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.

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 § 1904.1 to § 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 § 1904.4 to § 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 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:

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 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 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 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 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 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 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 § 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 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 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 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 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 § 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 "