OSHA Instruction STP 2-1.12 October 30 1978

Office of the Assistant Secretary September 15, 1972

OSHA Program Directive # 72-25

To: Regional Administrators Assistant Regional Administrators for State Programs

Subj: State Statistical and Recordkeeping Programs Under 18(b) Plans

1. Purpose. To assist the Regional offices in giving advice to States in formulating the statistical and recordkeeping portions of their proposed 18(b) plans.

2. Explanation

A. Continuing Statistical Program

Section 24 of the Occupational Safety and Health Act of 1970 requires the Secretary of Labor to "develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics," This goal is to be effectuated by requiring that "employers shall file such reports with the Secretary as he shall prescribe by regulation, as necessary to carry out the functions of this Act. "

The Secretary has delegated the responsibility to administer this program to the Bureau of Labor Statistics. However, Section 24 also provides for agreement with States whereby they may administer such statistical programs in partnership with BLS. The scope of State industry coverage under such agreements must be the same as Federal coverage.

B. State Plan Requirements for Recording and Reporting.

Section 18(c)(7) requires a State, as a prerequisite for plan approval, to require employers in the State to make reports to the [U.S.] Secretary in the same manner and to the same extent as if the plan were not in effect." The Secretary's regulations, 29 CFR 1902.3(k), expands this requirement by obligating States to require employers not only to make reports but also to maintain records in the same manner and to the same extent as if the plan were not in effect.

OSHA Instruction October 30, 1978 -2-

The recordkeeping requirement was a necessary addition. The Federal recordkeeping requirements of Section 8 will cease to be applicable upon final State Plan approval pursuant to Section 18(e). However, the Secretary's responsibility under Section 24 to collect reports will not be suspended by a Section 18(e) determination. Because Section 24(e) requires that such reports be made "on the basis of records made and kept pursuant to Section 8(c)", the State enforcement of the reporting requirement will necessitate enforcement of the recordkeeping provisions

C. Significance of Participation in BLS Program with Regard to State Obligations Under 18(c)(7)

State participation in the BLS statistical grant program (as it is presently constituted) will contribute significantly toward the State's capacity to fulfill the statistical report requirement of 1902.3(l). However, it will not satisfy the recordkeeping or enforcement aspects of 1902.3(k). Consequently, regardless of whether a State has a BLS statistical grant, it must by law or regulation require employers to maintain Federally defined records. Where the State has a BLS statistical grant, its regulations must mandate employers to forward required reports to the State grantee agency; where the State does not have a BLS statistical grant, its regulations must mandate employers to forward required reports to BLS. This State enforcement is only required to extend to `issues' covered by the State plan. Establishments not covered by the Plan will continue to be subject to Federal enforcement.

The State enforcement must require employers to maintain records and make reports in the same manner and to the same extent as if the plan were not in effect. This strict language of 18(c)(7), especially when contrasted with the more flexible "at least as effective as" language of 18(c)(2) and 18(c)(3) shows a clear Congressional intent to prohibit States from altering Federal recorkeeping and reporting regulations.

This strictness is mandated by the nature of statistical information. A statistic achieves its primary relevance only when coordinated with other statistics to form a larger framework of information. Valid conclusions may be drawn only when facts with a common base of significance are coherently coordinated. Because the coordination process requires uniformity and control, even slight deviations are undesirable. Hence, 1902.3(k) is interpreted to require States to enforce Federal recordkeeping and reporting regulations

Because States must enforce these regulations in the same manner and to the same extent as if the Plan were not in effect, States are prohibited from granting recordkeeping or reporting variances. Such variances must be obtained through BLS. All such variances granted by BLS must be respected by the enforcing State.

OSHA Instruction STP 2-1.12 October 30. 1978

These limitations need not stifle State initiative in this area. The need for accurate and consistent national data to comply with the requirements of Section 24 is self-evident. Where the State has additional data needs in more effectively managing its own occupational safety and health program, the State is free to develop supplementary recording and reporting data. Such supplementary data from employers must be cleared with and approved by the Bureau of Labor Statistics prior to implementation to ensure that they do not interfere with Federal recordkeeping + a reporting requirements.

With reference to supplementary data from employers, some States are doubtless interested in the proposed changes to Part 1904 of the regulations which would permit an employer who has had no more than seven employees at any one time during the calendar year immediately preceding a current calendar year to be exempt from some aspects of this Part. States wishing to cover all employers, regardless of size, by the full range of Part 1904 recordkeeping requirements may do so where, in the judgement of the State, these requirements will be consistent with the provision that information "be obtained with a minimum burden upon employers, especially those operating small businesses. " (Section 8(d) of the Act.)

D. Developments Plan Implications

In formulating its 18(b) plan in relation to both 29 CFR Section 1902.3(k) and (l), the State may be developmental. With reference to participation in its statistical grant programs, the Bureau of Labor Statistics is strongly urging the States to attain a full level of operations in both the national sample effort and the State data supplementation program as quickly as possible. Such rapid accomplishment of goals is to the advantage of the States since it will permit them to establish the baselines necessary for State program evaluation as required under Section 18(f) of the Act and Section 1902.3(l) of the Regulations. In developing their procedures for ensuring employer compliance with recordkeeping and reporting requirements, the States will also wish to act promptly to ensure that essential data on actual occupational safety and health performance by employers will be available on a timely basis. Prompt and full participation by any State in the BLS Statistical grant program is to the benefit of both the State and OSHA and is to be encouraged. The fact remains, however, that Section 1902.2(b) clearly provides that States may be developmental for up to three years in assuming full responsibility for the recordkeeping and reporting requirements of Section 1902.3(k) and the statistical reports of Section 1902.3(l).

OSHA Instruction STP 2-1.12 October 30, 1978

3. Action. ARA's for State Programs should make the contents of this directive available to State designees.

To avoid confusion over statistical programs and recordkeeping and reporting compliance activity, the Assistant Regional Administrators for State Programs should encourage contacts between State designated agencies and regional and national BLS staffs to ensure frequent exchange of information. Problems noted during such contacts should be promptly forwarded to the Office of State Programs

In their contacts with States on the subjects of statistical programs and recordkeeping and reporting activity, Assistant Regional Administrators for State Programs should call the attention of the States to the special area of recordkeeping and reporting on injuries and illnesses of public employees. To the extent that its plan covers such employees, a State will wish to develop statistical and recordkeeping and reporting techniques to aid in the management and evaluation of the public employee occupational safety and health program; OSHA concepts, definitions, and data requirements utilized in the private sector should be applied to the public sector.

4. Filing This directive is effective immediately and will continue in force until rescinded

Chain C. Robbins Deputy Assistant Secretary/Administrator

DISTRIBUTION: FIELD

National Office Regional Administrators 3 A/Sec. 3 RAO 2 Dep. A/Sec. 1 ARA's 1 Spec. Assts 1 Regional Directors 1 Directors 3 SOL Regional Attorneys 2 SOL 20 Regional Review Commissions 1 BLS 1 Training Institute 1 Review Commission 6 NACOSH Subcommittee 1 HEW 1 National Governors Association (1) Division Chiefs (3)

(Originator OS)