amount of effort 
required to generate this number. The Agency thus finds that this 
procedure will be relatively simple for most single-establishment 
firms that maintain personnel records that already have this 
information for a variety of other purposes. However, OSHA also 
recognizes that firms with more than one establishment may keep this 
information only on a firm, not establishment, basis, and may need 
to perform calculations to compile or revise the data available from 
their management systems. To account for this, OSHA has raised its 
average estimate of the time required for the additional information 
to 20 minutes.
    This burden is estimated to fall on all establishments covered 
by the rule, but not on newly exempted establishments. The total 
estimated cost of this additional data requirement is $10,411,297 + 
$1,572,936 = $11,984,233.\15\
---------------------------------------------------------------------------

    \15\ $11,984,233 = (1,186,698 + 179,287 Establishments)  x  (20 
Minutes/Establishment)  x  ($26.32/Hour)
---------------------------------------------------------------------------

    The former rule required the recordkeeper to certify that the 
entries on the Summary were true, accurate, and complete. The final 
rule requires a company executive to certify that he or she has 
examined this document and ``reasonably believes, based on his or 
her knowledge of the process by which the information was recorded, 
that the annual summary is correct and complete.''
    OSHA estimated, at the time of the proposal, that the former 
requirement that the recordkeeper certify the Summary cost an 
average of 2 minutes, because all the recordkeeper had to do was 
sign the form. The final rule drops the requirement for recordkeeper 
certification.
    Having the Summary certified by a company executive was 
estimated at the time of the proposal to require only 5 minutes.\16\ 
OSHA now estimates that certification by a

[[Page 6093]]

company executive will require 30 minutes, because the Agency 
believes that the company executive will briefly review the records, 
perhaps speak with the recordkeeper, and generally take whatever 
steps are necessary to assure himself/herself that the records are 
accurate. Although, as noted above, the typical firm covered by the 
rule only records 4 cases per year and these cases are generally 
straightforward, OSHA believes that the certifying executive will 
need this amount of time, on average, to perform this task 
thoughtfully. Again, this estimate is an average estimate--it will 
take longer for some very large firms and less time for small firms. 
Estimated impacts on the different classes of establishments are as 
follows:

    \16\ The proposal would have replaced certification by the 
recordkeeper with certification by a plant manager. Many commenters 
stated that this would have required the plant to become personally 
familiar with the information being certified, and that this would 
have entailed considerably more time than 5 minutes (see, e.g., Exs. 
15-9, 15-355, 15-428, 15-395).
---------------------------------------------------------------------------

    Continuously Covered Establishments. Establishments that were 
covered by the former rule and will be covered by the final 
regulation will save the costs for certification by the 
recordkeeper, but will incur new costs for certification by a 
responsible company official. This change in requirements results in 
an estimated total annual cost of $20,604,232.\17\
---------------------------------------------------------------------------

    \17\ $20,604,232=(1,186,698 Establishments)  x  (-2 Minutes/
Establishment)  x  ($26.32/Hour) + (30 Minutes/Establishment)  x  
($36.48/Hour)
---------------------------------------------------------------------------

    Newly Exempted Establishments. Establishments that were covered 
by the former regulation but are exempted from the final regulation 
will realize a cost saving of 2 minutes of recordkeeper time. The 
estimated total annual savings will be $105,043.\18\
---------------------------------------------------------------------------

    \18\ $105,043=(119,720 Establishments)  x  (2 Minutes/
Establishment)  x  ($26.32/Hour)
---------------------------------------------------------------------------

    Newly Covered Establishments. Establishments that were exempt 
under the former regulation but are covered by the final regulation 
will incur costs of 30 minutes of company official time. The total 
annual cost is estimated to be $3,270,213.\19\
---------------------------------------------------------------------------

    \19\ $3,270,213=(179,287 Establishments)  x  (30 Minutes/
Establishment)  x  ($36.28/Hour)

    The total impact of the final rule's certification requirement is 
estimated to be $23,769,204.
(3) Provision of Data to OSHA Inspectors
    Like the former rule, the final rule requires employers to provide 
the Log and Incident Reports to an OSHA inspector during a compliance 
visit. Employers are now required by the final rule to provide a copy 
of these forms to the inspector on request. OSHA believes that 
providing copies has in fact been the practice in the past, even though 
the former rule did not spell this out specifically. OSHA thus does not 
believe that this small change in the regulation will result in burdens 
or costs for employers.
(4) Informing Employees How To Report Occupational Injuries and 
Illnesses
    The final regulation requires employers to set up a way for 
employees to report work-related injuries and illnesses and inform 
employees about the approach they have chosen. OSHA assumes that it 
will take a Personnel Training and Labor Relations Specialist (or 
equivalent) at each establishment an average of twenty minutes to 
decide on a system and inform employees of it. The ``way'' will usually 
simply involve directing supervisors to inform their subordinates, as 
part of their usual communication with them, to report work-related 
injuries and illnesses to their supervisor. Most, if not all, 
establishments require employees routinely to report problems of any 
kind to their supervisors, and reporting injuries and illnesses is 
simply one of the kinds of things employees report. OSHA believes there 
will be no additional cost associated with the supervisors' forwarding 
of these reports to the person in charge of recordkeeping, because this 
is already part of supervisors' duties. This is a one-time cost, which 
OSHA has annualized over ten years using a 7 percent discount rate. The 
net annualized costs of setting up the system are $1,706,285.\20\
---------------------------------------------------------------------------

    \20\ $1,706,285=(1,365,985 Establishment)  x  (20 Minutes/
Establishment)  x  ($26.32/Hr.)  x  [0.07/(1-(1/
(1.07)10))]
---------------------------------------------------------------------------

(5) Total Cost Impact
    Table X-6 summarizes the total annualized cost impacts of fixed, 
establishment-level costs resulting from the final regulation. The 
total net annualized costs are estimated to be $37,668,954.

BILLING CODE 4510-26-P

[[Page 6094]]

[GRAPHIC] [TIFF OMITTED] TR19JA01.079

BILLING CODE 4510-26-C

[[Page 6095]]

D. Costs of Maintaining Records

    The costs of maintaining the Log and Incident Reports are related 
to the number of cases recorded. There are numerous changes to the 
final rule that result in very small increases or decreases in the 
number of cases that will need to be recorded. With two exceptions, 
OSHA concludes that the average establishment keeping records under 
both the former rule and the final rule will experience an overall 
decrease in the number of occupational injury and illness cases entered 
into its OSHA records. These decreases will result from the addition of 
several exemptions to the presumption of work-relatedness for cases 
occurring in the work environment and from definitional changes (e.g., 
medical treatment, first aid, restricted work, aggravation) that will 
make fewer cases recordable. However, for this analysis, OSHA makes the 
conservative assumption that these will net out to a zero change. This 
assumption means that the costs presented in this economic analysis are 
somewhat overstated.
    The two exceptions to the overall decrease in the number of cases 
recorded are the result of the change to a more sensitive standard 
threshold shift for recording hearing loss, which will increase the 
number of cases in all industries except construction, and the new 
requirement to record needlesticks and sharps injuries, which will 
result in a relatively large increase in the number of cases recorded 
in SIC 80.
    The costs for SIC 80 are analyzed separately. The analysis uses the 
following classes of industries:
    For industries covered by the former regulation and now covered by 
the new regulation, except for SIC 80, OSHA assumes that the number of 
needlestick cases recorded will essentially be unchanged by the final 
regulation.
    For industries (except in SIC 80) covered by the former regulation, 
but exempted under the final regulation, recorded cases will fall to 
zero, resulting in commensurate savings.
    For industries exempted under the former regulation but covered by 
the final regulation, the impact will be the full cost of recording 
such cases.

    In SIC 80, recorded cases in three-digit industries that are 
newly exempted (see Table X-3) will fall to zero, resulting in 
commensurate savings. The industries that will continue to be 
covered (SIC 805, Nursing and Personal Care Facilities, SIC 806, 
Hospitals, and SIC 808, Home Health Care Services) will bear the 
full cost of recording the expected increase in needlesticks and 
sharps cases. This increase in cases will be analyzed in the same 
manner as cases in newly covered industries.

(1) Impacts on Costs of the Final Rule's Changes in Scope
    The changes in the scope of the final rule's industry coverage will 
bring commensurate changes in the costs of the regulation. OSHA 
estimates that, under the former regulation, it required an average of 
15 minutes per recorded case to maintain the Log, plus 20 minutes to 
fill out a 101 form, for those employers who did not use an equivalent 
form.
    The addition of new elements to Form 301, as will be described 
shortly, raises OSHA's estimate of the total time required to fill out 
an individual report of injury or illness to 22 minutes. Based on data 
collected during approximately 400 recordkeeping audit inspections, 
OSHA assumes that 82 percent of incidents will be recorded on forms 
other than the new Form 301, such as workers' compensation forms.
    The average for the Log takes into account a wide range of cases. 
For clearly work-related injuries involving an absence of 10 work days 
and involving no additional restricted time, for example, essentially 
all of the necessary information can be obtained from workers' 
compensation-related files. In such a case, entering the data on the 
Log will simply require pulling the workers' compensation file and 
entering the key information on the Log--a three minute task. OSHA 
assumes that the time required to make an entry will increase when 
either (1) information is not already kept for other purposes, or (2) 
making the entry requires the recordkeeper to study the regulation. 
Examples of situations where the necessary information would not 
already have been recorded elsewhere are cases that are not recorded as 
workers' compensation cases, or cases involving restricted work days 
(which are not recorded in workers' compensation data and may not be 
part of the affected worker's payroll or personnel files). Examples of 
situations where it would be necessary to study the regulation are 
those involving questions about the recordability of the incident or 
its work-relatedness. Changes in scope will have different impacts on 
the different classes of industries, as follows:

     Continuously Covered Establishments. By definition, 
establishments in industries formerly covered and still covered by 
the final regulation will have no changes in costs related to 
industry scope.
     Newly Exempted Establishments. Establishments that were 
covered by the former regulation but are exempt from the final 
regulation will realize for each currently recorded case a cost 
saving of 15 minutes for the Log entry plus, for 18% of the cases, a 
saving of 20 minutes for the 301 form. The estimated total annual 
savings will be $405,499.\21\
---------------------------------------------------------------------------

    \21\ $405,499 = ((49,698 Cases)  x  (15 Minutes/Case) + (8,946 
Cases)  x  (20 Minutes/Case))  x  ($26.32/Hours).
---------------------------------------------------------------------------

     Newly Covered Establishments. Establishments that were 
exempt under the former regulation but are covered by the final 
regulation will incur for each currently recorded case costs of 15 
minutes for the Log entry plus, for 18% of the cases, 22 minutes for 
the 301 form. The total annual cost is estimated to be 
$1,646,000.\22\
---------------------------------------------------------------------------

    \22\ $1,646,000 = ((197,904 Cases)  x  (15 Minutes/Case) + 
($35.623 Cases)  x  (22 Minutes/Case))  x  ($26.32/Hours).
---------------------------------------------------------------------------

     Additional Hearing Loss Cases. Establishments will 
incur for each additional hearing loss case costs of 15 minutes for 
the Log entry plus, for 18% of the cases, 22 minutes for the 301 
form, or an estimated total annual cost of $2,287,208.\23\
---------------------------------------------------------------------------

    \23\ $2,287,208 = (275,000 Cases)  x  (15 Minutes/Case)  x  
($26.32/Hour) + (49,500 Cases)  x  (22 Minutes/Case))  x  ($26.32/
Hour).
---------------------------------------------------------------------------

     SIC 80. Establishments in SIC 80 will incur for each 
additional needlesticks and sharps case costs of 5 minutes for the 
Log entry \24\ plus, for 18% of the cases, 22 minutes for the 301 
form, or an estimated total annual cost of $1,971,664.\25\
---------------------------------------------------------------------------

    \24\ Under the simplified criteria of the final rule, 
needlesticks and sharps cases are among the very easiest cases to 
document and record.
    \25\ $1,971,664 = ((501,640 Cases)  x  (5 Minutes/Case) + 
(90,295 Cases)  x  (22 Minutes/Case))  x  ($26.32/Hour).

    (The costs of the ``log of percutaneous injuries from contaminated 
sharps'' specified in the revision of the Bloodborne Pathogens standard 
in conformance with the requirements of the Needlestick Safety and 
Prevention Act have been captured in the analysis of that rule. No 
offset has been taken in the economic analysis of this rule for costs 
common to these two rules for recording needlestick injuries.)
    The estimated total cost impact related to changes in scope of the 
recordkeeping rule is $5,499,373.
(2) Maintenance of the Log
    Form 300 will replace Form 200 as the Log of injuries and 
illnesses. The revisions to this form represent the greatest source of 
cost savings to employers required to record work-related injuries and 
illnesses. The major modifications that result in time and cost savings 
are simplifications of Form 300 and changes and simplifications in the 
criteria for recordable cases.
    Simplification of the Log. Compared to the form that it will 
replace, Form 300 has a more logical progression, makes available 
considerably more space, and eliminates unnecessary columns. OSHA 
estimates that this will take an average of one minute off the time 
required to record cases (except for

[[Page 6096]]

those that involve needlesticks or sharps, which will be analyzed 
separately in this analysis). This simplification of the Log will 
produce a saving of $2,177,240.\26\
---------------------------------------------------------------------------

    \26\ $2,177,240 = (4,963,312 Cases)  x  (1 Minute/Case)  x  
($26.32/Hour).
---------------------------------------------------------------------------

    Simplification of Decisionmaking about Recordability. In estimating 
the savings in time associated with the simplification of recordability 
decisionmaking, OSHA focused primarily on the simplification of the 
steps needed to determine whether an injury or illness is serious 
enough to be recorded. When a work-related injury or illness results in 
days away from work or restricted workdays, then it is obvious under 
both the former and final regulations that the injury or illness must 
be recorded. Under the former regulation, however, the employer was 
required to consult several paragraphs of the Recordkeeping Guidelines 
to determine whether an injury that did not result in lost or 
restricted workdays would need to be counted. The final regulation will 
allow the employer to settle the issue quickly by looking at the list 
of first aid treatments in Section 1904.7(b)(4).
    Of the cases in the 1998 BLS Survey of Occupational Injury and 
Illness that did not involve needlesticks or sharps, 52.34 percent did 
not involve lost or restricted workdays. In addition to the one minute 
saved for each case because of the forms simplification discussed on 
the previous page, OSHA estimates that the simplification of 
recordability decisionmaking under the final rule will save 
approximately 2 minutes for each such injury or illness case. Applying 
this unit cost saving to all industries covered by the final rule 
produces estimated total savings of $2,279,080.\27\
---------------------------------------------------------------------------

    \27\ $2,279,080 = (2,597,736 Cases)  x  (2 Minutes/Case)  x  
($26.32/Hour).
---------------------------------------------------------------------------

    Under the final rule there will no longer be any need to examine in 
any detail the recordability of any cases involving needlesticks or 
sharps, since all such cases will have to be recorded. OSHA estimates 
that the average time required to record such cases will change from 15 
minutes under the former rule to 5 minutes under the final rule. This 
would save covered establishments in SIC 80 an estimated $388,329.\28\
---------------------------------------------------------------------------

    \28\ $388,329 = (88,525 Cases)  x  (10 Minutes/Case)  x  
($26.32/Hour).
---------------------------------------------------------------------------

    OSHA has also clarified the requirement to record medical removal 
cases by stating in the regulatory text that any case involving medical 
removal required by an OSHA health standard must be recorded as a case 
involving days away from work or restricted work/job transfer (as 
appropriate). OSHA had interpreted the former rule to have the same 
effect, but the former regulatory text did not clearly state the 
requirement. This clarification makes overall compliance with OSHA's 
rules simpler, because both the recordkeeping rule and the OSHA 
standards will rely on the same criteria, such as biological monitoring 
test results, employers' determinations, and physician's opinions, and 
the recording requirements are clearly stated in the regulatory text.
    Under the final rule, days away from work and days of restricted 
work will be counted by calendar days rather than according to 
scheduled work days. One commenter (Ex. 57X, pp. 97-101, 117-118) 
argued that, in the automobile manufacturing industry alone, this could 
free up $5,000,000 to $6,000,000 worth of human resources per year for 
more productive uses of time. However, OSHA has not taken cost savings 
for this change because no data in the record suggest that the 
projections for this industry will be typical of other industries.
    Privacy Concern Cases. The final rule requires maintenance of a 
separate, confidential list of case numbers and employee names for 
``privacy concern cases,'' so that an employee's name does not appear 
on the Form 300. Privacy concern cases include injury or illness to an 
intimate body part or the reproductive system; injury or illness 
resulting from a sexual assault; mental illness; HIV infection, 
hepatitis, or tuberculosis; needlesticks and sharps injuries; and other 
illnesses (except MSD illnesses) that the employee requests be treated 
as a privacy concern case.
    In 1997 BLS estimated that there were 621 days away from work cases 
involving the reproductive tract, 18 rapes, 5,542 mental disorders, and 
no hepatitis cases. (Data are available at www.bls.gov.) In 1997, OSHA 
estimated that there were approximately 34,630 occupational TB 
infections annually. It appears that TB cases have declined somewhat 
since then, but OSHA uses this number in this analysis as a 
conservative estimate.
    The time to record HIV infection cases is included in the estimate 
of the time associated with recording 590,165 needlestick and sharps 
cases, but each of these cases will also require time for making an 
entry in the confidential list of case numbers and employee names. OSHA 
also assumes that employees in 10,000 other illness cases will ask that 
their names not appear on the Form 300.
    OSHA estimates that it will take an average of 3 minutes to record 
each ``privacy concern case'' on the required separate, confidential 
list of case numbers and employee names. The estimated annual cost of 
this provision is thus $843,524.\29\
---------------------------------------------------------------------------

    \29\ $843,524 = (640,976 Cases)  x  (3 Minutes/Case)  x  
($26.32/Hour).
---------------------------------------------------------------------------

(3) Maintenance of Individual Reports of Injury and Illness
    The final regulation substitutes the new Form 301 for the former 
Form 101 and provides other options.
    New Elements on Individual Reports. The new form requires employers 
to record such additional items as the injured or ill employee's date 
of hire, emergency room visits, the starting time of the employee's 
shift, and time of the accident. OSHA estimates that these additional 
elements will raise time required to fill out an individual report of 
injury or illness from 20 minutes for the old Form 101 to 22 minutes 
for the new Form 301. This change will cost employers in industries 
formerly covered and still covered by the final regulation an estimated 
$889,169.\30\
---------------------------------------------------------------------------

    \30\ $889,169 = (1,013,503 Cases)  x  (2 Minutes/Case)  x  
($26.32/Hour).
---------------------------------------------------------------------------

    Changes that will reduce burden include:
    An option to keep Form 301s off-site; and
    An option to keep Form 301s on electronic media.
    Keeping Form 301s Off-site. Keeping Form 301s off-site will provide 
the greatest cost savings to small, isolated establishments that are 
owned by larger firms that already keep personnel data at headquarters 
or at another site. For such firms, OSHA estimates that the ability to 
maintain records off-site could save as much as 5 minutes per record. 
These savings in time and effort would result from reductions in the 
amount of time necessary to copy the Form 301 at headquarters, send it 
to the small establishment, receive it there, and file it. There would 
also be a saving in postage. Under the final rule, such small 
establishments would have to go through all of these steps only when an 
inspection occurred. Even if only 2 percent of the estimated recordable 
cases in establishments that are covered under the final regulation 
were affected by this provision (which OSHA believes is likely to be an 
underestimate), the resulting cost savings would be $294,141.\31\
---------------------------------------------------------------------------

    \31\ $294,141 = (5,630,573 Cases)  x  (0.02)  x  [(5 Minutes/
Case)  x  ($26.32/Hour) + ($0.33/Case)].
---------------------------------------------------------------------------

    Storing Form 301s on Electronic Media. The final rule permits 
employers to store Form 301s on electronic media, provided that they 
are able to produce the records in hard copy within four

[[Page 6097]]

hours of a request by a government representative permitted access 
under the regulation. OSHA estimated that electronic storage would be 
advantageous for establishments that handle more than 100 cases per 
year. OSHA used as a proxy variable for this number the number of 
establishments with 1,000 or more employees. In the 1998 BLS survey, 
establishments in this size category had a total of 899,700 recordable 
cases. OSHA estimates that for each case the ability to store case 
information electronically would save 2 minutes of time, plus $.05, for 
making a paper copy. The estimated cost savings from this change would 
amount to approximately $825,027 per year.\32\ OSHA believes that this 
may be an underestimate, because having even as few as 30 to 40 cases a 
year might be enough incentive to prompt a firm to keep its records 
electronically. To the extent that these much smaller firms turn to 
electronic storage, the cost savings associated with this provision 
could be many times greater than the estimate.
---------------------------------------------------------------------------

    \32\ $825,027 = (889,700 Cases  x  [(2 Minutes/Case)  x  
($26.32/Hour) + ($0.05/Case)].
---------------------------------------------------------------------------

(4) Employee and Employee Representative Access
    The final regulation requires employers to provide employees and 
their representatives access to Form 301s and to pay the cost of one 
copy. (It also requires them to allow access to the Log, but this is 
not a change from the former rule.) OSHA assumes that employers would 
require five minutes to pull, copy (at $0.05), and replace the relevant 
form. OSHA assumes that (a) at one-tenth of covered establishments, one 
employee would request access to his or her own Form 301, and (b) at 
one percent of covered establishments, a union representative would 
request access to all Form 301s at the establishment. OSHA further 
assumes that there would be an average of ten Form 301s at such 
establishments.\33\ The estimated total cost of this provision is 
$612,860.\34\
---------------------------------------------------------------------------

    \33\ This is a conservative estimate. The average number of 
cases per covered establishment was only about 4 in 1998. Further, 
some employers already provide copies of Form 301s to union 
representatives. [Transcript, March 29, 1996, p. 14].
    \34\ $612,860 = (273,197 Forms  x  [(5 Minutes  x  ($26.32/Hour) 
+ $.05/Copy)].
---------------------------------------------------------------------------

(5) Access to Other Parties
    The final regulation requires that if employers voluntarily 
disclose Forms 300 or 301 to persons other than government 
representatives, employees, former employees, of authorized 
representatives, they must remove or hide the employees' names, with 
certain exceptions. Since employers may accomplish this by simply 
covering part of the form before they copy it, OSHA considers this 
requirement to impose no costs.
(6) Total Cost Impact
    Table X-7 summarizes the cost impacts of maintaining records 
attributable to the final regulation. The net impact is an estimated 
annual cost of $1,881,080.

E. Summary of Costs

    Table X-8 summarizes the total annualized cost impacts of the 
entire final rule. This summary indicates that:
    The largest sources of costs are: New certification requirements 
($23.8 million), additional data requirements ($12.0 million), 
expansion in the scope of the rule ($5.5 million), and transitional 
costs of the new rule ($1.5 million).
    The largest sources of savings are: Simplified maintenance of the 
Log ($4.8 million), less time required to relearn the recordkeeping 
system ($3.1 million), simplified maintenance of individual reports 
($1.1 million).
    The net impact of these changes is an estimated annual cost of 
about $38.6 million.

BILLING CODE 4510-26-P

[[Page 6098]]

[GRAPHIC] [TIFF OMITTED] TR19JA01.080


[[Page 6099]]


[GRAPHIC] [TIFF OMITTED] TR19JA01.081

BILLING CODE 4510-26-C

[[Page 6100]]

4. Benefits

    OSHA's final Recording and Reporting Occupational Injuries and 
Illnesses rule is designed to provide an information base to assist 
employers and employees to maintain safe and healthy working conditions 
that protect workers. The importance of the contribution of accurate 
recordkeeping to lower injury and illness rates is indicated by 
experience with OSHA's Voluntary Protection Program (VPP), a program 
that recognizes employers with exemplary safety and health programs. 
VPP worksites, which have comprehensive safety and health management 
programs that include effective injury, illness, and accident 
recordkeeping, generally have lost-workday case rates ranging from one-
fifth to one-third the rates experienced by most worksites in the same 
industry.\35\ These sites also routinely rely on the Logs and other 
worksite data sources to evaluate their programs and correct 
deficiencies. This chapter describes the potential benefits associated 
with the changes OSHA is making to the recordkeeping requirements in 29 
CFR 1904.
---------------------------------------------------------------------------

    \35\ Federal Register, January 26, 1989, p. 3904.
---------------------------------------------------------------------------

A. Overview of Benefits

    The benefits of improved recordkeeping fall into two groups. 
Improved recordkeeping enhances the ability of employers and employees 
to prevent occupational injuries and illnesses. Improved recordkeeping 
and reporting also increases the utility of injury and illness records 
for OSHA's purposes.
(1) Enhanced Ability of Employers and Employees to Prevent Injuries and 
Illnesses
    The additional or improved information about events and exposures 
to be collected on Form 301, including information on the location, the 
equipment, materials or chemicals being used, and the specific activity 
being performed, will increase the ability of employers and employees 
to identify hazardous conditions and to take remedial action to prevent 
future injuries and illnesses. Identifying the irritating substance 
that has caused an employee to experience a recordable case of 
occupational dermatitis, for example, could prompt an employer to re-
examine available Material Safety Data Sheets to identify a non-
irritating substitute material. On Form 301, details will be recorded 
in a logical sequence that will help structure the information and 
focus attention on problem processes and activities. Thus the 
establishment's records of injuries and illnesses will provide 
management with an analytical tool that can be used to control or 
eliminate hazards.
    The process of using recorded information to control or eliminate 
hazards was well illustrated in a comment on the proposed rule.\36\ 
This testimony described a training exercise where trainees used Log 
data to plot MSD injuries on a floor plan; went into the plant to look 
for risk factors and interview workers; formulated specific workplace 
design and work organization changes to eliminate or reduce risk 
factors; and refined their findings into an action plan.
---------------------------------------------------------------------------

    \36\ Nancy Lessin, Testimony on behalf of Massachusetts 
Coalition for Occupational Safety and Health, May 3, 1996, 
Transcript, p. 48.
---------------------------------------------------------------------------

    If this enhanced ability to identify (and thus address) hazards 
translates into a reduction even as small as 0.5 to 1 percent of the 
estimated number of recordable cases, it would mean the prevention of 
29,147 to 58,285 injuries and illnesses per year.\37\
---------------------------------------------------------------------------

    \37\ (0.005 to .01)  x  5,828,477.
---------------------------------------------------------------------------

(2) Increased Utility of Data to OSHA
    The final rule's changes will also make injury records more useful 
to OSHA, as well as to employers and employees. Improvements in the 
quality and usefulness of the records being kept by employers would 
enhance OSHA's capacity to:

    Focus compliance outreach efforts on the most significant 
hazards;
    Identify types or patterns of injuries and illnesses whose 
investigation might lead to regulatory changes or other types of 
prevention efforts, such as enforcement strategies, information and 
training, or technology development; and
    Set priorities among establishments for inspection purposes.

    Employers and employees both stand to benefit from the more 
effective use of OSHA's resources. The enhanced ability of compliance 
officers to identify patterns of injuries will enable OSHA to focus on 
more serious problems. Identification of such patterns will also 
increase the ability of employers to control these hazards and prevent 
other similar injuries. To the extent that employers take advantage of 
this information, the burden of OSHA inspections should be reduced in 
the long run. Employees clearly will also benefit from these reductions 
in injuries.

B. Specific Benefits of the Final Regulation

(1) Changes in Scope of the Regulation
    The changes in the scope of the final regulation in the retail and 
service sectors represent a refinement in coverage. The scope of the 
former rule is defined at the two-digit SIC level; the scope of the 
final rule is defined at the three-digit SIC level. OSHA is expanding 
the scope to include high-risk three-digit industries that were 
previously exempt and to reduce the scope to exempt low-risk three-
digit industries that were previously covered.
    The effect of this change is to make the regulation more cost-
effective. This retargeting shifts the burden from industries with 
relatively few injuries and illnesses per establishment to industries 
with substantially larger numbers of injuries and illnesses per 
establishment. Thus the final rule will result in higher hazard 
identification benefits per dollar of regulatory burden. It is also 
likely to lead to a small reduction in injuries and illnesses at newly 
covered establishments that had not been keeping records at all.
    The final rule's changes in scope will similarly increase the cost-
effectiveness of OSHA's compliance activities. With the same 
expenditure of resources, OSHA will be better able to detect injury and 
illness trends and to assist employers to address the causes of these 
trends. OSHA expects this more efficient use of Agency resources to 
translate directly into reduced worker injuries and illnesses, 
reductions in costs to employers, and increased productivity.
(2) Forms Simplification and Definitions
    The general reduction in burden associated with changes in the 
forms and in the data reported was discussed in the previous chapter 
under cost savings. The simplification of the forms also will have 
benefits in the form of improved information. The same is true of 
definitional changes, such as counting lost workdays or restricted work 
days as calendar days and capping the count at 180 days. Easier 
recording of data will make records of individual cases more complete 
and consistent. It is also possible that simplified recording will 
encourage more complete recording of job-related injuries and 
illnesses.
    This process is illustrated by the change from days away from work 
to calendar days. This change represents an explicit decision to shift 
the emphasis from lost productivity to the seriousness of the injury or 
illness. Calendar days are a more accurate and consistent reflection of 
seriousness than

[[Page 6101]]

are lost scheduled workdays. They are also directly comparable across 
establishments and industries, while days away from work are not. Thus, 
calendar days produce more useful information for the purpose of 
assessing patterns of injuries and illnesses. This variable is also 
generally much simpler to determine and record, so that the information 
is more likely to be complete and accurate. This combination of 
attributes, OSHA believes, will substantially improve the quality of 
the information available for analysis and enhance the resulting 
actions taken to reduce job-related injuries and illness.
(3) Recordable Injuries/Illnesses
    The changes in the definition of the injuries and illnesses that 
are recordable have several different types of benefits. In general, 
they follow a pattern of simplification and/or more cost-effective 
targeting of recording requirements, which should produce the types of 
benefits discussed above. Changes that add to the information recorded 
have other benefits as well.
    Specified Recording Thresholds. One change involves identifying the 
threshold at which a medical removal condition or restriction is to be 
recorded, and tying this to the level in a specific OSHA standard 
(lead, cadmium, ergonomics, etc.). This requirement involves no 
increase in cost, since the pre-removal or restriction conditions are 
already required under the specific OSHA standard.
    Needlesticks and Sharps Injuries and Hearing Loss Cases. By far the 
most extensive change in recording is the requirement to report all 
needlesticks and sharps injuries involving exposure to blood or other 
potentially infectious materials in the covered industries. The 
benefits of this change are also quite extensive, however, and the 
costs are less than they might at first seem. In effect, OSHA is 
changing the emphasis on these injuries from the effects (the injury's 
medical treatment) to the actual injury caused by the incident (i.e., 
the needlestick or sharps injury).
    Recording all needlesticks and sharps injuries will provide far 
more useful information for illness prevention purposes. Unlike many 
other conditions (e.g., blood poisoning and hearing loss) that are 
progressive, AIDS and hepatitis are either present or they are not. In 
any given work setting, the risk is probabilistic and bimodally 
distributed; either one is infected by an injury or one is not. Under 
these circumstances, it is important to prevent all injuries that might 
lead to illness. For that prevention strategy to be successful, 
however, it is necessary to get a complete picture of the overall 
pattern of all needlesticks and sharps injuries. This requires 
recording all such injuries, whether or not they result in AIDS, 
hepatitis, or other bloodborne illness. The final regulation 
accomplishes this.
    Because of their high mortality and disability potentials, AIDS and 
hepatitis are particularly frightening illnesses. One implication of 
this fact, however, is that the benefits per case of prevention are 
large. Another implication is that there are substantial employee 
morale benefits to a prevention program that is comprehensive and well 
informed. Recording all risky wounds and then using the data for 
prevention are actions that are reasonable. These provisions of the 
final rule are likely also to result in indirect benefits in the form 
of improved patient care.
    Hearing loss cases also result in substantial disability and lead 
to safety accidents as well. OSHA believes that aligning the recording 
threshold for such cases with the Standard Threshold Shift criterion in 
the Agency's occupational Noise Standard will simplify recording for 
many employers who are already familiar with this criterion. The shift 
in this recording criterion will also increase the number of hearing 
loss cases captured by the recordkeeping system and provide more 
opportunities for employers to intervene to prevent other hearing loss 
cases.
(4) Procedural Changes and Informational Requirements
    The relationship between costs and benefits varies for the final 
rule's procedural changes and for its requirements for additional 
information. Some provisions have positive but trivial costs. Others 
have more significant costs but substantial benefits.
    De Minimis Costs. A number of changes have costs that are so low 
that the benefits of the change are clearly greater. Examples include 
the provisions discussed below.
    Recording incidents within seven calendar days, rather than six 
working days, will impose costs for more rapid recording on 
establishments that work only five days a week. The reduced burden 
resulting from a simpler deadline--one week later--almost certainly 
outweighs this minuscule cost, however. Moreover, for establishments 
that operate six or seven days a week, this change does not impose any 
costs at all.
    The requirement, upon change of ownership, for the seller to hand 
over records to the buyer of the business has extremely small costs. 
The seller, after all, is already required to maintain those records, 
and the buyer is required to take them over. The benefits of continuity 
of information are clearly much greater than this trivial cost.
    The cost, if any, for posting (but not revising) the Annual Summary 
for three months, rather than one month, is extremely small--
particularly considering that quite a number of other certificates and 
information (e.g., elevator certificates, minimum wage information, 
etc.) must be posted at all times. The ability of employees to refer 
back to the Annual Summary information, as well as the availability of 
the information to new employees when they are hired, clearly produces 
benefits that exceed the costs.
    Certification by a Company Executive. The requirement that a 
company executive certify the Summary will have the effect of 
increasing the oversight and accountability of higher management in 
health and safety activities. The certifying official will be 
responsible for ensuring that systems and processes are in place and 
for holding the recordkeeper accountable. OSHA believes that this 
increased awareness of job-related injuries and illnesses, and of their 
prevention, will translate into fewer accidents and injuries because 
the certifying executive will have a heightened sense of responsibility 
for safety and health, although quantifying this benefit is not 
possible at this time.
    Additional Data Requirements for Form 301 and Form 300-A. The final 
rule will require employers to provide several additional pieces of 
information, at an estimated cost of two minutes per Form 301 and 
twenty minutes per Form 300-A.
    Additional information related to incidents (on Form 301) includes: 
Employee's date of hire, emergency room visits, time the employee began 
work (starting time of the shift), and time of the accident.
    Additional establishment information (on the Form 300-A Summary) 
includes:

    Annual average number of employees employed in that year, and 
Total hours worked by all employees during the year.

    Information on the injured employee's date of hire can provide 
insight into a number of factors that have been shown to relate to 
injury rates. Such factors may include inadequate training, 
inexperience on the job, etc. If OSHA were to link its injury data with 
information on the distribution of job tenure, for example, it could 
then calculate injury rates by job tenure category for different jobs. 
That information would help to identify areas

[[Page 6102]]

where better training would have the greatest potential to reduce 
injuries.
    Data on starting times of shifts and the time of occurrence of the 
accident will facilitate research on whether accident rates vary by 
shift, and whether certain portions of a shift are particularly 
dangerous. This information will be helpful to OSHA as well as to the 
employer's own assessment of workplace safety and health. Most 
importantly, employees will receive the information they need to 
understand both the absolute and relative incidence of injuries and 
illnesses in their establishment. Such information is essential both 
for market-based mechanisms to influence safety and health and for 
meaningful employee participation in safety and health.
    The inclusion of information concerning the average number of 
employees and total hours worked by all employees during the year will 
enable OSHA inspectors to calculate incidence rates directly from the 
posted summary. Employers will also benefit from their ability to 
obtain incidence information quickly and easily.
    At the establishment level, occupational injury and illness records 
are examined at the beginning of an OSHA inspection and are used by 
compliance officers to identify safety and health problems that deserve 
to be focused on. The data on Form 300 and Form 301 will also be used 
to determine what areas of the site, if any, warrant particular 
attention during the inspection. Again, access to this improved 
information will be of direct benefit to employers and employees, who 
will be able to act on it to control hazards.
    Employee Access to Form 301. Providing employees with access to the 
Form 301, as well as the Form 300, will allow them to monitor the 
accuracy of the data and to identify possible patterns of injuries and 
illnesses. Access to Form 301 is important because this form contains 
enough detailed information about the events surrounding the occurrence 
to enable workers analyzing it to identify the appropriate protective 
measures to prevent future accidents.
(5) Summary
    Taken together, the changes that OSHA is making to its recording 
and reporting requirements are designed to achieve the Agency's primary 
goal of reducing job-related injuries, illnesses, and fatalities. The 
link between more accurate and better-targeted injury and illness 
recordkeeping and accident prevention has repeatedly been established 
and emphasized by the National Academy of Sciences, the Keystone 
Report, the testimony of safety and health professionals, and the 
Agency's own experience. The final rule's changes will thus benefit 
workers, their employers, and the Agency's accident prevention efforts.

5. Economic Feasibility and Small Business Impacts

Introduction

    This section assesses the impact on affected firms of the costs of 
implementing the final recordkeeping rule. It is divided into four 
parts. The first part analyzes the economic feasibility of the rule for 
firms in all affected industries. The second part analyzes the economic 
impacts of the rule on small entities in the affected industries. The 
third part presents an Unfunded Mandates Analysis, which OSHA has 
conducted in accordance with the Unfunded Mandates Reform Act. The 
fourth part examines the potential environmental impacts of the 
regulation.
Analysis of Economic Feasibility
    The final 1904 rule is a regulation promulgated under sections 8 
and 24 of the OSH Act, and is not a standard, which would be 
promulgated under Section 6 of the Act. Nevertheless, OSHA has 
performed an analysis of the economic feasibility of the rule.
    The courts have held that, to demonstrate that a standard is 
economically feasible, OSHA ``must construct a reasonable estimate of 
compliance costs and demonstrate a reasonable likelihood that these 
costs will not threaten the existence or competitive structure of an 
industry, even if it does portend disaster for some marginal firms'' 
[United Steelworkers of America v. Marshall, 647 F.2d 1189, 1272 (D.C. 
Cir. 1980) (the ``Lead decision'')]. In assessing the economic 
feasibility of the final recordkeeping rule, OSHA has followed the 
decisions of the courts in the Lead case and other OSHA cases, and has 
relied on information and data in the record to determine that the 
final standard is economically feasible for firms in all affected 
industries.
    OSHA's estimates of the number of covered establishments in each 
affected industry are presented in Section 2 of this economic analysis, 
and the results of the Agency's analysis of annualized compliance costs 
are presented in Section 3. The Agency's analysis is based on comments 
to the record, supplemented, where needed, by public information 
sources such as the Census Bureau's County Business Patterns.
    In this section, for each affected industry, estimates of per-firm 
annualized compliance costs are compared with (a) per-firm estimates of 
sales from a compilation of 1996 data performed by the U.S. Census 
Bureau for the Small Business Administration to reflect parent company 
control of establishments, and (b) per-firm estimates of profits 
derived from information in Dun & Bradstreet's ``Industry Norms and Key 
Business Ratios'' database for 1996 or by applying 1996 profit 
percentages from Robert Morris Associates to the Agency's per-firm 
estimates of sales. Based on the results of these comparisons, which 
identify the magnitude of the potential impacts of the final rule, OSHA 
then assesses the rule's economic feasibility for establishments in all 
affected industries.
    To estimate the sales and profits of covered firms, OSHA identified 
the Standard Industrial Classifications (SICs) of every industry under 
the scope of the rulemaking. For each industry, OSHA then calculated 
the average sales per firm in the relevant SIC(s). The average rate of 
return on sales (from Dun and Bradstreet or, if necessary, from Robert 
Morris Associates) was used to estimate average profit per firm. 
(Throughout this section, the term ``average'' is used to mean the 
arithmetic mean.)
    The cost estimates compared with estimated sales and profit data 
for firms in each affected industry ``screen'' for potential impacts. 
If sizeable impacts were identified by this screening analysis, 
additional analysis would be necessary.
    Table X-9 shows compliance costs as a percentage of before-tax 
profits and of sales. This table presents the results of the screening 
analysis, which simply measures costs as a percentage of before-tax 
profits and sales; the screening analysis is used to determine whether 
the compliance costs potentially associated with the rule could lead to 
significant impacts on the affected firms under worst-case scenarios. 
Whether or not the costs of compliance actually lead to a significant 
impact on the profit and/or sales of firms in a given industry will 
depend on the price elasticity of demand for the products or services 
of firms in that industry.
    Price elasticity refers to the relationship between the price 
charged for a product and the demand for that product: the more elastic 
the relationship, the less able firms are to pass the costs of 
compliance through to their customers in the form of a price increase 
and the more they must absorb the costs of compliance from their

[[Page 6103]]

profits. When demand is inelastic, firms can absorb all the costs of 
compliance simply by raising the prices they charge for that product; 
under this scenario, profits are untouched. On the other hand, when 
demand is elastic, firms cannot cover the costs simply by passing the 
cost increase through in the form of a price increase; instead, they 
must absorb some of the increase from their profits. In general, ``when 
an industry is subjected to a higher cost, it does not simply swallow 
it; it raises its price and reduces its output, and in this way shifts 
a part of the cost to its consumers and a part to its suppliers,'' in 
the words of the court in American Dental Association v. Secretary of 
Labor, [984 F.2d 823, 829 (Seventh Cir. 1993)] (the ``ADA decision'').

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    Specifically, if demand is completely inelastic (i.e., the price 
elasticity is 0), then the impact of compliance costs that amount to 1 
percent of revenues would be a 1 percent increase in the price of the 
product, with no decline in demand or in profits. Such a situation 
would be most likely when there are few, if any, substitutes for the 
product or services offered by the affected firms and the products or 
services of the affected firms account only for a small portion of the 
income of their consumers. If demand is perfectly elastic (i.e., the 
price elasticity is infinitely large), then no increase in price is 
possible, and before-tax profits would be reduced by an amount equal to 
the costs of compliance (minus any savings resulting from improved 
worker health and reduced insurance costs). Under this scenario, if the 
costs of compliance represent a large percentage of the firm's profits, 
some firms might be forced to close. This scenario is highly unlikely 
to occur, however, because it can only arise when there are other goods 
or services that are, in the eyes of consumers, perfect substitutes for 
the goods produced by the affected firms.
    A common intermediate case would be a price elasticity of one. In 
this situation, if the costs of compliance amount to 1 percent of 
revenues, and prices are raised by 1 percent, then production would 
decline by 1 percent. In this situation, firms would remain in business 
and maintain the same profit as before, but would produce 1 percent 
less product. Consumers would effectively absorb the costs through a 
combination of increased prices and reduced consumption; this, as the 
court described in the ADA decision, is the more typical case.
    As Table X-9 shows, the impacts potentially imposed by the final 
rule are not sizeable. On average, annual costs per firm are less than 
$58. (In one industry, Transportation Equipment, characterized by large 
workplaces, the potential reduction in costs that vary with the number 
of cases actually outweighs the potential increase in essentially fixed 
costs associated with the number of establishments, producing an 
average reduction in costs per firm.) In no industry do average 
compliance costs per firm amount to more than .006 percent of sales or 
0.3 percent of profits. Even if no price increase were possible, a 0.3 
percent decline in profits would not threaten the viability of any 
firm. For example, a firm with before-tax profits of 10 percent of 
sales would still have profits of 9.97 percent of sales, even under 
this extreme scenario. Thus, the final rule is clearly economically 
feasible in all industry groups.
    Among the covered SICs, average compliance costs as a percent of 
sales range from less than .00005% in several industries, such as SIC 
29, Petroleum and Coal Products, to .0059% in SIC 593, Used Merchandise 
Stores. Average compliance costs as a percent of profits ranges from 
less than .0005% in several industries, such as SIC 37, Transportation 
Equipment manufacturing, to .293% in SIC 523, Paint, Glass, and 
Wallpaper Stores.
Potential Economic Impacts of the Rule on Small Firms
    As required by the Regulatory Flexibility Act (as amended in 1996), 
this section measures the potential economic impacts of the final rule 
on small businesses in the regulated community to determine whether the 
rule has a significant impact on a substantial number of small firms. 
It builds on the analysis of economic impacts developed in the Economic 
Feasibility part of this section. The Agency has analyzed the impact of 
the final recordkeeping rule on small entities, as defined by the Small 
Business Administration and in accordance with the Regulatory 
Flexibility Act.
    Data on receipts were provided by the Commerce Department, in a 
data table specially commissioned by the Small Business Administration. 
Since the size definitions SBA has established do not precisely match 
the categories provided in these data, the Agency approximated the 
nearest data grouping, where necessary. The SBA-commissioned data were 
broken into size categories of firms defined by numbers of employees 
(1-4, 5-9, 10-19, 20-99, 100-499, >500). Where these size categories 
did not match SBA's assigned ``small'' firm definitions, the Agency 
approximated them to the closest category. For those industries where 
an ``annual receipts'' SBA definition was used, the Agency projected 
the analogous employment break by examining the ratio of employment to 
receipts per firm. For example, in Heavy Construction, SIC 16, the 
ratio of employment to receipts suggested that a $17 million firm would 
have approximately 104 employees. The Agency therefore examined firms 
with fewer than 100 employees. This process is shown in Table X-10.
    The results of this analysis are shown in Table X-11. Over the 
entire range of SICs affected by the final rule, estimated cost per 
small firm averages only $31.63.
    In order to ensure that even the smallest entities would not be 
significantly impacted, the Agency performed an analysis of impacts on 
very small firms, i.e., those with fewer than 20 employees. This 
analysis used the same sources for sales and profit data as Table X-11. 
The results of this analysis are shown in Table X-12.
    Regardless of whether the SBA definitions or the fewer-than-20-
employee definition was used, the results were the same--no significant 
impact. For the purposes of small-business impact assessment, OSHA 
defines as potentially significant annualized costs of compliance that 
amount to 1 percent of sales or 5 percent of profits. The impacts of 
the rule on sales and profits did not exceed 1 percent for firms in any 
covered industry, whether the analysis used the SBA's definitions or 
the fewer-than-20-employee size class definition. No small firm in any 
industry would need to increase its prices by more than 0.0105 percent, 
even under a full cost pass-through scenario. Alternatively, if a small 
firm had to pay for the costs of compliance entirely from profits, 
costs would account for no more than 0.406 percent of profits \38\ in 
any industry. Impacts of this magnitude would not affect the viability 
of even the smallest firm.
---------------------------------------------------------------------------

    \38\ It should be emphasized that a one percent decrease in 
profits represents a one percent decrease in profits, not in profit 
rate.

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Regulatory Flexibility Analysis
    Although a Final Regulatory Flexibility Analysis is not required in 
this case, OSHA has chosen to include the elements of a final 
regulatory flexibility analysis in this document. The elements of a 
Final Regulatory Flexibility Analysis are:
     A succinct statement of the need for, and the objective 
of, the rule;
     A summary of significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
summary of the assessment of the Agency of such issues, and a statement 
of any changes made to the proposed rule as a result of such comments;
     A description of and estimate of the number of small 
entities to which the rule will apply or an explanation of why no such 
explanation is available;
     A description of the projected reporting, recordkeeping 
and other compliance requirements of the rule, including an estimate of 
the classes of small entities that will be subject to the rule's 
requirements and the types of professional skills necessary for 
preparation of the record or report;
     A description of the steps the Agency has taken to 
minimize the significant economic impact on small entities consistent 
with the stated objectives of applicable statutes, including a 
statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each of the other 
significant alternatives considered by the agency was rejected.
    The Regulatory Flexibility Act states that the Regulatory 
Flexibility Analysis (RFA) need not contain all of the above elements 
in toto if these elements are presented elsewhere in the documentation 
and analysis of the regulation. This analysis will follow this approach 
and refer the reader to other documentation for some of the above 
elements.
    Need for and objectives of the rule. The need for the final rule 
and its objectives are discussed in the introductory sections of the 
preamble.
    The number of small entities to which the rule will apply. As shown 
in Table X-11, the final rule will impact 541,988 firms defined as 
small firms by the SBA.
    The compliance requirements of the final rule. The compliance 
requirements of the final rule are discussed in the summary and 
explanation section of the preamble, which discusses each requirement 
in detail.
    Steps taken to minimize the impact of the rule on small entities. 
The final Part 1904 rule minimizes the impact on small entities in two 
ways. First, all employers who had fewer than 11 workers at all times 
during the previous year are exempt from keeping Part 1904 records of 
occupational injuries and illnesses, unless specifically asked to do so 
by the government. Second, the final rule exempts employers classified 
in certain industries in the services and retail sectors. These 
industry-exempt employers are also not required to keep records unless 
asked to do so by the government. The effect of the size and industry 
exemptions is that more than 4.5 million of the Nation's 6 million 
business establishments are exempted from keeping OSHA Part 1904 
records on a routine basis.
    OSHA considered several alternatives to exempting employers based 
on size and/or industry classification. A discussion of these 
alternatives, and why OSHA chose the alternative in the final rule, can 
be found in the preamble discussion for Subpart B, Scope.

XI. Regulatory Flexibility Certification

    Based on OSHA's analysis of small business impacts (Tables X-11 and 
X-12), OSHA certifies that this final rule will not have a significant 
impact on a substantial number of small entities. OSHA makes this 
certification to fulfill its obligations under the Regulatory 
Flexibility Act (as amended in 1996).

XII. Environmental Impact Assessment

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

XIII. Federalism

    This final rule has been reviewed in accordance with Executive 
Order 13132 (52 FR 41685), regarding Federalism. Because this 
rulemaking action involves a ``regulation'' issued under section 8 of 
the OSH Act, and not a ``standard'' issued under section 6 of the Act, 
the rule does not preempt State law, see 29 U.S.C. Sec. 667 (a). The 
effect of the final rule on States is discussed above in Section VI, 
State Plans.

XIV. Paperwork Reduction Act of 1995

    The final regulation contains information collections which are 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995. Most of the provisions of the 
final rule contain collection of information requirements, either to 
keep records or to report information from the records to the 
government. In addition, the effort employers are required to put forth 
to learn the requirements are considered information requirements.
    In response to OSHA's 1996 proposal, the public submitted 450 
written comments . The Agency also held two public meetings where it 
collected oral comments from 43 individuals and groups during six days 
of informal meetings.
    In summary, OSHA estimates that there are 1,365,985 establishments 
that will be required to keep records of occupational injuries and 
illnesses under the provisions. A total of approximately 4,500,000 
hours will be needed for employers to comply with the information 
collection requirements for the first year, and 3,500,000 hours in each 
subsequent year. This represents an increase of 1,060,000 hours from 
the previous paperwork burden estimates. OSHA has recently recognized 
that previous estimates of the burden associated with becoming familiar 
with the 1904 rule have been understated, and recently corrected those 
estimates, as noted in OSHA's Final Economic Analysis for the Part 1904 
rule.
    In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 
U.S.C. 3501-3520), OSHA has requested OMB approval of the collection of 
information requirement described above. The information collection 
provisions will take effect when OMB approves them under the PRA.

XV. Authority

    This document was prepared under the direction of Charles N. 
Jeffress, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor, 200 Constitution Avenue, N.W., 
Washington, DC 20210.

List of Subjects

29 CFR Part 1904

    Health statistics, Occupational safety and health, Reporting and 
recordkeeping requirements, State plans.

29 CFR Part 1952

    Health statistics, Intergovernmental relations, Occupational safety 
and health, Reporting and recordkeeping requirements, State plans.
    Accordingly, pursuant to sections 8(c), 8(g), 20 and 24 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), 
Secretary of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, the 
Department amends 29 CFR Chapter XVII as set forth below.


[[Page 6122]]


    Signed in Washington, D.C., this 5th day of January, 2001.
Charles N. Jeffress,
Assistant Secretary of Labor.

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

Part 1904--Recording and Reporting Occupational Injuries and 
Illnesses

Sec.
Subpart A--Purpose
1904.0   Purpose
Subpart B--Scope
1904.1   Partial exemption for employers with 10 or fewer employees.
1904.2   Partial exemption for establishments in certain industries.
1904.3   Keeping records for more than one agency.
Non-mandatory Appendix A to Subpart B--Partially Exempt Industries.
Subpart C--Recordkeeping Forms and Recording Criteria
1904.4   Recording criteria.
1904.5   Determination of work-relatedness.
1904.6   Determination of new cases.
1904.7   General recording criteria.
1904.8   Recording criteria for needlestick and sharps injuries.
1904.9   Recording criteria for cases involving medical removal 
under OSHA standards.
1904.10   Recording criteria for cases involving occupational 
hearing loss.
1904.11   Recording criteria for work-related tuberculosis cases.
1904.12   Recording criteria for cases involving work-related 
musculoskeletal disorders.
1904.13-1904.28   [Reserved]
1904.29   Forms.
Subpart D--Other OSHA Injury and Illness Recordkeeping Requirements
1904.30   Multiple business establishments.
1904.31   Covered employees.
1904.32   Annual summary.
1904.33   Retention and updating.
1904.34   Change in business ownership.
1904.35   Employee involvement.
1904.36   Prohibition against discrimination.
1904.37   State recordkeeping regulations.
1904.38   Variances from the recordkeeping rule.
Subpart E--Reporting Fatality, Injury and Illness Information to the 
Government
1904.39   Reporting fatalities and multiple hospitalization 
incidents to OSHA.
1904.40   Providing records to government representatives.
1904.41   Annual OSHA Injury and Illness Survey of Ten or More 
Employers.
1904.42   Requests from the Bureau of Labor Statistics for data.
Subpart F--Transition From the Former Rule
1904.43   Summary and posting of year 2000 data.
1904.44   Retention and updating of old forms.
1904.45   OMB control numbers under the Paperwork Reduction Act
Subpart G--Definitions
1904.46   Definitions.

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

Subpart A--Purpose


Sec. 1904.0  Purpose.

    The purpose of this rule (Part 1904) is to require employers to 
record and report work-related fatalities, injuries and illnesses.

    Note to Sec. 1904.0: Recording or reporting a work-related 
injury, illness, or fatality does not mean that the employer or 
employee was at fault, that an OSHA rule has been violated, or that 
the employee is eligible for workers' compensation or other 
benefits.

Subpart B--Scope

    Note to Subpart B: All employers covered by the Occupational 
Safety and Health Act (OSH Act) are covered by these Part 1904 
regulations. However, most employers do not have to keep OSHA injury 
and illness records unless OSHA or the Bureau of Labor Statistics 
(BLS) informs them in writing that they must keep records. For 
example, employers with 10 or fewer employees and business 
establishments in certain industry classifications are partially 
exempt from keeping OSHA injury and illness records.

Sec. 1904.1  Partial exemption for employers with 10 or fewer 
employees.

    (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.


Sec. 1904.2  Partial exemption for establishments in certain 
industries.

    (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.

[[Page 6123]]

Sec. 1904.3  Keeping records for more than one agency.

    If you create records to comply with another government agency's 
injury and illness recordkeeping requirements, OSHA will consider those 
records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA 
accepts the other agency's records under a memorandum of understanding 
with that agency, or if the other agency's records contain the same 
information as this Part 1904 requires you to record. You may contact 
your nearest OSHA office or State agency for help in determining 
whether your records meet OSHA's requirements.

Non-Mandatory Appendix A to Subpart B--Partially Exempt Industries

    Employers are not required to keep OSHA injury and illness records 
for any establishment classified in the following Standard Industrial 
Classification (SIC) codes, unless they are asked in writing to do so 
by OSHA, the Bureau of Labor Statistics ( BLS), or a state agency 
operating under the authority of OSHA or the BLS. All employers, 
including those partially exempted by reason of company size or 
industry classification, must report to OSHA any workplace incident 
that results in a fatality or the hospitalization of three or more 
employees (see Sec. 1904.39).

----------------------------------------------------------------------------------------------------------------
      SIC code                  Industry description                 SIC code           Industry description
----------------------------------------------------------------------------------------------------------------
525................  Hardware Stores                            725...............  Shoe Repair and Shoeshine
                                                                                     Parlors.
542................  Meat and Fish Markets                      726...............  Funeral Service and
                                                                                     Crematories.
544................  Candy, Nut, and Confectionery Stores       729...............  Miscellaneous Personal
                                                                                     Services.
545................  Dairy Products Stores                      731...............  Advertising Services.
546................  Retail Bakeries                            732...............  Credit Reporting and
                                                                                     Collection Services.
549................  Miscellaneous Food Stores                  733...............  Mailing, Reproduction, &
                                                                                     Stenographic Services.
551................  New and Used Car Dealers                   737...............  Computer and Data Processing
                                                                                     Services.
552................  Used Car Dealers                           738...............  Miscellaneous Business
                                                                                     Services.
554................  Gasoline Service Stations                  764...............  Reupholstery and Furniture
                                                                                     Repair.
557................  Motorcycle Dealers                         78................  Motion Picture.
56.................  Apparel and Accessory Stores               791...............  Dance Studios, Schools, and
                                                                                     Halls.
573................  Radio, Television, & Computer Stores       792...............  Producers, Orchestras,
                                                                                     Entertainers.
58.................  Eating and Drinking Places                 793...............  Bowling Centers.
591................  Drug Stores and Proprietary Stores         801...............  Offices & Clinics Of Medical
                                                                                     Doctors.
592................  Liquor Stores                              802...............  Offices and Clinics Of
                                                                                     Dentists.
594................  Miscellaneous Shopping Goods Stores        803...............  Offices Of Osteopathic.
599................  Retail Stores, Not Elsewhere Classified    804...............  Offices Of Other Health
                                                                                     Practitioners.
60.................  Depository Institutions (banks & savings   807...............  Medical and Dental
                      institutions)                                                  Laboratories.
61.................  Nondepository                              809...............  Health and Allied Services,
                                                                                     Not Elsewhere Classified.
62.................  Security and Commodity Brokers             81................  Legal Services.
63.................  Insurance Carriers                         82................  Educational Services
                                                                                     (schools, colleges,
                                                                                     universities and
                                                                                     libraries).
64.................  Insurance Agents, Brokers & Services       832...............  Individual and Family
                                                                                     Services.
653................  Real Estate Agents and Managers            835...............  Child Day Care Services.
654................  Title Abstract Offices                     839...............  Social Services, Not
                                                                                     Elsewhere Classified.
67.................  Holding and Other Investment Offices       841...............  Museums and Art Galleries.
722................  Photographic Studios, Portrait             86................  Membership Organizations.
723................  Beauty Shops                               87................  Engineering, Accounting,
                                                                                     Research, Management, and
                                                                                     Related Services.
724................  Barber Shops                               899...............  Services, not elsewhere
                                                                                     classified.
----------------------------------------------------------------------------------------------------------------

Subpart C--Recordkeeping Forms and Recording Criteria

    Note to Subpart C: This Subpart describes the work-related 
injuries and illnesses that an employer must enter into the OSHA 
records and explains the OSHA forms that employers must use to 
record work-related fatalities, injuries, and illnesses.

Sec. 1904.4  Recording criteria.

    (a) Basic requirement. Each employer required by this Part to keep 
records of fatalities, injuries, and illnesses must record each 
fatality, injury and illness that:
    (1) Is work-related; and
    (2) Is a new case; and
    (3) Meets one or more of the general recording criteria of 
Sec. 1904.7 or the application to specific cases of Sec. 1904.8 through 
Sec. 1904.12.
    (b) Implementation. (1) What sections of this rule describe 
recording criteria for recording work-related injuries and illnesses? 
The table below indicates which sections of the rule address each 
topic.
    (i) Determination of work-relatedness. See Sec. 1904.5.
    (ii) Determination of a new case. See Sec. 1904.6.
    (iii) General recording criteria. See Sec. 1904.7.
    (iv) Additional criteria. (Needlestick and sharps injury cases, 
tuberculosis cases, hearing loss cases, medical removal cases, and 
musculoskeletal disorder cases). See Sec. 1904.8 through Sec. 1904.12.
    (2) How do I decide whether a particular injury or illness is 
recordable? The decision tree for recording work-related injuries and 
illnesses below shows the steps involved in making this determination.

BILLING CODE 4510-26-P

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[GRAPHIC] [TIFF OMITTED] TR19JA01.098

BILLING CODE 4510-26-C


Sec. 1904.5  Determination of work-relatedness.

    (a) Basic requirement. You must 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.
    (b) Implementation. (1) What is the ``work environment''? OSHA 
defines the work environment as ``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 the equipment or materials used by the employee 
during the course of his or her work.''
    (2) Are there situations where an injury or illness occurs in the 
work environment and is not considered work-related? Yes, an injury or 
illness occurring in the work environment that falls under one of the 
following exceptions is not work-related, and therefore is not 
recordable.

------------------------------------------------------------------------
                          You are not required to record injuries and
     1904.5(b)(2)                      illnesses if . . .
------------------------------------------------------------------------
(i)..................  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.
(ii).................  The injury or illness 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.
(iii)................  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 examination,
                        flu shot, exercise class, racquetball, or
                        baseball.
(iv).................  The injury or illness is solely the result of an
                        employee eating, drinking, or preparing food or
                        drink for personal consumption (whether bought
                        on the employer's premises or brought in). For
                        example, if the employee is injured by choking
                        on a sandwich while in the employer's
                        establishment, the case would not be considered
                        work-related.
                       Note: If the employee is made ill by ingesting
                        food contaminated by workplace contaminants
                        (such as lead), or gets food poisoning from food
                        supplied by the employer, the case would be
                        considered work-related.
(v)..................  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.
(vi).................  The injury or illness is solely the result of
                        personal grooming, self medication for a non-
                        work-related condition, or is intentionally self-
                        inflicted.
(vii)................  The injury or illness is caused by a motor
                        vehicle accident and occurs on a company parking
                        lot or company access road while the employee is
                        commuting to or from work.
(viii)...............  The illness is the common cold or flu (Note:
                        contagious diseases such as tuberculosis,
                        brucellosis, hepatitis A, or plague are
                        considered work-related if the employee is
                        infected at work).

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(ix).................  The illness is a mental illness. 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.
------------------------------------------------------------------------

    (3) How do I handle a case if it is not obvious whether the 
precipitating event or exposure occurred in the work environment or 
occurred away from work? In these situations, you must evaluate the 
employee's work duties and environment to decide whether or not 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.
    (4) How do I know if an event or exposure in the work environment 
``significantly aggravated'' a preexisting injury or illness? A 
preexisting injury or illness has been significantly aggravated, for 
purposes of OSHA injury and illness recordkeeping, when an event or 
exposure in the work environment results in any of the following:
    (i) Death, provided that the preexisting injury or illness would 
likely not have resulted in death but for the occupational event or 
exposure.
    (ii) Loss of consciousness, provided that the preexisting injury or 
illness would likely not have resulted in loss of consciousness but for 
the occupational event or exposure.
    (iii) One or more days away from work, or days of restricted work, 
or days of job transfer that otherwise would not have occurred but for 
the occupational event or exposure.
    (iv) Medical treatment in a case where no medical treatment was 
needed for the injury or illness before the workplace event or 
exposure, or a change in medical treatment was necessitated by the 
workplace event or exposure.
    (5) Which injuries and illnesses are considered pre-existing 
conditions? An injury or illness is a preexisting condition if it 
resulted solely from a non-work-related event or exposure that occured 
outside the work environment.
    (6) How do I decide whether an injury or illness is work-related if 
the employee is on travel status at the time the injury or illness 
occurs? Injuries and illnesses that occur while an employee is on 
travel status are 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 to transact, discuss, or promote business (work-related 
entertainment includes only entertainment activities being engaged in 
at the direction of the employer).
    Injuries or illnesses that occur when the employee is on travel 
status do not have to be recorded if they meet one of the exceptions 
listed below.

----------------------------------------------------------------------------------------------------------------
                                                                                  You may use the following to
      1904.5 (b)(6)                     If the employee has . . .                   determine if an injury or
                                                                                     illness is work-related
----------------------------------------------------------------------------------------------------------------
(i).....................  checked into a hotel or motel for one or more days..  When a traveling employee checks
                                                                                 into a hotel, motel, or into a
                                                                                 other temporary residence, he
                                                                                 or she establishes a ``home
                                                                                 away from home.'' You must
                                                                                 evaluate the employee's
                                                                                 activities after he or she
                                                                                 checks into the hotel, motel,
                                                                                 or other temporary residence
                                                                                 for their work-relatedness in
                                                                                 the same manner as you evaluate
                                                                                 the activities of a non-
                                                                                 traveling employee. When the
                                                                                 employee checks into the
                                                                                 temporary residence, he or she
                                                                                 is considered to have left the
                                                                                 work environment. When the
                                                                                 employee begins work each day,
                                                                                 he or she re-enters the work
                                                                                 environment. If the employee
                                                                                 has established a ``home away
                                                                                 from home'' and is reporting to
                                                                                 a fixed worksite each day, you
                                                                                 also do not consider injuries
                                                                                 or illnesses work-related if
                                                                                 they occur while the employee
                                                                                 is commuting between the
                                                                                 temporary residence and the job
                                                                                 location.
(ii)....................  taken a detour for personal reasons.................  Injuries or illnesses are not
                                                                                 considered work-related if they
                                                                                 occur while the employee is on
                                                                                 a personal detour from a
                                                                                 reasonably direct route of
                                                                                 travel (e.g., has taken a side
                                                                                 trip for personal reasons).
----------------------------------------------------------------------------------------------------------------

    (7) How do I decide if a case is work-related when the employee is 
working at home? Injuries and illnesses that occur while an employee is 
working at home, including work in a home office, will be considered 
work-related if the injury or illness occurs while the employee is 
performing work for pay or compensation in the home, and the injury or 
illness is directly related to the performance of work rather than to 
the general home environment or setting. For example, if an employee 
drops a box of work documents and injures his or her foot, the case is 
considered work-related. If an employee's fingernail is punctured by a 
needle from a sewing machine used to perform garment work at home, 
becomes infected and requires medical treatment, the injury is 
considered work-related. If an employee is injured because he or she 
trips on the family dog while rushing to answer a work phone call, the 
case is not considered work-related. If an employee working at home is 
electrocuted because of faulty home wiring, the injury is not 
considered work-related.


Sec. 1904.6  Determination of new cases.

    (a) Basic requirement. You must consider an injury or illness to be 
a ``new case'' 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 had disappeared) from 
the previous injury or illness and an event or exposure in the work 
environment caused the signs or symptoms to reappear.
    (b) Implementation. (1) When an employee experiences the signs or 
symptoms of a chronic work-related illness, do I need to consider each 
recurrence of signs or symptoms to be a new case? No, for occupational 
illnesses where the signs or symptoms may recur or continue in the 
absence of an exposure in the workplace, the case must only be recorded 
once. Examples

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may include occupational cancer, asbestosis, byssinosis and silicosis.
    (2) When an employee experiences the signs or symptoms of an injury 
or illness as a result of an event or exposure in the workplace, such 
as an episode of occupational asthma, must I treat the episode as a new 
case? Yes, because the episode or recurrence was caused by an event or 
exposure in the workplace, the incident must be treated as a new case.
    (3) May I rely on a physician or other licensed health care 
professional to determine whether a case is a new case or a recurrence 
of an old case? You are not required to seek the advice of a physician 
or other licensed health care professional. However, if you do seek 
such advice, you must follow the physician or other licensed health 
care professional's recommendation about whether the case is a new case 
or a recurrence. If you receive recommendations from two or more 
physicians or other licensed health care professionals, you must make a 
decision as to which recommendation is the most authoritative (best 
documented, best reasoned, or most authoritative), and record the case 
based upon that recommendation.


Sec. 1904.7  General recording criteria.

    (a) Basic requirement. You must consider an injury or illness to 
meet the general recording criteria, and therefore to be recordable, 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. You must also consider a case to 
meet the general recording criteria if it involves a significant injury 
or illness diagnosed by a physician or other licensed health care 
professional, even if it does not result in death, days away from work, 
restricted work or job transfer, medical treatment beyond first aid, or 
loss of consciousness.
    (b) Implementation. (1) How do I decide if a case meets one or more 
of the general recording criteria? A work-related injury or illness 
must be recorded if it results in one or more of the following:
    (i) Death. See Sec. 1904.7(b)(2).
    (ii) Days away from work. See Sec. 1904.7(b)(3).
    (iii) Restricted work or transfer to another job. See 
Sec. 1904.7(b)(4).
    (iv) Medical treatment beyond first aid. See Sec. 1904.7(b)(5).
    (v) Loss of consciousness. See Sec. 1904.7(b)(6).
    (vi) A significant injury or illness diagnosed by a physician or 
other licensed health care professional. See Sec. 1904.7(b)(7).
    (2) How do I record a work-related injury or illness that results 
in the employee's death? You must record an injury or illness that 
results in death by entering a check mark on the OSHA 300 Log in the 
space for cases resulting in death. You must also report any work-
related fatality to OSHA within eight (8) hours, as required by 
Sec. 1904.39.
    (3) How do I record a work-related injury or illness that results 
in days away from work? When an injury or illness involves one or more 
days away from work, you must record the injury or illness on the OSHA 
300 Log with a check mark in the space for cases involving days away 
and an entry of the number of calendar days away from work in the 
number of days column. If the employee is out for an extended period of 
time, you must enter an estimate of the days that the employee will be 
away, and update the day count when the actual number of days is known.
    (i) Do I count the day on which the injury occurred or the illness 
began? No, you begin counting days away on the day after the injury 
occurred or the illness began.
    (ii) How do I record an injury or illness when a physician or other 
licensed health care professional recommends that the worker stay at 
home but the employee comes to work anyway? You must record these 
injuries and illnesses on the OSHA 300 Log using the check box for 
cases with days away from work and enter the number of calendar days 
away recommended by the physician or other licensed health care 
professional. If a physician or other licensed health care professional 
recommends days away, you should encourage your employee to follow that 
recommendation. However, the days away must be recorded whether the 
injured or ill employee follows the physician or licensed health care 
professional's recommendation or not. If you receive recommendations 
from two or more physicians or other licensed health care 
professionals, you may make a decision as to which recommendation is 
the most authoritative, and record the case based upon that 
recommendation.
    (iii) How do I handle a case when a physician or other licensed 
health care professional recommends that the worker return to work but 
the employee stays at home anyway? In this situation, you must end the 
count of days away from work on the date the physician or other 
licensed health care professional recommends that the employee return 
to work.
    (iv) How do I count weekends, holidays, or other days the employee 
would not have worked anyway? You must count the number of calendar 
days the employee was unable to work as a result of the injury or 
illness, regardless of whether or not the employee was scheduled to 
work on those day(s). Weekend days, holidays, vacation days or other 
days off are included in the total number of days recorded if the 
employee would not have been able to work on those days because of a 
work-related injury or illness.
    (v) How do I record a case in which a worker is injured or becomes 
ill on a Friday and reports to work on a Monday, and was not scheduled 
to work on the weekend? You need to record this case only if you 
receive information from a physician or other licensed health care 
professional indicating that the employee should not have worked, or 
should have performed only restricted work, during the weekend. If so, 
you must record the injury or illness as a case with days away from 
work or restricted work, and enter the day counts, as appropriate.
    (vi) How do I record a case in which a worker is injured or becomes 
ill on the day before scheduled time off such as a holiday, a planned 
vacation, or a temporary plant closing? You need to record a case of 
this type only if you receive information from a physician or other 
licensed health care professional indicating that the employee should 
not have worked, or should have performed only restricted work, during 
the scheduled time off. If so, you must record the injury or illness as 
a case with days away from work or restricted work, and enter the day 
counts, as appropriate.
    (vii) Is there a limit to the number of days away from work I must 
count? Yes, you may ``cap'' the total days away at 180 calendar days. 
You are not required to keep track of the number of calendar days away 
from work if the injury or illness resulted in more than 180 calendar 
days away from work and/or days of job transfer or restriction. In such 
a case, entering 180 in the total days away column will be considered 
adequate.
    (viii) May I stop counting days if an employee who is away from 
work because of an injury or illness retires or leaves my company? Yes, 
if the employee leaves your company for some reason unrelated to the 
injury or illness, such as retirement, a plant closing, or to take 
another job, you may stop counting days away from work or days of 
restriction/job transfer. If the employee leaves your company because 
of the injury or illness, you must estimate the

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total number of days away or days of restriction/job transfer and enter 
the day count on the 300 Log.
    (ix) If a case occurs in one year but results in days away during 
the next calendar year, do I record the case in both years? No, you 
only record the injury or illness once. You must enter the number of 
calendar days away for the injury or illness on the OSHA 300 Log for 
the year in which the injury or illness occurred. If the employee is 
still away from work because of the injury or illness when you prepare 
the annual summary, estimate the total number of calendar days you 
expect the employee to be away from work, use this number to calculate 
the total for the annual summary, and then update the initial log entry 
later when the day count is known or reaches the 180-day cap.
    (4) How do I record a work-related injury or illness that results 
in 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 restriction and 
an entry of the number of restricted or transferred days in the 
restricted workdays 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 routine functions 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 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 the physician or other licensed health care professional's 
recommendation, you may ask that person whether the employee can do 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 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 
professionals, you may make a decision as to which recommendation is 
the most authoritative, and record the case based upon that 
recommendation.
    (ix) How do I decide if an injury or illness involved a transfer to 
another job? If you assign an injured or ill employee to a job other 
than his or her regular job for part of the day, the case involves 
transfer to another job. Note: This does not include the day on which 
the injury or illness occurred.
    (x) Are transfers to another job recorded in the same way as 
restricted work cases? Yes, both job transfer and restricted work cases 
are recorded in the same box on the OSHA 300 Log. For example, if you 
assign, or a physician or other licensed health care professional 
recommends that you assign, an injured or ill worker to his or her 
routine job duties for part of the day and to another job for the rest 
of the day, the injury or illness involves a job transfer. You must 
record an injury or illness that involves a job transfer by placing a 
check in the box for job transfer.
    (xi) How do I count days of job transfer or restriction? You count 
days of job transfer or restriction in the same way you count days away 
from work, using Sec. 1904.7(b)(3)(i) to (viii), above. The only 
difference is that, if you permanently assign the injured or ill 
employee to a job that has been modified or permanently changed in a 
manner that eliminates the routine functions the employee was 
restricted from performing, you may stop the day count when the 
modification or change is made permanent. You must count at least one 
day of restricted work or job transfer for such cases.
    (5) How do I record an injury or illness that involves medical 
treatment beyond first aid? If a work-related injury or illness results 
in medical treatment beyond first aid, you must record it on the OSHA 
300 Log. If the injury or illness did not involve death, one or more 
days away from work, one or more days of restricted work, or one or 
more days of job transfer, you enter a check mark in the box for cases 
where the employee received medical treatment but remained at work and 
was not transferred or restricted.
    (i) What is the definition of medical treatment? ``Medical 
treatment'' means the management and care of a patient to

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combat 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.
    (ii) What is ``first aid''? For the purposes of Part 1904, ``first 
aid'' means the following:
    (A) Using a non-prescription 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-AidsTM, 
gauze pads, etc.; or using butterfly bandages or Steri-
StripsTM (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); or
    (N) Drinking fluids for relief of heat stress.
    (iii) Are any other procedures included in first aid? No, this is a 
complete list of all treatments considered first aid for Part 1904 
purposes.
    (iv) Does the professional status of the person providing the 
treatment have any effect on what is considered first aid or medical 
treatment? No, OSHA considers the treatments listed in 
Sec. 1904.7(b)(5)(ii) of this Part to be first aid regardless of the 
professional status of the person providing the treatment. Even when 
these treatments are provided by a physician or other licensed health 
care professional, they are considered first aid for the purposes of 
Part 1904. Similarly, OSHA considers treatment beyond first aid to be 
medical treatment even when it is provided by someone other than a 
physician or other licensed health care professional.
    (v) What if a physician or other licensed health care professional 
recommends medical treatment but the employee does not follow the 
recommendation? If a physician or other licensed health care 
professional recommends medical treatment, you should encourage the 
injured or ill employee to follow that recommendation. However, you 
must record the case even if the injured or ill employee does not 
follow the physician or other licensed health care professional's 
recommendation.
    (6) Is every work-related injury or illness case involving a loss 
of consciousness recordable? Yes, you must record a work-related injury 
or illness if the worker becomes unconscious, regardless of the length 
of time the employee remains unconscious.
    (7) What is a ``significant'' diagnosed injury or illness that is 
recordable under the general criteria even if it does not result in 
death, days away from work, restricted work or job transfer, medical 
treatment beyond first aid, or loss of consciousness? Work-related 
cases involving cancer, chronic irreversible disease, a fractured or 
cracked bone, or a punctured eardrum must always be recorded under the 
general criteria at the time of diagnosis by a physician or other 
licensed health care professional.

    Note to Sec. 1904.7: OSHA believes that most significant 
injuries and illnesses will result in one of the 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 recommended. In 
addition, there are some significant progressive diseases, 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 but are likely to be recommended as the disease 
progresses. OSHA believes that cancer, chronic irreversible 
diseases, fractured or cracked bones, and punctured eardrums are 
generally considered significant injuries and illnesses, and must be 
recorded at the initial diagnosis even if medical treatment or work 
restrictions are not recommended, or are postponed, in a particular 
case.

Sec. 1904.8  Recording criteria for needlestick and sharps injuries.

    (a) Basic requirement. You must record all work-related needlestick 
injuries and cuts from sharp objects that are contaminated with another 
person's blood or other potentially infectious material (as defined by 
29 CFR 1910.1030). You must enter the case on the OSHA 300 Log as an 
injury. To protect the employee's privacy, you may not enter the 
employee's name on the OSHA 300 Log (see the requirements for privacy 
cases in paragraphs 1904.29(b)(6) through 1904.29(b)(9)).
    (b) Implementation. (1) What does ``other potentially infectious 
material'' mean? The term ``other potentially infectious materials'' is 
defined in the OSHA Bloodborne Pathogens standard at Sec. 1910.1030(b). 
These materials include:
    (i) Human bodily fluids, 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.
    (2) Does this mean that I must record all cuts, lacerations, 
punctures, and scratches? No, you need to record cuts, lacerations, 
punctures, and scratches only if they are work-related and involve 
contamination with another person's blood or other potentially 
infectious material. If the cut, laceration, or scratch involves a 
clean object, or a contaminant other than blood or other potentially 
infectious material, you need to record the case only if it meets one 
or more of the recording criteria in Sec. 1904.7.
    (3) If I record an injury and the employee is later diagnosed with 
an infectious bloodborne disease, do I need to update the OSHA 300 Log? 
Yes, you must update the classification of the case on the OSHA 300 Log 
if the case results in death, days away from work, restricted work, or 
job transfer. You must also update the description to identify the 
infectious disease and change the classification of the case from an 
injury to an illness.
    (4) What if one of my employees is splashed or exposed to blood or 
other

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potentially infectious material without being cut or scratched? Do I 
need to record this incident? You need to record such an incident on 
the OSHA 300 Log as an illness if:
    (i) It results in the diagnosis of a bloodborne illness, such as 
HIV, hepatitis B, or hepatitis C; or
    (ii) It meets one or more of the recording criteria in Sec. 1904.7.


Sec. 1904.9  Recording criteria for cases involving medical removal 
under OSHA standards.

    (a) Basic requirement. If an employee is medically removed under 
the medical surveillance requirements of an OSHA standard, you must 
record the case on the OSHA 300 Log.
    (b) Implementation. (1) How do I classify medical removal cases on 
the OSHA 300 Log? You must enter each medical removal case on the OSHA 
300 Log as either a case involving days away from work or a case 
involving restricted work activity, depending on how you decide to 
comply with the medical removal requirement. If the medical removal is 
the result of a chemical exposure, you must enter the case on the OSHA 
300 Log by checking the ``poisoning'' column.
    (2) Do all of OSHA's standards have medical removal provisions? No, 
some OSHA standards, such as the standards covering bloodborne 
pathogens and noise, do not have medical removal provisions. Many OSHA 
standards that cover specific chemical substances have medical removal 
provisions. These standards include, but are not limited to, lead, 
cadmium, methylene chloride, formaldehyde, and benzene.
    (3) Do I have to record a case where I voluntarily removed the 
employee from exposure before the medical removal criteria in an OSHA 
standard are met? No, if the case involves voluntary medical removal 
before the medical removal levels required by an OSHA standard, you do 
not need to record the case on the OSHA 300 Log.


Sec. 1904.10  Recording criteria for cases involving occupational 
hearing loss.

    (a) Basic requirement. If an employee's hearing test (audiogram) 
reveals that a Standard Threshold Shift (STS) has occurred, you must 
record the case on the OSHA 300 Log by checking the ``hearing loss'' 
column.
    (b) Implementation. (1) What is a Standard Threshold Shift? A 
Standard Threshold Shift, or STS, is defined in the occupational noise 
exposure standard at 29 CFR 1910.95(c)(10)(i) as a change in hearing 
threshold, relative to the most recent audiogram for that employee, of 
an average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz in 
one or both ears.
    (2) How do I determine whether an STS has occurred? If the employee 
has never previously experienced a recordable hearing loss, you must 
compare the employee's current audiogram with that employee's baseline 
audiogram. If the employee has previously experienced a recordable 
hearing loss, you must compare the employee's current audiogram with 
the employee's revised baseline audiogram (the audiogram reflecting the 
employee's previous recordable hearing loss case).
    (3) May I adjust the audiogram results to reflect the effects of 
aging on hearing? Yes, when comparing audiogram results, you may adjust 
the results for the employee's age when the audiogram was taken using 
Tables F-1 or F-2, as appropriate, in Appendix F of 29 CFR 1910.95.
    (4) Do I have to record the hearing loss if I am going to retest 
the employee's hearing? No, if you retest the employee's hearing within 
30 days of the first test, and the retest does not confirm the STS, you 
are not required to record the hearing loss case on the OSHA 300 Log. 
If the retest confirms the STS, you must record the hearing loss 
illness within seven (7) calendar days of the retest.
    (5) Are there any special rules for determining whether a hearing 
loss case is work-related? Yes, hearing loss is presumed to be work-
related if the employee is exposed to noise in the workplace at an 8-
hour time-weighted average of 85 dBA or greater, or to a total noise 
dose of 50 percent, as defined in 29 CFR 1910.95. For hearing loss 
cases where the employee is not exposed to this level of noise, you 
must use the rules in Sec. 1904.5 to determine if the hearing loss is 
work-related.
    (6) If a physician or other licensed health care professional 
determines the hearing loss is not work-related, do I still need to 
record the case? If a physician or other licensed health care 
professional determines that the hearing loss is not work-related or 
has not been significantly aggravated by occupational noise exposure, 
you are not required to consider the case work-related or to record the 
case on the OSHA 300 Log.


Sec. 1904.11  Recording criteria for work-related tuberculosis cases.

    (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, you do 
not have to record it 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.


Sec. 1904.12  Recording criteria for cases involving work-related 
musculoskeletal disorders.

    (a) Basic requirement. If 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.
    (b) Implementation. (1) What is a ``musculoskeletal disorder'' or 
MSD? Musculoskeletal disorders (MSDs) are disorders of the muscles, 
nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs do 
not include disorders caused by slips, trips, falls, motor vehicle 
accidents, or other similar accidents. Examples of MSDs include: Carpal 
tunnel syndrome, Rotator cuff syndrome, De Quervain's disease, Trigger 
finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, 
Raynaud's phenomenon, Carpet layers knee, Herniated spinal disc, and 
Low back pain.
    (2) How do I decide which musculoskeletal disorders to record? 
There 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. If a musculoskeletal 
disorder is work-related, and is a new case, and meets one or more of 
the general recording criteria, you must record the musculoskeletal 
disorder. The following table will guide you to the appropriate

[[Page 6130]]

section of the rule for guidance on recording MSD cases.
    (i) Determining if the MSD is work-related. See Sec. 1904.5.
    (ii) Determining if the MSD is a new case. See Sec. 1904.6.
    (iii) Determining if the MSD meets one or more of the general 
recording criteria:
    (A) Days away from work, see Sec. 1904.7(b)(3).
    (B) Restricted work or transfer to another job, or see 
Sec. 1904.7(b)(4).
    (C) Medical treatment beyond first aid. See Sec. 1904.7(b)(5).
    (3) If a work-related MSD case involves only subjective symptoms 
like pain or tingling, do I have to record it as a musculoskeletal 
disorder? The symptoms of an MSD are treated the same as symptoms for 
any other injury or illness. If an employee has pain, tingling, 
burning, numbness or any other subjective symptom of an MSD, and the 
symptoms are work-related, and the case is a new case that meets the 
recording criteria, you must record the case on the OSHA 300 Log as a 
musculoskeletal disorder.


Secs. 1904.13-1904.28  [Reserved]


Sec. 1904.29  Forms

    (a) Basic requirement. You must use OSHA 300, 300-A, and 301 forms, 
or equivalent forms, for recordable injuries and illnesses. The OSHA 
300 form is called the Log of Work-Related Injuries and Illnesses, the 
300-A is the Summary of Work-Related Injuries and Illnesses, and the 
OSHA 301 form is called the Injury and Illness Incident Report.
    (b) Implementation. (1) What do I need to do to complete the OSHA 
300 Log? You must enter information about your business at the top of 
the OSHA 300 Log, enter a one or two line description for each 
recordable injury or illness, and summarize this information on the 
OSHA 300-A at the end of the year.
    (2) What do I need to do to complete the OSHA 301 Incident Report? 
You must complete an OSHA 301 Incident Report form, or an equivalent 
form, for each recordable injury or illness entered on the OSHA 300 
Log.
    (3) How quickly must each injury or illness be recorded? You must 
enter each recordable injury or illness on the OSHA 300 Log and 301 
Incident Report within seven (7) calendar days of receiving information 
that a recordable injury or illness has occurred.
    (4) What is an equivalent form? An equivalent form is one that has 
the same information, is as readable and understandable, and is 
completed using the same instructions as the OSHA form it replaces. 
Many employers use an insurance form instead of the OSHA 301 Incident 
Report, or supplement an insurance form by adding any additional 
information required by OSHA.
    (5) May I keep my records on a computer? Yes, if the computer can 
produce equivalent forms when they are needed, as described under 
Secs. 1904.35 and 1904.40, you may keep your records using the computer 
system.
    (6) Are there situations where I do not put the employee's name on 
the forms for privacy reasons? Yes, if you have a ``privacy concern 
case,'' you may not enter the employee's name on the OSHA 300 Log. 
Instead, enter ``privacy case'' in the space normally used for the 
employee's name. This will protect the privacy of the injured or ill 
employee when another employee, a former employee, or an authorized 
employee representative is provided access to the OSHA 300 Log under 
Sec. 1904.35(b)(2). You must keep a separate, confidential list of the 
case numbers and employee names for your privacy concern cases so you 
can update the cases and provide the information to the government if 
asked to do so.
    (7) How do I determine if an injury or illness is a privacy concern 
case? You must consider the following injuries or illnesses to be 
privacy concern cases:
    (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) Mental illnesses;
    (iv) HIV infection, hepatitis, or tuberculosis;
    (v) Needlestick injuries and cuts from sharp objects that are 
contaminated with another person's blood or other potentially 
infectious material (see Sec. 1904.8 for definitions); and
    (vi) Other illnesses, if the employee independently and voluntarily 
requests that his or her name not be entered on the log. 
Musculoskeletal disorders (MSDs) are not considered privacy concern 
cases.
    (8) May I classify any other types of injuries and illnesses as 
privacy concern cases? No, this is a complete list of all injuries and 
illnesses considered privacy concern cases for Part 1904 purposes.
    (9) If I have removed the employee's name, but still believe that 
the employee may be identified from the information on the forms, is 
there anything else that I can do to further protect the employee's 
privacy? Yes, if you have a reasonable basis to believe that 
information describing the privacy concern case may be personally 
identifiable even though the employee's name has been omitted, you may 
use discretion in describing the injury or illness on both the OSHA 300 
and 301 forms. You must enter enough information to identify the cause 
of the incident and the general severity of the injury or illness, but 
you do not need to include details of an intimate or private nature. 
For example, a sexual assault case could be described as ``injury from 
assault,'' or an injury to a reproductive organ could be described as 
``lower abdominal injury.''
    (10) What must I do to protect employee privacy if I wish to 
provide access to the OSHA Forms 300 and 301 to persons other than 
government representatives, employees, former employees or authorized 
representatives? If you decide to voluntarily disclose the Forms to 
persons other than government representatives, employees, former 
employees or authorized representatives (as required by Secs. 1904.35 
and 1904.40), you must remove or hide the employees' names and other 
personally identifying information, except for the following cases. You 
may disclose the Forms with personally identifying information only:
    (i) to an auditor or consultant 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 Department of 
Health and Human Services Standards for Privacy of Individually 
Identifiable Health Information, 45 CFR 164.512.

Subpart D--Other OSHA Injury and Illness Recordkeeping Requirements


Sec. 1904.30  Multiple business establishments.

    (a) Basic requirement. You must keep a separate OSHA 300 Log for 
each establishment that is expected to be in operation for one year or 
longer.
    (b) Implementation. (1) Do I need to keep OSHA injury and illness 
records for short-term establishments (i.e., establishments that will 
exist for less than a year)? Yes, however, you do not have to keep a 
separate OSHA 300 Log for each such establishment. You may keep one 
OSHA 300 Log that covers all of your short-term establishments. You may 
also include the short-term establishments' recordable injuries and 
illnesses on an OSHA 300 Log that

[[Page 6131]]

covers short-term establishments for individual company divisions or 
geographic regions.
    (2) May I keep the records for all of my establishments at my 
headquarters location or at some other central location? Yes, you may 
keep the records for an establishment at your headquarters or other 
central location if you can:
    (i) Transmit information about the injuries and illnesses from the 
establishment to the central location within seven (7) calendar days of 
receiving information that a recordable injury or illness has occurred; 
and
    (ii) Produce and send the records from the central location to the 
establishment within the time frames required by Sec. 1904.35 and 
Sec. 1904.40 when you are required to provide records to a government 
representative, employees, former employees or employee 
representatives.
    (3) Some of my employees work at several different locations or do 
not work at any of my establishments at all. How do I record cases for 
these employees? You must link each of your employees with one of your 
establishments, for recordkeeping purposes. You must record the injury 
and illness on the OSHA 300 Log of the injured or ill employee's 
establishment, or on an OSHA 300 Log that covers that employee's short-
term establishment.
    (4) How do I record an injury or illness when an employee of one of 
my establishments is injured or becomes ill while visiting or working 
at another of my establishments, or while working away from any of my 
establishments? If the injury or illness occurs at one of your 
establishments, you must record the injury or illness on the OSHA 300 
Log of the establishment at which the injury or illness occurred. If 
the employee is injured or becomes ill and is not at one of your 
establishments, you must record the case on the OSHA 300 Log at the 
establishment at which the employee normally works.


Sec. 1904.31  Covered employees.

    (a) Basic requirement. You must record on the OSHA 300 Log the 
recordable injuries and illnesses of all employees on your payroll, 
whether they are labor, executive, hourly, salary, part-time, seasonal, 
or migrant workers. You also must record the recordable injuries and 
illnesses that occur to employees who are not on your payroll if you 
supervise these employees on a day-to-day basis. If your business is 
organized as a sole proprietorship or partnership, the owner or 
partners are not considered employees for recordkeeping purposes.
    (b) Implementation. (1) If a self-employed person is injured or 
becomes ill while doing work at my business, do I need to record the 
injury or illness? No, self-employed individuals are not covered by the 
OSH Act or this regulation.
    (2) If I obtain employees from a temporary help service, employee 
leasing service, or personnel supply service, do I have to record an 
injury or illness occurring to one of those employees? You must record 
these injuries and illnesses if you supervise these employees on a day-
to-day basis.
    (3) If an employee in my establishment is a contractor's employee, 
must I record an injury or illness occurring to that employee? If the 
contractor's employee is under the day-to-day supervision of the 
contractor, the contractor is responsible for recording the injury or 
illness. If you supervise the contractor employee's work on a day-to-
day basis, you must record the injury or illness.
    (4) Must the personnel supply service, temporary help service, 
employee leasing service, or contractor also record the injuries or 
illnesses occurring to temporary, leased or contract employees that I 
supervise on a day-to-day basis? No, you and the temporary help 
service, employee leasing service, personnel supply service, or 
contractor should coordinate your efforts to make sure that each injury 
and illness is recorded only once: either on your OSHA 300 Log (if you 
provide day-to-day supervision) or on the other employer's OSHA 300 Log 
(if that company provides day-to-day supervision).


Sec. 1904.32  Annual summary.

    (a) Basic requirement. At the end of each calendar year, you must:
    (1) Review the OSHA 300 Log to verify that the entries are complete 
and accurate, and correct any deficiencies identified;
    (2) Create an annual summary of injuries and illnesses recorded on 
the OSHA 300 Log;
    (3) Certify the summary; and
    (4) Post the annual summary.
    (b) Implementation. (1) How extensively do I have to review the 
OSHA 300 Log entries at the end of the year? You must review the 
entries as extensively as necessary to make sure that they are complete 
and correct.
    (2) How do I complete the annual summary? You must:
    (i) Total the columns on the OSHA 300 Log (if you had no recordable 
cases, enter zeros for each column total); and
    (ii) Enter the calendar year covered, the company's name, 
establishment name, establishment address, annual average number of 
employees covered by the OSHA 300 Log, and the total hours worked by 
all employees covered by the OSHA 300 Log.
    (iii) If you are using an equivalent form other than the OSHA 300-A 
summary form, as permitted under Sec. 1904.6(b)(4), the summary you use 
must also include the employee access and employer penalty statements 
found on the OSHA 300-A Summary form.
    (3) How do I certify the annual summary? A company executive must 
certify that he or she has examined the OSHA 300 Log and that he or she 
reasonably believes, based on his or her knowledge of the process by 
which the information was recorded, that the annual summary is correct 
and complete.
    (4) Who is considered a company executive? The company executive 
who certifies the log must be one of the following persons:
    (i) An owner of the company (only if the company is a sole 
proprietorship or partnership);
    (ii) An officer of the corporation;
    (iii) The highest ranking company official working at the 
establishment; or
    (iv) The immediate supervisor of the highest ranking company 
official working at the establishment.
    (5) How do I post the annual summary? You must post a copy of the 
annual summary in each establishment in a conspicuous place or places 
where notices to employees are customarily posted. You must ensure that 
the posted annual summary is not altered, defaced or covered by other 
material.
    (6) When do I have to post the annual summary? You must post the 
summary no later than February 1 of the year following the year covered 
by the records and keep the posting in place until April 30.


Sec. 1904.33  Retention and updating.

    (a) Basic requirement. You must save the OSHA 300 Log, the privacy 
case list (if one exists), the annual summary, and the OSHA 301 
Incident Report forms for five (5) years following the end of the 
calendar year that these records cover.
    (b) Implementation. (1) Do I have to update the OSHA 300 Log during 
the five-year storage period? Yes, during the storage period, you must 
update your stored OSHA 300 Logs to include newly discovered recordable 
injuries or illnesses and to show any changes that have occurred in the 
classification of previously recorded injuries and illnesses. If the 
description or outcome of a case changes, you must remove or line out 
the original entry and enter the new information.

[[Page 6132]]

    (2) Do I have to update the annual summary? No, you are not 
required to update the annual summary, but you may do so if you wish.
    (3) Do I have to update the OSHA 301 Incident Reports? No, you are 
not required to update the OSHA 301 Incident Reports, but you may do so 
if you wish.


Sec. 1904.34  Change in business ownership.

    If your business changes ownership, you are responsible for 
recording and reporting work-related injuries and illnesses only for 
that period of the year during which you owned the establishment. You 
must transfer the Part 1904 records to the new owner. The new owner 
must save all records of the establishment kept by the prior owner, as 
required by Sec. 1904.33 of this Part, but need not update or correct 
the records of the prior owner.


Sec. 1904.35  Employee involvement.

    (a) Basic requirement. Your employees and their representatives 
must be involved in the recordkeeping system in several ways.
    (1) You must inform each employee of how he or she is to report an 
injury or illness to you.
    (2) You must provide limited access to your injury and illness 
records for your employees and their representatives.
    (b) Implementation. (1) What must I do to make sure that employees 
report work-related injuries and illnesses to me?
    (i) You must set up a way for employees to report work-related 
injuries and illnesses promptly; and
    (ii) You must tell each employee how to report work-related 
injuries and illnesses to you.
    (2) Do I have to give my employees and their representatives access 
to the OSHA injury and illness records? Yes, your employees, former 
employees, their personal representatives, and their authorized 
employee representatives have the right to access the OSHA injury and 
illness records, with some limitations, as discussed below.
    (i) Who is an authorized employee representative? An authorized 
employee representative is an authorized collective bargaining agent of 
employees.
    (ii) Who is a ``personal representative'' of an employee or former 
employee? A personal representative is:
    (A) Any person that the employee or former employee designates as 
such, in writing; or
    (B) The legal representative of a deceased or legally incapacitated 
employee or former employee.
    (iii) If an employee or representative asks for access to the OSHA 
300 Log, when do I have to provide it? When an employee, former 
employee, personal representative, or authorized employee 
representative asks for copies of your current or stored OSHA 300 
Log(s) for an establishment the employee or former employee has worked 
in, you must give the requester a copy of the relevant OSHA 300 Log(s) 
by the end of the next business day.
    (iv) May I remove the names of the employees or any other 
information from the OSHA 300 Log before I give copies to an employee, 
former employee, or employee representative? No, you must leave the 
names on the 300 Log. However, to protect the privacy of injured and 
ill employees, you may not record the employee's name on the OSHA 300 
Log for certain ``privacy concern cases,'' as specified in paragraphs 
1904.29(b)(6) through 1904.29(b)(9).
    (v) If an employee or representative asks for access to the OSHA 
301 Incident Report, when do I have to provide it?
    (A) When an employee, former employee, or personal representative 
asks for a copy of the OSHA 301 Incident Report describing an injury or 
illness to that employee or former employee, you must give the 
requester a copy of the OSHA 301 Incident Report containing that 
information by the end of the next business day.
    (B) When an authorized employee representative asks for a copies of 
the OSHA 301 Incident Reports for an establishment where the agent 
represents employees under a collective bargaining agreement, you must 
give copies of those forms to the authorized employee representative 
within 7 calendar days. You are only required to give the authorized 
employee representative information from the OSHA 301 Incident Report 
section titled ``Tell us about the case.'' You must remove all other 
information from the copy of the OSHA 301 Incident Report or the 
equivalent substitute form that you give to the authorized employee 
representative.
    (vi) May I charge for the copies? No, you may not charge for these 
copies the first time they are provided. However, if one of the 
designated persons asks for additional copies, you may assess a 
reasonable charge for retrieving and copying the records.


Sec. 1904.36  Prohibition against discrimination.

    Section 11(c) of the Act prohibits you from discriminating against 
an employee for reporting a work-related fatality, injury or illness. 
That provision of the Act also protects the employee who files a safety 
and health complaint, asks for access to the Part 1904 records, or 
otherwise exercises any rights afforded by the OSH Act.


Sec. 1904.37  State recordkeeping regulations.

    (a) Basic requirement. Some States operate their own OSHA programs, 
under the authority of a State Plan approved by OSHA. States operating 
OSHA-approved State Plans must have occupational injury and illness 
recording and reporting requirements that are substantially identical 
to the requirements in this Part (see 29 CFR 1902.3(k), 29 CFR 1952.4 
and 29 CFR 1956.10(i)).
    (b) Implementation. (1) State-Plan States must have the same 
requirements as Federal OSHA for determining which injuries and 
illnesses are recordable and how they are recorded.
    (2) For other Part 1904 provisions (for example, industry 
exemptions, reporting of fatalities and hospitalizations, record 
retention, or employee involvement), State-Plan State requirements may 
be more stringent than or supplemental to the Federal requirements, but 
because of the unique nature of the national recordkeeping program, 
States must consult with and obtain approval of any such requirements.
    (3) Although State and local government employees are not covered 
Federally, all State-Plan States must provide coverage, and must 
develop injury and illness statistics, for these workers. State Plan 
recording and reporting requirements for State and local government 
entities may differ from those for the private sector but must meet the 
requirements of paragraphs 1904.37(b)(1) and (b)(2).
    (4) A State-Plan State may not issue a variance to a private sector 
employer and must recognize all variances issued by Federal OSHA.
    (5) A State Plan State may only grant an injury and illness 
recording and reporting variance to a State or local government 
employer within the State after obtaining approval to grant the 
variance from Federal OSHA.


Sec. 1904.38  Variances from the recordkeeping rule.

    (a) Basic requirement. If you wish to keep records in a different 
manner from the manner prescribed by the Part 1904 regulations, you may 
submit a variance petition to the Assistant Secretary of Labor for 
Occupational Safety and Health, U.S. Department of Labor, Washington, 
DC 20210. You can obtain

[[Page 6133]]

a variance only if you can show that your alternative recordkeeping 
system:
    (1) Collects the same information as this Part requires;
    (2) Meets the purposes of the Act; and
    (3) Does not interfere with the administration of the Act.
    (b) Implementation. (1) What do I need to include in my variance 
petition? You must include the following items in your petition:
    (i) Your name and address;
    (ii) A list of the State(s) where the variance would be used;
    (iii) The address(es) of the business establishment(s) involved;
    (iv) A description of why you are seeking a variance;
    (v) A description of the different recordkeeping procedures you 
propose to use;
    (vi) A description of how your proposed procedures will collect the 
same information as would be collected by this Part and achieve the 
purpose of the Act; and
    (vii) A statement that you have informed your employees of the 
petition by giving them or their authorized representative a copy of 
the petition and by posting a statement summarizing the petition in the 
same way as notices are posted under Sec. 1903.2(a).
    (2) How will the Assistant Secretary handle my variance petition? 
The Assistant Secretary will take the following steps to process your 
variance petition.
    (i) The Assistant Secretary will offer your employees and their 
authorized representatives an opportunity to submit written data, 
views, and arguments about your variance petition.
    (ii) The Assistant Secretary may allow the public to comment on 
your variance petition by publishing the petition in the Federal 
Register. If the petition is published, the notice will establish a 
public comment period and may include a schedule for a public meeting 
on the petition.
    (iii) After reviewing your variance petition and any comments from 
your employees and the public, the Assistant Secretary will decide 
whether or not your proposed recordkeeping procedures will meet the 
purposes of the Act, will not otherwise interfere with the Act, and 
will provide the same information as the Part 1904 regulations provide. 
If your procedures meet these criteria, the Assistant Secretary may 
grant the variance subject to such conditions as he or she finds 
appropriate.
    (iv) If the Assistant Secretary grants your variance petition, OSHA 
will publish a notice in the Federal Register to announce the variance. 
The notice will include the practices the variance allows you to use, 
any conditions that apply, and the reasons for allowing the variance.
    (3) If I apply for a variance, may I use my proposed recordkeeping 
procedures while the Assistant Secretary is processing the variance 
petition? No, alternative recordkeeping practices are only allowed 
after the variance is approved. You must comply with the Part 1904 
regulations while the Assistant Secretary is reviewing your variance 
petition.
    (4) If I have already been cited by OSHA for not following the Part 
1904 regulations, will my variance petition have any effect on the 
citation and penalty? No, in addition, the Assistant Secretary may 
elect not to review your variance petition if it includes an element 
for which you have been cited and the citation is still under review by 
a court, an Administrative Law Judge (ALJ), or the OSH Review 
Commission.
    (5) If I receive a variance, may the Assistant Secretary revoke the 
variance at a later date? Yes, the Assistant Secretary may revoke your 
variance if he or she has good cause. The procedures revoking a 
variance will follow the same process as OSHA uses for reviewing 
variance petitions, as outlined in paragraph 1904.38(b)(2). Except in 
cases of willfulness or where necessary for public safety, the 
Assistant Secretary will:
    (i) Notify you in writing of the facts or conduct that may warrant 
revocation of your variance; and
    (ii) Provide you, your employees, and authorized employee 
representatives with an opportunity to participate in the revocation 
procedures.

Subpart E--Reporting Fatality, Injury and Illness Information to 
the Government


Sec. 1904.39  Reporting fatalities and multiple hospitalization 
incidents to OSHA.

    (a) Basic requirement. Within eight (8) hours after the death of 
any employee from a work-related incident or the in-patient 
hospitalization of three or more employees as a result of a work-
related incident, you must orally report the fatality/multiple 
hospitalization by telephone or in person to the Area Office of the 
Occupational Safety and Health Administration (OSHA), U.S. Department 
of Labor, that is nearest to the site of the incident. You may also use 
the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-
6742).
    (b) Implementation. (1) If the Area Office is closed, may I report 
the incident by leaving a message on OSHA's answering machine, faxing 
the area office, or sending an e-mail? No, if you can't talk to a 
person at the Area Office, you must report the fatality or multiple 
hospitalization incident using the 800 number.
    (2) What information do I need to give to OSHA about the incident? 
You must give OSHA the following information for each fatality or 
multiple hospitalization incident:
    (i) The establishment name;
    (ii) The location of the incident;
    (iii) The time of the incident;
    (iv) The number of fatalities or hospitalized employees;
    (v) The names of any injured employees;
    (vi) Your contact person and his or her phone number; and
    (vii) A brief description of the incident.
    (3) Do I have to report every fatality or multiple hospitalization 
incident resulting from a motor vehicle accident? No, you do not have 
to report all of these incidents. If the motor vehicle accident occurs 
on a public street or highway, and does not occur in a construction 
work zone, you do not have to report the incident to OSHA. However, 
these injuries must be recorded on your OSHA injury and illness 
records, if you are required to keep such records.
    (4) Do I have to report a fatality or multiple hospitalization 
incident that occurs on a commercial or public transportation system? 
No, you do not have to call OSHA to report a fatality or multiple 
hospitalization incident if it involves a commercial airplane, train, 
subway or bus accident. However, these injuries must be recorded on 
your OSHA injury and illness records, if you are required to keep such 
records.
    (5) Do I have to report a fatality caused by a heart attack at 
work? Yes, your local OSHA Area Office director will decide whether to 
investigate the incident, depending on the circumstances of the heart 
attack.
    (6) Do I have to report a fatality or hospitalization that occurs 
long after the incident? No, you must only report each fatality or 
multiple hospitalization incident that occurs within thirty (30) days 
of an incident.
    (7) What if I don't learn about an incident right away? If you do 
not learn of a reportable incident at the time it occurs and the 
incident would otherwise be reportable under paragraphs (a) and (b) of 
this section, you must make the report within eight (8) hours of the 
time the incident is reported to you or to any of your agent(s) or 
employee(s).

[[Page 6134]]

Sec. 1904.40  Providing records to government representatives.

    (a) Basic requirement. When an authorized government representative 
asks for the records you keep under Part 1904, you must provide copies 
of the records within four (4) business hours.
    (b) Implementation. (1) What government representatives have the 
right to get copies of my Part 1904 records? The government 
representatives authorized to receive the records are:
    (i) A representative of the Secretary of Labor conducting an 
inspection or investigation under the Act;
    (ii) A representative of the Secretary of Health and Human Services 
(including the National Institute for Occupational Safety and Health--
NIOSH) conducting an investigation under section 20(b) of the Act, or
    (iii) A representative of a State agency responsible for 
administering a State plan approved under section 18 of the Act.
    (2) Do I have to produce the records within four (4) hours if my 
records are kept at a location in a different time zone? OSHA will 
consider your response to be timely if you give the records to the 
government representative within four (4) business hours of the 
request. If you maintain the records at a location in a different time 
zone, you may use the business hours of the establishment at which the 
records are located when calculating the deadline.


Sec. 1904.41  Annual OSHA injury and illness survey of ten or more 
employers.

    (a) Basic requirement. If you receive OSHA's annual survey form, 
you must fill it out and send it to OSHA or OSHA's designee, as stated 
on the survey form. You must report the following information for the 
year described on the form:
    (1) the number of workers you employed;
    (2) the number of hours worked by your employees; and
    (3) the requested information from the records that you keep under 
Part 1904.
    (b) Implementation. (1) Does every employer have to send data to 
OSHA? No, each year, OSHA sends injury and illness survey forms to 
employers in certain industries. In any year, some employers will 
receive an OSHA survey form and others will not. You do not have to 
send injury and illness data to OSHA unless you receive a survey form.
    (2) How quickly do I need to respond to an OSHA survey form? You 
must send the survey reports to OSHA, or OSHA's designee, by mail or 
other means described in the survey form, within 30 calendar days, or 
by the date stated in the survey form, whichever is later.
    (3) Do I have to respond to an OSHA survey form if I am normally 
exempt from keeping OSHA injury and illness records? Yes, even if you 
are exempt from keeping injury and illness records under Sec. 1904.1 to 
Sec. 1904.3, OSHA may inform you in writing that it will be collecting 
injury and illness information from you in the following year. If you 
receive such a letter, you must keep the injury and illness records 
required by Sec. 1904.5 to Sec. 1904.15 and make a survey report for 
the year covered by the survey.
    (4) Do I have to answer the OSHA survey form if I am located in a 
State-Plan State? Yes, all employers who receive survey forms must 
respond to the survey, even those in State-Plan States.
    (5) Does this section affect OSHA's authority to inspect my 
workplace? No, nothing in this section affects OSHA's statutory 
authority to investigate conditions related to occupational safety and 
health.


Sec. 1904.42  Requests from the Bureau of Labor Statistics for data.

    (a) Basic requirement. If you receive a Survey of Occupational 
Injuries and Illnesses Form from the Bureau of Labor Statistics (BLS), 
or a BLS designee, you must promptly complete the form and return it 
following the instructions contained on the survey form.
    (b) Implementation. (1) Does every employer have to send data to 
the BLS? No, each year, the BLS sends injury and illness survey forms 
to randomly selected employers and uses the information to create the 
Nation's occupational injury and illness statistics. In any year, some 
employers will receive a BLS survey form and others will not. You do 
not have to send injury and illness data to the BLS unless you receive 
a survey form.
    (2) If I get a survey form from the BLS, what do I have to do? If 
you receive a Survey of Occupational Injuries and Illnesses Form from 
the Bureau of Labor Statistics (BLS), or a BLS designee, you must 
promptly complete the form and return it, following the instructions 
contained on the survey form.
    (3) Do I have to respond to a BLS survey form if I am normally 
exempt from keeping OSHA injury and illness records? Yes, even if you 
are exempt from keeping injury and illness records under Sec. 1904.1 to 
Sec. 1904.3, the BLS may inform you in writing that it will be 
collecting injury and illness information from you in the coming year. 
If you receive such a letter, you must keep the injury and illness 
records required by Sec. 1904.5 to Sec. 1904.15 and make a survey 
report for the year covered by the survey.
    (4) Do I have to answer the BLS survey form if I am located in a 
State-Plan State? Yes, all employers who receive a survey form must 
respond to the survey, even those in State-Plan States.

Subpart F--Transition From the Former Rule


Sec. 1904.43  Summary and posting of the 2001 data.

    (a) Basic requirement. If you were required to keep OSHA 200 Logs 
in 2001, you must post a 2000 annual summary from the OSHA 200 Log of 
occupational injuries and illnesses for each establishment.
    (b) Implementation. (1) What do I have to include in the summary?
    (i) You must include a copy of the totals from the 2001 OSHA 200 
Log and the following information from that form:
    (A) The calendar year covered;
    (B) Your company name;
    (C) The name and address of the establishment; and
    (D) The certification signature, title and date.
    (ii) If no injuries or illnesses occurred at your establishment in 
2001, you must enter zeros on the totals line and post the 2001 
summary.
    (2) When am I required to summarize and post the 2001 information? 
    (i) You must complete the summary by February 1, 2002; and
    (ii) You must post a copy of the summary in each establishment in a 
conspicuous place or places where notices to employees are customarily 
posted. You must ensure that the summary is not altered, defaced or 
covered by other material.
    (3) You must post the 2001 summary from February 1, 2002 to March 
1, 2002.


Sec. 1904.44  Retention and updating of old forms.

    You must save your copies of the OSHA 200 and 101 forms for five 
years following the year to which they relate and continue to provide 
access to the data as though these forms were the OSHA 300 and 301 
forms. You are not required to update your old 200 and 101 forms.


Sec. 1904.45  OMB control numbers under the Paperwork Reduction Act

    The following sections each contain a collection of information 
requirement which has been approved by the Office of Management and 
Budget under the control number listed

[[Page 6135]]



------------------------------------------------------------------------
                                                                  OMB
                       29 CFR citation                          Control
                                                                  No.
------------------------------------------------------------------------
1904.4-35...................................................   1218-0176
1904.39-41..................................................   1218-0176
1904.42.....................................................   1220-0045
1904.43-44..................................................   1218-0176
------------------------------------------------------------------------

Subpart G--Definitions


Sec. 1904.46  Definitions

    The Act. The Act means the Occupational Safety and Health Act of 
1970 (29 U.S.C. 651 et seq.). The definitions contained in section 3 of 
the Act (29 U.S.C. 652) and related interpretations apply to such terms 
when used in this Part 1904.
    Establishment. An establishment is a single physical location where 
business is conducted or where services or industrial operations are 
performed. For activities where employees do not work at a single 
physical location, such as construction; transportation; 
communications, electric, gas and sanitary services; and similar 
operations, the establishment is represented by main or branch offices, 
terminals, stations, etc. that either supervise such activities or are 
the base from which personnel carry out these activities.
    (1) Can one business location include two or more establishments? 
Normally, one business location has only one establishment. Under 
limited conditions, the employer may consider two or more separate 
businesses that share a single location to be separate establishments. 
An employer may divide one location into two or more establishments 
only when:
    (i) Each of the establishments represents a distinctly separate 
business;
    (ii) Each business is engaged in a different economic activity;
    (iii) No one industry description in the Standard Industrial 
Classification Manual (1987) applies to the joint activities of the 
establishments; and
    (iv) Separate reports are routinely prepared for each establishment 
on the number of employees, their wages and salaries, sales or 
receipts, and other business information. For example, if an employer 
operates a construction company at the same location as a lumber yard, 
the employer may consider each business to be a separate establishment.
    (2) Can an establishment include more than one physical location? 
Yes, but only under certain conditions. An employer may combine two or 
more physical locations into a single establishment only when:
    (i) The employer operates the locations as a single business 
operation under common management;
    (ii) The locations are all located in close proximity to each 
other; and
    (iii) The employer keeps one set of business records for the 
locations, such as records on the number of employees, their wages and 
salaries, sales or receipts, and other kinds of business information. 
For example, one manufacturing establishment might include the main 
plant, a warehouse a few blocks away, and an administrative services 
building across the street.
    (3) If an employee telecommutes from home, is his or her home 
considered a separate establishment? No, for employees who telecommute 
from home, the employee's home is not a business establishment and a 
separate 300 Log is not required. Employees who telecommute must be 
linked to one of your establishments under Sec. 1904.30(b)(3).
    Injury or illness. An injury or illness is an abnormal condition or 
disorder. Injuries include cases such as, but not limited to, a cut, 
fracture, sprain, or amputation. Illnesses include both acute and 
chronic illnesses, such as, but not limited to, a skin disease, 
respiratory disorder, or poisoning. (Note: Injuries and illnesses are 
recordable only if they are new, work-related cases that meet one or 
more of the Part 1904 recording criteria.)
    Physician or Other Licensed Health Care Professional. A physician 
or other licensed health care professional is an individual whose 
legally permitted scope of practice (i.e., license, registration, or 
certification) allows him or her to independently perform, or be 
delegated the responsibility to perform, the activities described by 
this regulation.
    You. ``You'' means an employer as defined in Section 3 of the 
Occupational Safety and Health Act of 1970 (29 U.S.C. 652).

PART 1952--[AMENDED]

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

    Authority: 29 U.S.C. 667; 29 CFR part 1902, Secretary of Labor's 
Order No. 1-90 (55 FR 9033) and 6-96 (62 FR 111).

    3. Section 1952.4 is revised to read as follows:


Sec. 1952.4  Injury and illness recording and reporting requirements.

    (a) Injury and illness recording and reporting requirements 
promulgated by State-Plan States must be substantially identical to 
those in 29 CFR part 1904 ``Recording and Reporting Occupational 
Injuries and Illnesses.'' State-Plan States must promulgate recording 
and reporting requirements that are the same as the Federal 
requirements for determining which injuries and illnesses will be 
entered into the records and how they are entered. All other injury and 
illness recording and reporting requirements that are promulgated by 
State-Plan States may be more stringent than, or supplemental to, the 
Federal requirements, but, because of the unique nature of the national 
recordkeeping program, States must consult with OSHA and obtain 
approval of such additional or more stringent reporting and recording 
requirements to ensure that they will not interfere with uniform 
reporting objectives. State-Plan States must extend the scope of their 
regulation to State and local government employers.
    (b) A State may not grant a variance to the injury and illness 
recording and reporting requirements for private sector employers. Such 
variances may only be granted by Federal OSHA to assure nationally 
consistent workplace injury and illness statistics. A State may only 
grant a variance to the injury and illness recording and reporting 
requirements for State or local government entities in that State after 
obtaining approval from Federal OSHA.
    (c) A State must recognize any variance issued by Federal OSHA.
    (d) A State may, but is not required, to participate in the Annual 
OSHA Injury/Illness Survey as authorized by 29 CFR 1904.41. A 
participating State may either adopt requirements identical to 1904.41 
in its recording and reporting regulation as an enforceable State 
requirement, or may defer to the Federal regulation for enforcement. 
Nothing in any State plan shall affect the duties of employers to 
comply with 1904.41, when surveyed, as provided by section 18(c)(7) of 
the Act.

[FR Doc. 01-725 Filed 1-18-01; 8:45 am]
BILLING CODE 4510-26-P