Document pdXwqEYY33x374KgZp0MvQQa

August 2, 1978 To: ILZRO Lead and Zinc/Cadmium Environmental Health Committees LIA and Cadmium Council Environmental Health Committees Members, Lead Industries Association Members, Zinc Institute From: Lillian Piantanida Subject: OSHA: Employee Exposure and Medical Records - Preservation of and Access to Three notices appeared in recent issues of the Federal Register (attached), two final rules and one proposed, relating to OSHA's requirements for pres ervation of employee exposure and medical records, access to these records by employees, OSHA, and NIOSH, and similar access to occupational injury and illness logs. Preservation of Employee Exposure and Medical Records - Final rule (F.R. 43(139):3101931021, July 19,1978): Effective immediately, this rule applies to employers in general industry who make, maintain, or have access to any employee exposure records or employee medical records. With this rule, em ployers must preserve these voluntarily kept employee exposure and medical records. "Employee exposure records" are defined as monitoring or measuring records which contain qualitative or quantitative information indicative of employee exposure to toxic materials. "Employee medical records" mean records which contain information con cerning the health status of esployees exposed to toxic materials, in cluding results of medical exams and tests, opinions or recommendations of a physician or other health professional, and any employee medical complaints relating to yorkplace exposure. Both definitions include individual exposure and medical records, and general research or statistical studies based on information collected from exposure and medical records. NOTE: The immediate Implementation of this rule does not require employers to create records which do not currently exists or to immediately provide employees access to the records, but simply to continue to retain the records during the com ment period until a final rule on access to the records is promulgated (see following paragraphs on the proposed access rules). LIA 03 496 N 3733 -2- Access to Employee Exposure and Medical Records Proposed rule (F.R. 43 (141):31371-31374, July 21,1978): The proposed rule includes requirements for the retention of these records for the dura tion of employment plus five years, and for the availability of the records to enq>loyees, former employees, their designated represen tatives, and to OSHA and NIOSH. When pronulgated, the proposed rule will supersede the interim rule requiring preservation of em ployee exposure records and employee medical records which was effective on July 19 (above). By giving employees and their designated representatives the right to see relevant exposure and medical Information, this proposal will make it easier for employees to identify worksite hazards, particularly workplace exposures which impair their health or functional capacity. Increased awareness of workplace hazards will also make it more likely that prescribed work and personal hygiene practices will be followed. OSHA invites comments on whether any types of information in the medi cal records should be excluded from the disclosure requirements of the rule. The comment deadline is September 22, 1978. Comments should be sent to: Docket Officer Docket No. H-112, Rm. S-6212 U.S. Dept, of Labor Third St. and Constitution Ave. NW Washington, D.C. 20219 Access to Log of Occupational Injuries and Illnesses Final rule (F.R. 43(141): 31324-31329, July 21,1978: This regulation is effective August 21, 1978, and requires affected employers to compile and post an annual suamary of occupational injuries and illnesses at each establishment. However, the detailed entries of each case on the log, upon which the sumnary is based, are not required by regulation to be made available to employees and their representa tives (an employee representative includes, but is not limited to, a labor organization which serves as the collective bargaining representative for the employees). Details of each of these rules is outlined in the enclosed copies of the Federal Register announcements. The announcements also indicate the persons to be contacted for further information. L 1403497 RULES AND REGULATIONS . 3101 (3) For vessels over 125 gross reds* tered tons: 20.000 pounds landed weight of each species. (4) For vessels of any size using fixed gear (hooks or gill nets): 16,000 pounds landed weight of each species. <b> Yellowtail flounder. For each weekly period (0001 hours Sunday through 2400 hours Saturday, local time), no person or vessel may land yellowtail flounder in amounts greater than the following: (1) For vessels under 60 gross regis tered tons: 6.000 pounds landed weight, or 10 percent by weight of all fish on board, whichever Is greater. (2) For vessels of 61-125 gross regis tered tons: 10.000 pounds landed weight, or 10 percent by weight of all fish on board, whichever is greater. (3) For vessels over 125 gross regis tered tons: 14.000 pounds landed weight; or 10 percent by weight of all fish on board, whichever is greater. (c> If a vessel is at sea In more than one weekly period, the cod, haddock, and yellowtail flounder on board the vessel may. at the option of the vessel operator, be considered landed in the weekly period In which they were ac tually caught if the vessel operator maintains a log book recording the amounts of cod. haddock, and yellowtail flounder caught each day. If such log book is not maintained, all cod. haddock, and yellowtail flounder shall be coanted against the landing restric tion of the weekly period In which they were landed. (d) Any licensed trawl vessel may land up to 5,000 pounds of each spe cies in excess of the amounts permit ted to be landed under paragraph (a) .through (c) of this section. Any excess quantity so landed shall be deducted from the weekly trip limitation during the week immediately following such Unding. (e> The Assistant Administrator may adjust the landing restrictions in para graphs (a). (b>, and (d) of this section, upon publication of a notice in the Federal Register, for the following purposes: (1) To spread fishing effort over the entire year. (2) To reduce the need for quarterly or annual closures: (3) To allow each of the vessel classes in paragraphs (a) and (b) of this section to harvest its historic per centage of the catch. (f) To accomplish the purposes stated in paragraph (e> of this section, the Assistant Administrator may adjust the landing restrictions by varying amounts for each vessel class, after consideration of the following factors: (1) Landings for the current and pre vious quarters: (2) Projected harvests: (3) Geographic and seasonal avail ability of fish: (4) Traditional and anticipated fish which they have access. This rule i ing patterns; promulgated with an immediate pi fee (5) Number of vessels of each class live dm t0*kLi>Uie Liuu HIM wiml in the fishery; rnvereH fry it will he preserved peham: (6) Capability of vessels to fish in completion nr the Ti'tkinft proceeo other locations or for other species; fags on employee access to these rev (7) Status of unregulated species In ords. notice of which will be publishet the trawl fishery; and on Friday. July 21, 1978. (8) Incidental catch of cod and had dock during fishing for unregulated species. DATES: This interim final rule is ef fective July 19.1978. 5. Revise 1651.8 by striking in its en tirety; substitute the following*. ADDRESS: For additional copies con tact the Publications Office. OSHA Room N-3423, DA Department oi i 651JS Closed seasons. Labor, Third Street and Constitution Avenue NW,, Washington. D.C. 20210 (a) The Assistant Administrator 202-523-8677. shall announce the closure of the season for haddock, cod, or yellowtail flounder by publication in the Federal FOR FURTHER CONTACT: INFORMATION Register, specifying the time. date, and area for the termination of that fishery. The closure is determined in the following manner When the total quarterly quota of haddock, cod, or yellowtail flounder Is taken, the As Charles R. McClure, Office of Compli ance Programs. OSHA. Room N-3112. US. Department of Labor, Third Street and ConstJtution_Avenue NW,, Washlnton. D.C. 20210. 202-523-8044. sistant Administrator may announce that all taking of that species shall cease for that quarter, by publication in the Federal Register. (b) During the period of closure, it shall be unlawful to catch, retain, or land any species to which the closure applies. However, vessels using gear described in paragraph (bKl) of 651.6 may continue fishing so long as the catch of each species to which the clo sure applies does not exceed one per cent of all fish on board. SUPPLEMENTARY INFORMATION. In cooperation with the Department of Health, Education, and Welfare. OSHA is issuing a rule which applies to employers In general industry, maritime, and construction, who make, maintain or have access to any employee exposure records or employ ee medical records. For the reasons stated below, this rule is effective im mediately. At the same time. OSHA is publishing July 21 a notice of pro posed rulemaking and inviting public (FR Doc. 76-19931 Plied 7-18-78; 8:45 ami comment concerning long-term reten tion and access to these records. When ?promulgated as a final rule, the pro (4510-26] posed rule will encompass and super Title 29--Labor sede this immediately effective rule. The background and explanation of CHAPTER the entire rule will be set out in the XVII--OCCUPATIONAL notice of proposed rulemaking of July . SAFETY AND HEALTH ADMINIS 21 and will be Incorporated by refer TRATION, DEPARTMENT OF LABOR ence in this document. The interim final rule, which becomes effective PART 1910--OCCUPATIONAL SAFETY today, requires employers to preserve AND HEALTH STANDARDS employee exposure and medical rec ords which they make or maintain or Preservation of Employee Exposure and Medical Records to which they have access. To the extent these records exist, they have primarily been kept at the initiative of AGENCY: Occupational Safety and employers, although some records Health Administration. Department of have been subject to specific OSHA re Labor. ACTION: Final rule (Interim). cordkeeping requirements. Specific OSHA recordkeeping requirements, such as those In the vinyl chloride SUMMARY: Under the Occupational standard 29 CFR 1910.1017) and the Safety and Health Act of 1970, the coke oveh emissions standard (29 CFR Secretary of Labor in cooperation with 1910.1029). already require retention the Secretary of Health. Education, of the affected records for specified and Welfare has the authority to re times and shall continue to apply. quire employers to make, keep, and With this new rule, employers must preserve records regarding their activi also preserve their voluntarily kept ties which are necessary or appropri employee exposure and medical rec ate for carrying out the purposes of ords. the act. This rule requires employers The term "record." as used in this . to preserve any employee exposure rule, is intended to cover any recorded records or employee medical records information regardless of its physical which they make or maintain or to form or character. "Employee expo- FEOCkAl tCOiSTR. VOL 43, NO. 1S4--WtOWWAV. Ally 19, 1VTS L I A 03 49 5 N 3733.01 31020 RULES AND REGULATIONS sure records" are defined as monitor cedure Act (APA) (5 U.S.C. 553). Be serve existing employee medical and ing or measuring records which con cause the preservation of employee ex exposure records would be impractica tain qualitative or quantitative infor posure and medical record is a neces ble. unnecessary, and contrary to the mation indicative of employee expo sary precondition to the ultimate goal public interest. Interested persons will, sures to toxic materials or harmful of providing employee access to these however, have the opportunity to physical agents; while "employee records. OSHA has determined that, present their comments, views and ar medical records" are defined as rec in accordance, with sections 553 guments on the proposed rule which, ords which contain information con (b)(3)(B) and 553(dX3), an immediate when promulgated, will supersede this cerning the health status of an em effective date is necessary. Section 553 rule. Any issue raised by today's inter ployee or employees exposed or poten (b)(3)(B) provides for an exception to im final rule may be presented to tially exposed to toxic materials or the general notice requirements of the OSHA during this comment period, harmful physical agents. Both individ APA "when the agency for good cause and OSHA will carefully consider all ual exposure and medical records and finds * * * that notice and public pro comments before promulgating the general research or statistical studies cedure thereon are impracticable, un proposed rule in final form. based on information collected from necessary. or contrary to the public in This document was prepared under exposure ar.d medical records are In terest;" section 553(d)(3) provides for the direction of Eula Bingham. Assist cluded within those definitions. an exception to the requirement for ant Secretary of Labor for Occupa Tins rule requires that the employer publication of a substantive rule not tional Safety and Health. UJ5. Depart make these records available upon re less than 30 days before its effective ment of Labor. Third Street and Con quest to the Assistant Secretary for date "for good cause found and pub stitution Avenue NW.. Room S-2315. Occupational Safety and Health. VS. lished with the rule." Washington. D.C. 20210. 202-523-9261. Department of Labor, for examination In this case. OSHA finds good cause This rule is promulgated pursuant to and copying, so that OSHA may moni to make this interim final rule effec sections 8(c)(1) and 8(g) of the Occu tor compliance with this rule and en tive immediately and to issue it with pational Safety and Health Act of force it accordingly. The Director of out prior notice and opportunity for 1970 (84 Stqi 1599. 1600; 29 U.S.C. the National Institute for Occupation comment because of the nature and 657) and Secretary of Labor's Order al Safety and Health (NIOSH). VS. objective of the rule. As has been No. 8-76 (41 FR 25059), and in accord Department of Health. Education, and stated, the purpose of this rule is to ance with 5 U.S.C. 553. Accordingly, by Welfare is also given access to these assure that employee exposure and that authority, 29 CFR part 1910 is records to assist him in carrying out medical records are preserved, so that amended, effective July 19, 1973. by NIOSH's responsibilities' under the employees and their representatives adding a new Subpart C. "General act. The Assistant Secretary and the may ultimately gain access to these Safety and Health Provisions," and a Director may. of course, designate em records. Because most of these records new $ 1910.20 as follows: ployees of their Department to carry have been kept voluntarily, employers out their functions. have been free to dispose of them as Subpart C--General Safety and This Interim final rule requiring the they wish. As a result, these records Health Provisions preservation of employee exposure could be discarded as a part of normal and medical records is being issued business procedures, or in some cases { 1910.20 Preservation of records. under the rulemaking authority in sec tions 8(cXl) and 8<g) of the Occupa tional Safety and Health Act of 1970 (84 Stat. 1599. 1600; 29 U.S.C. 6571. Section S(cXl) authorized OSHA to re to avoid disclosure to the affected em ployees or to others. Much valuable in formation concerning occupational safety and health may be irretrievably lost in this way. (a) Scope and application. This sec tion applies to each employer who makes, maintains or has access to em ployee exposure records or employee medical records. quire each employer to "make, keep An immediate effective date for this (b) Definitions. "Employee exposure and preserve, and make available to rule is therefore necessary to assure record" means a record of monitoring the Secretary [of Labor] or the Secre the preservation of the records during or measuring which contains qualita tary of Health, Education, and Wel the period of public rulemaking when tive or quantitative information indic fare such records regarding his activi the issues of employee access and the ative of employee exposures to toxic ties relating to this act * * * as neces appropriate retention period for these materials or harmful physical agents. sary or appropriate for the enforce records are being resolved. Clearly, the This includes both individual exposure ment of this act or for developing in destruction of these records for any records and general research or statis formation regarding the causes and reason during the time provided for tical studies based on information col prevention of occupational accidents public participation in the rulemaking lected from exposure records. and illnesses." Section 8(g)(2) provides would frustrate the objectives of the "Employee medical record" means a general rulemaking authority as the proposed rule. It is noted that the im record which contains information Secretary deems necessary to carry mediate implementation of this rule concerning the health status of an em out OSHA's responsibilities under the does not require employers to create ployee or employees exposed or poten act. Pursuant to the statute, this rule ' records which do not exist or to imme tially exposed to toxic materials or represents a determination that pres diately provide employee access to the harmful physical agents. These rec ervation of employee exposure and records, but simply to continue to ords may include, but are not limited medical records is necessary to assure retain the records during the comment to: a safe and healthful workplace, for de period and until a final rule on access (1) The results of medical examina veloping information on occupational to the records is promulgated. This tions and tests: Injuries and illnesses, and. generally, final rule on preservation of records is (2) Any opinions or recommenda for carrying out OSHA's enforcement therefore an interim measure, impos tions of a physician or other health and other responsibilities under the ing minimal burdens for a limited professional concerning the health of act. The reasons for this determina tion will be set out in the preamble to t2h1e. proposed rule published on July period of time. It is OSHA's intention to complete the subsequent rulemak ing proceedings as expeditiously as possible. an employee or employees; and (3) Any employee medical com plaints relating to workplace exposure. Employee medical records include In issuing this Interim final rule For these reasons, OSHA finds that both individual medical records and under its general rulemaking authori providing notice, opportunity for com general research or statistical studies ty, OSHA Is following the provisions ment, and a delayed effective date based on information collected from ' of section 4 of the Administrative Pro with regard to the requirement to pre medical records. KBQUl ueism, vol 43, no. m--weonesoay. 19, 197< 31324 tUUS AND REGULATIONS property used in its boat repair operations standing on its own. Z Company has not ac poses of computing the ratable share, to the N Co. (or (our years and gives the N quired a separate unit of the Y Corporation. the reduction of the deduction for Co. a covenant not to compete in the boat repair business (or the period of the lease. The N Co. Is considered to have acquired a separate unit of M Corp.'s business for the Example it). The O Construction Compa ny is owned by A. B. and C. who are unrelated individuals. It owns equipment valued at 1.5 million dollars and construc wage or salary expenses under section 280C shall not be taken into account. (c)Cooperatives. (1) In the case of a period of the lease. tion contracts valued at 6 million dollars. A. cooperative organization described in example (2). (a) the P Co. Is encaged In wishing to start his own company, ex section 1381(a). the amount of the the operation of a chain of department changes his Interest in O Company for 2 credit allowable under section 44B stores. There are eight divisions, each divi sion is located in a different metropolitan area of the country, and each division oper ates under a different name. Although cer tain buying and merchandising functions are centralized, each division's day-to-day operations are independent of the others. The Q Corp. acquires all of the physical and intangible assets of one of the divisions, in cluding the division's -name. Other than making those minor adjustments necessary to give the division buying and merchandis ing departments, the Q Corp. allows the di vision to continue doing business in the same manner as It had been operating prior to the acquisition. The Q Corp. has acquired a separate unit of the P Co.'s business. (to) The facts are the same as in (a) above, except that Q Corporation buys the division merely to obtain its store locations. Before the Q Corporation takes over, the division liquidates its Inventory in a going-out-ofbusines sale. The Q Corporation has merely acquired assets in this transaction, not a separate unit of P Company's busi ness. Example (2). The R Company processes and distributes meat products. Both the processing division and the distributorship are self-sustaining, profitable operations. The acquisition of either the meat process ing division or the distributorship would be an acquisition of a separate unit of the R million dollars of contracts and a sufficient amount of equipment to enable him to begin business immediately. A has acquired a separate unit of the O Company's busi ness. (3) Major portion. All the facts and circumstances surrounding the trans action shall be taken into account in determining what constitutes a major portion of a trade or business (or sepa rate unit). Factors to be considered in clude: (1) The fair market value of the assets in the portion relative to the fair market value of the other assets of the trade or business (or separate unit); (ii) The proportion of goodwill at tributable to the portion of the trade or business (or separate unit); (iii) The proportion of the number of employees of the trade or business (or separate unit) attributable to the portion in the periods immediately preceding the transaction; and (iv) The proportion of the sales or gross receipts, net income, and budget of the trade or business (or separate unit) attributable to the portion. shall be reduced to the cooperative's ratable share of the credit. The rat able share shall be the ratio which the taxable Income of the cooperative for the taxable year bears to its taxable income increased by the amount of the deductions allowed under section 1382 (b) and (c). For purposes of com puting the ratable share, the reduc tion of the deduction for wage or salary expenses under section 280C shall not be taken into account. $ 1.280C-1 Disallowance of certain deduc tions for wage or salary expenses. If an employer is entitled to a credit under section 44B, It must reduce its deduction for wage or salary expenses paid or incurred in the year the credit is earned by the amount allowable as credit (determined without regard to the provisions of section 53). In the case in which wages and salaries are capitalized, the amount subject to de preciation must be reduced by an amount equal to the amount of the credit (determined without regard to the provisions of section 53) in deter mining the depreciation deduction. If Company's business. Example (I). The S Corporation Is en gaged in the manufacture and sale of steel $1.52-3 Limitations with respect to cer tain persons. the employer is an organization that is under common control (as described in $ 1.52-1). it must reduce its deduction and steel products. S Corporation also owns (a) Mutual savings institutions. In for wage or salary expenses by the a coal mine, which it operates for the sole purpose of supplying Its coal requirements for Its steel manufacturing operations. The acquisition of the coal mine would be an ac quisition of a separate unit of the S compa ny's business. Example (S). The T Company, which is en caged in the business of operating a chain of drug stores, sells its only downtown drug store to the V Company and agrees not to open another T Company store in the down the case of an organization to which section 593 applies (that is. a mutual savings bank, a cooperative bank, or a domestic building and loan associ ation), the amount of the credit al lowable under section 44B shall he 50 percent of the amount otherwise de termined under section 51. or. in the case of an organization under common control, under section 52 (a) or (b). amount of the credit that it is allowed under subsections (a) or (b) of section 52. The deduction for wage and salary expenses must be reduced in the year the new jobs credit is earned, even if the employer is unable to use the credit In that year because of the limi tations imposed by section 53. CFR Doc. 78-20324 Filed 1-20-78; 8:4$ ami town area for five years. Included in the (b) Regulated investment companies purchase price is an amount that is charged for the goodwill of the store location. The V Company has acquired a separate unit of the T Company's business. Example (9). The W Company, which Is and real estate investment trusts. In the case of a regulated investment I [4510-26] company or a real estate investment 1 Title 29--Labor trust subject to taxation under engaged in the business of operating a chain of drug stores sells one of its stores to the X subchapter M. chapter 1 of the Code, the amount of the credit allowable CHAPTER XVII--OCCUPATIONAL Company, but continues to operate another under section 44B shall be reduced to SAFETY AND HEALTH ADMINIS drug store three blocks away. The X Com the company's or trust's ratable share TRATION, DEPARTMENT OF LABOR pany opeps the store doing business under its own name. The X Company has not ac quired a separate unit of the W Company's business. Example (7). (a) The T Corporation, which is engaged In the manufacture of of the credit. The ratable share shall be the ratio which the taxable Income of the regulated investment company or real estate investment trust for the taxable year bears to its taxable PART 1904-r-RECORDING ANO REPORTING OCCUPATIONAL INJU RIES AND ILLNESSES mattresses, sells one of its three factories to income Increased by the amount of the Z Company. At the time of the sale, the the deduction for dividends paid taken Access to the Log of Occupational In factory ts capable of profitably maaufseturfang mattresses on its own. Z Company has acquired a separate unit of the Y Corpora tion. (b) The facts sre the same as in (a) above, except that a profitable manufacturing op into account under section 852 (b)(2XD). in computing Investment company taxable income or under sec tion 857(bX2XB) in computing real estate investment trust taxable juries and Illnesses to Employees and Their Representatives AGENCY: Occupational Safety and Health Administration. Department of eration cannot be conducted in the factory income, as the case may be. For pur Labor. RDOtAl tEOiSTSL VOL 43, NO. 141--NUDAT, JULY I, 1*78 LIA0350C RULES AMO REGULATIONS 31325 ACTION: Final rule. SUMMARY: The Secretary of Labor in-cooperation with the Secretary of Health. Education, and Welfare is re quired by the Occupational Safety and (OSHA No. 200 and its predecessor form. OSHA No. 100) to employees and their representatives and to former employees and their represen tatives. ployers to prepare .and maintain a log and summary of occupational injuries and illnesses (OSHA No. 200). Prior to January 1978, employers were re quired to maintain a form OSHA No. Health Act of 1970 (the act) to pre scribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work related deaths, injuries and illnesses other than minor injuries requiring only find aid treatment. This document re vises the requirements of the recordkeeping regulations in 29 CFR Part 1904 to provide access to form OSHA No. 200, the log and summary I. BACXCROtrXD On November 14, 1973, a notice was published in the Federal Register (38 FR 31449) proposing to amend certain provisions in $ 1904.7 of 29 CFR Part 1904. pertaining to access to the log of occupational injuries and illnesses. The notice invited-interested persons to submit written data, views, or argu ments by December 31, 1973. Numer 100, the log of occupational injuries and illnesses, and to summarize the contents of the log for annual posting on form OSHA No. 102. the summary of occupational Injuries and Illnesses. To reduce the paperwork burden on employers, these two forms were com bined into one form. OSHA No. 200. the log and. summary of occupational Injuries and Illnesses, with certain modifications to streamline the of occupational injuries and illnesses (the log) to employees. Including former employees, and their represen tatives. The statutory requirements for occupational safety and health standards also include the employee's basic right to know about workplace hazards. Since the log contains a record of each reported workplace injury and illness, employees will be more fully alerted to present and pos sible hazards in the workplace and thus would be significantly assisted in their efforts under the act to protect themselves from hazards. For example employees wtll be able to use the in formation contained in the log as a first step in tracing the nature and ef fects of toxic substances, as well as substances not known to be toxic, and In identifying patterns of injuries or symptoms which indicate need for fur ther exploration. Moreover, former employees retrospectively will be able to examine log information about em ployees who may have been or are still Involved in similar working conditions and perhaps exhibiting common symp toms. Finally, access to the log and the detailed Information required to be in cluded therein will provide a necessary and important means for employees to check the accuracy of the log entries. EFFECTIVE DATE: This regulation is effective August 21,1978. ous comments were received regarding the proposed changes in } 1904.7 which would have provided employees and their representatives access to the log. These comments were considered at the close of the comment period but no final regulations were issued at that time. In light of the period of time which had elapsed since the origi nal proposal, a new proposal on this subject was published in the Federal Register (42 FR 55623) on October 18, 1977. In developing the 1977 proposal, the comments on the original proposal were reviewed, as were the findings and recommendations of the Ad Hoc Advisory Task Force established for the purpose of advising the Bureau of Labor Statistics (BUS) with regard to the 1973 proposal. The 1977 proposal was approved in principle at a joint meeting of the BLS Labor and Busi ness Advisory Committees on Occupa tional Safety and Health Statistics on August 4, 1977. As stated In the new proposal, interested persons were given until November 17, 1977, in which to submit comments, views and arguments. In response to a number of requests for extension of time to submit comments, a notice was pub lished on December 6. 1977 <42 FR 61615) providing an additional com ment period to December 21. 1977. More than 260 written comments were received in response to the proposal to recordkeeping procedures. Employers are currently required to provide access to the log to compliance safety and health officers of the Occu pational Safety and Health Adminis tration (OSHA), representatives of BLS, U.S. Department of Labor, repre sentatives of the Secretary of Health. Education, and Welfare, and represen tatives of States under approved State plans. II: Major Issues The existing requirements concern ing access to the log are contained in 29 CFR part 1904. The regulations re quire affected employers to compile and post an annual summary of occu pational injuries and illnesses at each establishment. However, the detailed entries of each case on the log. upon which the summary is based, are not required by regulation to be made available to employees and their repre sentatives. By this document, the cur rent regulations are amended to make the log information available to em ployees, to former employees, and to their representatives. The log information is made availa ble if requested by any former or cur rent employee or a representative se lected by an employee. An employee representative includes, but is not lim ited to. a labor organization which serves as the collective bargaining rep FOR FURTHER INFORMATION provide employees access to the log. resentative for the employees. The CONTACT: Mr. Norman Root. Chief, Division of Record Requirements and Informa tion. Office of Occupational Safety and Health Statistics. Bureau of labor Statistics, XJS. Department of labor. 200 Constitution Avenue N.W,, Washington. D.C. 20210. 202$23-9281. Under section 8(c)(2) of the Occupa tional Safety and Health Act of 1970. the Secretary of Labor, in cooperation with the Secretary of Health. Educa tion. and Welfare, is required to pre scribe regulations requiring employers to maintain accurate records of. and to make periodic reports on, work related deaths, injuries, and illnesses other than minor injuries requiring only employee or his or her representative has access to the log for any establish ment where the employee is or has been employed. The requirement In the proposed access regulation of Oct. 18. 1977 rela tive to small employers has been changed In this final regulation in OSHA's continuing effort to reduce the paperwork burden on small em SUPPLEMENTARY INFORMATION: first aid treatment and which do not ployers. In the final document, em This final regulation concerning access require medical treatment, loss of con ployers with fewer than 11 employees to the log is issued under sections 8(c). sciousness, restriction of work or who are required to maintain a log if 8(g). and 24(e) of the Occupational motion, or transfer to another job. selected to participate in the annual Safety and Health Act of 1970 (84 The recordkeeping regulations BLS statistical survey, are exempt Stat. 1599. 1600. 16X5; 29 U.S.C. 657, issued by the Secretary of Labor pur from the requirement to provide 673). and Secretary of Labor's Order suant to the Occupational Safety and access to the log to employees or their No. 8-76 (41 FR 25059). It amends 29 Health Act are contained in 29 CFR representatives. CFR Part 1904 by revising #1904.7 part 1904. Among other provisions, Many issues were raised in the writ thereof to provide access to the log these regulations require covered em ten comments. The following is a dis FEDCRAl KECUTEX. VOL 43, NO. 141--WUOAT, JULY J1, 1*T* LIA03501 31326 RULES AND REGULATIONS cussion of those issues considered to Employee access to the log will also the type of necessary and certain in toe of major Importance. provide greater assurance that the in formation contained in the log. This (!) Whether then exists a need to formation entered in the log is both creates an inequitable situation that is provide access to the log to employees, accurate and complete. Employees will alleviated by this regulation. former employees, and their represen be able to ascertain whether an indi Firsthand observation is not consid tatives. Several comments questioned vidual's injury or illness has been, en ered adequate since no employee or the need for a refutation giving access tered into the log and that it has been his representative would be .able to to the log to employees. entered properly. witness every injury, and illnesses by The principal purpose of the regula In addition, employees will be able their nature are often not observable tion is to better inform employees to determine whether other employees happenings. On the other hand a about the effets of workplace hazards have been experiencing inju review of even a few log entries, such by affording them access to current ries or illnesses. This ability to com as the place of occurrence of similar and detailed information, such as con pare entries in the log will enable em injuries or illnesses, may accomplish tained in the log, regarding occupa ployees to discover common character much toward reducing hazardous situ tional injuries and illnesses occurring istics among job-related injuries and ations by identifying patterns of such in establishments. While employers illnesses. This knowledge will help em occurrences not readily apparent also receive benefits from the pro ployees to protect themselves from through observation. - grams established under the Occupa future occurrences. While the use of the annual sum tional Safety and Health Act of 1970, While it is true that, at present, mary as a source of information for the chief beneficiaries of the act are many more injuries than illnesses are employees may provide useful infor the employees whose safe and health recorded in the log, it is anticipated mation. the broadly categorized en ful working conditions are assured that the number of illness cases will tries in the annual summary, together thereunder. Therefore, in order to increase as more toxic substances and with their aggregate totals of injuries carry out one of the basic underlying their ill effects are identified and as and illnesses, do not provide the spe purposes of the act, that is, to keep diagnostic techniques are improved. cific and current types of informa employees Informed about their work The early identification and reporting tion-name, occupation, department, ing environment, it is both reasonable of occupational illness is a valuable etc.--which are contained in the log. and desirable that employees, and tool in the effort to prevent hazardous And, as noted, the summary is pre those who represent them, have access exposures and serious disabilities. Em pared and made available to employ to log information regarding their ployee heightened awareness through ees only once a year. workplace injuries and Illnesses. access to the listing in the log of cer The other sources of information The posting of an annual summary tain symptoms can be an important such as employee-monitoring data does not provide adequate or equiva adjunct in this effort. that are already available to employ lent information as that contained in The purpose and reasonableness of ees are limited to specific exposures to the log. While the broadly categorized providing access to the log to former previously identified hazards and lim entries in the annual summary, to employees was raised in several com ited to only a few categories of em gether with their aggregate totals of ments. For the same reasons cited ployees. These sources do not provide injuries and illnesses, provide useful above, former employees should have the broad overview of the total injury information, the annual summary access to records subsequent to their and illness experience In a workplace, alone does not provide the particular employment period in the establish and without the overview that the log and current type of information which ment to determine if medical problems data afford, the employee will be is contained in the log. currently afflicting them are being unable to gain a proper perspective of For example, the log includes the Identified as work related under new the existing and potential hazards of date on which the injury occurred or diagnostic techniques and/or in his or her workplace. The log. there the niness became manifest, the name creased awareness of toxic substances. fore, provides the most useful infor and occupation of the injured or ill (2) Whether the information con mation for all employees, former em employee, the department in which he tained in the lop is already available ployees. and their representatives. or she works, a brief description of the to employees and their representatives. (3) Whether access to the log will nature of the injury or illness, the Comments indicated that information achieve the goal of informing employ part of body affected, and a measure concerning occupational injuries and ees of the hazards in the workplace. of severity. Such information is not illnesses is currently available to em Several comments stated that the log found in the annual summary. In addi ployees and their representatives does not contain information on the tion. entries are made in the log' as through several means. These include: cause of injuries and illnesses; does cases occur, while the summary is pre Observation of injuries and Illnesses; not identify the hazards in the pared and made available only once a access by safety committees and union workplace; and does not fully describe year from February 1 to March 1. The representatives to the log and other the work being performed at the time log. therefore, provides the more safety records; posting of citations of the injury. Thus, the comments useful information for employees and under section 13(c) of the act; and no contend that access to the log would their representatives. tification to employees of exposure not serve the purpose of informing Since employees and their represen monitoring data. Other comments employees of workplace hazards. tatives will have access to the same in stated that the posting of the annual While the information contained in formation which the employer has. summary provides adequate informa the log does not describe the complete both labor and management will be in tion for both unions and employees. circumstances associated with each a more evenly balanced position in The methods cited above by the "injury or illness entry, the patterns of terms of information needed to foster comments do not provide adequate occurrences in an occupation, in a de joint labor-management efforts in and uniform means to inform all em partment. or of a similar kind of identifying and reducing workplace ployees about hazards. At present, the injury and to a specific part of the hazards. One of the basic express pur number of firms which voluntarily or body, will point out the problem areas poses of the Occupational Safety and through collective bargaining provide and provide the type of information Health Act is to encourage Joint labor- access to the log to employees or their which can lead to further inquiries. management efforts to reduce injuries representatives is small. There is no These inquiries, in turn, can produce and disease arising out of employment existing means of ensuring that all more details of the circumstances asso (section 2(bX13. employees will have available to them ciated with an injury or an illness. FEDERAL REOUTER. VOL 43. NO. 141--FRIDAY, JULY 21, 19?I LIAC3502 RULES AND REGULATIONS 31327 Such lag information will raise em ployees' general awareness of hazard ous conditions and of exposures to toxic substances throughout the workplace. (4) Whether the Secretary of Labor has the statutory authority to-permit employees access to the toy. Several comments stated that the Secretary of Labor lacked statutory authority to re quire employers to provide employees and their representatives access to the log. Many of these comments further contended that there is no statutory tain accurate records of employee ex posures to potentially toxic materials of harmful physical agents, and that employees or their representatives have the opportunity to observe such monitoring or measuring, and that both employees and former employees have access to these records. Section 8(0(3) supports the position that the Secretary Is authorized to re quire access to the log as an appropri ate means of Informing employees and that access may extend to representa tives of employees and former employ clear that labor and management are not precluded from bargaining collec tively for access to additional Informa tion other than that required to be made available by this regulation. Thus, the requirement in this regula tion may be augmented through col lective bargaining to include access to other Information required to be col lected, recorded, and maintained. Also without merit is the comment that the regulation encourages collec tive bargaining for access to other em ployer reports. The terms of the regu authority to extend access to Include ees. If access to the log were denied to lation convey no such encouragement: representatives of employees, or designated representatives, this could the language merely makes it clear former employees, or their representa in practice, result in denial of access to that access to the log in no way bars tives. the information in the log to employ management and labor from bargain The regulation requiring employers ees or former employees where the ing collectively for access to additional to compile and maintain the log of oc employee or former employee is un items. cupations! injuries and illnesses is au available. incapacitated, unable to in (6) Whether access to the log is an in thorized under section 8<cX2) where spect the log personally or simply not vasion of privacy and should not be the Secretary Is mandated to "pre able to fully understand the entries. permitted. Numerous comments raised scribe regulations requiring employers Additionally, the use of representa questions concerning the issue of pri to maintain accurate records of. and to tives by large numbers of employees vacy. The basic thrust of the argu make periodic reports on work related may actually facilitate review of the ments is that access to the log invades deaths, injuries and illnesses." logs. the employee's right of privacy in in Section 8(c)(1) of the act requires Prom the above, as well as from the formation contained in the log and is the Secretary to issue regulations re whole tenor of the act that contem contrary to the provisions of the Pri quiring employers, through posting of plates keeping employees informed vacy Act Of 1974 (5 U.S.C. 652a>; or at notices or other appropriate means, to and involving them in both least contrary to the underlying policy keep their employees informed of rulemaking and enforcement activities and spirit of the Privacy Act. their protections under the act. In under the act. it is reasonable to con The purpose of the Privacy Act of forming employees of their protec clude that the Secretary has the au 1974 is to provide certain safeguards to tions should include more than merely thority to provide employees and their individuals against an invasion of per providing general information about representatives with access to the log. sonal privacy by instituting controls the act's requirements. Informing em The. following sections from the act on persona) information collected, ployees about their protections rea illustrate the importance of Informing maintained, used, and disseminated by sonably includes providing them with both employees and their representa Federal agencies. pertinent data about their workplace tives: Section 6(b)(6)(BXv), informing The log of occupational injuries and environment. It is clear that the Secre employees and their representatives of illnesses is compiled and maintained tary has the authority to prescribe the the application for a temporary vari by employers, not by Federal agencies, necessary means to inform employees ance: section 6(b)(7). requiring the use and therefore the log is clearly not a of hazards and to prescribe the means of labels or other appropriate means Federal record and thus not subject to of providing the employees with infor to apprise employees of hazards: sec the Privacy Act of 1974. Even though mation which would assist them in tion 6(d), giving notice to employees of the Secretary requires employers protecting themselves. An appropriate the application for a permanent vari under section 8(cX2) of the act to means of keeping employees informed ance; section 8(cXl), requiring produce such records, the log is main of their protections is to provide them through posting or other means, that tained by the employer, kept at his and their representatives with access employees be informed of their protec business establishment and is other to basic information, such as that con tions and obligations under the act; wise under the control of the employ tained in the log. regarding specific section; 8(cK3), providing opportunity er. Thus, the comment that the regu conditions in the workplace. It is dear to observe monitoring and measuring lation violates the Privacy Act of 1974 that with access to the log, employees and access to records; section 8(e), pro is without merit since by its terms the would be better informed concerning viding opportunity to participate in Privacy Act does not apply to records protections in the workplace and ef physical examination of the compiled and maintained by employ forts to avoid and correct hazards. workplace; section 9(b). posting of cita ers. The requirement that the log be tions; and section 13(c), Informing em With respect to comments that the made available to employees Is also ployees of the existence of imminent regulation violates the underlying consistent with the language of sec dangers. policy or spirit of the Privacy Act. we tion WgXl) which authorizes the Sec (S) Whether the regulation affects believe that the limited privacy inter retary to publish, either in summary collective bargaining of collective bar est that an individual employee might or detailed form, all reports or infor gaining agreements in effect A few have in a log entry is clearly mation obtained under section 8 of the comments suggested that a possible in outweighed by the need of all employ act. ference could be drawn that access to ees to have access to the log. The regu The reasonableness of the authority the log, provided for in the final regu lation does not Involve access to medi for extending the opportunity of lation. could be bargained away. The cal information about an employee's access to the log to representatives of inference is without merit since collec general physical condition or state of employees and former employees is also supported by the provisions of section KcX3) of the act. That section mandates the Secretary to issue regu lations requiring that employers main tive bargaining clearly may not be used to bargain away that which is re quired by regulations that have the force and effect of law. However, the proposal and final regulation make it health. The regulation involves only information about those particular in juries and health problems that are employment related. Because the in formation to which access Is provided KDUAl KECISTEI, VOL 43, NO. 141--flUOAY, JULY 21,. 1974 LIA03503 31328 RUIES AND REGULATIONS is associated with work-related safety lieve, if discretion is used by the one tions permits access to OSHA Injury and health problems, all the employ making the entry, will cause no embar and Illness records for inspection and ees in a particular working establish rassment to the employee and no inva copying by compliance safety and ment have a direct and compelling sion of his or her privacy. Examples health officers of OSHA during any need to know the nature and extent of are: "Amputation--left forefinger." occupational safety and health inspec the Injuries and illnesses being sus "electrocution--body," "dermatitis- tion under part 1903 of the OSHA reg tained by them and their coworkers. arms," etc. ulations and section 8 of the act This Information about an employee's inju Some comments stated the belief amendment to the regulations would ries and illnesses in-the working envi that even the employer's right of pri specifically provide access to these rec ronment shared by employees in an es vacy would be abridged where employ ords to any authorized representative tablishment need not be accorded the ees are given access to the log. We be of the Secretary of Labor. The pur same degree of privacy to which an in lieve this comment is without merit. pose of this language is to make the dividual is entitled in the case of infor The log contains no particularly sensi records available to other officials and mation about his or her state of tive information about the employer employees of the Department of Labor health that is not employment related such as trade-secret type of informa who have a legitimate need to examine and that has no effect on other per tion. As far as other log information is and copy employers' OSHA records in sons. The employees' compelling need concerned, we believe that the compel order to carry out various responsibil to know about adverse health effects ling need for employees to be in ities under the Occupational Safety which coworkers are suffering as a formed about their own injuries and and Health Act, which are not directly result of the working environment illnesses far outweighs an employer's related to compliance. For example, that affects all workers is a necessary asserted right to withhold such infor these would include Department offi and reasonable justification for per mation from employees. cials inspecting a workplace to deter mitting access to information about <7) Whether the regulation would mine if a variance should be granted such effects. place an undue burden on employers. under section 6(d) of the Occupational Indeed, we seriously question the Several comments discussed possible Safety and Health Act, or officials en propriety of denying employees access administrative burdens which employ gaged in gathering information for the to information that directly, and in ers may incur as a result of employee purpose of developing standards (sec many cases urgently, affects them. For access to the log of occupational inju tion 6(b)). example, if two or three employees are ries and illnesses. The comments con exhibiting symptoms of nausea and tend that employee access to the log Other Issues dizziness where toxic or suspected toxic chemicals are being used in the workplace, it would be imprudent to keep such germane information from other employees. In such cases, the right of privacy must be tempered by will cause additional paper-work, lost worktime, and loss of productivity. The promulgation of a regulation giving access to the log to employees will create some additional burdens on employers. The added administrative 29 CFR 1904.15 exempts small em ployers with 10 or fewer employees from keeping OSHA records unless such small employers are specifically notified by BLS that they have been selected to participate in a BLS annual the obvious exigencies of informing burden on employers is not expected survey. In such cases, those selected employees' about the effects of 'to be substantial. small employers must keep records for workplace hazards. The use of the term "reasonable" the survey year. The October 18, 1977. In addition to the compelling and should- provide relief to employers proposed access regulation contained a overriding need for employees to know from any possible harrassment. The provision requiring small employers about on-the-job injuries and illnesses potential for misuse of this regulation who were selected in the annual statis that directly affect them, there are by employees or representatives of em tical survey (and therefore required to also certain factors in connection with ployees is claimed to exist. We think maintain a log) to provide to their em this regulation that mitigate the priva that actual-abuses of access to the log ployees access to that log. This pro cy issue. The log arguably contains in will be tew in number, if any. and em posed provision is not included in the formation which could be described as ployers will be able to deal with such final rule because: In a small firm with medical information and therefore we circumstances as they arise, exercising fewer than 11 employees, an injury or have given our fullest consideration to good judgment and commonsense. illness to 1 of the employees is readily the sensitive issue of privacy. The log. There were additional concerns that observable: the requirement to provide however, does not contain the detailed attorneys might utilize the access pro access to the small employer's log is diagnostic type of medical information visions for "fishing- expeditions" for not consistent with the effort to normally kept by a physician in the lawsuits or workers' compensation reduce the paperwork burden on smal case of a patient. claims. However, attorneys for em employers: the log to which employees To the contrary, the log contem ployees Involved in compensation cases would have access would only be avail plates only the briefest description of already have other means of obtaining able for 1 year; and the sample of the nature of the injury or illness and information from the -log and other small employers selected to participate most often, ss a matter of practice, the sources as a matter of course. Attor in the BLS annual survey is presently log entry is not made by a physician neys without evidence of representa limited to about 1 in 30. and therfore contains no medical diag tion of an employee or former employ Several requests for a hearing were nosis. as such. According to a special ee would not have the right of access received. The Assistant Secretary of study conducted by BLS for the year to the log. Labor for Occupational Safety and 1076. leas than 1 percent of log entries (8) Whether Department of Labor Health has determined, in accordance were made by physicians. employees other than Compliance with 5 U.S.C. 553, that a hearing is un However, even where a physician Safety and Health Officers iCSHO's) necessary. The written comments re does make the entry of a diagnosis in and representatives of the Bureau of garding access that have already been the log. that entered diagnosis should Labor Statistics should have access to submitted to the Department oi Labor not include elaborate details that may all OSHA injury and illness records. A are sufficient in assisting the Assistant prove embarrassing to the employee. few comments questioned the ratio Secretary in the preparation of this Examples of these brief descriptions nale of providing access to Dppart- final regulation. The purpose of a are cited on the log form and they il ment of Labor employees other than hearing is to provide for the presenta lustrate the type of entry which is re CSHO's and representatives of BLS. tion of additional evidence and the op quired for the log and which we be- Section 1904.7 of the current regula portunity to probe and test the evi- tEGSTH, VOL 43, NO. 141--IOAY, JULY I, 197* LIA03504 tUlES ANO REGULATIONS 31329 denee. In the case of access to the log. most of the Information submitted is in the nature of argument and opin ion. There is no data of an evidentiary nature that would be forthcoming at a hearing. Therefore, the requests for a hearing are denied, and reliance has been placed on the substantial number of written comments that have been received. At the time of the publication of the October IB. 1977, proposal on access to the lot of occupational injuries and illnesses to employees and their repre sentatives a determination was made that an economic impact statement in accordance with Executive Order 11949 need not be prepared. On March 24, 1978. Executive Order 12044 was published at 43 FR 12262 establishing regulatory analyses to replace the old economic impact statements. The Sec retary of Labor has published a pro posed Secretary's order encompassing the policy considerations in Executive Order 12044. The proposed Secretary's order states on page 22918: "No analy sis Is needed if on or before March 23. 1978 * ' "* a decision has been made that none was needed." Therefore, based on the previous determination and in accordance with the proposed Secretary's order, no regulatory analy sis is needed. Authority This document was prepared under the direction of Eula Bingham. Assist ant Secretary of Labor for Occupa tional Safety and Health. U.S. Depart ment of Labor. 200 Constitution Avenue NW.. Washington. D.C. 20210. Accordingly, under sections 8(c) (1). (2). and (3), 8(g) (1) and (2). and 24(e) of the Occupational Safety and Health Act of 1970 (84 StaL 1599. 1600. 1615. 29 U.S.C. 657. 673). Secretary of Labor's Order No. 8-76 (41 FR 25059). and 5 U.S.C. 553, 29 CFR Part 1904 is hereby amended by revising $ 1904.7 to read as set forth below. In order to insure that affected em ployers and employees will be in formed of the existence of the new provisions and to familiarize them selves with the new requirements, the effective date of the revision to 11904.7 will be August 21.1978. Signed at Washington. D.C., this 17th day of July 1978. Euu Bihghaj*. Assistant Secretary ofLabor. Jahtt L. Norwood. Acting Commissionerofthe Bureau ofLaborStatistics. J 1904.7 Aeeeu to records (a) Each employer shall provide, upon request, records provided for in H 1904.2, 1904.4, and 1004.5. for in spection and copying by any repre- tentative of the Secretary of Labor for the purpose of carrying out the provi sions of the set, and by representa tives of the Secretary of Health, Edu cation. and Welfare during any inves tigation under section 20(b) of the act, or by any representative of a State ac corded jurisdiction for occupational safety and health inspections or for statistical compilation under sections 18 and 24 of the act. (b> (1) The log and summary of all recordable occupational Injuries and illnesses (OSHA No. 200) (the log) pro vided for in f 1904.2 shall, upon re quest, be made available by the em ployer to any employee, former em ployee. and to their representatives for examination and copying in a rea sonable manner and at reasonable times. The employee, former employ ee, and their representatives shall have access to the log for any estab lishment in which the employee is or has been employed. (2) Nothing in this section shall be deemed to preclude employees and em ployee representatives from collective ly bargaining to obtain access to infor mation relating to occupational inju ries and illnesses in addition to the in formation made available under this section. (3) Access to the log provided under this section shall pertain to all logs re tained under the requirements of $ 1904.6. (Sec. 8. 24. 84 Stat. 1599. 1600. 1616 (29 U.S.C. 657. 673); Secretary of Labor's Order No. 8-7$ (41 FR 25059): sec. 4 of the Admin istrative Procedure Act (5 U.S.C. 553).) [FR Doc. 78-20231 Filed 7-20-78; 8:45 am] [4510-25] PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDADS Preservation of Employee Exposure and Medical Records Not*.--This document originally appeared in the Feddal Register for Wednesday, July 19.1978. It is reprinted in this issue to meet requirements for publication on an assifned day of the week. (See the inside cover of this issue for information about agencies publishing on assigned days of the week.) AGE3fCY: Occupational Safety and Health Administration, Department of Labor. ACTION: Final rule (interim). SUMMARY: Under the Occupational Safety and Health Act of 1970, the Secretary of Labor in cooperation with the Secretary of Health, Education, and Welfare has the authority to re quire employers to make, keep, and preserve records regarding their activi ties which are necessary or appropri ate for carrying out the purposes of the act. This rule requires employers to preserve any employee exposure records or employee medical records which they make or maintain or to which they have access. This rule is promulgated with an immediate effec tive date to assure that the records covered by It will be preserved pending completion of the rulemaking proceed ings on employee access to these rec ords. notice of which will be published on Friday. July 21. 1978. DATES: This interim final rule is ef fective July 19.1978. ADDRESS: For additional copies con tact the Publications Office. OSHA. Room N-3423, UJS. Department of Labor. Third Street and Constitution Avenue NW., Washington, D.C. 20210, 202-523-8677. FOR FURTHER INFORMATION CONTACT: Charles R. McClure, Office of Com pliance Programs, OSHA. Room N3112, US. Department of Labor, Third Street and Constitution Avenue NW,, Washington, D.C. 20210. 202-523-8044. SUPPLEMENTARY INFORMATION: In cooperation with the Department of Health, Education, and Welfare. OSHA is issuing a rule which applies to employers In general industry, maritime, and construction, who make, maintain or have access to any employee exposure records or-employ ee medical records. For the reasons stated below, this rules is effective im mediately. At the same time. OSHA is publishing July 21 a notice of pro posed rulemaking and inviting public comment concerning long-term reten tion and access to these records. When promulgated as a final rule, the pro posed rule will encompass and super sede this immediately effective rule. The background and explanation of the entire rule will be set out in the notice of proposed rulemaking of July 21 and will be incorporated by refer ence in this document. The interim final rule, which becomes effective today, requires employers to preserve employee exposure and medical rec ords which they make or maintain or to which they have access. To the extent these records exist, they have primarily been kept at the initiative of employers, although some records have been subject to specific OSHA recordkeeping requirements. Specific OSHA recordkeeping requirements, such as those in the vinyl chloride standard (29 CFR 1910.1017) and the coke oven emissions standard (29 CFR 1910.1029), already require retention of the affected records for specified times and shall continue to apply. With this new rule, employers must also preserve their voluntarily kept FEDERAL REGISTER, VOL 48, NO. 141--AY, JULY 21, 1978 FROPOSED RULES 31371 ment requirement*. The community may at any time enact stricter require ments on its own. or pursuant to poli cies established by other Federal, State, or regional entitles. These pro posed elevations will also be used to calculate the appropriate flood insur ance premium rates for new buildings and their contents and for the second layer of insurance on existing build ings and their contents. The proposed base (100-year) flood elevations for selected locations are: Bourne of Flooding Tonelira BevoUon tnfeet. oetionsl geodetic vertical datum gJusuMO River _ too ft. upstream of 2nd SL Downturn ride of 4U> at. M ft. naiiwm at 4th 8C At upstream aofporaft* Umit. SUver Creek --..... At confluence with AJinipee Rfrer. DovMtnua of Ahnopee ood Western RR. TOO ft. upstream of Ferry 8L 1904 ft upstream of Perry St. 1300 ft. upstream of Parry St. At upeireom corporate limit. 664 Mi SOS MO 987 987 987 989 690 93 991 (National Flood Insurance Act of 1968 (title XIII of Housing and Urban Development Act of 1968), effective Jan. 28. 1989 (33 FR 17804. Nov. 28.1968). as amended <42 U.8.C. 4001-4128r, and Secretary* delegation of authority to Federal Tnwireatr Administra tor, 43 FR 7719.) Issued: July 10.1978. Gloria M. Joconsz. federal Insurance Administrator. (FR Doe. 78-19969 Filed 7-20-78; 8:45 ami DEPARTMENT OF LABOR -- - - - * ^BWDiy---m-- e w* wn-v- iawamtnviR. MR [29 OR Fart 1910} (Docket H-1121 ACCESS TO EMPtOYK EXFOSUU AND MaXCM. ICCOtSC Piepaaad Kale AGENCY: Occupational Safety and Health Administration. Department of Labor. imnW^Prorntwi wily SUMMARY: This proposed rule on access to employee exposure records and employee medical records would Implement OSHA's policy under the Occupational Safety and Health Act of 1970 that employees have the basic right to know about their exposures to workplace hazards and the effects of exposure. The proposed rule Includes requirements for the retention of these records for the duration of em ployment plus five (5) years and for the availability of these records to em ployees. former employees, their desig nated representatives, and to OSHA and NIOSH. When promulgated, the proposed rule will supersede the inter im rule requiring preservation of em ployee exposure records and employee medical records which was effective July 19 (43 FR 31019). DATES: Comments must be submitted on or before September 22, 1978. ADDRESS: Comments should be sent to: Docket Officer, Docket No. H-112, Room S6212, VJ8. Department of Labor. Third Street and Constitution Avenue NW., Washington, D.C. 20210. 202-523-7895. For additional copies contact the Publications Office, OSHA, Room N3423, U.S. Department of Labor, Third Street and Constitution Avenue NW.. Washington, D.C. 20210. 202-523-8677. FOR FURTHER INFORMATION CONTACT: Mr. David Welsh, Directorate of Health Standards Programs, Room N-3663, U.S. Department of Labor, Third and Constitution Avenue NW., Washington. D.C. 20210, 202-5237174. SUPPLEMENTARY INFORMATION: Background and Legal Authority The American labor force numbers about 100 million workers, many of them exposed to toxic materials or harmful physical agents in their workplaces. Millions of these workers are unaware of the hazards posed by these exposures. However, date exist in employee exposure records and emplyee medical records which will in crease the employees' recognition of these hazards in their workplaces. This proposed rule is being issued in cooperation with the Department of Health. Education, and Welfare. Its purpose is to provide the affected em ployees and their designated represen tatives. as well as OSHA and NIOSH. with access to this important safety and health information. The goals of occupational safety and health are not adequately served If employers do not fully share the available information on toxjc materials and harmful physi cal agents with employees. Until now, lack of this information has too often meant that occupational diseases and methods for reducing exposures have been ignored and employees have been unable to protect themselves or obtain adequate protection from their em ployers. By giving employees and their designated representatives the right to see relevant exposure and medical in formation, this proposal will make it easier for employees to identify worksite hazards. particularly workplace exposures which impair their health or functional capacity. In creased awareness of workplace haz ards will also make it more likely that prescribed work and personal hygiene practices will be followed. The Assistant Secretary has previ ously stated OSHA's policy concerning employee's rights to this type of infor mation: The Act's declared objectives and specific Implementing provisions demonstrate the importance of providing employees with full and complete Information about safety and health conditions at their worksite. * * * Moreover, (the need for) employee access to this information Is reinforced by the limited resources of OSHA to Inspect worksites for hazards and to Impose abatement require ments when violations are found. <42 FR 55623. October 18,1977.) In carrying forward this policy. OSHA relies specifically upon the au thority of sections 8(c) and 8(g) of the act (29 U.S.C. 857). In addition, many other provisions in the act. including sections 8(b)(7). 8(e). 9(b) and 13(c). also support OSHA's authority to im plement the employee's basic right to know about workplace hazards. Section 8(c)(1) authorizes OSHA. in cooperation with the Department of Health. Education, and Welfare, to re quire each employer to "make. keep, and preserve records regarding his ac tivities relating to the act * as (are! necessary or appropriate for the enforcement of this act or for develop ing information regarding the causes and prevention of occupational acci dents and illnesses." Section 8(c)(3) authorizes regula tions requiring employers to maintain accurate records of emloyee exposures to potentially toxic materials or harm ful physical agents which are required to be monitored or measured by a par ticular OSHA safety and health stand ard, and also to "make appropriate provision for each employee or former employee to have access to such rec ords as will indicate bis own exposure to toxic materials or harmful physical agents." Authority for this proposed rule is also found In section 8(g) of the Act. Section 8(g)(1) authorizes OSHA and NIOSH to compile, analyze, and pub lish, either in summary or in detailed form, all reports or information ob tained under section 8. .In addition, section 8(g)(2) authorizes OSHA and NIOSH to prescribe such rules and regulations as they deem necesssary to carry out their responsibilities under the act. FCOEKAl gfOltia, VOL. 43, NO. 141--FUOAY, JULY 21, 197* ti0^0b \.I 31372 PROPOSED RULES This proposed rule thus implements specific standards will continue to person who is subject of the record, the mandate of section 6 and the gen apply. At the time of final promulga medical histories Including family eral mandate of other provisions of tion. OSHA will make the necessary medical histories, medical complaints the act by requiring employer* to pre conforming amendments to current of the employee, chemical test data serve employee exposure and medical OSHA standards such as those In (Including X-rays and laboratory re records and to make them available to subparts T and Z of part 1910 so that ports), diagnostic evaluations, records employees, former employees, their their access provisions will be Identical of treatments and prescriptions, and designated representatives, and OSHA to this rule. recommendations to the employee and and NIOSH. For the purpose of this proposed management regarding the employee's Discussion or thx Pxoposxp Rout scon airs atfucatiom rule, "employee exposure records" are condition. Miscellaneous information monitoring or measuring records in the records may include written which contain qualitative or quantita consents to medical examinations or The proposed rule applies to each employer in general industry, mari time. or construction, who makes, maintains, or has access to employee exposure records or employee medical records. The term "record" as used in this proposed rule, is lntended to cover any recorded information regardless of its physical form or character. These records may have been maintained by the employer as a result of exposure monitoring or medical surveillance programs initiated by the employer, or the records may have been required by a specific OSHA standard. To come within the scope of this proposed rule, the records do not have to be within the employer's physical control as long as the employer has access to them. The concept of employer access encompasses situations in which any of the employer's officers, employees, agents, or contractors (including the corporate medical department) has physical control or access to records, even though they are not generally available to all officers, employees, agents, and contractors. The proposed rule does not mandate the creation of new records or reports, nor impose any independent obliga tion on employers to monitor or meas ure employee exposures or to provide medical surveillance or examinations. In addition, the proposed rule does not establish mandatory requirements as to exposure records or medical records or specify their format. Instead, the proposed rule reflects a recognition that monitoring and medical surveil lance are conducted by many employ ers at their own initiative and that em ployers retain information concerning the results of this monitoring and medical surveillance. This rule would tive information that is Indicative of employee exposure to toxic materials or harmful physical agents. These rec ords would Include determinations of airborne concentrations of chemicals to which an employee is exposed, or would be exposed if not wearing a res pirator. They would also Include deter minations of physical agents within the workplace environment which might impair an employee's health or functional capacity, for example, rec ords of heat, noise, radiation, vibra tion, or hypo- or hyperbaric (Le. nonatmospheric) pressure. Records of area sampling of workplace contami nant levels and representative or random employee sampling are cov ered by this definition. If a record con tains information which is useful to determine employee exposure, the record would be covered by this rule even though the record was not cre ated for occupational health purposes. An "employee medical record" is a record concerning the health status of an employee or employees exposed or potentially exposed to toxic materials or harmful physical agents. This record would include, but is not limit ed to: (1) The results of medical ex aminations and tests, (2) any opinions or recommendations of a physician or other health professional (such as a nurse or a medical technician) con cerning the health of an employee or employees, and (3) any employee medical complaints relating to workplace exposure. Both Individual exposure and medi cal records and general research or statistical studies based on informa tion collected from exposure and medi cal records are included within these definitions. The information in these records is necessary to determine em procedures, referrals for medical serv ice. consulting physicians' medical re ports, refusals of medical service, no tices of need for medical attention, re leases of medical information, and im munization records. While most of the information in the records will have been volunteered by the employee-patient or obtained by direct examination or observation by the physician, some may have been provided confidentially by .third par ities (e.g. management, spouses, per sonal physicians). While all of the in formation in the records presumably relates to the employee's health status, some may be general in nature and Irrelevant to occupational expo sure or medical fitness to perform work. Moreover, some of the informa tion may be in the nature of prelimi nary. informal or subjective notes by the physician which the physician considers to be of possible aid in future diagnoses but have no present diagnostic value. It is noteworthy that lh many well conducted corporate medical programs, only the physician's opinion or recommeditions as to the employee's condition or medical fit ness to work is available to managment. and that the confidential ity of much of the remainder of the records, including the underlying diag nostic data,- is maintained by the phy sician. Accordingly, OSHA invites com ments on whether any types of infor mation in the medical records should be excluded from the disclosure re quirements of the final rule. For in stance. should the employer (l.e. medi cal department) have discretion to dis close certain kinds of information (i.e. diagnoses of psychological impair simply require an employer who makes these records to retain them for specified periods of time and to make ployee exposure to toxic materials or harmful physical agents and the ef fects of these exposures. ments or terminal illnesses) only to the employee's designated physician? Should physicians' notes of a prelimi them available upon request to em The proposal therefore includes ba nary, Informal, or subjective nature ployees, former employees, their desig sically commonsense, broad definitions which have not formed the basis of a nated representatives, and to 06HA of employee exposure records and recommendation or opinion to man and N106H. medical records which would be sub agement be mandatorily disciosahle? The proposed rule fas intended to es ject to disclosure. These records, how Should the identifies of third parties tablish the rights of access under the ever. may in fact contain a collection who have provided information in the act to all employee exposure and em of different kinds of information of medical record be mandatorily ployee medical records, whether or not varying significance to occupational dlsclosable? Should diagnostic records these records are the subject of specif safety and health. Medical records in or other kinds of information not ic occupational safety and health particular may include a 'multiplicity available to management be standards. On the other hand, as ex of information. These include personal mandatorily dlscloeable? Should gen plained below, the retention periods of and family Information to identify the eral studies based on information con- KDCKAt UetSTBt, VOC 43, MO. 141--MDAY, MIT 21, 197* LIA03507 HOPOSED RULES 31373 tallied In individual exposure or medi cal records be mandatorily disclosable? ployees' exposures to toxic materials and harmful physical agents. For the ployee should have the option of being as fully informed about his or her reasons stated above, access to this ln- health status as the employer's medi Preservatiok or Records . formation is vital to the identification, cal department. While OSHA recog Employers will be required to pre serve records covered by this proposed rule for at least the duration of the employee's employment in the em ployer's workplace plus an additional S years after the termination of employ ment. The purpose of this proposed rule is to ensure that affected employ ees and Federal occupational health agencies have access to pertinent ex posure and medical records. Relating the retention period to the length of the Individual's employment plus a specified period thereafter (i.e. 5 years) is an appropriate means of ac complishing this purpose. There may be situations where this retention period may be longer than absolutely necessary, and others where it Is too short to ensure the preservation of the record throughout the latency period of an occupational illness arising from an earlier exposure to toxic materials. OSHA believes that the general reten treatment, and prevention of occupa tional Illnesses. Under the proposed rule, employees, former employees, and their designat ed representatives are provided equiva lent rights to examine and copy em ployee exposure records and medical records. (Since employees and former employees are treated alike in this rule, any reference in this preamble or rule to employees includes former em ployees.) This proposal does not pro vide a limiting definition of "designat ed representative." Rather, a designat ed representative could be anyone to whom an employee has given written permission to act on his or her behalf to obtain direct access to his or her records. For instance, a collective bar gaining agen*. physician, attorney, family member, fellow employee, or anyone else, could be a designated rep resentative. provided the necessary consent were obtained. Access to em nizes the importance of having a pro fessionally trained person to interpret and explain the information contained in the records, and indeed provides for direct access by designated representa tives in this proposal, it believes that the benefits of direct employee access outweigh the risk that the employee may misinterpret the information to his or her detriment. Of course, con sistently with this proposal, the corpo rate physician could explain the con tents and significance of the medical record in addition to releasing it to the employee or designated representative. At the same time, there may be cir cumstances where disclosure of infor mation directly to the employee would be damaging. Thus, as previously stated, OSHA invites comments on whether the employer (i.e., medical department) should have discretion to disclose certain kinds of information (e.g., diagnoses of psychological im tion period of this proposed rule ployee exposure records and medical pairments or terminal illnesses) only strikes a reasonable balance between records by designated representatives to the employee's designated physi these two situations. is necessary so they can assist the em cian. Nevertheless, because it recognizes ployees they represent in making ef In the absence of written consent, that the longer the retention period, fective use of their records and in se however, this proposal does not pro the greater the risk of infringement curing their rights under the OSHA vide an employee or designated repre upon employees' privacy interests and Act. sentative with access to medical rec the greater the administrative burden With regard to employee exposure ords of other employees with related on employers, OSHA invites comments records, employees, former employees, or comparable exposures. OSHA rec on whether a lesser or longer period should be adopted In the final rule for some or all kinds of records covered by the regulation. Comments are also in and their designated representatives would have the right to examine and copy all relevant employee exposure records. For the purposes of this pro ognizes that these records could be im portant sources of information to a treating physician, industrial hygien ist. epidemiologist, or other health re vited on whether there should be a provision, such as those in specific OSHA standards, for the transfer of record if an employer goes out of busi ness. Specific recordkeeping requirements have been established by individual OSHA standards based on the specific occupational hazard or in volved. for example, the commercial diving standard (29 CFR 1910.401 et seq.), the vinyl chloride standard (29 CFR 1910.1017) and the coke oven emissions standard (29 CFR 1910.1029). Under this proposal, the retention periods of specific OSHA standards would continue to apply to the affected records or portions of the record. This approach is considered appropriate because the retention period in these specific standards were based on rulemaking evidence of the particular consequences of employee exposure to the toxic material or harmful physical agent (e.g. cancer). posed rule, "relevant" exposure rec ords encompass records of past, pres ent, and potential exposures, including records of an employee's own expo sures, exposure records of other em ployees with related or comparable ex posures, and records containing gener al exposure information concerning the employee's workplace or working conditions. Thus, an employee and his or her designated representative would be entitled to exposure information that is indicative not only of the em ployee's current exposures, but also in formation regarding former exposures and future or potential exposures as well (e.g.. exposure information con cerning a different workplace or job where an employee may be trans ferred). As for employee medical records, employees, former employees, and their designated representatives would have the right to examine and copy only those records of which the em searcher. Nevertheless, because of the often personal nature of information contained in medical records and the importance of encouraging candor be tween patient and physician, it be lieves that the privacy interest of an individual in his or her medical rec ords must be paramount. Therefore. OSHA believes that written consent must be obtained from the subject em ployee before access can be gained to that employee's medical records. This proposal on the availability of employee exposure records and medi cal records raises several important questions. In particular. OSHA invites Comments on the desirability of broad ening access to the health information in employee medical records by provid ing either for the removal of personal identifiers from the records of those employees who have not given written consent, or for making available the essential information only in summary or statistical form. By removing identi Availability or Records ployee is the subject or for which writ fying information, it may. be possible ten consent has been obtained from to protect the privacy of the Individ The proposed rule requires that the the subject employee. Contrary to uals involved, since the records wouid employer make employee exposure common industry practice, the propos then be essentially anonymous, and at and medical records available, upon re al places no conditions on the employ the same time to further the occupa quest. for examination and copying. ee's right to gain direct access to his or tional health purposes of this rule by These records bear directly on the em her own medical records, since the em making highly relevant medical data FEDCRA1 REGISTER, VOC 43, NO. 141--FRIDAY, JULY 21, 1971 LIA03508 31374 PROPOSED RULES more available than would be true under the current proposal. A subsldiJ ary question is whether such broad ened access of "anonymous records" should be limited to physicians, indus trial hygienists, epidemiologists, and/ or other health researchers who repre sent employees either individually nr on behalf of a collective bargaining agent, on the grounds that these health professionals have the profes sional training and responsibility to re spect the confidentiality of sensitive information and to use the informa tion for appropriate health purposes. Comments are also welcome on the question of which categories of per sonal and family data (e.g., age. sex. race, height, weight, job title, place of residence, social security or payroll numbers) should be removed as per sonal identifiers to protect the privacy of the employee, and which are neces sary to the conduct of valid health and epidemiology studies. Finally, in addition to employees, former employees, and designated rep resentatives. the proposed rule makes the covered records available to au thorised employees of OSHA and NIOSH for examination and copying, upon their request. This is consistent with sections 8(cxi) and 8(gXl) of the act and other OSHA standards and is necessary for the agencies to carry out their enforcement, investigatory, re search. and rulemaking functions. Instruction or Employees The proposed rule would require the employer to inform employees at least annually of the existence, location, and availability of records covered by the rule and to Inform them of their rights of access to these records. Em ployee awareness of their rights under this rule is essential to the fulfillment of its purpose. This requirement there fore will help to make meaningful the rights given to employees by this pro posed rule. Public Participation Interested persons are invited to submit comments, views, and argu ments on any issue raised by this pro posed rule. These comments must be submitted on or before September 22. 1978. in quadruplicate, to the Docket Officer. Docket No. H-112. Room S6212. U.S. Department of Labor. Third Street and Constitution Avenue NW., Washington. D.C. 20210. 202-523-7896. They will be available for public in spection and copying at the above ad dress and will be carefully evaluated and considered by OSHA before it pro mulgates the final rule. Authority This document was prepared under the direction of Eula Bingham. Assist ant Secretary of Labor for Occupa tional Safety and Health. U.S. Depart ment of Labor, Room S-2315, Third Street and Constitution Avenue NW., Washington. D.C. 20210. 202-523-9261. Accordingly, pursuant to sections 8(c)(1), 8(cX3), and 8(g) of the Occupa tional Safety and Health Act of 1970 (84 Stat. 1599. 1600; 29 U.S.C. 657) and Secretary of Labor's Order No. 8-76 (41 FR 25059), and in accordance with 5 U.S.C. 553. it is proposed to amend 29 CFR Part 1910 by revising {1910.20 to read as follows: { 1910.20 Preservation and access to rec ords. (a) Scope and application. This sec tion applies to each employer who makes, maintains, or has access to em ployee exposure records or employee medical records, whether or not the records are subject to specific occupa tional safety and health standards. (b) Definitions. "Employee exposure record" means a record of monitoring or measuring which contains qualita tive or quantitative information indic ative of employee exposures to toxic materials or harmful physical agents. This includes both individual exposure records and general research or statis tical studies based on information col lected from individual records. "Employee medical record" means a record which contains Information concerning the health status of an em ployee or employees expoosed or po tentially exposed to toxic materials or harmful physical agents. These rec ords may Include, but are not limited to: (1) The results of medical examina tions and tests; (2) Any opinions or recommenda tions of a physician or other health professional concerning the health of an employee or employees; and (3) Any employee medical com plaints relating to workplace exposure. Employee medical records include both, individual medical records and general research or statistical studies based on Information collected from medical records. (c) Preservation of records. Each em ployer who makes, maintains, or has access to employee exposure records or employee medical records shall pre serve and retain them for at least the duration of the affected employee's employment with the employer plus five (5) years, except where a specific occupational safety and health stand ard provides a different retention period. (d) Availability of records.--(1) Gen eral; The employer shall, upon re quest. make the records covered by this section available for examination and copying In accordance with the re quirements of this paragraph. (2) Employees, former employees, and designated representatives. The employer shall make available to each employee, former employee, or a desig nated representative: <i) All relevant employee exposure records, and (ii) employee medical records of which the employee or former employee is the subject or for which written consent has been obtained from the subject employee or former employee. For the purposes of this rule, relevant employ ee exposure records include records of the employee's or former employee's own exposures, exposure records of other employees or former employees with related or comparable exposures, and records containing general expo sure information concerning the em ployee's or former employees workplace or working conditions. In addition to records of current expo sures. exposure records of past and po tential exposures are Included in the records which must be made available. (3) OSHA and NIOSH. The employer shall make available to the Assistant Secretary of Labor, U.S. Department of Labor, the Director of the National Institute for Occupational Safety and Health, and their designees, ail em ployee exposure and medical records. (e) Instruction of employees. The employer shall inform each employee at least annually of the existence, lo cation. and availability of the records covered by this section and the rights of access to these records. (Sec. 8. 84 Stat. 1599. 1800 (29 U.S.C. 657): Secretary of labor's Order No. 8-76 (41 FR 25059); sec. 4 of the Administrative Proce dure Act (S C.S.C. 553).) Signed at Washington, D.C.. this 17th day erf July 1978. Eula Bingham. Assistant Secretary ofLabor. [FR Doc. 78-20195 Plied 7-20-78:8:45 ami [3510-22] DEPARTMENT OF COMMERCE Notional Ocoank and Aimotpfcork Administration [50 CH Part All] FOREIGN FISHING Foreign FbMnc for fc'Ufhh and Ocoank Sharks in Hm Focifk Ocean AGENCY: National Oceanic and At mospheric Administration. Commerce. ACTION: Proposed regulations and proposed amendments to foreign fish ing regulations. SUMMARY: Foreign fishing regula tions are being proposed for the con servation and management of billfishes and sharks in the Pacific Ocean portion of the Fishery Conser vation Zone of the United States FEDERAL REGISTER, VOL 43, NO. 141--FRIDAY, JULY 21, 1978 LIA03509 RULES AND REGULATIONS (c) Preservation a/ records. Each employer who makes, maintains, or has access to employee exposure rec ords or employee medical records shall preserve these records. <d> Availability of records. The em ployer shall make available, upon re quest, to the Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, or a designee, and the Director of the Na tional Institute for Occupational Safety and Health. U.S. Department of Health, Education, and Welfare, or a designee, all employee exposure rec ords and employee medical records for examination and copying. Effective date: This amendment is effective July 19, 1978. Signed on this 17th day of July, 1978 at Washington, D.C, (Sec. 8, 84 Stat. 1599, 1600 ( 29 U.S.C. 657): Secretary of Labor's Order No. 8-76 (41 FR 25059); Sec. 4 ol the Administrative Proce dure Act (5 U-S.C. 553).) Etnjt Bingham. Assistant Secretary of Labor. tFR Doc. 78-20194 Filed 7-18-78: 8:45 am] 31021 FEDEXAt 8EGISTEK, VOL 43, NO. 139--WEONESOAY, JULY 19. 1978 LIAC3510