[Federal Register Volume 69, Number 227 (Friday, November 26, 2004)]
[Rules and Regulations]
[Pages 68793-68805]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25955]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1960


Basic Program Elements for Federal Employee Occupational Safety 
and Health Programs and Related Matters; Subpart I for Recordkeeping 
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 
issuing a final rule amending the occupational injury and illness 
recording and reporting requirements applicable to Federal agencies, 
including the forms used by Federal agencies to record those injuries 
and illnesses. The final rule will make the Federal sector's 
recordkeeping and reporting requirements essentially identical to the 
private sector by adopting applicable OSHA recordkeeping provisions as 
requirements for Federal agencies. In addition to eliminating the 
problems in the existing system whereby injuries and illnesses suffered 
by some groups of employees, such as contract employees, are not 
recorded, this final rule will produce more useful injury and illness 
records, collect better information about the incidence of occupational 
injuries and illnesses at the establishment level, create reporting and 
recording criteria that are consistent among Federal agencies, enable 
injury and illness comparisons between the Federal and private sectors, 
and promote improved employee awareness and involvement in the 
recording and reporting of job-related injuries and illnesses. The 
final rule will also assist in achieving the stated goal in Executive 
Order 12196 that Federal agencies comply with all OSHA standards, and 
generally, assure worker protection in a manner comparable to the 
private sector. This final rule applies to all Federal agencies of the 
Executive Branch subject to Executive Order 12196, and does not apply 
to military personnel and uniquely military equipment, systems, and 
operations.
    The requirements of this final rule do not diminish or modify in 
any way a Federal Agency's responsibility to report or record injuries 
and illnesses as required by the Office of Workers' Compensation 
Programs under the Federal Employees' Compensation Act (FECA).

DATES: This final rule becomes effective January 1, 2005.

FOR FURTHER INFORMATION CONTACT: Acting Director, Thomas K. Marple, 
Office of Federal Agency Programs, Occupational Safety and Health 
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., 
Room N-3622, Washington, DC 20210, Telephone 202-693-2122.

SUPPLEMENTARY INFORMATION: 

I. Statutory Background

    Section 19 of the Occupational Safety and Health Act (the ``OSH 
Act'') (29 U.S.C. 668) includes provisions to ensure safe and healthful 
working conditions for Federal sector employees. Under that section, 
each Federal agency is responsible for establishing and maintaining an 
effective and comprehensive occupational safety and health program 
consistent with the standards promulgated by OSHA under Section 6 of 
the OSH Act. Executive Order 12196, Occupational Safety and Health 
Programs for Federal Employees, issued February 26, 1980, prescribes 
additional responsibilities for the heads of Federal agencies, the 
Secretary of Labor, and the General Services Administrator. Among other 
things, the Secretary of Labor, through OSHA, is required to issue 
basic program elements with which the heads of agencies must operate 
their safety and health programs. These basic program elements are set 
forth at 29 CFR Part 1960. Section 19 of the OSH Act, the Executive 
Order, and the basic program elements under 29 CFR Part 1960 apply to 
all agencies of the Executive Branch except military personnel and 
uniquely military equipment, systems, and operations. This final rule 
will amend the basic program elements under 29 CFR Part 1960, Subpart 
I, to make pertinent private sector recordkeeping requirements under 29 
CFR Part 1904 applicable to all Executive Branch Federal agencies. By 
amendment to the OSH Act on September 28, 1998 (through the Postal 
Employees' Safety Enhancement Act), the U.S. Postal Service is already 
complying with the recordkeeping requirements under Part 1904.
    Pursuant to Section 19(a) of the OSH Act, each head of a Federal 
agency is responsible for keeping adequate records of all occupational 
injuries and illnesses. Section 1-401(d) of the Executive Order 
provides the Secretary of Labor with the authority to prescribe 
recordkeeping and reporting requirements for Federal agencies. Under 29 
CFR Part 1960, Subpart I, each Federal agency is currently responsible 
for keeping records of all occupational injuries and illnesses. Section 
19 of the OSH Act also provides the Secretary of Labor with access to 
occupational injury and illness records and reports kept and filed by 
Federal agencies ``unless those records and reports are specifically 
required by Executive Order to be kept secret in the interest of the 
national defense or foreign policy, in which case the Secretary of 
Labor shall have access to such information as will not jeopardize 
national defense or foreign policy.''
    In its role as the lead Agency for implementing and reviewing 
compliance with Executive Order 12196 and the basic program elements 
set forth at 29 CFR Part 1960, OSHA requires Federal agencies to comply 
with all occupational safety and health standards, and generally, to 
assume responsibility for worker protection in a manner comparable to 
private employers. The OSH Act authorizes the Secretary of Labor to 
issue two types of final rules, ``standards'' and

[[Page 68794]]

``regulations.'' Occupational safety and health standards issued 
pursuant to Section 6 of the Act specify the measures to be taken to 
remedy occupational hazards. 29 U.S.C. 652(8), 655. OSHA regulations, 
issued pursuant to general rulemaking authority found, inter alia, 
under 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). Because 29 
CFR Part 1904, which sets forth occupational injury and illness 
recordkeeping requirements for the private sector, was promulgated 
pursuant to Section 8 of the OSH Act, and thus is technically a 
``regulation'' and not a ``standard,'' Federal agencies are currently 
not required to comply with the provisions in Part 1904. Therefore, 
OSHA is amending the basic program elements at 29 CFR Part 1960, 
Subpart I, to make pertinent private sector recordkeeping and reporting 
requirements under Part 1904 applicable to the Federal sector.

II. Functions of the Recordkeeping System

    In general, recording incidents of occupational deaths, injuries, 
and illnesses have several distinct functions or uses for employers, 
employees, and OSHA. One is to provide information to employers about 
hazards in their workplaces that are injuring or making their employees 
ill. Employers and employees can then use the information to implement 
safety and health programs at individual workplaces. Analysis of injury 
and illness data is a widely recognized method for discovering 
workplace safety and health problems and for tracking progress in 
solving those problems.
    Federal employees who are better informed about the hazards they 
face are more likely to follow safe work practices and to report 
workplace hazards to their Federal agency safety and health personnel. 
Such employees may then participate in identifying and controlling 
those hazards, thus improving the overall level of safety and health in 
the workplace.
    The records are an important source of information for Federal 
agency safety and health staff, as well as for OSHA's oversight 
function. Federal agency safety and health personnel use the data to 
identify the most dangerous worksites, as well as during inspections to 
help direct their efforts to the hazards in the workplace that are 
hurting workers. Injury and illness information is used to develop 
statistics that assist OSHA (through its oversight function) in 
identifying the scope of occupational safety and health problems and 
decide whether regulatory intervention, compliance assistance, or other 
measures are warranted. These data also provide the outcome measures 
used to determine the effectiveness of Federal agency safety and health 
programs.
    Section 8 of the OSH Act authorizes the Secretary of Labor 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. OSHA's 
regulations under 29 CFR Part 1904 include requirements for recording, 
maintaining, posting, retaining, and reporting occupational injury and 
illness information in the private sector. Employers must record each 
fatality, injury, and illness that is work related, is a new case, and 
meets one or more of the general recording criteria in Sec.  1904.7, or 
specific cases as described under Sec.  1904.8 through Sec.  1904.12. 
Under Part 1904, recordable work-related injuries and illnesses are 
those that result in one or more of the following: death, days away 
from work, restricted work or transfer to another job, medical 
treatment beyond first aid, loss of consciousness, or diagnosis of a 
significant injury or illness. 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.
    Also under Part 1904, employers are required to let employees know 
how and when to report work-related injuries and illnesses. This means 
that the employer must set up a system for the employees to report 
work-related injuries and illnesses and instruct them on how to use it. 
Part 1904 does not specify how the employer must accomplish these 
objectives, so employers have flexibility to set up systems that are 
appropriate to their workplace.

III. Overview of the Existing Federal Sector Recordkeeping System

    Under 29 CFR Part 1960, Subpart I, Federal agencies are required to 
collect occupational injury and illness data, analyze these data to 
identify unsafe and unhealthful working conditions, and establish 
program priorities based on their analyses. Under existing 1960.67c, 
Federal agencies are required to record only injury and illness 
information that is reported to the Office of Workers' Compensation 
Programs (OWCP) on forms CA-1, CA-2, or CA-6.\1\ Under this system, 
injuries and illnesses are recordable only if a medical expense was 
incurred or expected, or if the employee was away from work or on leave 
without pay (LWOP) or continuation of pay (COP) as a result of the 
injury or illness.
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    \1\ CA-1, Notice of Traumatic Injury and Claim for Continuation 
of Pay/Compensation; CA-2 , Notice of Occupational Disease and Claim 
for Compensation; CA-6, Official Superior's Report of Employee's 
Death.
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    OSHA uses injury and illness statistical data provided by OWCP to 
set program priorities, identify Federal worksites for OSHA oversight 
activity, and monitor agencies' progress in reducing occupational 
injury and illness. Also, OSHA uses the injury and illness statistical 
data from OWCP to develop an annual report for the President on the 
status of Federal civilian employees' safety and health.
    Under the existing system, the records used by Federal agencies 
include the OSHA Federal Agency Log and Summary of Occupational 
Injuries and Illnesses, and the OSHA Form 101, Supplementary Record of 
Occupational Injuries and Illnesses. On the OSHA Federal Agency Log, 
agencies must include some brief descriptive information, and use a 
simple check-off procedure to maintain a running total of occupational 
injuries and illnesses for the year. OSHA Form 101 is used to provide 
supplementary information regarding each injury and illness entered on 
the log. Alternate forms, such as workers' compensation forms, may be 
used if they contain all the information OSHA requires.
    Existing Part 1960, Subpart I, directs each Federal agency to 
complete an annual summary of occupational injuries and illnesses based 
on the OSHA Federal Agency Log. Agencies are also required to post a 
copy of the annual summaries for injuries and illnesses at each 
establishment. Under the existing system, the head of each Federal 
agency must ensure access to the injury and illness logs and annual 
summaries to Occupational Safety and Health Committees, employees, 
former employees, and employee representatives.

IV. OSHA's Reasons for Revising the Recordkeeping Rule for the Federal 
Sector

A. The Need To Improve the Quality of the Federal Recordkeeping System

    OSHA's revision, which essentially adopts applicable private sector 
recordkeeping requirements under Part 1904, will increase the ability 
of Federal agency establishments to identify and

[[Page 68795]]

track occupational injury and illness trends, extend the injury and 
illness recordkeeping requirements to all civilian workers in the 
Executive Branch, eliminate the problems associated with non-existent 
injury and illness reporting for contract employees who are supervised 
on a daily basis by Federal workers, improve Federal agency and Federal 
employee awareness of the root causes of accidents in their workplace, 
create more consistent statistics from Federal agency to Federal 
agency, and resolve the problem of incompatibility of data between the 
private sector and Federal sector. Establishing Part 1904 recordkeeping 
requirements will also reduce reporting errors because Part 1904 is 
written in plain language, is more detail oriented, uses the question-
and-answer format, minimizes ambiguity, eliminates recording of minor 
injuries and illnesses, and allows agencies flexibility to use computer 
programs to meet their OSHA recordkeeping obligations.
    From an administrative and management perspective, differences in 
Federal sector and private sector recordkeeping requirements are 
confusing to Federal agencies and OSHA personnel. Establishing one 
regulation for recordkeeping will standardize the requirements for both 
the Federal and private sectors.
    Standardizing recordkeeping requirements will allow for more 
accurate comparisons between Federal and private sector injury and 
illness experiences. Under the existing Part 1960, Subpart I, 
recordkeeping system for Federal agencies, comparable data to show how 
Federal agencies compare statistically with the private sector injury 
and illness experiences are not available due to the differences in 
reporting and recording requirements. Therefore, OSHA has not been able 
to address the concerns raised by several organizations that monitor 
government activity, and respond to the perception that the Federal 
Government has a worse injury and illness experience than its private 
industry counterparts.
    For instance, from time to time certain advocacy groups have issued 
reports comparing some Federal agencies with the highest occupational 
injury or illness rates per 100 full-time workers with different 
sectors of private industry. These reports avowed that several Federal 
agencies had significantly higher occupational injury and illness rates 
than their private sector counterparts. While the reports intimated 
that an employee was more likely to be injured or become ill while 
working for a Federal agency than working for a number of high-risk 
private sector industries, the reports compared risks in different 
industries, and OSHA could not verify the injury and illness data 
reported.
    This is best shown in an example of injuries that are compensable 
but not recordable under 29 CFR Part 1904. Consider the case where a 
private sector employee falls on the job, notes pain in his or her 
shoulder, is sent for evaluation at a local emergency room, and 
following an examination and x-ray, is released back to work without 
restrictions, days away from work, or medical treatment beyond first 
aid. Under 29 CFR Part 1904, this case would not be recordable because 
it does not meet any of the recording requirements (evaluation and x-
rays for diagnostic purposes are considered first aid under 29 CFR 
1904.7(b)(5)(i)(A) & (B) and the case would not be recordable). However 
under the current Federal agency recordkeeping system, if the employee 
files for reimbursement of medical costs under FECA, a CA-1 must be 
submitted and the case would be recorded.
    Another reason for revising the occupational injury and illness 
recordkeeping system for the Federal sector is that under Part 1960, 
Subpart I, many groups of employees are not included in the 
recordkeeping process, including employees hired through the Non-
Appropriated Funds Instrumentalities Act (NAFIA), Commissioned Officers 
of the Public Health Service, and contract employees working under the 
daily supervision of Federal personnel. Conversely, volunteers are 
covered under Part 1960 through OWCP reporting requirements, which is 
not the case for the private sector under Part 1904.
    The existing Part 1960 also creates inconsistencies in 
recordkeeping among Federal establishments. FECA compensability covers 
injuries to employees that occur on the employer's premises during work 
hours or in reasonable proximity to the work hours, and the incident is 
recorded if a CA form is submitted to OWCP because the incident results 
in a reimbursable medical expense to the employee. Establishments with 
in-house medical facilities or with contracts for medical services to 
treat their employees are likely to have fewer claims filed under FECA 
for medical reimbursement, and therefore are likely to have fewer 
incidents that are recordable. Establishments without in-house medical 
facilities or contracts for medical service would record employee 
injuries and illnesses that result in filing a CA form for any 
reimbursable medical expense(s). Federal agency establishments with in-
house medical staff frequently do not record such events, while those 
establishments that rely on outside medical staff to treat their 
injured or ill employees would record such events.
    Another example of current inconsistencies in recordkeeping among 
Federal agencies lies with the U.S. Postal Service (USPS). As mentioned 
earlier, the U.S. Postal Service, which comprises approximately one-
third of the Federal sector workforce in the Executive Branch, is 
already recording injuries and illnesses under Part 1904 regulations, 
while the remaining two-thirds of the Federal sector are recording 
under Part 1960.
    The existing Part 1960 system captures little data that are useful 
in identifying root causes of accidents, fails to adequately capture 
days away from work, fails completely to capture days of restricted 
activity or job transfer, and fails to capture important data related 
to bloodborne pathogens, such as needlesticks and other sharps 
injuries.
    Additional reasons for changing Federal agencies' recordkeeping 
requirements to the Part 1904 system include: the OSHA 300 log more 
accurately reflects injuries and illnesses at a glance than does the 
existing Federal agency log; injuries and illnesses for all employees, 
including contract employees who are supervised by Federal employees on 
a daily basis and whose employers do not also record, will be covered; 
the calendar year reporting will be consistent with the recordkeeping 
practices in private industry; and, a unified tracking system will 
result for all workplace injuries and illnesses covered by OSHA.
    OSHA's Voluntary Protection Program (VPP) is a program that 
recognizes worksites with exemplary safety and health programs. In the 
VPP, management, labor, and OSHA establish cooperative relationships at 
workplaces that have implemented a comprehensive safety and health 
management program. OSHA's experience indicates that when an employer 
commits to the VPP approach to safety and health management and 
completes the challenging VPP application process, the result includes 
a dramatic improvement in the organization's safety and health 
performance.
    To qualify for VPP, an establishment must have comprehensive safety 
and health management programs that include effective injury, illness, 
and accident recordkeeping, as well as injury and illness lost time and 
total case rates below the national averages, as measured under Part 
1904. As

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Federal agencies participating in VPP are currently required to 
maintain records under two systems, the Federal sector has just over 
ten VPP sites (including a few in the USPS, as of December 31, 2003) 
compared to over 1,000 in private industry. Adopting the Part 1904 
recordkeeping system for the Federal sector will yield consistent 
injury and illness data, and would make participation in the VPP 
program much more attractive to Federal agencies.
    Standardizing the private and Federal sector recordkeeping and 
reporting requirements will lessen the administrative burden on OSHA 
when changes to the recordkeeping requirements need to be made, as well 
as streamline training efforts. If the recordkeeping systems remain 
separate, any changes made to the requirements in the private sector 
will not be applicable to the Federal sector, unless additional 
modifications to Part 1960, Subpart I, are made reflecting such 
changes. Requiring Federal agencies to comply with Part 1904 will 
largely eliminate this problem. Additionally, standardizing the private 
and Federal sector recordkeeping and reporting requirements will 
eliminate OSHA's need to develop and present separate training, 
outreach, interpretations, etc. on both systems.

B. Advantages for Adopting Applicable Part 1904 Requirements in Part 
1960, Subpart I

    The advantages of improved recordkeeping fall into two groups. 
Improved recordkeeping will enhance the ability of Federal agencies and 
Federal employees to prevent occupational injuries and illnesses. Also, 
improved recordkeeping and reporting will increase the utility of 
injury and illness records for Federal agency safety and health staff 
as well as OSHA's oversight function.
    (1) Enhanced Ability of Federal Agencies and Their Employees to 
Prevent Injuries and Illnesses. Collecting additional or improved 
information about events and exposures of injuries and illnesses 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 Federal agencies and their 
employees to identify hazardous conditions and take remedial action to 
prevent future injuries and illnesses. Identifying the irritating 
substance that caused an employee to experience a recordable case of 
occupational dermatitis, for example, could prompt a Federal agency 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.
    (2) Increased Utility of Data to Federal Agency Safety and Health 
Staff and OSHA. Improvements in the quality and usefulness of the 
records being kept by Federal agencies will enhance their capacity to: 
focus investigative efforts on the most significant hazards; identify 
types or patterns of injuries and illnesses whose investigation might 
lead to prevention efforts; and, set priorities among Federal agency 
establishments for inspection purposes. Federal agencies and their 
employees both stand to benefit from the more effective use of Agency 
resources. The enhanced ability of safety and health personnel to 
identify patterns of injuries will enable them to focus on the more 
serious hazards.
    Identifying such patterns will also increase the ability of Federal 
agencies to control these hazards and prevent other similar injuries. 
To the extent that Federal agencies take advantage of this information, 
the task of OSHA's oversight function will be facilitated. Federal 
employees clearly will also benefit from these reductions in injuries.
Specific Advantages of the Final Rule
    (1) Forms Simplification and Definitions. Simplifying the forms 
used by Federal agencies will result in improved information. The same 
is true of definitional changes, such as counting lost workdays or 
restricted workdays as calendar days and capping the count at 180 days. 
Easier recording of data will make records of individual cases more 
complete and consistent. By using simplified recording procedures, we 
hope to 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 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 illnesses.
    (2) Recordable Injuries and Illnesses. The changes in defining 
injuries and illnesses that are recordable have several advantages. In 
general, they follow a pattern of simplification and/or more cost 
effective targeting of recording requirements, which should produce the 
types of advantages 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, etc.). This requirement involves no increase in cost to 
Federal agencies 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 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 to Federal agencies that administer hospitals and 
other medical facilities. 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 bi-modally distributed; whether one is infected by 
an injury or one is not. Under these circumstances, the important focus 
is to prevent all injuries that might lead to illness. For that 
prevention strategy to be successful, however, the agency should have 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.
    Because of their high mortality and disability potentials, AIDS and 
hepatitis are particularly serious illnesses. One implication of this 
fact, however, is that

[[Page 68797]]

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. Adopting Part 1904 provisions is also likely to result in 
indirect benefits in the form of improved patient care.
    Hearing loss cases also result in substantial disability and can 
lead to safety accidents in the workplace. 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 Federal agencies that 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 core opportunities for Federal agencies to intervene 
to prevent other hearing loss cases.
    (3) 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 provide substantial advantages.
    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 minimal cost, however. Moreover, for 
establishments that operate six or seven days a week, such as the law 
enforcement agencies, this change does not impose any additional costs. 
Under Part 1960, Federal agencies must compile the Annual Summary on a 
fiscal year basis, complete the Summary not later than 45 calendar days 
after the close of the fiscal year, and post the Summary copy for a 
minimum of 30 consecutive days. Under Part 1904, the Summary must be 
compiled at the end of the calendar year, completed no later than 
February 1, and posted until April 30. 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 or boiler 
inspection certificates) 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 an Agency Executive. The requirement that an 
Agency 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. 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 Federal Agencies 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 will help to identify areas 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 accidents rates vary by shift, and 
whether certain portions of a shift are particularly dangerous. This 
information will be helpful to OSHA as well as a Federal agency'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. The inclusion of information concerning the average 
number of employees and total hours worked by all employees during the 
year will make it easier to calculate incidence rates directly from the 
posted summary. Federal agencies 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 a safety and health inspection and used by 
compliance personnel to identify safety and health problems that 
deserve attention. 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.

V. The Present Rulemaking

    The Federal Advisory Council on Occupational Safety and Health 
(FACOSH) was established by Executive Order 11612 to advise the 
Secretary of Labor on matters relating to the occupational safety and 
health of Federal employees. At the request of FACOSH, OSHA held a 
meeting on October 31, 2002 to discuss proposed changes to Federal 
agency occupational injury and illness recordkeeping and reporting 
requirements. Representatives from fourteen Federal departments or 
agencies and two Federal employee unions attended the meeting. Although 
OSHA received almost unanimous consensus that recordkeeping 
requirements for Federal agencies should be changed, two issues were 
raised.
    The first issue concerned whether under the proposed change a 
Federal agency could collect and report their injury and illness data 
on a fiscal year basis instead of a calendar year basis. Some agencies 
wanted to report on a fiscal year basis so that the OSHA 300 log and 
the workers' compensation chargeback costs reflected the same time 
periods. Currently, fiscal years (October through September) and 
chargeback years (July through June) do not reflect the same time 
periods. However, since OWCP chargeback data are available to each 
agency on a quarterly basis, agencies could use their data to compare 
chargeback costs to OSHA recordable injuries and illnesses for any 
period of time they desired. Also, use of the calendar year recording 
and reporting would allow for more accurate comparisons of Federal and 
private sector data.
    At the meeting, the second issue discussed was the differences 
between the information required on the CA forms and the OSHA 301 
incident

[[Page 68798]]

report, and having to complete two different forms. While preparation 
of duplicative paperwork should be avoided, clearly in most instances 
if the CA form is used, a supplemental statement will frequently still 
be necessary to comply with OSHA reporting requirements. Agencies must 
be sensitive to the fact that the CA-1 or CA-2 is frequently the first 
entry in a FECA case record, and these forms are maintained in a 
Privacy Act government-wide system of records known as DOL/GOVT-1. 
Release of information on the CA forms must be consistent with the 
purpose for which the record was created and must be authorized by the 
Federal agency as a routine use under the Privacy Act. While elements 
of the CA-1, CA-2, and CA-6 contain some information useful to OSHA, 
OWCP's forms are focused on identifying the injury, properly 
compensating the individual for any wage loss or impairment, and 
affecting a smooth return to duty. The data collected by OWCP, while 
valuable for its purpose under FECA, may for OSHA's purposes provide 
too much unnecessary and extremely personal information about the 
employee and too little information on the details of how the injury 
occurred. Accordingly, while use of the information on the CA forms is 
not prohibited under the new OSHA rule because the Department of Labor 
seeks to minimize the burdens placed on agencies, OSHA recommends that 
each agency analyze whether it would be just as easy and cost effective 
to comply with these new requirements by implementing a system where 
OSHA 301 forms are completed contemporaneously with CA forms. The 
information requested on the OSHA 301 form, such as Items 14-17 which 
asks, ``What was the employee doing just before the incident 
occurred?'', ``What happened?'', ``What was the injury or illness?'', 
or ``What object or substance directly harmed the employee?'', are not 
asked on the CA forms. Certain data elements contained on the CA forms 
contain personal information (such as the names of eligible dependents 
under FECA) which must be deleted before the CA forms are utilized to 
comply with OSHA's new rule. For example, the following information 
must be deleted from the CA-1 forms: Entry 2 for Social Security 
Number, Entry 3 for Date of Birth, Entry 5 for Home Telephone Number, 
Entry 6 for Grade Level as of the date of injury, Entry 7 for 
Employee's Home Mailing Address, Entry 8 for Dependent Information, 
Entry 19 for Employee's Retirement Coverage, Entries 30 and 31 relating 
to information on Third Party subrogation, Entries 32 to 34 relating to 
medical treatment and the Receipt of Notice of Injury.
    The Department of Labor wishes to note that the use of electronic 
filing systems for Federal workers' compensation claims would 
facilitate the elimination of those data fields not needed by OSHA. 
Moreover, an electronic prompt could then be developed when preparing 
the OSHA Form 301 at a time when memories of the injury are fresh and 
useful details about the injury can be most easily obtained. For 
example, a description of an injury on a CA form, such as ``slipped in 
hallway,'' while sufficient for FECA purposes, might fail to alert 
safety and health professionals to the fact of which hallway or that 
the hallway in question is improperly lighted or slippery.
    At the January 10, 2003 FACOSH meeting, OSHA gave a presentation 
describing the differences between recordkeeping requirements under 
Parts 1904 and 1960. OSHA pointed out that Part 1904 provides very 
specific instructions on recording criteria, and even contains a flow 
chart to aid in the decisionmaking process of recordability. OSHA also 
discussed the new forms and reviewed the timeframes to record injuries 
and illnesses. A number of questions followed the presentation, and 
FACOSH recommended that OSHA hold a meeting of Federal agency safety 
and health representatives to discuss the impact of the proposed 
recordkeeping change.
    On February 25, 2003, OSHA held an informal meeting that was open 
to the public to discuss the proposed change. This meeting was 
announced in the Federal Register on February 10, 2003 (Vol. 68, No. 27 
FR 6783). The meeting agenda included: reason for the proposed change, 
description of the change, impact of the change, and implementation of 
the change. The meeting also provided a forum to air any issues that 
Federal agencies or the public wanted to bring up regarding the 
proposed change. The meeting produced four main issues: cost, timing, 
systems adjustment, and training. Representatives attended the meeting 
from twenty-one Federal agencies, two labor unions representing Federal 
employees, and several members of the public.
    Some felt that since Federal injury and illness rates continued to 
fall, Federal agencies would receive no benefit in switching 
recordkeeping systems. OSHA explained that this statement was not 
entirely accurate. Federal rates increased slightly between 1999 and 
2001, while the private sector rates declined by 9.5%. However, as 
already mentioned, comparing rates between the two recordkeeping 
systems is not currently possible because the two systems do not 
measure the same injury and illness experiences.
    Some agencies were concerned about the training costs they expected 
to incur to educate their employees about the new recordkeeping 
procedures. OSHA explained that while there could be some costs 
associated with training, this should not be significant. The new 
system is similar to existing Part 1960, Subpart I, in recording injury 
and illness incidents, and the Part 1904 regulation is written in 
plain, user-friendly language, which should permit easily 
understandable recording criteria. Additionally, OSHA has developed 
training materials and will make training available as resources 
permit. OSHA will maximize the use of distance-learning technology and 
satellite broadcasting to make training available to the greatest 
number of personnel at the lowest possible cost. In some instances, 
OSHA plans to make available DVDs and videos to disseminate training 
materials, and OSHA has Part 1904 recordkeeping training material 
already available on its website.
    Based on OSHA's experience with other transitions to Part 1904, the 
overall costs associated with changing the Federal agency injury and 
illness recordkeeping system should not be significant. Many Federal 
agencies perform work activities comparable to private sector 
employers, and OSHA has not been made aware of any significant concerns 
raised by the private sector related to the economic resources needed 
to complete the transition to and subsequent compliance with Part 1904. 
Any discussion regarding the cost to the Federal Government for 
implementing the provisions under Part 1904 must be considered in light 
of the fact that OSHA already requires private sector employers, some 
with as few as eleven employees, to comply with these same 
recordkeeping requirements. Likewise, since 2001, twenty-six States 
have been requiring employers of public sector employees (State and 
local government employees) to comply with the Part 1904 recordkeeping 
requirements, and there has been no indication of a resource problem.
    OSHA has also discussed Part 1904 transition with the U.S. Postal 
Service, and no significant problems related to cost have been 
identified. During 1999, the Postal Service established Part 1904 
requirements at 38,000 of its facilities nationwide, and although the 
Agency

[[Page 68799]]

did not specifically monitor the cost of training or implementation, 
the Postal Service did derive several benefits in its incident 
prevention efforts. For example, after implementing Part 1904, the 
Postal Service created an enhanced database of causal factors based on 
the reporting and investigation of all occupational injuries and 
illness beyond those previously reported to OWCP. The new information 
was used by the Postal Service to develop recommendations to address 
those causal factors and prevent reoccurrence of similar incidents. 
Since 1998, the Postal Service has achieved an 11% reduction in their 
lost time case rate (from 3.03 in FY 1998 to 2.69 in FY 2003). The 
Postal Service lost time case rate (a measurement of the occurrence of 
severe injuries and illnesses) represents an 18% improvement over the 
rest of Executive Branch Federal agencies. OSHA considers the 
information obtained from the Postal Service to be significant since 
the USPS employs approximately one-third of the total Federal 
workforce.

Costs of Transition

    The Occupational Safety and Health Administration does not consider 
an economic feasibility study to be necessary for the purpose of this 
regulation. In the private sector employers with as few as eleven 
employees must comply with the requirements of 29 CFR Part 1904. It 
cannot be reasonably argued that the costs would be too great for the 
United States Government to comply. As discussed above the U.S. Postal 
Service converted their recordkeeping to conform with1904 in 1999 and 
then in 2002 made the transition to the revised 1904. They did not 
track the costs incurred in making these transitions but did not feel 
that the costs exceeded the benefits of the change.
    Like their private sector counterparts, Federal agencies will incur 
the initial costs of training recordkeeping personnel. This is 
estimated at one hour per person trained. Each Federal establishment 
will incur the annual costs of setting up the log and posting the 
annual summary. OSHA estimated that this will require 8 minutes per 
establishment. However, since Federal agencies already must keep a log, 
and must post a summary, it is estimated that these tasks will not 
create additional costs for Federal agencies. The proposed regulation 
requires the senior establishment management official or someone in the 
direct chain of command between the senior establishment manager and 
the agency head 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.'' This is not significantly different than the 
private sector requirement for certification by the owner of the 
company, an officer of the corporation, the highest ranking company 
official working at the establishment, or the immediate supervisor of 
the highest ranking company official working at the establishment. OSHA 
estimated the amount of time for this activity as 30 minutes. The 
amount of time for the record keeper to prepare the annual summary was 
estimated as 20 minutes.
    The costs of maintaining the Log and Incident Reports are related 
to the number of cases recorded. During the private sector rule making 
OSHA estimated that it will require an average of 15 minutes for the 
Log entry plus, for 18% of the cases, 22 minutes for the 301 form 
following the requirements of 29 CFR Part 1904. In fiscal year 2003 
Executive Branch agencies (excluding the U.S. Postal Service)\*\ 
reported 81,283 non fatal injuries, and 61 fatalities. This equates to 
50161 hours for 1,941,511 Federal employees or slightly more than 1.5 
minutes for each covered employee. This figure assumes 15 minutes to 
complete the log entry and 22 minutes to complete the 301 for 100% of 
the incidents.
---------------------------------------------------------------------------

    \*\ The Postal service is excluded from this figure, because 
they are already covered by the requirements of 29 CFR Part 1904.
---------------------------------------------------------------------------

    The current rule requires employers to provide the Log and Incident 
Reports to an OSHA inspector during a compliance visit. Federal 
establishments like their private sector counter parts are 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 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 Federal establishments.
    This 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.
    A costs analysis conducted for the private sector rule making on 29 
CFR Part 1904 estimated the average annual costs of compliance with 
this regulation for private sector establishments were less than $58.00 
for all businesses in the private sector. For establishments with fewer 
than 20 employees, the average annual costs per establishment were 
$31.63 (Federal Register Vol 66, No. 13/ Friday, January 19, 2001/page 
6108).
    Because the requirements for the Federal establishments will be 
essentially the same as covered private sector establishments there is 
no reason to believe that the costs per Federal establishment will 
exceed the costs for private sector establishments.
    For a full explanation of the costs and how they were estimated, 
see Federal Register Vol. 66, No. 13/Friday, January 19, 2001/pages 
6089-6108.
    In addition to providing training and compliance assistance, during 
the first year in which the Part 1904 recordkeeping provisions are in 
effect, OSHA compliance officers conducting inspections at Federal 
establishments will focus on assisting Federal agencies to comply with 
the new rule. OSHA will not issue notices for violations under Part 
1960, Subpart I, until January 1, 2006, provided that the Federal 
agency is attempting in good faith to meet its recordkeeping obligation 
and agrees to make corrections necessary to bring the records into 
compliance.
    Some agencies questioned how OSHA would communicate the Part 1904 
recordkeeping change to the Federal sector. OSHA suggested that the 
field Federal Safety and Health Councils (FSHC) would be a good source 
to help communicate information across the country. The FSHCs, which 
include approximately fifty chapters throughout the country, are 
cooperative interagency organizations chartered by the Secretary of 
Labor to facilitate the exchange of information regarding occupational 
safety and health. OSHA agreed to participate in communication and 
training as resources permitted, and believed that train-the-trainer 
courses would work well to help prepare

[[Page 68800]]

Federal agencies throughout the nation for the recordkeeping change.
    In response to a concern about whether Federal agencies and their 
employees will be more inclined to underreport or manipulate the 
recording of injuries, OSHA stated that like the current OWCP-based 
recording system, the accuracy of records under Part 1904 relies on 
agency and employee integrity.
    Another issue raised was whether as a result of the OSHA 
recordkeeping system change agencies would lose the independent data 
provided by OWCP. OSHA explained that OWCP data will not be impacted by 
this change, and will continue to be available to Federal agencies. The 
OWCP data track different issues and information, and would still be 
available to measure workers' compensation injuries and associated 
costs. OSHA agrees that Federal agencies may use OWCP CA forms in lieu 
of the OSHA 301 forms, provided that the Federal agencies include the 
additional OSHA-required information on an attached supplemental sheet 
(to include the four questions mentioned earlier).
    One commenter raised the concern that including applicable portions 
of the Part 1904 system would require Federal agencies to record 
different or non-traditional incidents, such as information related to 
workplace violence. OSHA believes that requiring Federal agencies to 
keep records under the Part 1904 system would have the opposite effect. 
Indeed, under existing Part 1960, Subpart I, Federal agencies are 
required to report on the OSHA log injuries resulting from workplace 
violence when medical care is provided and information is reported on 
the OWCP CA-1 Form. Likewise, OSHA's current recordkeeping requirements 
for the private sector under Part 1904 include the recording of 
injuries resulting from workplace violence. OSHA believes that the 
standardization of recordkeeping requirements will eliminate much of 
the uncertainty as to whether specific incidents should be recorded, 
and will require Federal agencies to record injuries and illnesses 
regardless of whether they are recordable under OWCP.
    Another apprehension raised by one commenter was whether changing 
to the Part 1904 requirements would cause injury and illness rates to 
go up. OSHA explained that the change could affect those rates. Some 
agencies might experience a reduction in rates, some might have rates 
that go up, and some might have rates that remain the same. The 
increased accuracy in recordkeeping resulting from the change to the 
Part 1904 system could cause injury and illness rates to go down, but 
if an agency is not recording them accurately under existing Part 1960, 
Subpart I, the rates could go up. For instance, injuries and illnesses 
related to diagnosis, prevention, first aid, or in some cases travel on 
temporary duty (TDY) would no longer be recordable, and would result in 
a reduction in the number of recordable incidents. As stated earlier, 
one of the reasons for making the change is because the two systems do 
not track the same incidents, and therefore do not keep a record of the 
same data. The data will change, and this may cause injury and illness 
rates to go up or down. It should be noted that the current system 
under 29 CFR Part 1960 does not track injuries of contract employees. 
Under 29 CFR 1904.31, employers ``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.'' Because of this 
provision, Federal agencies will be responsible for recording 
recordable injuries sustained by independent contractors who work 
alongside Federal employees. If a Federal agency chooses to use OWCP 
Forms CA-1, CA-2 and CA-6 for the purpose of complying with OSHA's 
recording requirements, agencies should not use the CA forms for 
recording injuries sustained by contractors. To do so would create 
administrative problems for OWCP and potential confusion over workers' 
compensation coverage for such individuals. As a result, OSHA Form 301 
must be used to record injuries and illnesses of contract employees.
    OSHA acknowledged that agencies could incur additional costs to 
develop information systems that would capture their injury and illness 
experience and subsequent data roll-up (collecting and assembling 
injury and illness statistics from subordinate establishments into 
reports that reflect the total agency experience), but explained that 
the Part 1904 recordkeeping change does not include a requirement 
mandating data roll-up. Federal agencies would not have to invest in a 
data roll-up system, but OSHA acknowledged that agencies would have the 
discretion to use the data as a management tool for executing their 
safety and health programs. The meeting closed with the agreement that 
absent the mandate to roll-up the data, the agency representatives had 
no substantive reasons why OSHA should not go forward with the proposed 
recordkeeping change. Of note, while most participants were opposed to 
mandating roll-up, there was a consensus that OSHA should look at 
systems that could be offered Government-wide to assist agencies in the 
roll-up of their safety and health recordkeeping data.

VII. Access to Injury and Illness Records

    As noted above, the final rule requires Federal agencies to use the 
same injury and illness reporting forms as the private sector. 
Specifically, Federal agencies will be required to use OSHA Form 300, 
Log of Work-Related Injuries and Illnesses (replacing the OSHA Federal 
Agency Log), and OSHA Form 300-A, Summary of Work-Related Injuries, and 
OSHA Form-301, Injury and Illness Incident Report (replacing OSHA Form 
101, Supplementary Record of Occupational Injuries and Illnesses). As 
with the existing requirements under Part 1960, Subpart I, OSHA will 
continue to allow Federal agencies to use alternate forms, such as 
workers' compensation claim forms, to report OSHA injury and illness 
information. The use of alternate workers' compensation claim forms to 
record OSHA injury and illness information is also currently available 
to private sector employers under Part 1904. In both the private sector 
and Federal sector, any use of alternate forms to record occupational 
injuries and illnesses must include all OSHA-related information (29 
CFR 1904.29(a) and 29 CFR 1960.66(e)).
    The final rule continues OSHA's long-standing policy of allowing 
employees and their representatives to access the occupational injury 
and illness information kept by their employers, with some limitations. 
Part 1904 requires an employer to provide limited access to the OSHA 
injury and illness 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.
    29 CFR 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

[[Page 68801]]

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 (as 
discussed above).
    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 representative represents one or more 
employees under a collective bargaining agreement. The right-hand 
portion of the 301 form contains the heading ``Information about the 
case,'' and elicits information about how the injury or illness 
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 OSHA 301 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 seven calendar days.
    Part 1904 also includes a number of provisions requiring employers 
to protect the privacy of employees when recording injuries and 
illnesses. For certain injuries and illnesses listed under Sec.  
1904.29, the employer must omit the employee's name from the OSHA 300 
Log. Instead, the employer simply enters ``privacy case,'' and keeps a 
separate, confidential list containing the identifying information. The 
separate listing is needed to allow OSHA and other government 
representatives to obtain the employee's name during a workplace 
inspection and to assist employers in keeping track of such cases in 
the event future revisions to the entry become necessary. This approach 
also allows 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 have privacy 
concerns.
    Under Part 1904, privacy cases include injury and illness to an 
intimate body part or the reproductive system; injury or illness 
resulting from sexual assault; mental illnesses; HIV infection, 
hepatitis, or tuberculosis; needlestick injuries and cuts from sharp 
objects that are contaminated with another person's blood or other 
potentially infectious material; and, other illnesses, if the employee 
voluntarily requests that his or her name not be entered on the log. 
Mental illnesses are not 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 stating that the employee has a mental illness that is work-
related. Also, if the employer has 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, the 
employer may use discretion in describing the injury or illness. In 
such cases, the employer must enter enough information to identify the 
incident and the general severity of the injury or illness.
    The Privacy Act of 1974, 5 U.S.C. 552a (2000) regulates the 
collection, maintenance, use, and dissemination of personal information 
by Federal agencies. Section 552a(e)(4) of the Privacy Act requires 
that all Federal agencies publish in the Federal Register a notice of 
the existence and character of their systems of records. The Privacy 
Act permits the disclosure of information about individuals without 
their consent pursuant to a published routine use where the information 
will be used for a purpose that is compatible with the purpose for 
which the information was originally collected.
    OSHA anticipates that Federal agencies will develop agency-specific 
data systems for recording illness and injury information to meet the 
requirements of the revised Part 1960, Subpart I. While OSHA does not 
require that Federal employee illness and injury records be retrieved 
by individual identifiers, some Federal agencies developing illness and 
injury data systems may find it useful to do so. Each agency is 
responsible for assuring its own compliance with the Privacy Act, and 
for establishing Privacy Act systems of records when the agency 
determines such compliance is required. As noted above, the revised 
recordkeeping rules include mandatory access rights to certain illness 
and injury records, such as an employee's right to copy the OSHA 300 
Log and an employee representative's right to view the non-identifying 
right-hand portion of the OSHA 301 Incident Report (29 CFR 1904.35). 
Where an agency determines that all or part of the records required 
under the revised OSHA recordkeeping rule are part of a Privacy Act 
records system, the agency is responsible for issuing appropriate 
Notices of Routine Use to ensure that all access rights prescribed in 
Part 1960, Subpart I, are preserved.

VIII. Technical Revisions to Existing Requirements

    As described elsewhere in today's final rule, Federal agency injury 
and illness recordkeeping requirements will, with certain 
modifications, be the same as those in subparts C, D, E and G of Part 
1904. However, in order to eliminate confusion, and provide for a 
single definition, today's final rule will not adopt the definition of 
``establishment'' in Part 1904.46. Instead, the definition of 
establishment in existing Part 1960.2(h) will remain applicable to 
Federal agencies. OSHA believes the existing definition of 
establishment in 1960.2 better describes the application of that term 
in the Federal sector.
    Unlike the private sector, it is common for most Federal agencies 
to have multiple establishments throughout their national and regional 
offices. Under Part 1960, the term establishment means a single 
physical location where business is conducted or where services or 
operations are performed. Where distinctly separate activities are 
performed at a single physical location, such as in a typical national 
or regional office of an executive branch department where headquarters 
for several agencies or programs are housed, each agency headquarters 
operation must be treated as a separate establishment. At the 
Department of Labor, for example, regional and national offices for 
OSHA, the Employment Standards Administration, Employment and Training 
Administration, Employee Benefits Security Administration, etc. would 
all be treated as distinct establishments for illness and injury 
recordkeeping purposes. Typically, an establishment as used in Part 
1960 refers to a field activity, regional office, area office, 
installation, or facility.
    OSHA is also amending certain provisions in existing Part 1960 to 
eliminate duplication and provide consistency with the requirements in 
Part 1904. First, today's final rule amends Part 1960.2(l) to 
incorporate the regulatory text from the definition of ``injury and 
illness'' set forth in Part 1904.46. As a result, the existing language 
defining Categories of injuries/

[[Page 68802]]

illnesses/fatalities in 1960.2(l)(1) through (6) is deleted, and 
replaced with the definition for injury and illness from 1904.46.
    Likewise, in order to make Part 1960 consistent with Part 1904, 
today's final rule modifies the requirements in existing 1960.29(b) 
addressing accident investigation. Existing 1960.29 provides that, 
while all accidents should be investigated, such investigation should 
be reflective of the seriousness of the accident. Existing paragraph 
(b) includes a statement directing Federal agencies that ``each 
accident which results in a fatality or the hospitalization of five or 
more employees shall be investigated to determine the causal factors 
involved.'' Today's final rule modifies this provision to direct 
Federal agencies to conduct an investigation after ``a fatality or the 
in-patient hospitalization of three or more employees.'' This change 
preserves the requirement in the current Part 1960 that federal 
agencies investigate multiple-hospitalization accidents, but reduces 
the trigger from five to three to conform with the revised requirements 
in 29 CFR 1960.70 and 1904.39 that agencies report to OSHA accidents 
that involve a fatality or the hospitalization of three or more 
employees.

IX. Administrative Procedure

    This rule relates to matters of Federal agency management and 
personnel and, therefore, is exempt from the usual Administrative 
Procedure Act requirements for prior notice and comment and a 30-day 
delay in effective date. See, 5 U.S.C. 553(a)(2) and (d).
    The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) does not apply 
because this rulemaking, which applies only to Federal agencies, does 
not create or modify information collection requirements that require 
the approval of the Office of Management and Budget. Additionally, the 
Department of Labor has determined that this rulemaking is a nonmajor 
rule under the Congressional Review Act (5 U.S.C. Chapter 8) and will 
submit a report thereon to the U.S. Senate, House of Representatives, 
and General Accounting Office in accordance with that law at the same 
time this rulemaking document is sent to the Office of the Federal 
Register for publication.
    Because this rulemaking applies only to Federal agencies, the 
Department of Labor certifies pursuant to the Regulatory Flexibility 
Act, (5 U.S.C. 605(b)), that this final rule will not have a 
significant impact on a substantial number of small entities. 
Similarly, the requirements of the Unfunded Mandates Reform Act of 1995 
and Executive Order 13132 addressing ``Federalism'' do not apply. The 
Department of Labor has also determined that this is not a 
``significant regulatory action'' under Section 3(f) of Executive Order 
12866, ``Regulatory Planning and Review,'' and that it relates to a 
matter of agency organization, management, or personnel. See Executive 
Order 12866; Section 3(d)(3).

X. Summary and Explanation of the Final Rule, 29 CFR Part 1960, Subpart 
I, Recordkeeping and Reporting Requirements

    As described below, the final rule revises OSHA's requirements for 
the recording and reporting of work-related deaths, injuries, and 
illnesses for Federal agencies.
    The final rule becomes effective on January 1, 2005. At that time, 
the following recordkeeping actions will occur:
    (1) The revisions to 29 CFR Part 1960, Subpart I, entitled 
Recordkeeping and Reporting Requirements, which include reference to 
pertinent provisions in 29 CFR Part 1904, will be in effect.
    (2) Federal agencies will utilize the same injury and illness 
recordkeeping forms that the private sector is required to use:
    (A) OSHA Form 300, Log of Work-Related Injuries and Illnesses 
(replaces the Log of Federal Occupational Injuries and Illnesses);
    (B) OSHA Form 300-A, Summary of Work-Related Injuries and 
Illnesses;
    (C) OSHA Form 301, Injury and Illness Incident Report; and
    (3) The following OSHA publication will be withdrawn: OSHA 2014 
(revised 1986);
    (4) All letters of interpretation regarding the former Federal 
agency recordkeeping requirements will be withdrawn and removed from 
the OSHA CD-ROM and the OSHA Internet site.
    Summary of the Modifications to Existing 29 CFR Part 1960, Subparts 
A and D.
    Today's final rule deletes the existing language in 29 CFR 
1960.2(l) addressing the definition of ``Categories of injuries/
illnesses/fatalities,'' and replaces it with the definition of ``injury 
and illness'' set forth at 29 CFR 1904.46. The change is necessary to 
eliminate duplicative definitions in Part 1960 and Part 1904. 
Accordingly, new Section 1960.2(l) provides: ``(l) 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. Illness includes both acute and chronic illnesses, such as, 
but not limited to, a skin disease, respiratory disorder, or 
poisoning.''
    Existing 29 CFR 1960.29 is revised to provide: ``(b) In any case, 
each accident which results in a fatality or the hospitalization of 
three or more employees shall be investigated to determine the causal 
factors involved. Except to the extent necessary to protect employees 
and the public, evidence at the scene of an accident shall be left 
untouched until inspectors have an opportunity to examine it.'' This 
change preserves the requirement in the current Part 1960 that federal 
agencies investigate multiple-hospitalization accidents, but reduces 
the trigger from five to three to conform with the revised requirements 
in 29 CFR 1960.70 and 1904.39 that agencies report to OSHA accidents 
that involve a fatality or the hospitalization of three or more 
employees.
    Summary of the Modifications to Existing 29 CFR Part 1960, Subpart 
I, to Make the Pertinent Recordkeeping Requirements in Part 1904 
Applicable to the Federal Sector.
    Today's final rule includes modifications to existing 29 CFR Part 
1960, Subpart I, to make the requirements in Part 1904 applicable to 
the Federal sector. The final rule revises existing 29 CFR 1960.66--
Purpose, scope and general provisions--to include new language, as well 
as removes and redesignates certain paragraphs. Paragraph (a), which 
includes new language, states: ``The purpose of this Subpart is to 
establish uniform requirements for collecting and compiling by agencies 
of occupational safety and health data, for proper evaluation and 
necessary corrective action, and to assist the Secretary in meeting the 
requirement to develop and maintain an effective program of collection, 
compilation, and analysis of occupational safety and health 
statistics.''
    Paragraph (b) also includes new language and makes certain 
provisions in 1904 applicable to Federal agencies. It provides: 
``Except as modified by this Subpart, Federal agency injury and illness 
recording and reporting requirements will be the same as 29 CFR Part 
1904 Subparts C, D, E, and G.'' Paragraph (b) also makes clear that the 
definition of ``establishment'' found in 29 CFR 1960.2(h) remains 
applicable to Federal agencies.
    Existing 1960.66(c), which directs Federal agencies to utilize 
collected information to identify unsafe and unhealthful working 
conditions and establish program priorities, is retained.
    The final rule removes the language in existing paragraph (d) and 
replaces it

[[Page 68803]]

with existing paragraph (e). Accordingly, existing paragraph (e), which 
provides for the use of more detailed recordkeeping forms than those 
provided by the Department of Labor, is now new paragraph (d). The new 
paragraph (d) also includes the following additional language: 
``Because of the unique nature of the national recordkeeping program, 
Federal agencies must have recording and reporting requirements that 
are the same as Part 1904 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 used by any 
Federal agency may be more stringent than, or supplemental to, the 
requirements of Part 1904, but must not interfere with the agency's 
ability to provide the injury and illness information required by Part 
1904.''
    The final rule also removes existing paragraph (f), but retains the 
requirements in existing paragraph (g). However, existing paragraph 
(g), which addresses requirements for secrecy when Federal agencies 
collect information on occupational injuries and illness related to 
national defense and foreign policy, is redesignated as new paragraph 
(e).
    The final rule also includes the following note at the end of Part 
1960.66: ``The recording or reporting of a work-related injury, illness 
or fatality does not mean that the Federal agency or employee was at 
fault, that an OSHA rule has been violated, or that the employee is 
eligible for workers' compensation or other benefits.''
    ``The requirements of this Part do not diminish or modify in any 
way a Federal agency's responsibilities to report or record injuries 
and illnesses as required by the Office of Workers' Compensation 
Programs under the Federal Employees' Compensation Act (FECA), 5 U.S.C. 
8101 et seq.''
    The final rule replaces existing 29 CFR 1960.67--Log of 
occupational injuries and illnesses--with a new paragraph clarifying 
who is responsible for certifying the OSHA 300 Log at Federal 
establishments. The new Section 1960.67 provides: ``As required by 29 
CFR 1904.32, a company executive must certify that he or she has 
examined the OSHA 300 Log and that he or she believes, based on his or 
her knowledge of the process by which the information was recorded, 
that the annual summary is correct and complete. For Federal 
establishments, the person who performs the certification must be one 
of the following: (1) The senior establishment management official, (2) 
the head of the Agency for which the senior establishment management 
official works, or (3) any management official who is in the direct 
chain-of-command between the senior establishment management official 
and the Agency head.
    The final rule also includes a note to Section 1960.67 explaining 
that the modification to the above requirement for certification of 
Federal agency injury and illness records is necessary because the 
private sector position titles contained in the regulation do not fit 
the Federal agency position titles for agency executives. The Federal 
officials listed in this paragraph are intended to be the equivalent of 
the private sector officials who are required to certify records under 
1904.32(b)(4).
    Today's final rule removes existing Section 1960.68 addressing 
requirements associated with Federal agency completion of supplementary 
records of occupational injuries and illnesses. Instead, the new 
Section 1960.68 addresses ``prohibition against discrimination'' and 
provides: ``29 CFR 1904.36 refers to Section 11(c) of the Occupational 
Safety and Health Act. For Federal agencies, the words `Section 11(c)' 
shall be read as `Executive Order 12196, Section 1-201(f).' '' The 
revised section includes a note explaining that the modification is 
necessary because Section 11(c) of the Occupational Safety and Health 
Act only applies to private sector employers and the U.S. Postal 
Service. The corresponding prohibitions against discrimination 
applicable to Federal employers are contained in Section 1-201(f) of 
Executive Order 12196.
    Existing Section 1960.69, which includes requirements for Federal 
agencies to complete annual injury and illness summaries, is removed. 
The new Section 1960.69 outlines the retention and updating of old 
forms. The new paragraph states: ``Federal agencies must retain copies 
of the recordkeeping records utilized under the old system 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 Form 300 Log and 
Form 301 Incident Reports. Agencies are not required to update the old 
forms.''
    The final rule revises existing Section 1960.70, addressing the 
reporting of serious accidents, to read: ``Agencies must provide the 
Office of Federal Agency Programs with a summary report of each fatal 
and catastrophic accident investigation. The summaries must address the 
date/time of accident, agency/establishment name and location, and 
consequences, description of operation and the accident, causal 
factors, applicable standards and their effectiveness, and agency 
corrective/preventive actions.'' The final rule also includes a note to 
Section 1960.70 explaining that the paragraph is retained from the 
previous regulation 29 CFR 1960.70 paragraph (e). The requirements of 
this paragraph are in addition to the requirements for reporting 
fatalities and multiple hospitalization incidents to OSHA under 29 CFR 
1904. 39.
    The final rule deletes existing Sections 1960.71, Location and 
utilization of records and reports; 1960.72, Access to records by 
Secretary; and 1960.73, Retention of records. Existing 1960.74, 
addressing Federal agencies' annual reports, is retained, but is 
redesignated as Section 1960.71. Paragraph (a)(2) of the new 1960.71 
has been revised to provide: ``The Secretary must provide the agencies 
with the guidelines and format for the reports at the time they are 
requested.''
    Today's final rule also provides that new Sections 1960.72 through 
1960.74 are reserved.

XI. Authority and Signature

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, U.S. 
Department of Labor, Third and Constitution Avenue, NW., Washington, DC 
20210.
    Accordingly, pursuant to Sections 19 of the Occupational Safety and 
Health Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 688, 673), 5 U.S.C. 
553, Secretary of Labor's Order No. 1-90 (55 FR 9033), and Executive 
Order 12196.

List of Subjects in 29 CFR Part 1960

    Government employees, Occupational safety and health, Reporting and 
recordkeeping requirements.

    Signed at Washington, DC, this 18th day of November 2004.
John L. Henshaw,
Assistant Secretary of Labor for Occupational Safety and Health.


0
For the reasons stated in the preamble, 29 CFR Part 1960 is amended to 
read as follows:

PART 1960--BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL 
SAFETY AND HEALTH PROGRAMS AND RELATED MATTERS

0
1. The authority citation for Part 1960 continues to read as follows:

    Authority: Sections 19 and 24 of the Occupational Safety and 
Health Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 668, 673), 5

[[Page 68804]]

U.S.C. 553, Secretary of Labor's Order No. 1-90 (55 FR 9033), and 
Executive Order 12196.


0
2. Amend Sec.  1960.2 by revising paragraph (l) to read as follows:


Sec.  1960.2  Definitions.

* * * * *
    (l) 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. Illness includes both acute 
and chronic illnesses, such as, but not limited to, a skin disease, 
respiratory disorder, or poisoning.
* * * * *

0
3. Amend Sec.  .1960.29 by revising paragraph (b) to read as follows:


Sec.  1960.29  Accident investigation.

* * * * *
    (b) In any case, each accident which results in a fatality or the 
hospitalization of three or more employees shall be investigated to 
determine the causal factors involved. Except to the extent necessary 
to protect employees and the public, evidence at the scene of an 
accident shall be left untouched until inspectors have an opportunity 
to examine it.
* * * * *

0
4. Revise Subpart I to read as follows:

Subpart I--Recordkeeping and Reporting Requirements

Sec.
1960.66 Purpose, scope, and general provisions.
1960.67 Federal agency certification of the injury and illness 
annual summary (OSHA 300-A or equivalent).
1960.68 Prohibition against discrimination.
1960.69 Transition from former rule and retention and updating of 
old forms.
1960.70 Reporting of serious accidents.
1960.71 Agency annual reports.
1960.72-1960.74 [Reserved].

Subpart I--Recordkeeping and Reporting Requirements


Sec.  1960.66  Purpose, scope and general provisions.

    (a) The purpose of this subpart is to establish uniform 
requirements for collecting and compiling by agencies of occupational 
safety and health data, for proper evaluation and necessary corrective 
action, and to assist the Secretary in meeting the requirement to 
develop and maintain an effective program of collection, compilation, 
and analysis of occupational safety and health statistics.
    (b) Except as modified by this subpart, Federal agency injury and 
illness recording and reporting requirements shall comply with the 
requirements under 29 CFR Part 1904, subparts C, D, E, and G, except 
that the definition of ``establishment'' found in 29 CFR 1960.2(h) will 
remain applicable to Federal agencies.
    (c) Each agency shall utilize the information collected through its 
management information system to identify unsafe and unhealthful 
working conditions, and to establish program priorities.
    (d) The provisions of this subpart are not intended to discourage 
agencies from utilizing recordkeeping and reporting forms which contain 
a more detailed breakdown of information than the recordkeeping and 
reporting forms provided by the Department of Labor. Because of the 
unique nature of the national recordkeeping program, Federal agencies 
must have recording and reporting requirements that are the same as 29 
CFR Part 1904 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 used by any Federal agency 
may be more stringent than, or supplemental to, the requirements of 29 
CFR Part 1904, but must not interfere with the agency's ability to 
provide the injury and illness information required by 29 CFR Part 
1904.
    (e) Information concerning occupational injuries and illnesses or 
accidents which, pursuant to statute or Executive Order, must be kept 
secret in the interest of national defense or foreign policy shall be 
recorded on separate forms. Such records shall not be submitted to the 
Department of Labor but may be used by the appropriate Federal agency 
in evaluating the agency's program to reduce occupational injuries, 
illnesses and accidents.

    Note to Sec.  1960.66: The recording or reporting of a work-
related injury, illness or fatality does not constitute an admission 
that the Federal agency, or other individual was at fault or 
otherwise responsible for purposes of liability. Such recording or 
reporting does not constitute an admission of the existence of an 
employer/employee relationship between the individual recording the 
injury and the injured individual. The recording or reporting of any 
such injury, illness or fatality does not mean that an OSHA rule has 
been violated or that the individual in question is eligible for 
workers' compensation or any other benefits. The requirements of 
this part do not diminish or modify in any way a Federal agency's 
responsibilities to report or record injuries and illnesses as 
required by the Office of Workers' Compensation Programs under the 
Federal Employees' Compensation Act (FECA), 5 U.S.C. 8101 et seq.

Sec.  1960.67  Federal agency certification of the injury and illness 
annual summary (OSHA 300-A or equivalent).

    As required by 29 CFR 1904.32, a company executive must certify 
that he or she has examined the OSHA 300 Log and that he or she 
believes, based on his or her knowledge of the process by which the 
information was recorded, that the annual summary is correct and 
complete. For Federal establishments, the person who performs the 
certification shall be one of the following:
    (a) The senior establishment management official,
    (b) The head of the Agency for which the senior establishment 
management official works, or
    (c) Any management official who is in the direct chain of command 
between the senior establishment management official and the head of 
the Agency.

    Note to Sec.  1960.67: The requirement for certification of 
Federal agency injury and illness records in this section is 
necessary because the private sector position titles contained in 29 
CFR part 1904 do not fit the Federal agency position titles for 
agency executives. The Federal officials listed in this section are 
intended to be the equivalent of the private sector officials who 
are required to certify records under Sec.  1904.32(b)(4).

Sec.  1960.68  Prohibition against discrimination.

    Section 1904.36 of this chapter refers to Section 11(c) of the 
Occupational Safety and Health Act. For Federal agencies, the words 
``Section 11(c)'' shall be read as ``Executive Order 12196 Section 1-
201(f).''

    Note to Sec.  1960.68: Section 11(c) of the Occupational Safety 
and Health Act only applies to private sector employers and the U.S. 
Postal Service. The corresponding prohibitions against 
discrimination applicable to Federal employers are contained in 
Section 1-201(f) of Executive Order 12196, 45 FR 12769, 3 CFR, 1980 
Comp. p. 145.

Sec.  1960.69  Retention and updating of old forms.

    Federal agencies must retain copies of the recordkeeping records 
utilized under the system in effect prior to January 1, 2005 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 Form 300 Log and 
Form 301 Incident Report. Agencies are not required to update the old 
forms.


Sec.  1960.70  Reporting of serious accidents.

    Agencies must provide the Office of Federal Agency Programs with a 
summary report of each fatal and catastrophic accident investigation. 
The

[[Page 68805]]

summaries shall address the date/time of accident, agency/establishment 
named and location, and consequences, description of operation and the 
accident, causal factors, applicable standards and their effectiveness, 
and agency corrective/preventive actions.

    Note to Sec.  1960.70: The requirements of this section are in 
addition to the requirements for reporting fatalities and multiple 
hospitalization incidents to OSHA under 29 CFR 1904.39.

Sec.  1960.71  Agency annual reports.

    (a) The Act and E.O. 12196 require all Federal agency heads to 
submit to the Secretary an annual report on their agency's occupational 
safety and health program, containing such information as the Secretary 
prescribes.
    (1) Each agency must submit to the Secretary by January 1 of each 
year a report describing the agency's occupational safety and health 
program of the previous fiscal year and objectives for the current 
fiscal year. The report shall include a summary of the agency's self-
evaluation findings as required by Sec.  1960.78(b).
    (2) The Secretary must provide the agencies with the guidelines and 
format for the reports at the time they are requested.
    (3) The agency reports will be used in preparing the Secretary's 
report to the President.
    (b) The Secretary will submit to the President by October 1 of each 
year a summary report of the status of the occupational safety and 
health of Federal employees based on agency reports, evaluations of 
individual agency progress and problems in correcting unsafe or 
unhealthful working conditions, and recommendations for improving their 
performance.


Sec. Sec.  1960.72-1960.74  [Reserved]

[FR Doc. 04-25955 Filed 11-24-04; 8:45 am]
BILLING CODE 4510-26-P