ACTING ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH
HOUSE COMMITTEE ON SMALL BUSINESS
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to testify on the Occupational Safety and Health Administration's (OSHA) proposed recordkeeping rule. I am pleased to be here today to discuss OSHA's proposal to improve the quality and collection of data on occupational injuries and illnesses, and how this proposal reflects the New OSHA philosophy.
As you may know, the original requirement for recording and reporting work-related deaths, injuries, and illnesses was established in Section 8(c)(2) of the Occupational Safety and Health Act of 1970 (OSH Act). Legislators were concerned over the lack of comprehensive and reliable statistics on workplace safety and health. The voluntary reporting systems in place before passage of the OSH Act produced data that were considered suspect by both workers and employers.
Shortly after passage of the OSH Act, OSHA issued a regulation to implement the recording and reporting requirements, Recordkeeping and Reporting of Occupational Injuries and Illnesses (29 CFR 1904). This regulation has been amended many times during the last 26 years to reduce recordkeeping requirements for smaller employers and employers in low-hazard industries, to improve workers' access to the records, and to allow employers to computerize some of their records. For example, in 1994, a section was revised to improve the reporting of workplace fatalities and catastrophic accidents.
Originally, administration of the recordkeeping system was assigned to both OSHA and the Bureau of Labor Statistics (BLS). OSHA was assigned responsibility for the regulations and enforcement of the requirements, while BLS provided guidance to employers and interpreted the requirements for the regulated community. In 1972, BLS issued guidelines for employers to give them additional direction on which cases to record and how to record them. These guidelines were updated in 1973, 1975, 1978, and 1986 to answer new questions and provide additional guidance to employers.
In 1990, responsibility for the recordkeeping functions was transferred to OSHA to improve coordination of all activities involving recordkeeping, including enforcement of the rule and development of a new recordkeeping system. Prior to the transfer, BLS had been working on revising the rule based on the recommendations of a 1987 National Research Council study and a 1989 Keystone Center study. These two studies, along with several GAO reports recommending revision of the rule, and persistent complaints that the existing system was too complex, led OSHA to publish a proposal to revise the recordkeeping system. OSHA needed to revise the rule because it had not kept pace with emerging issues, the guidelines that accompanied the existing rule were too long and complicated, the forms were too complex, and interpretations of the rule were spread out in many documents. The February 2, 1996, proposal included a new regulation, new forms, and elimination of the existing, cumbersome recordkeeping guidelines.
Importance and Uses of Injury and Illness Records
Use to OSHA
The OSHA injury and illness records are used by a variety of people and organizations with an interest in workplace safety and health. These records are the foundation of OSHA's programs, and allow OSHA to: (1) track patterns of occupational injury and illness; (2) target agency resources at the most dangerous work sites, industries, and safety and health hazards; (3) measure the results of agency programs; (4) measure progress in improving worker safety and health at the individual workaday, employer, and national levels; (5) identify emerging hazards; (6) treat responsible employers differently from negligent ones; and (7) serve the substantial public interest in reliable data about workplace hazards.
OSHA's cooperative programs depend heavily on these statistics. For example, OSHA's consultation programs use the data to assist and advise employers. Without the important information these records provide, consultants would have difficulty making appropriate recommendations for improving safety and health at a particular workaday. Rather, the only information available to them would be direct observation of the hazards that happened to be present on the day of the consultation visit. In addition, it is possible for OSHA to recognize Voluntary Protection Program employers as exemplary because records enable the agency to measure the level of safety and health at one establishment compared with the level at another or with the experience of the industry as a whole. And OSHA's Cooperative Compliance Programs use the data to target the companies most in need of OSHA intervention to improve their injury and illness rates -- avoiding the expenditure of unnecessary time and effort inspecting the best employers.
In addition, the records are source data for the BLS Annual Survey of Occupational Injuries and Illnesses. This survey compiles national statistics on the numbers and rates of occupational injuries and illnesses for the private sector and individual industries. The survey also produces statistics on the demographics of injured workers (age, sex, occupation, etc.) and the characteristics of the injuries and illnesses (part of body affected, nature of illness, event or exposure that caused the injury or illness, object/substance that caused the injury or illness, etc.)
Use to Employers and Employees
OSHA is not the only party that depends on these statistics. Employers use the information to manage workplace safety and health programs. The records provide a database that can be analyzed to discover patterns of injury and illness in an individual workplace, or for an entire company. After the employer has taken corrective measures, the records can be used as a management tool to track progress in reducing the number of injuries and illnesses.
Workers use the information to participate in workplace safety and health efforts. The records are posted on a bulletin board each year to inform employees about the injuries and illnesses experienced in that particular workplace -- access which OSHA's regulation guarantees. Employees who receive information on workplace injuries and illnesses will be more aware of hazards in their work environment, and are more likely to follow safe work practices and report workplace hazards.
The New OSHA
The goals of the New OSHA depend in large part on improving recordkeeping. Among the New OSHA's main objectives are simplification of regulations, removal of red tape, and a focus on results. The revised recordkeeping rule would help accomplish all of these objectives. Reliable data is a cornerstone in changing the agency's performance measurements from activity-based, such as numbers of inspections and violations, to measurements focused on the ultimate outcome of reducing workplace injuries and illnesses.
For many years, the effectiveness of OSHA's inspection targeting system was limited, in part because OSHA only had access to aggregate industry data, and could not separate safe workplaces from unsafe ones within a given industry. Critics complained that the agency spent too much time inspecting relatively safe workplaces and too little time in the most hazardous ones. In response, the New OSHA has worked with stakeholders to develop a new targeting system based on workaday-specific data, including data submitted to OSHA under this rule.
Use of this information will allow OSHA to deal with each workplace as a unique environment with its own workplace problems and solutions. The data collection initiative is an important part of OSHA's reinvention efforts to become a data-driven, results-oriented organization. It will allow OSHA to track the progress of individual employers following agency intervention, and measure the results of agency actions, in accordance with the requirements of the Government Performance and Results Act. It also improves the quality and accuracy of the safety and health information available for OSHA, employers, and workers.
Contents of Proposed Rule
The proposed changes to the recordkeeping rule would constitute the most comprehensive overhaul of the system since 1971. Among the proposed changes are revision of the forms and the regulations, elimination of the guidelines, and consolidation of guidance found in various OSHA guidelines, directives, and letters of interpretation. Part of OSHA's recordkeeping proposal, 29 CFR 1904.17, became final this February, in a rule that requires selected employers to report their occupational injury and illness data directly to OSHA as part of the data initiative just described. The agency plans to use this data for compliance assistance, outreach, training, enforcement, and other activities.
The proposed revision has three primary goals. The first goal is to improve the quality of the records. Higher quality information will improve any use of the data and decisions made using that data. Second, the proposed revision should reduce the burden on employers by exempting more small employers from routine recording and reporting requirements, simplifying the forms and regulations, and providing clear guidance that will reduce employers' confusion and frustration with the current system. Third, the proposed revision would improve employer and employee access to records by allowing additional flexibility for employers to keep their records on computers or in central locations.
The proposal was developed using an inclusive process that involved meetings with business, labor, academic, and government stakeholders. The process began in 1987, when the Keystone Center, an independent, non-profit organization that facilitates national policy consensus-building dialogues, convened 46 representatives from labor unions, corporations, health professions, government agencies, Congressional staff and academia for a year-long dialogue. Among other questions, participants were challenged to determine whether significant cases of occupational illness would go unreported if the same reporting criteria were applied to illnesses as are applied to injuries. In 1989, Keystone issued its final report on the dialogue.
Two other stakeholder meetings facilitated by Keystone were held in 1995 to discuss a draft proposal. The first meeting was held for two days in May, during which 50 stakeholders from business, labor, government and the academic community discussed the draft proposal and provided OSHA with ideas and recommendations for improvement. After the first meeting, OSHA made more than 70 changes to the draft proposal in response to stakeholder comments. In June, a follow-up meeting was held with 58 stakeholders, many from the first meeting. OSHA briefed the attendees on changes that had been made to the proposal and the attendees provided OSHA with additional information. The group recommended that OSHA publish the proposal for public comment.
Although OSHA was not required to hold any public hearings on this proposed rule under the Administrative Procedures Act, the agency actively sought public participation. OSHA received valuable input from stakeholders during two public meetings. The first public meeting was held from March 26-29, 1996, and the second was held from April 30-May 1, 1996. Fifty-five groups and individuals, representing a variety of business interests, organized labor, professional associations, and government agencies provided OSHA with their views during six days of public meetings. Many stakeholders considered the process used in the development of the recordkeeping proposal a model, and encouraged OSHA to develop other proposals in the same way. This experience and the reaction from stakeholders demonstrate OSHA's commitment to obtaining input from small businesses and other stakeholders during the development of this rule.
The proposed rule would replace the current forms (OSHA 200 and 101) with new forms (OSHA 300 and 301). The new forms would fit on standard 8 1/2" by 11" paper to reduce copying problems, and would provide additional information on the cause of the illness or injury. OSHA has been working with the International Association of Industrial Accident Boards and Commissions in an effort to coordinate the information required on the various forms used by insurers and State workers' compensation agencies, so that one form will satisfy the requirements of various parties. OSHA is also developing a software package that will contain the forms and decision logic to help employers complete them. The software will help employers fill out and print the required forms and provide a basic analysis of the establishment's injury and illness record. The software will be made available to the public at no charge.
As with the current rule, the proposal would exempt employers in industries with lost-workday injury and illness rates at or below 75 percent of the national average from routine log and incident reporting requirements. For a number of industry sectors, the proposal would expand the application of the size-based exemption to employers with fewer than 20 employees. OSHA also solicited comment on other means to exempt employers. In construction, the size-based exemption would remain at 10 or fewer employees. These elements of the proposal generated great employer interest and comment. OSHA is now in the process of evaluating these proposed changes in light of the many thoughtful suggestions the commentors provided. As envisioned at the proposal stage, the more limited recordkeeping requirements for small employers and low-hazard Standard Industrial Classifications should decrease the total number of establishments required to do full-scale recording and reporting. OSHA estimated that 620,879 establishments would be subject to recording and reporting requirements under the proposed rule, compared with 756,238 under the current rule. That means that only about ten percent of all firms in the country would be covered by the proposal. In addition, even fewer businesses would actually have to submit records to OSHA. OSHA estimated that the proposed revisions would reduce the regulatory burden on businesses by $4.7 million per year, with the average firm having to spend about $40 per year to comply.
The proposed revision would improve information on injuries and illnesses in the construction industry by requiring comprehensive records for major construction projects. The proposal would require that central records of all injuries and illnesses at a construction site be compiled. That information could then be used to compare different types of construction, as well as the experiences of different prime contractors. We are now studying, in light of the comments on the proposal, how best to achieve this result with minimal additional burden on the site-controlling employer.
Other elements of the proposal are: elimination of the need for employers to determine whether an individual case is an "injury" or an "illness"; provision of a glossary of key definitions, such as "first-aid treatment"; provision of a table in which employers can look up recording criteria for specific conditions; and permission for employers to keep all records on computer or at alternate company locations. In addition, OSHA solicited comment on alternative approaches for a number of elements of the proposal.
Status of Rulemaking
The rulemaking docket for the proposed revisions to the recordkeeping rule closed on July 1, 1996, after two extensions of the comment period. OSHA received 450 comments, in addition to the information gathered at the two public meetings. The range of commentors extended from well-known trade associations such as the National Association of Manufacturers, to professional groups such as the American Association of Occupational Health Nurses, to labor organizations such as the AFL-CIO. Businesses were well-represented, with comments from larger businesses such as Exxon, Proctor & Gamble, and Tenneco, as well as smaller businesses like the Heat Transfer Equipment Company of Tulsa, Oklahoma and Rosco Manufacturing Company of Madison, South Dakota. Organizations representing many small businesses, such as the Synthetic Organic Chemical Manufacturers Association and the National Federation of Independent Businesses, also commented. Comments were also received from a variety of individuals in safety-and-health-related fields: safety professionals, occupational physicians, industrial hygienists, and safety and health consultants.
All but a few of the stakeholders who commented agreed that there was a need to revise the recordkeeping rule, although they differed on the specific changes desired. The agency has been analyzing the contents of the rulemaking record, and we know a lot more now than we did at the time the proposal was issued. We plan to address, in the final rule, the criticisms raised by the commentors, although presently we are still evaluating those issues and have not made any final decisions.
Records of occupational injuries and illnesses are crucial to OSHA's efforts. The proposed recordkeeping rule revisions would improve data collection and make reporting easier for employers. Burden on employers would be reduced, as more small employers are exempt from routine recording and reporting requirements. The terms of worker access to records would be clearly defined. And all of these benefits would come at a reduced cost, compared to the current rule. The recordkeeping proposal is a step in the right direction, a "win-win" proposition for employers, workers, and OSHA.