Rules of agency practice & procedure concerning OSHA

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Inspecting a harness takes about 0.25
work-hour, for an estimated cost of $21
per harness.
If required, replacing a harness takes
about 1 work-hour and parts cost about
$1,050 for an estimated replacement
cost of $1,135 per harness.
Authority for This Rulemaking

Regulatory Findings
This AD will not have federalism
implications under Executive Order
13132. This AD will not have a
substantial direct effect on the States, on
the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
For the reasons discussed above, I
certify that this AD:
1. Is not a ‘‘significant regulatory
action’’ under Executive Order 12866,
2. Will not affect intrastate aviation in
Alaska, and
3. Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.

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List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
Adoption of the Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as
follows:

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certificate holding district office, before
operating any aircraft complying with this
AD through an AMOC.

1. The authority citation for part 39
continues to read as follows:

(g) Related Information
Bell Helicopter Textron Alert Service
Bulletin 204B–15–70 for Model 204B
helicopters, Bell ASB 205–15–113 for Model
205A and 205A–1 helicopters, Bell ASB
205B–15–66 for Model 205B helicopters, Bell
ASB 212–15–156 for Model 212 helicopters,
Bell ASB 412–15–170 for Model 412 and
412EP helicopters, and Bell ASB 412CF–15–
60 for Model 412CF helicopters, all dated
January 20, 2016, and Bell ASB 214–15–76,
dated January 11, 2016, for Model 214B and
214B–1 helicopters, all of which are not
incorporated by reference, contain additional
information about the subject of this AD. For
service information identified in this AD,
contact Bell Textron Inc., P.O. Box 482, Fort
Worth, TX 76101; telephone 817–280–3391;
fax 817–280–6466; or at https://
www.bellcustomer.com. You may view a
copy of the information at the FAA, Office of
the Regional Counsel, Southwest Region,
10101 Hillwood Pkwy., Room 6N–321, Fort
Worth, TX 76177.

■

Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13

[Amended]

2. The FAA amends § 39.13 by adding
the following new airworthiness
directive (AD):

■

Title 49 of the United States Code
specifies the FAA’s authority to issue
rules on aviation safety. Subtitle I,
section 106, describes the authority of
the FAA Administrator. Subtitle VII:
Aviation Programs, describes in more
detail the scope of the Agency’s
authority.
The FAA is issuing this rulemaking
under the authority described in
Subtitle VII, Part A, Subpart III, Section
44701: General requirements. Under
that section, Congress charges the FAA
with promoting safe flight of civil
aircraft in air commerce by prescribing
regulations for practices, methods, and
procedures the Administrator finds
necessary for safety in air commerce.
This regulation is within the scope of
that authority because it addresses an
unsafe condition that is likely to exist or
develop on helicopters identified in this
rulemaking action.

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PART 39—AIRWORTHINESS
DIRECTIVES

2020–16–10 Bell Textron Inc. (Type
Certificate Previously Held by Bell
Helicopter Textron Inc.): Amendment
39–21194; Docket No. FAA–2018–0598;
Product Identifier 2018–SW–030–AD.
(a) Applicability
This AD applies to Bell Textron Inc. (Bell)
Model 204B, 205A, 205A–1, 205B, 212, 214B,
214B–1, 412, 412CF, and 412EP helicopters,
certificated in any category, with a shoulder
harness seat belt comfort clip (comfort clip)
part numbers (P/Ns) D7LZ–6560286–A,
D7LZ–6560286–B, or 504636–401, installed.
(b) Unsafe Condition
This AD defines the unsafe condition as a
comfort clip interfering with the seat belt
inertia reel. The FAA is issuing this AD to
prevent the seat belt from locking. This
condition could result in injury to the
occupant during an emergency landing.
(c) Effective Date
This AD becomes effective September 3,
2020.
(d) Compliance
You are responsible for performing each
action required by this AD within the
specified compliance time unless it has
already been accomplished prior to that time.
(e) Required Actions
(1) Within 50 hours time-in-service:
(i) Remove from service each comfort clip
P/Ns D7LZ–6560286–A, D7LZ–6560286–B,
or 504636–401 from the shoulder harness
seat belt (harness).
(ii) Inspect each harness for a rip and an
abrasion. If there is a rip or any abrasion,
before further flight, remove from service the
harness.
(2) After the effective date of this AD, do
not install comfort clip P/Ns D7LZ–6560286–
A, D7LZ–6560286–B, or 504636–401 on any
helicopter.
(f) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, DSCO Branch, FAA, may
approve AMOCs for this AD. Send your
proposal to: Kuethe Harmon, Safety
Management Program Manager, DSCO
Branch, FAA, 10101 Hillwood Pkwy., Fort
Worth, TX 76177; telephone 817–222–5198;
fax: 817–222–4960; email: kuethe.harmon@
faa.gov.
(2) For operations conducted under a 14
CFR part 119 operating certificate or under
14 CFR part 91, subpart K, the FAA suggests
that you notify your principal inspector, or
lacking a principal inspector, the manager of
the local flight standards district office or

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(h) Subject
Joint Aircraft Service Component (JASC)
Code: 2500, Cabin Equipment/Furnishings.
Issued on July 24, 2020.
Gaetano A. Sciortino,
Deputy Director for Strategic Initiatives,
Compliance & Airworthiness Division,
Aircraft Certification Service.
[FR Doc. 2020–16490 Filed 7–29–20; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
29 CFR Part 1913
[Docket No. OSHA–2020–0005]
RIN 1218–AC95

Rules of Agency Practice and
Procedure Concerning Occupational
Safety and Health Administration
Access to Employee Medical Records
Occupational Safety and Health
Administration (OSHA); Labor.
ACTION: Final rule.
AGENCY:

OSHA is issuing a final rule
to amend the regulation addressing the
rules of agency practice and procedure
concerning OSHA access to employee
medical records. The final rule transfers
the approval of written medical access
orders (MAO) from the Assistant
Secretary for Occupational Safety and
Health (Assistant Secretary) to the
OSHA Medical Records Officer (MRO)
and makes the MRO responsible for
making determinations regarding inter-

SUMMARY:

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agency transfer and public disclosure of
personally identifiable medical
information in OSHA’s possession.
DATES: This final rule is effective on July
30, 2020.
ADDRESSES: In accordance with 29
U.S.C. 2112(a)(2), OSHA designates, Mr.
Edmund C. Baird, Associate Solicitor of
Labor for Occupational Safety and
Health, Office of the Solicitor, Room S–
4004, U.S. Department of Labor, 200
Constitution Avenue NW, Washington,
DC 20210, to receive petitions for
review of the final rule.
FOR FURTHER INFORMATION CONTACT:
Press inquiries: Mr. Frank Meilinger,
OSHA, Office of Communications;
telephone: (202) 693–1999; email:
Meilinger.francis2@dol.gov.
General and technical information:
Dr. Michael Hodgson, Director, OSHA
Office of Occupational Medicine and
Nursing; telephone: (202) 693–1768;
email: hodgson.michael@dol.gov.
SUPPLEMENTARY INFORMATION: The final
rule also amends § 1913.10 to clarify
that a written MAO does not constitute
an administrative subpoena, eliminates
outdated requirements for the removal
of direct personal identifiers when
OSHA personnel review medical
information away from a worksite, and
establishes new procedures for the
access and safeguarding of personally
identifiable employee medical
information in electronic form. The
revisions to § 1913.10 in the final rule
will increase employee privacy and
enhance OSHA’s ability to safeguard
personally identifiable medical
information.
Table of Contents
I. Background
II. Legal Authority
III. Summary and Explanation of the Final
Rule
IV. State Plans
V. Regulatory Flexibility Certification
VI. Environmental Impact Analysis
VII. Federalism
VIII. Unfunded Mandates
IX. Consultation and Coordination With
Indian Tribal Governments
X. Office of Management and Budget Review
Under the Paperwork Reduction Act of
1995

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I. Background
A. Introduction
In order to carry out its statutory
obligations, OSHA often reviews
employee medical records. For example,
OSHA may need to review employee
medical records during a compliance
inspection to determine whether an
employer is in compliance with OSHA
standards and regulations, or to verify
that an employer has taken steps to

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correct existing violations. Access to
employee medical records may also be
necessary during inspections to
determine the effectiveness of voluntary
employer safety and health programs.
OSHA also reviews medical records
when gathering information during
agency rulemaking to develop or revise
occupational safety and health
standards.
Several OSHA standards and
regulations mandate medical records
access, including 29 CFR 1910.1020,
Access to Employee Exposure and
Medical Records, which sets forth
procedures by which exposure and
medical records can be accessed by
employees, their designated
representatives, and OSHA. This
regulation, which applies to employers
with employees exposed to toxic
substances and harmful physical agents,
provides OSHA representatives with
prompt access to employee exposure
and medical records and to analysis
thereof using exposure or medical
records. See 29 CFR 1910.1020(e)(3). In
addition, several of OSHA’s substancespecific standards include provisions
for OSHA access to employee medical
records. (e.g., 29 CFR 1910.25(n)(4)
(Lead), and 29 CFR 1910.1028(k)
(Benzene)).
In many instances, OSHA must
examine and copy employee medical
information in personally identifiable
form. Personally identifiable employee
medical information as defined by 29
CFR 1913.10(b)(2) means employee
medical information accompanied by
either direct identifiers (name, address,
social security number, payroll number)
or by information which could
reasonably be used in particular
circumstances indirectly to identify
specific employees (e.g., date of birth,
race, sex, date of initial employment, job
title). An employee medical record may
include individual health histories as
well as medical opinions and
evaluations generated during diagnosis,
physical examinations, or medical
treatment by a health care professional.
Because of the substantial personal
privacy interests involved, OSHA
authority to access personally
identifiable employee medical
information is exercised only after the
agency has made a careful
determination of the need for the
information, and only when appropriate
safeguards are in place to prevent
unauthorized access. Once this
information is accessed, OSHA
examination and use is limited to only
that information needed to accomplish
a relevant statutory purpose. Also,
personally identifiable employee
medical information is retained by

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OSHA only for so long as needed to
accomplish the purpose for access, is
kept secured while being used, and is
not disclosed to other agencies or
members of the public except in
narrowly defined circumstances. In
addition, the examination and use of
personally identifiable employee
medical information is limited to only
OSHA personnel with a need to review
such information.
This rule is not an Executive Order
(E.O.) 13771 regulatory action because
this rule is not significant under E.O.
12866. Pursuant to the Congressional
Review Act (5 U.S.C. 801 et seq.), the
Office of Information and Regulatory
Affairs designated this rule not a ‘major
rule’, as defined by 5 U.S.C. 804(2).
B. OSHA’s Regulation at 29 CFR
1913.10
On May 25, 1980, OSHA issued a
final rule entitled Rules of Agency
Practice and Procedure Concerning
OSHA Access to Employee Medical
Records (45 FR 35284). The final rule
was developed and published in concert
with the promulgation of 29 CFR
1910.1020, Access to Employee
Exposure and Medical Records (45 FR
35212). During the rulemaking, there
was universal agreement that if OSHA
obtained access to employee medical
records, the access should be
accompanied by stringent internal
agency procedures to preclude abuse of
personally identifiable medical
information. Provided these procedures
were established, many participants in
the rulemaking endorsed OSHA access
to employee medical records without
the consent of the employee for
occupational safety and health purposes
(see 45 FR 35218).
Except as provided in 29 CFR
1913.10(b)(3) through (6), the rules of
agency practice and procedure apply to
all requests by OSHA personnel to
obtain access to records to examine and
copy personally identifiable employee
medical information, whether or not
access is mandated by 29 CFR
1910.1020. Among other things, the
regulation at 29 CFR 1913.10 establishes
certain responsibilities for specific
OSHA officials when the agency
accesses personally identifiable
employee medical information. The
regulation also includes provisions
addressing the internal use of employee
medical records by agency personnel, as
well as requirements for inter-agency
transfer and public disclosure of such
records. The regulation includes
security procedures for the use and
storage of employee medical records
while in the agency’s possession.
Finally, the regulation sets forth internal

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agency requirements for the retention
and destruction of records.
A key provision set forth in § 1913.10
is that, with few exceptions, each
request by an OSHA representative to
examine or copy personally identifiable
employee medical information must be
made pursuant to a written access order.
The written access order is an
authorization for specific OSHA
personnel to examine or copy
personally identifiable employee
medical information contained in
records held by an employer or other
record holder. The rules of agency
practice and procedure in § 1913.10
make clear that each written access
order must state the statutory purpose
for which access is sought, a general
description of the type of employee
medical information that will be
examined and why there is a need to
examine personally identifiable
information, whether the medical
information will be examined on-site,
what type of information will be copied
and removed off-site, and the
anticipated time during which OSHA
expects to retain the employee medical
information in personally identifiable
form.
In order to enhance employee privacy,
and clarify certain provisions, OSHA
has determined that it is necessary to
revise its regulation at § 1913.10. For
example, OSHA’s previous regulation at
§ 1913.10 used the term ‘‘written access
order.’’ However, this final rule revises
the regulatory text to include the more
commonly used term ‘‘medical access
order’’ or ‘‘MAO.’’
The final rule also amends the
regulation at 29 CFR 1913.10 to transfer
certain responsibilities from the
Assistant Secretary to the OSHA
Medical Records Officer (MRO).
Specifically, the MRO will now be
responsible for the overall
administration and implementation of
the procedures contained in § 1913.10.
These new responsibilities include
making determinations regarding (1)
OSHA access to personally identifiable
employee medical information pursuant
to a MAO, and (2) inter-agency transfer
and public disclosure of personally
identifiable employee medical
information. The final rule also transfers
responsibility from the Assistant
Secretary to the MRO for issuing written
directives that authorize OSHA
compliance personnel to review certain
information without obtaining a MAO.
The final rule clarifies that a MAO
does not constitute an administrative
subpoena, and eliminates requirements
for the removal of direct personal
identifiers when OSHA personnel
review medical information away from

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a workplace. The deletion of
requirements for the removal of direct
personal identifiers will be offset by
new provisions designed to strengthen
employee privacy. Finally, the final rule
establishes new internal OSHA
requirements, based on existing agency
policy, for the access and safeguarding
of personally identifiable employee
medical information maintained in
electronic form.
The procedures set forth in § 1913.10
are internal agency procedures and do
not affect employer compliance with
OSHA requirements. Employers and
employees will benefit from the
revisions to § 1913.10 in several ways.
First, since the process for determining
whether there is a need for OSHA to
review employee medical information
will be more efficient, employers will
know sooner if such a review is
authorized at their worksite. Second, the
elimination of the outdated requirement
to remove direct personal identifiers
before taking medical information offsite for review will reduce the amount
of an employer’s time and physical
space needed by OSHA personnel when
they visit a specific workplace. Third,
the revisions will benefit employees
because the procedures in § 1913.10 to
protect the security and privacy of
employee medical records will be
strengthened, especially with regard to
medical information in electronic form.
Fourth, the elimination of the
requirement to remove direct personal
identifiers before taking medical
information off-site will enhance
employee privacy because the removal
process always carries with it the
possibility that medical information will
be misidentified or mislabeled, which
could result in unauthorized staff
mistakenly reviewing that information.
Finally, deletion of the time-consuming
de-identification procedures will mean
that authorized OSHA personnel can
conduct follow-up consultations with
employees about their health more
quickly.
The notice and comment rulemaking
procedures of 5 U.S.C. 553 of the
Administrative Procedure Act (APA) do
not apply to ‘‘interpretive rules, general
statements of policy, or rules of agency
organization, procedure, or practice.’’ 5
U.S.C. 553(b)(A). The provisions in 29
CFR 1913.10 are rules of agency
procedure and practice within the
meaning of section 553(b)(A) of the
APA. Therefore, publication in the
Federal Register of a notice of proposed
rulemaking and request for comments is
not required. Furthermore, because this
rule is procedural rather than
substantive, the normal requirement of
5 U.S.C. 553(d) that a rule not be

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effective until at least 30 days after
publication in the Federal Register is
inapplicable. OSHA also finds good
cause to provide an immediate effective
date for this rule, because it imposes no
obligations on parties outside the
federal government and therefore no
advance notice is required to enable
employers or other private parties to
come into compliance.
II. Legal Authority
The Occupational Safety and Health
Act of 1970, 29 U.S.C. 651 et seq. (OSH
Act) authorizes the Secretary to issue
two types of occupational safety and
health rules: Standards and regulations.
Standards, which are authorized by
section 6 of the Act, specify remedial
measures to be taken to prevent and
control employee exposure to identified
occupational safety and health hazards,
while regulations are the means to
effectuate other statutory purposes,
including the maintaining of records.
For example, the OSHA requirements at
29 CFR 1910.95 are a ‘‘standard’’
because they include remedial measures
to address the specific and already
identified hazard of employee exposure
to occupational noise. In contrast, a
‘‘regulation’’ is a purely administrative
effort designed to uncover violations of
the Act and discover unknown dangers.
The procedural regulations in 29 CFR
1913.10 are necessary to enable the use
of employee medical records by OSHA
consistent with the employee’s right of
privacy.
In section 2(b) of the OSH Act,
Congress declared the overriding
purpose of the Act is ‘‘to assure so far
as possible every working man and
woman in the Nation safe and healthful
working conditions.’’ (29 U.S.C. 651.)
Congress also explicitly declared that
this must be accomplished, among other
ways, ‘‘by providing an effective
enforcement program . . .’’ (29 U.S.C.
651(b)(10)). For the Secretary of Labor to
conduct an effective enforcement
program, he or she must determine
whether occupational safety and health
hazards exist in the workplace. To that
end, the OSH Act authorizes the
Secretary to enter and inspect
workplaces and to conduct reasonable
investigations into working conditions.
Section 8(a) of the OSH Act
authorizes OSHA to enter, inspect, and
investigate places of employment, and
section 8(b) permits OSHA to subpoena
both witnesses and evidence when
conducting inspections and
investigations. (29 U.S.C. 657(a) and
(b)). As noted above, in some instances,
it may be necessary for OSHA to
examine personally identifiable
employee medical information. Section

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Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Rules and Regulations
8 of the OSH Act recognizes OSHA’s
right of access to medical records, and
records access is mandated by OSHA
standards and regulations, including 29
CFR 1910.1020(e)(3) (access to
employee exposure and medical
records). OSHA relies on administrative
subpoenas to compel production of
medical records by employers and other
record holders.
OSHA is issuing the final rule
pursuant to authority expressly granted
in section 8 of the OSH Act. Section
8(c)(1) requires each employer to ‘‘make,
keep, preserve, and make available to
the Secretary [of Labor] or the Secretary
of Health and Human Services, such
records regarding his activities relating
to this Act as the Secretary, in
cooperation with the Secretary of Health
and Human Services, may prescribe by
regulation as necessary or appropriate
for the enforcement of this Act or for
developing information regarding the
causes and prevention of occupational
accidents and illnesses’’ (29 U.S.C.
657(c)(1)). Employee medical records
are included within the type of records
addressed by this provision.
Section 8(g)(1) of the OSH Act
provides that the Secretary and
Secretary of Health and Human Services
are authorized to compile, analyze, and
publish, either in summary or detailed
from, all records or information
obtained under this section (29 U.S.C.
657(g)(1)). Section 8(g)(2) is the general
rulemaking authority of the OSH Act
and provides that the Secretary and the
Secretary of Health and Human Services
shall prescribe such rules and
regulations as he may deem necessary to
carry out their responsibilities under
this Act, including rules and regulations
dealing with the inspection of an
employer’s establishment.

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III. Summary and Explanation of the
Final Rule
Section 1913.10(b)—Scope and
Application
OSHA’s regulation at 29 CFR
1913.10(b), Scope and application,
defines the circumstances under which
the procedural regulations in § 1913.10
will apply. Except as provided in
paragraphs (b)(3) through (6), the
policies and procedures in § 1913.10
apply to all requests by OSHA
personnel to access personally
identifiable employee medical
information.
In general, 29 CFR 1913.10 requires
OSHA personnel to obtain a MAO
(previously ‘‘written access order,’’ but
referred to in this section as ‘‘MAO’’ as
it is in the final rule) when accessing
personally identifiable employee

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medical information. However, under
certain circumstances, the regulation
states that OSHA access may be
accomplished without obtaining a
MAO. For example, § 1913.10(d)(4)(i)
provides that a MAO is not needed
when an employee gives specific
written consent for OSHA to access
their medical records. Also,
§ 1913.10(b)(3) through (5) include
several categories of records that are not
subject to § 1913.10 and therefore may
be accessed without obtaining a MAO.
These categories of records include
medical information that is not in
personally identifiable form, injury and
illness records required by 29 CFR part
1904, death certificates, employee
exposure records, and medical
information obtained in the course of
litigation. In addition, previous
§ 1913.10(b)(6) provided that the
policies and procedures in § 1913.10 do
not apply when a written directive by
the Assistant Secretary authorizes
appropriately qualified personnel to
conduct limited review of specific
medical information mandated by an
OSHA standard or of specific biological
monitoring test results. This final rule
amends § 1913.10(b)(6) to state that the
MRO is now responsible for issuing
these written authorization directives.
OSHA Directive CPL 02–02–072,
Rules of agency practice and procedure
concerning OSHA access to employee
medical records, August 22, 2007,
includes authorization for review of
three categories of information based on
the provisions in § 1913.10(b)(6). The
directive authorizes OSHA compliance
personnel to review (1) medical
opinions mandated by OSHA standards,
(2) information required by a medical
surveillance program, and (3) certain
information used to verify compliance
with the injury and illness
recordkeeping requirements in 29 CFR
part 1904. OSHA personnel do not need
a MAO when they access the
information at a workplace pursuant to
a written directive under
§ 1913.10(b)(6). Instead, OSHA
personnel follow the procedures set
forth in the written directive. The 2007
directive includes provisions on how
OSHA personnel may access the
specific types of information and how
the information should be protected
once in the agency’s possession.
OSHA believes the MRO is in the best
position to make determinations
regarding written authorization under
§ 1913.10(b)(6). Section 1913.10(c)(2)
already provides that the MRO must
have experience or training in the
evaluation, use, and privacy protection
of medical records, and, as discussed
below in this preamble, paragraph (c) of

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§ 1913.10 has been amended to provide
that the MRO is now responsible for the
overall administration of the policies
and procedures in § 1913.10. Also, as
part of the final rule, paragraph (c) now
states that the MRO is specifically
responsible for making determinations
regarding the approval of MAOs, interagency transfer, and public disclosure of
identifiable employee medical records.
Given all the new MRO responsibilities
set forth in paragraph (c), as well as the
existing duties in the other paragraphs
of the regulation, it is appropriate to
also make the MRO responsible for
written authorization under paragraph
(b)(6). Accordingly, final § 1913.10(b)(6)
states that the provisions of 29 CFR
1913.10 do not apply where a written
directive by the MRO authorizes
appropriately qualified personnel to
conduct limited review of specific
medical information mandated by an
occupational safety and health standard
or of specific biological monitoring test
results. OSHA will also amend Directive
CPL 02–02–072 to reflect the new
regulatory text in paragraph (b)(6).
Section 1913.10(c)—Responsible
Persons
OSHA’s regulation at 29 CFR
1913.10(c) establishes certain
responsibilities for OSHA personnel
when the agency accesses personally
identifiable employee medical
information. Paragraph (c) is largely a
summary of duties established by other
paragraphs in § 1913.10 and sets forth
specific responsibilities for the Assistant
Secretary, MRO, and Principal OSHA
Investigator. The final rule amends
several provisions in paragraph (c) to
emphasize the responsibilities of the
MRO.
Under the previous regulation,
paragraph (c)(1) provided that the
OSHA Assistant Secretary was
responsible for the overall
administration and implementation of
the policies and procedures in
§ 1913.10. This responsibility included
making determinations regarding (1)
OSHA access to personally identifiable
employee medical information and (2)
interagency transfer or public disclosure
of personally identifiable employee
medical information. Also under the
previous regulation, § 1913.10(d)(1)
provided that each request by an OSHA
representative to access information
through a written access order must be
approved by the Assistant Secretary
upon the recommendation of the MRO.
Section 1913.10(c)(2) of the previous
regulation provided that the Assistant
Secretary was responsible for
designating an OSHA official with
experience or training in the evaluation,

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use, and privacy protection of medical
records to be the MRO. The MRO, who
reported directly to the Assistant
Secretary on matters related to
§ 1913.10, was responsible for making
recommendations to the Assistant
Secretary on whether to approve or
deny written access orders, and served
as the central reviewer of the sufficiency
and justification of these documents.
The MRO was also responsible for
responding to employee, collective
bargaining agent, and employer
objections to written access orders. In
addition, § 1913.10(c)(2) of the previous
regulation stated that the MRO was
responsible for controlling the use of
direct personal identifiers; controlling
internal agency use and security of
personally identifiable employee
medical information; assuring that the
results of agency analysis of personally
identifiable employee medical
information are, where appropriate,
communicated to employees; preparing
an annual report for the Assistant
Secretary on OSHA’s experience with
respect to § 1913.10; and assuring that
adequate notice is given of intended
inter-agency transfers or public
disclosures of personally identifiable
employee medical information.
The other OSHA official with
important responsibilities when the
agency accesses employee medical
information is the Principal OSHA
Investigator. Section 1913.10(c)(3)
provides that the Principal OSHA
Investigator is the OSHA employee
designated on the MAO who is
primarily responsible for ensuring that
OSHA examination and use of employee
medical information is in accordance
with the provisions of the MAO and
§ 1913.10. In most instances, the
Principal OSHA Investigator named on
a MAO is an employee from an OSHA
Regional or Area Office and determines
how and when employee medical
information will be accessed during an
OSHA inspection or investigation. In
practice, the Principal OSHA
Investigator is responsible for ensuring
that the provisions of the MAO and
§ 1913.10 are followed by OSHA
personnel when medical information is
accessed at a specific workplace. As
provided in § 1913.10(c)(3), the
Principal OSHA Investigator must be
professionally trained in medicine,
public health, or similar fields
(epidemiology, toxicology, industrial
hygiene, biostatistics, environmental
health) when access is made pursuant to
a MAO. The provisions in
§ 1913.10(c)(3) concerning the Principal
OSHA Investigator are unchanged by
the final rule.

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The final rule retains the Assistant
Secretary’s responsibility to designate
an OSHA official as MRO. However, this
responsibility is now set forth in
§ 1913.10(c)(1). Like the previous
regulation, § 1913.10(c)(1) of the final
rule states that the Assistant Secretary
shall designate an OSHA official with
experience or training in the evaluation,
use, and privacy protection of medical
records to be the OSHA Medical
Records Officer. The final rule also
states that the Assistant Secretary may
change the designation of the MRO at
will.
The final rule includes several
changes to paragraph (c)(2), OSHA
Medical Records Officer. Some of these
changes transfer specific responsibilities
from the Assistant Secretary to the MRO
while other responsibilities assigned to
the MRO in § 1913.10(c)(2) are carried
over from the previous regulation.
The final rule amends paragraph (c)(2)
to provide that the MRO is now
responsible for the overall
administration and implementation of
the procedures contained in § 1913.10.
OSHA believes there are two central
principles that form the basis of the
procedural requirements in § 1913.10:
(1) There should be a thorough review
of all efforts to examine or copy
personally identifiable employee
medical information before the
information is obtained and (2)
personally identifiable information must
be carefully protected once obtained.
OSHA also believes the MRO is in the
best position to ensure that the central
principles of § 1913.10 are carried out
by the agency.
As already noted, paragraph (c)(1) of
the final rule, like the previous
regulation, provides that the MRO must
have experience and training in the
evaluation, use, and privacy protection
of medical records. Historically, a
physician from OSHA’s Office of
Occupational Medicine and Nursing
(OOMN) has been designated as MRO,
and, in most cases, the person
designated has been the Director of
OOMN. As a result, the MRO has had
an extensive background in both
medicine and administration.
Additionally, under the previous
regulation, the MRO was already
responsible for ensuring the sufficiency
and justification of MAOs and making
recommendations to the Assistant
Secretary on whether to approve or
deny such documents. The MRO also
has several duties set forth throughout
the other paragraphs in § 1913.10 and
therefore has a good understanding of
the day-to-day implementation of the
regulation.

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Under the final rule, the MRO will
now be responsible for making
determinations regarding whether to
approve or deny MAOs, any interagency transfer, and public disclosures
of personally identifiable employee
medical information, as well as whether
to issue written directives authorizing
OSHA personnel to conduct limited
review of certain medical information
without an MAO. Accordingly, the
extensive medical and administrative
experience, the responsibilities under
the previous regulation, and the new
responsibilities assigned by this final
rule make the MRO the logical OSHA
official to have responsibility for the
overall administration and
implementation of the procedures in
§ 1913.10.
While the final rule limits the role of
the Assistant Secretary in the day-to-day
implementation of § 1913.10, the
Assistant Secretary still maintains an
important oversight responsibility. As in
the previous regulation, the Assistant
Secretary retains the responsibility for
naming an OSHA official as MRO, with
the ability to replace the MRO at will,
and the MRO must still report to the
Assistant Secretary on matters related to
§ 1913.10. In practice, the MRO will
continue to consult with the Assistant
Secretary on MAO approval, interagency transfers, and public disclosures
of personally identifiable employee
medical information. In addition,
paragraph (l) requires the MRO to
prepare an annual report for the
Assistant Secretary on matters related to
the approval and purpose of MAOs,
objections to MAOs, and inter-agency
transfers and public disclosures during
the previous year. The responsibility to
designate an OSHA official as MRO,
continued consultation, and receiving
reports from the MRO will keep the
Assistant Secretary informed about
OSHA’s overall implementation of
§ 1913.10. Accordingly, like the
previous regulation, the final rule at
paragraph (c)(2) provides that the MRO
is responsible for reporting directly to
the Assistant Secretary on matters
concerning § 1913.10.
Under the final rule, the MRO is also
now responsible for making
determinations concerning (1) access to
personally identifiable employee
medical information and (2) interagency
transfer or public disclosure of
personally identifiable employee
medical information. These two
responsibilities had been assigned to the
Assistant Secretary in previous
§ 1913.10(c)(1).
Section 1913.10(c)(2)(i) of the final
rule states that the MRO is responsible
for making determinations concerning

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OSHA access to personally identifiable
employee medical information under
§ 1913.10(d). Paragraph (d) addresses
OSHA access to personally identifiable
employee medical information by MAO.
With the exception of two
circumstances described at the end of
paragraph (d), each request by OSHA to
examine or copy personally identifiable
employee medical information is made
pursuant to an MAO. Paragraph (d)(2)
sets criteria the agency must follow
when it seeks access to identifiable
medical information, and paragraph
(d)(3) sets forth the content to be
included in the MAO. In order to be
valid, an MAO must be approved by the
MRO using the criteria in paragraph
(d)(2). First, the MRO must consider
whether the information to be examined
or copied is relevant to a statutory
purpose and whether there is a need to
gain access to the information. The
MRO has the responsibility, on a caseby-case basis, to ensure that access is
sought only where there is a genuine
need to do so. OSHA believes that a
finding of relevance and need by the
MRO is a significant safeguard against
excessive use of the agency’s authority
to access personally identifiable
employee medical information.
Paragraph (d)(2) next states that
consideration must be given to whether
the personally identifiable employee
medical information subject to the MAO
is limited to only that information
needed to accomplish the purpose for
access. This provision is aimed at
preventing OSHA access to extraneous
medical information unrelated to the
purpose for access. Lastly, paragraph
(d)(2) states that the MRO must
determine that the personnel authorized
to review the medical information are
limited to those who have a need for
access and have appropriate
professional qualifications. The limiting
of personnel that can review and
analyze information to only those who
have a need for access and who have
appropriate professional qualifications
is important for maintaining the
confidentiality of employee medical
records.
OSHA believes the MRO is in the best
position to evaluate the criteria in
paragraph (d) and make determinations
on whether to approve or deny MAOs.
Typically, the MRO has extensive
subject-matter clinical experience and
expertise in occupational medicine.
This allows the MRO to evaluate
whether, and to what extent, employee
medical information needs to be
accessed by OSHA. Accordingly,
paragraph (d)(2) has been amended to
state that, before approving an MAO, the
MRO must determine that the

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documents meet the criteria in that
paragraph.
For similar reasons, the MRO is also
now responsible for making
determinations concerning inter-agency
transfer and public disclosure of
personally identifiable employee
medical information. Section
1913.10(m) describes the circumstances
under which personally identifiable
employee medical information can be
transferred to another agency or
disclosed to the public. The
requirements in paragraph (m) remain
unchanged from the previous
regulation. However, the provisions in
paragraph (m), as well as paragraph
(c)(2), are amended by the final rule to
provide that the MRO, not the Assistant
Secretary, is now responsible for making
determinations regarding inter-agency
transfer and public disclosure of
personally identifiable employee
medical information. The individual
provisions in paragraph (m) are
amended to cross reference with the
new MRO responsibility established in
§ 1913.10(c)(2)(vii).
The following discussion of the
individual provisions in paragraph (m)
clarifies the MRO’s new responsibility
for making determinations concerning
inter-agency transfer and public
disclosure set forth in § 1913.10(c)(2).
The previous regulation at
§ 1913.10(m)(1) stated that personally
identifiable employee medical
information shall not be transferred to
another agency or office outside of
OSHA (other than the Office of the
Solicitor of Labor) or disclosed to the
public (other than to the affected
employee or the original recordholder)
except when required by law or when
approved by the Assistant Secretary.
The final rule amends paragraph
(c)(2)(vii) to make clear that the MRO is
now responsible for making these
determinations. The final rule also
amends paragraph (m) to provide that
the MRO must follow specific criteria
when making determinations
concerning inter-agency transfer and
public disclosure of personally
identifiable employee medical
information.
OSHA’s longstanding position is that
inter-agency transfer and public
disclosure of personally identifiable
employee medical information should
be carefully considered, and paragraph
(m) addresses these issues. Inter-agency
transfer and public disclosure of
personally identifiable employee
medical information are not
categorically prohibited by the
regulation for two reasons. OSHA
believes (1) it cannot legally make such
a commitment and (2) situations arise

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45785

where transfer or disclosure is
appropriate. Under certain
circumstances, as a matter of law, OSHA
is compelled to transfer information to
another agency or disclose it to a nongovernmental individual. For example,
OSHA might be required to provide the
information in response to a lawful
subpoena. In other circumstances,
disclosure may also be appropriate. For
example, in order to resolve a public
health problem, OSHA may need to
transfer employee medical information
to another federal or state agency. In
such situations, the transfer of employee
medical information may be critical in
identifying an emerging health issue,
compiling data on worker fatalities from
specific exposure, or evaluating the
effectiveness of workplace controls
designed to prevent occupational illness
at manufacturing facilities.
OSHA notes that inter-agency transfer
and public disclosure of personally
identifiable employee medical
information is not a common
occurrence. In the last five years, the
agency has made only three inter-agency
transfers of personally identifiable
employee medical information to
another federal or state agency. OSHA
also notes that inter-agency transfer and
public disclosure of employee medical
information not in personally
identifiable form is not subject to
provisions in § 1913.10.
Paragraph (m) of § 1913.10 includes
strict limitations on inter-agency sharing
and public disclosure of employee
medical information. Except when
required by law, all inter-agency transfer
or public disclosure of personally
identifiable employee medical
information must be approved by the
MRO in accordance with the criteria in
paragraph (m).
Paragraph (m)(2) states that, except as
provided for in paragraph (m)(3), the
MRO shall not approve a request for an
inter-agency transfer, which has not
been consented to by the affected
employee, unless the request is by a
public health agency. Under this
provision, transfer of medical
information is permitted only to a
public health agency for a substantial
public health purpose. The regulation
goes on to state that the MRO can
approve the transfer only if the public
health agency (1) needs the information
for substantial public health purposes,
(2) will not use the information to make
individual determinations concerning
affected employees which could be to
their detriment, (3) has regulations or
written established procedures
providing protection for personally
identifiable medical information
substantially equivalent to § 1913.10,

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and (4) satisfies an exemption to the
Privacy Act to the extent the Privacy Act
applies to the requested information.
Because OSHA collects medical
information only for a public health
purpose, OSHA believes it is
appropriate to restrict all subsequent
discretionary transfers to those agencies
with an equivalent public health
purpose. The MRO must review each
request for a transfer on a case-by-case
basis by taking into account each of the
listed criteria in paragraph (m)(2). Most
importantly, in order to protect
individual privacy, the MRO must be
satisfied that the recipient agency’s
privacy protections are equivalent to
OSHA’s.
Paragraph (m)(3) contains two
exceptions to the requirements of
paragraph (m)(2). First, upon the
approval of the MRO, personally
identifiable employee medical
information can be shared with the
National Institute for Occupational
Safety and Health (NIOSH). Like OSHA,
NIOSH is a public health agency and its
research activities complement OSHA’s
regulatory responsibilities. OSHA’s
ability to analyze employee medical
records is often improved by gaining
NIOSH assistance, and medical
information collected by OSHA may
have major research value for NIOSH.
Also, because of its frequent use of
medical information, and sensitivity to
individual privacy, NIOSH has
procedures in place that provide for the
protection of personally identifiable
medical information that are
substantially equivalent to § 1913.10. As
a result, employee medical information
may be transferred to NIOSH if
approved by the MRO without further
inquiry into the sufficiency of its
programs for protecting medical records.
Paragraph (m)(3) also permits, upon
the approval of the MRO, the interagency transfer of personally
identifiable employee medical
information to the U.S. Department of
Justice when necessary with respect to
a specific action under the OSH Act. For
example, the Justice Department
prosecutes criminal violations under the
OSH Act, as well as civil penalty
collection actions. The Justice
Department also represents OSHA in
Freedom of Information Act (FOIA)
lawsuits. Personally identifiable
employee medical information may be
relevant in these legal actions, and
OSHA must be able to share information
in these circumstances.
Paragraphs (m)(4) and (5) address
public disclosure of personally
identifiable employee medical
information which has not been
consented to by the affected employee.

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Paragraph (m)(4) provides that the MRO
shall not approve a request for public
disclosure of employee medical
information containing personal
identifiers unless there are compelling
circumstances affecting the health or
safety of an individual. Also, paragraph
(m)(5) states that the MRO shall not
approve a request for public disclosure
of employee medical information which
contains information which could
reasonably be used indirectly to identify
specific employees when the disclosure
would constitute a clearly unwarranted
invasion of personal privacy. Finally,
paragraph (m)(6) retains the provision
from the previous regulation that,
except as to inter-agency transfer to
NIOSH or the Department of Justice, the
MRO shall ensure that advance notice is
provided to any collective bargaining
agent representing affected employees
and to the employer on each occasion
OSHA intends to transfer personally
identifiable employee medical
information to another agency or
disclose it to a member of the public
other than to an affected employee.
When feasible, the MRO must take
reasonable steps to assure that advance
notice is provided to affected employees
when the employees’ medical
information to be transferred or
disclosed contains direct personal
identifiers.
Finally, the final rule at
§ 1913.10(c)(2) retains several
provisions from the previous regulation.
Specifically, paragraph (c)(2)(iii)
continues to provide that the MRO is
responsible for responding to MAO
objections, and paragraph (c)(2)(iv)
continues to provide that the MRO is
responsible for overseeing the internal
use and security of personally
identifiable employee medical
information. Two other MRO
responsibilities in paragraph (c)(2) have
been retained from the previous
regulation but have been renumbered
under the final rule. Paragraph (c)(2)(v),
formerly paragraph (c)(2)(vi), continues
to provide that the MRO is responsible
for assuring that the results of agency
analyses of personally identifiable
medical information are, where
appropriate, communicated to
employees. Paragraph (c)(2)(vi),
formerly paragraph (c)(2)(vii), retains
the provision that the MRO is
responsible for preparing an annual
report of OSHA’s experience under
§ 1913.10.
Section 1913.10(d)(1)—Requirements
for Medical Access Orders
OSHA’s previous regulation at
§ 1913.10(d)(1) stated that, except as
provided in paragraph (d)(4), each

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request by an OSHA representative to
examine or copy personally identifiable
employee medical information
contained in a record held by an
employer or other record holder shall be
made pursuant to a written access order
which has been approved by the
Assistant Secretary upon the
recommendation of the OSHA Medical
Records Officer. Paragraph (d)(1) went
on to state that, if deemed appropriate,
a written access order may constitute, or
be accompanied by, an administrative
subpoena.
As explained above, the MRO is now
responsible for the approval or denial of
MAOs, and paragraph (d)(1) has been
revised to reflect this change. The final
rule also amends paragraph (d)(1) to
make clear that a MAO does not
constitute an administrative subpoena.
An administrative subpoena is a
written order issued by OSHA to require
an employer, or any other person, to
produce listed records, documents,
testimony and/or other supporting
evidence relevant to an inspection or
investigation under the OSH Act. If the
person served with a subpoena refuses
to honor (or only partially honors) the
order, the subpoena is subject to judicial
review and enforcement by a U.S.
District Court. OSHA Regional
Administrators have authority to issue
administrative subpoenas and are also
authorized to delegate to Area Directors
the authority to issue routine
administrative subpoenas. OSHA’s
policies and procedures for issuing an
administrative subpoena are set forth in
OSHA Instruction ADM 01–00–002,
August 19, 1991.
In contrast, a MAO is an authorization
for specified OSHA personnel to
examine or copy personally identifiable
employee medical information
contained in a record held by an
employer or some other record holder.
Since an MAO relates to internal OSHA
procedures, it cannot be used to compel
the production of records, nor be
enforced in a U.S. District Court.
Historically, OSHA has not treated an
MAO as equivalent to an administrative
subpoena. OSHA’s longstanding
practice has been to rely on an
administrative subpoena to compel
production of medical records by
employers. See OSHA’s August 22,
2007, Instruction CPL 02–02–072, Rules
of agency practice and procedure
concerning OSHA access to employee
medical records. MAOs set forth
internal OSHA procedure for assuring
appropriate confidentiality of medical
records is observed by OSHA personnel.
As a result, except when reasonably
certain that the employer will grant
access to employee medical

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information, OSHA personnel present
an administrative subpoena to the
employer concurrently with an MAO.
The final rule amends § 1913.10(d)(1)
to state that except as provided in
paragraph (d)(4), each request by an
OSHA representative to examine or
copy personally identifiable employee
medical information contained in a
record held by an employer or other
recordholder shall be made pursuant to
a written medical access order which
has been approved by the OSHA
Medical Records Officer. A medical
access order does not constitute an
administrative subpoena.
Section 1913.10(g)—Removal of Direct
Personal Identifiers
OSHA’s previous regulation at
§ 1913.10(g) provided that all direct
personal identifiers (e.g., name, address,
Social Security Number, payroll
number) must be removed by OSHA
personnel whenever employee medical
information obtained pursuant to a
written access order is taken off-site,
unless otherwise directed by the MRO.
The regulation also required the
Principal OSHA Investigator to code the
medical information and the list of
direct personal identifiers with a unique
identifying number for each employee
and then hand deliver or mail the list of
identifiers to the MRO. The MRO
thereafter controlled the use and
distribution of the list of coded
identifiers to those with a need to know
its contents. In addition, the numerical
coded medical information was to be
used and kept secured as though still in
a directly identifiable form.
Paragraph (g) was originally
promulgated by OSHA when the rules
of agency practice and procedure were
issued in 1980. At that time, electronic
medical records did not exist, and the
employee records that did exist were
maintained almost entirely in paper
form. Since 1980, the number of
medical records maintained by
employers and other record holders has
substantially increased, and the majority
of these records are now maintained in
electronic form.
The final rule revises § 1913.10 by
deleting the outdated procedures set
forth in paragraph (g). OSHA is
eliminating this internal requirement for
several reasons. First, existing access
and safeguarding requirements in
§ 1913.10 already address privacy
concerns when OSHA takes medical
information away from a workplace for
off-site review. Specifically, paragraph
(h) of § 1913.10 provides that only
authorized personnel may examine or
copy personally identifiable employee
medical information. As explained

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below, OSHA experience is that this
process can result in coding and recoding errors in individual employee
medical records. Likewise, it provides
that, unless an exception applies, OSHA
personnel and contractors are
authorized to use information only for
the purpose for which it was obtained.
In addition, paragraph (h)(5) states that,
whenever practicable, the examination
of personally identifiable employee
medical information shall be conducted
on-site with a minimum of medical
information taken off-site in a
personally identifiable form.
Additionally, paragraph (i) of
§ 1913.10 includes security procedures
for handling personally identifiable
employee medical information. For
example, paragraph (i)(1) provides that
files containing personally identifiable
employee medical information shall be
segregated from other agency files and,
when not in active use, must be kept in
a locked cabinet or vault. In practice,
the locking requirement extends to
when medical information is
transported from the workplace, as
OSHA personnel place records in a
locked trunk during transport by
automobile.
Second, paragraph (n) of this final
rule establishes new requirements for
the access and safeguarding of
personally identifiable employee
medical information in electronic form.
As discussed more extensively below,
paragraph (n) of the final rule provides
that the Principal OSHA Investigator is
responsible for preventing any careless,
accidental, or unintentional disclosure
of, modification to, or destruction of
electronic medical records. Paragraph
(n)(3) of the final rule provides that the
transfer and/or duplication of medical
records in electronic form must be kept
to the minimum necessary to
accomplish the purpose for which it
was obtained. Also, paragraph (n)(4)
states that electronic files containing
personally identifiable employee
medical information shall be
downloaded only to a computer hard
drive or laptop that is secured (e.g.,
password protected). Paragraph (n)(4)
now includes the Government standards
that address secure access to
Government systems and the data they
contain: Federal Information Processing
Standards (FIPS) 201–2, ‘‘Personal
Identity Verification (PIV) of Federal
Employees and Contractors’’; and
HSPD–12, ‘‘Homeland Security
Presidential Directive 12: Policy for a
Common Identification Standard for
Federal Employees and Contractors
(HSPD–12).’’
In addition, paragraph (n)(5) provides
that electronic files containing

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45787

personally identifiable employee
medical information must be encrypted
before transferred to authorized
individuals. OSHA believes the
safeguards for electronic medical
records established by this final rule,
which are based on existing OSHA
practices and policy, enhance privacy
protection and reduces the need to
remove direct personal identifiers when
OSHA personnel take personally
identifiable employee medical
information off-site.
OSHA’s experience is that deidentification increases the risk of
mislabeling or misidentifying employee
medical records and places a burden on
agency resources by requiring additional
OSHA staff time to accurately conduct
de-identification and copying of
employee medical records. In some
cases, depending on the number of
employees at a specific facility, OSHA
employees may spend several hours
finding and removing each direct
personal identifier within each affected
employee’s medical record. The
deletion of paragraph (g) will reduce the
amount of time and physical space
needed by OSHA personnel at a
worksite.
Finally, the deletion of deidentification procedures in paragraph
(g) will simplify follow-up
communication from authorized OSHA
personnel with individual employees
after evaluation of their medical
information. For example, by not having
to complete a potentially extensive deidentification process, critical medical
information about an employee will be
reviewed by an OSHA physician sooner,
and this will allow the physician to
conduct follow-up consultation with the
employee in a timely manner. Also,
because personally-identifiable
information will remain in the medical
records taken from a workplace for offsite review, it will make it easier for the
OSHA physician to identify employees,
compare associated records, and contact
individual employees.
For all of the above reasons, OSHA
has concluded that the removal of direct
personal identifier requirements in
paragraph (g) should be deleted.
Section 1913.10(n)—Medical Records
Maintained in Electronic Form
In many cases, employers and other
record holders maintain personally
identifiable employee medical
information in electronic form. OSHA’s
regulation at 29 CFR 1910.1020 provides
that a ‘‘record’’ includes any item,
collection, or grouping of information
regardless of the form or process by
which it is maintained (e.g., paper,
document, microfilm, X-ray film, or

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automated data processing). Medical
records may also be maintained on
media such as magnetic tape, computer
disks, USB storage devices (e.g., thumb
drives), and online computer storage.
Historically, OSHA personnel have
followed the requirements in 29 CFR
1913.10 when accessing personally
identifiable employee medical
information maintained in electronic
form. However, the regulation did not
include provisions that specifically
addressed electronic medical records.
The final rule establishes new internal
policies and procedures in paragraph (n)
to § 1913.10 that specifically address
OSHA access, use, and safeguarding of
personally identifiable employee
medical information maintained in
electronic form.
Since the rules of agency practice and
procedure were first issued in 1980,
medical professionals have increasingly
relied on the use and storage of medical
records in electronic form. These
records tend to improve the quality of
health care and have several practical
advantages over paper records. For
example, electronic medical records can
be accessed by health care professionals
at any time from any given location.
Legible records can also lead to more
accurate diagnosis, treatment, and drug
prescription. Electronic medical records
are cost-effective because they take up
less storage space and can be stored
indefinitely. However, because they are
in electronic form, these records also
present unique challenges to security,
privacy, and data integrity.
OSHA believes the best way to protect
the security and confidentiality of
personally identifiable employee
medical information in electronic form
is to prevent unauthorized access to
such information. Several effective
administrative, technological, and
physical measures can be taken to
protect electronic medical information
from unauthorized access, use,
disclosure, disruption, modification, or
destruction. These methods include
establishing specific security roles and
responsibilities for OSHA officials,
technology safeguards such as
encryption or firewalls to protect against
electronic breaches, ID/password
protection for devices and information
systems, and the use of anti-virus and
intrusion detection software. The
establishment of new internal OSHA
policies and procedures in paragraph (n)
of this final rule will effectively protect
the security, privacy, and data integrity
of employee medical information in
electronic form.
Section 1913.10(n)(1) of the final rule
provides that, in general, when
accessing and/or copying personally

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identifiable employee medical
information in electronic form, OSHA
personnel shall follow the requirements
set forth in 29 CFR 1913.10. As noted
above, OSHA personnel have
historically followed the rules of agency
practice and procedure in § 1913.10
when accessing employee medical
information in electronic form, and
many of the provisions in § 1913.10 are
applicable regardless of the format used
to maintain information. As a result,
unless specifically addressed in
paragraph (n), OSHA personnel should
continue to follow the rules of agency
practice and procedure in paragraphs (a)
through (m) when accessing and
safeguarding electronic employee
medical information.
Section (n)(2) of the final rule
includes responsibilities for the
Principal OSHA Investigator when
OSHA personnel access personally
identifiable employee medical
information in electronic form.
Specifically, paragraph (n)(2) states that
when personally identifiable employee
medical information in electronic form
is taken off-site, the Principal OSHA
Investigator is primarily responsible for
ensuring that such information is
properly used and kept secured. This
provision is based on the requirement in
paragraph (h)(1) of § 1913.10, which
provides that the Principal OSHA
Investigator is responsible for ensuring
that medical information is used and
kept secured in accordance with
§ 1913.10. Other specific responsibilities
assigned to the Principal OSHA
Investigator in paragraph (n)(2) include
preventing any accidental or
unintentional disclosure of,
modification to, or destruction of
personally identifiable employee
medical information in electronic form
(paragraph (n)(2)(i)); controlling the
flow of data into, through, and from
agency computer operations (paragraph
(n)(2)(ii)); and ensuring that distribution
and review of medical information in
electronic form is limited to only those
OSHA personnel and contractors with a
need for access (paragraph (n)(2)(iii)).
The requirement in paragraph (n)(2)(iii)
is derived from § 1913.10(d)(2)(iii),
which provides that, before approving a
MAO, the MRO must determine that
personnel authorized to review and
analyze personally identifiable
employee medical information are
limited to those who have a need for
access and have appropriate
qualifications.
As discussed above, the Principal
OSHA Investigator is the OSHA
employee in the field with primary
responsibility for ensuring that the
examination and use of employee

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medical information is in accordance
with § 1913.10. As such, the Principal
OSHA Investigator is responsible for
ensuring that the provisions in
paragraph (n) are followed by OSHA
personnel when electronic medical
information is accessed from a specific
workplace. For example, this would
include ensuring that access to
personally identifiable employee
medical records in electronic form is
limited to only authorized personnel
with a need to review the information,
ensuring that employee medical
information is only downloaded to a
secured device (e.g., password
protected), and verifying that medical
information is deleted or destroyed
when no longer needed by the agency.
Section 1913.10(n)(3) of the final rule
provides that the transfer and/or
duplication of medical information in
electronic form shall be kept to the
minimum necessary to accomplish the
purpose for which it was obtained. This
provision is similar to paragraph (i)(3) of
§ 1913.10, which states that the
photocopying or other duplication of
personally identifiable employee
medical information shall be kept to the
minimum necessary to accomplish the
purpose for which the information was
obtained.
In some cases, personally identifiable
employee medical information in
electronic form needs to be transferred
or duplicated to facilitate internal
OSHA review. For example, in order to
conduct a proper workplace inspection
or investigation, it may be necessary for
OSHA personnel to transfer employee
medical records to another OSHA
employee with expertise on a specific
occupational health hazard. Paragraph
(n)(3) of the final rule permits the
transfer and duplication of electronic
medical information but only to
authorized individuals with a need to
review the information. Transfer and
duplication are also limited to the
minimum necessary to accomplish the
purpose for which it was obtained. An
example of this limitation might include
the review of a medical record to
determine whether an employee has
sustained a work-related injury or
illness. In such cases, review of a
medical record would extend only to
information about the employee’s injury
or illness. In this example, the transfer
and/or duplication of electronic medical
information unrelated to the injury or
illness would not be permitted.
Additionally, OSHA believes the
likelihood that medical information in
electronic form will be lost, altered, or
destroyed increases during transfer or
duplication. The duplication of
electronic medical information can also

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raise concern about data integrity. For
example, the copying or deleting of
employee medical information from one
document to another raises concern
about the accuracy of the information.
Accordingly, personally identifiable
electronic medical information should
be transferred only to authorized
individuals with a need to know the
information and should be duplicated
only to facilitate authorized internal
agency review.
Consistent with existing OSHA
policy, § 1913.10(n)(4) of the final rule
states that electronic files containing
personally identifiable employee
medical information shall be
downloaded only to a computer hard
drive or laptop that is in accordance
with Federal Information Processing
Standard (FIPS) 201–2, ‘‘Personal
Identity Verification (PIV) of Federal
Employees and Contractors,’’ and
‘‘Homeland Security Presidential
Directive 12: Policy for Common
Identification Standard for Federal
Employees and Contractors (HSPD–
12).’’ The use of secured technology
when downloading medical records will
help to ensure that information is (1)
accessed only by authorized individuals
with a need-to-know and (2) not
modified or deleted.
In accordance with current OSHA and
Federal Government policy, the use of
password protection is easy to
implement, cost-effective, and a reliable
method for securing electronic
information. By downloading employee
medical information to a secured hard
drive or laptop, OSHA personnel will be
able to ensure that only individuals that
know the password can open a
document and read its content. This
practice also provides a level of
protection that goes with the document
no matter where it is stored or sent.
Finally, because tampering with a
secured device takes time and effort,
providing this level of protection acts as
a deterrent to accessing document
content by unauthorized individuals.
Additionally, it is important for
OSHA personnel to follow proper
security practices when using password
protected devices containing personally
identifiable employee medical
information. Authorized individuals
must not share their ID with others,
should log-off when leaving a terminal,
and use their own ID to access employee
medical records. Also, authorized
individuals should not keep written
facsimiles of passwords or access codes.
Other security measures, such as the use
of firewalls, anti-virus software, and
intrusion detection software should also
be used to protect data integrity. Again,
the Principal OSHA Investigator is

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responsible for ensuring that proper
security measures are in place in the
field to protect the confidentiality of
personally identifiable employee
medical records in electronic form.
Moreover, it is critically important
that mobile devices be encrypted or use
password protection when used to
download, transfer, or store electronic
medical information. Mobile devices are
for individual use, and are not designed
for centralized IT management. These
devices can easily be manipulated,
damaged, or stolen. By encryption,
OSHA means the process of changing
plain text into cypher text for the
purpose of security. The use of
encryption results in the encoding of
information in such a way so that only
authorized individuals can access the
information.
Section 1913.10(n)(5) of the final rule
states that electronic files containing
personally identifiable employee
medical information shall not be
transferred to authorized personnel
through email attachment unless
appropriately encrypted. The transfer of
employee medical information by email
attachment increases the risk that such
information will be sent to an
unauthorized individual. The transfer of
personally identifiable employee
medical information in electronic form
must be made through secured means.
See § 1913.10(n)(4), discussed above
(‘‘Electronic files containing personally
identifiable employee medical
information shall only be downloaded
to a computer hard drive or laptop that
is secured.’’). Appropriate methods for
the transfer of personally identifiable
employee medical information in
electronic form may include the use of
password protected or encrypted files
on a secured agency website designed
for confidential information, the mailing
of encrypted computer disks or USB
drives, the emailing of password
protected medical records (Adobe
secured), and the printing and hand
delivery of paper records.
Paragraph (n)(6) provides that when
an employer or other record holder(s)
provides access to employee medical
information through a properly
encrypted email attachment, the
attachment shall be downloaded to a
secured hard drive or laptop. After the
attachment is downloaded, the email
shall be permanently deleted.
In some cases, employers and other
record holders provide OSHA with
access to employee medical information
through an encrypted email attachment.
As noted above, the use of email
attachments to transfer medical records
makes it more likely that the
information will be sent to unauthorized

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45789

individuals. Paragraph (n)(6) ensures
that medical information received in an
encrypted email attachment is
downloaded to a secured device.
After downloading the attachment
from the employer or other record
holder, the email must be permanently
deleted to prevent transfer to
unauthorized individuals. By
permanently deleted, OSHA means that
the email should be deleted so that it
cannot be retrieved. Some email
programs automatically delete trashed
emails after a certain amount of time.
Other programs retain emails until the
user runs out of space. However, the
intent of this provision is that, once the
attachment is downloaded, OSHA
personnel should immediately and
permanently delete the incoming email.
Most email programs have a ‘‘delete
forever’’ function that allows the user to
select emails in the trash folder for
permanent deletion.
Section 1913.10(n)(7) of the final rule
states that personally identifiable
employee medical information in
electronic form shall be secured when
not in use. This provision is based on
paragraph (i)(1) of § 1913.10, which
states that agency files containing
personally identifiable employee
medical information shall be segregated
from other agency files, and when not
in active use, files containing this
information shall be kept secured in a
locked cabinet or vault. Paragraph (n)(7)
is intended to prevent unauthorized
access or modification to employee
medical information in electronic form.
In addition to all of the procedures in
paragraph (n) addressing the use of
electronic information by OSHA
personnel, when not in use, such
information must be stored in a secured
manner. For example, when not in use,
personally identifiable employee
medical information should be stored
on a password protected hard drive or
laptop. Another example might be the
storing of information on a password
protected agency website designed to
store confidential information. Also, if
employee medical records are kept on
computer disk or other electronic
storage media, when not in use, the disk
or media should be stored under lock
and key. Paragraph (n)(7)(i) of the final
rule also emphasizes the importance of
proper storage by specifically stating
that medical information in electronic
form shall only be maintained or stored
where facilities and conditions are
designed to prevent unauthorized
access.
Paragraph (n)(7)(ii) provides that
personally identifiable employee
medical information in electronic form
shall be maintained only for so long as

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needed to accomplish the purpose for
access. This provision is derived from
paragraph (j)(1) of § 1913.10, which
provides that consistent with OSHA
records disposition programs,
personally identifiable employee
medical information shall be destroyed
or returned to the original record holder
when no longer needed for the purposes
for which they were obtained. In
OSHA’s view, maintaining medical
records only for so long as needed helps
to ensure that such information will not
be accessed by unauthorized
individuals.
In some cases, after its initial use by
the agency, personally identifiable
employee medical information may not
be used again until sometime in the
future. For example, medical
information used as the basis for an
OSHA citation may be used during the
hearing stage of an enforcement case
before the Occupational Safety and
Health Review Commission. The
medical information may not be used
while the case is on appeal, but there
may be a need for the information if the
case is remanded for further judicial
proceedings. Similarly, an investigation
of an apparently new health hazard may
produce uncertain results. Before
completely closing out this
investigation, it may be appropriate to
await the outcome of an ongoing
research study or parallel investigation
elsewhere in the country. In these cases,
§ 1913.10(j) provides that the medical
information should be transferred to the
MRO. Also, under § 1913.10(l)(2), the
MRO must conduct an annual review of
all centrally-held information to
determine which information is no
longer needed for the purposes for
which it was obtained. These
requirements apply equally to
personally identifiable employee
medical information stored in electronic
form.
Paragraph (n)(7)(iii) of the final rules
states that when no longer needed, the
Principal OSHA Investigator shall
ensure that all personally identifiable
employee medical information on
electric files has been deleted,
destroyed, or returned to the original
record holder. The requirement in
paragraph (n)(7)(iii) is intended to
ensure that the Principal OSHA
Investigator is responsible for OSHA
access and use of electronic medical
information from beginning to end.
When no longer needed, the Principal
OSHA Investigator must make sure that
authorized OSHA personnel follow
proper procedures for the deletion,
destruction and disposal of personally
identifiable employee medical
information. In practice, the Principal

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OSHA Investigator must ensure that
media containing employee medical
information is sanitized or destroyed
before disposal or release for reuse in
accordance with approved methods. In
addition, if electronic medical records
are returned to the original record
holder, the Principal OSHA Investigator
must ensure that all data is returned,
and no data remains in the possession
of OSHA personnel.
Paragraph (n)(7)(iv) states that the
disposal of personally identifiable
employee medical information
maintained in electronic form shall be
accomplished in such a manner as to
make the data unattainable by
unauthorized personnel. When no
longer needed, electronic media must be
handled and sanitized appropriately to
prevent unauthorized disclosure or
modification of personally identifiable
employee medical information.
OSHA personnel use several types of
electronic media to access, use, and
maintain personally identifiable
employee medical information,
including hard drives, laptops, USB
storage drives (e.g., thumb drives), CDs,
DVDs, and digital storage cards such as
camera cards. In order to meet the
requirement in paragraph (n)(7)(iv), and
depending on the type of electronic
media used, OSHA personnel may need
to re-use, recycle, or destroy the
electronic media containing medical
information. Also, when employee
medical information in electronic form
is no longer needed, it is important to
ensure that deleted data is not easily
recoverable. Residual data may allow
unauthorized individuals to reconstruct
data and thereby gain access to
personally identifiable employee
medical information. Sanitization is one
method that can be used to ensure that
deleted data cannot be reconstructed.
Sanitization is the general process of
removing data from storage media, such
that there is reasonable assurance that
the data may not be easily retrieved and
reconstructed. There are different types
of sanitization for each type of media,
including cleaning, purging, and
destroying. Cleaning is the removal of
data from devices in such a way that
there is assurance that the data cannot
be reconstructed using normal system
functions or software file/data recovery
utilities. For example, cleaning may
include using software or hardware
products to overwhelm media with nonsensitive data. Purging is generally done
before releasing media beyond control,
such as before discarding old media,
and includes degaussing or exposing
media to a strong magnetic field in order
to disrupt recorded magnetic domains.

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Destruction of media is the ultimate
form of sanitization.
In some cases, OSHA personnel
maintain employee medical information
on media that may not be able to be
reused such as computer disks and
camera cards. In these situations, when
no longer needed, electronic media
containing personally identifiable
employee medical information should
be disposed of using approved secure
data destruction. Several methods exist
to dispose of electronic media
containing medical information. For
example, computer disks can be
rendered unusable by shredding,
incinerating, or pulverizing. Many
OSHA Regional and Area Offices
already have equipment that can shred
or burn disks. Other offices contract
with private companies to perform this
task in a secure manner. As a reminder,
in order to address security and privacy
concerns, disposal operations should be
conducted in accordance with approved
DOL or OSHA methods. In addition,
OSHA is responsible for the
management of records pursuant to the
Federal Records Act of 1950, as
amended (44 U.S.C. Chapters 21, 29, 31,
33). The retention and destruction of
Federal records must be conducted in
accordance with the procedures
described in the Federal Records Act.
Finally, in the future, OSHA
personnel will be using media types not
specifically mentioned in this preamble.
The processes mentioned in this
document should guide media
sanitization and disposal decisions
regardless of the type of media in use.
In the future, OSHA will issue guidance
to agency staff as new technology is
developed.
IV. State Plans
The 28 states and U.S. territories with
their own OSHA-approved occupational
safety and health plans are encouraged,
but not required, to adopt these rules of
agency practice and procedure
concerning employee medical record
access that Federal OSHA is
promulgating to 29 CFR 1913.10 in this
final rule. The states and U.S. territories
with OSHA-approved occupational
safety and health plans covering private
employees and state and local
government employees are Alaska,
Arizona, California, Hawaii, Indiana,
Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North
Carolina, Oregon, Puerto Rico, South
Carolina, Tennessee, Utah, Vermont,
Virginia, Washington, and Wyoming. In
addition, six states and U.S. territories
have OSHA-approved state Plans that
apply to state and local government
employees only: Connecticut, Illinois,

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Maine, New Jersey, New York, and the
Virgin Islands.
This final rule describes a Federal
program change for which State Plan
adoption is not required. However, State
Plans are required to have standards,
and an enforcement program, that are
‘‘at least as effective in providing safe
and healthful employment’’ as those of
Federal OSHA. In order to be ‘‘at least
as effective’’ as Federal OSHA, a State
Plan must appropriately utilize its
authority for access to medical records,
and must have effective procedures to
assure that the privacy of those records
is protected in a manner consistent with
applicable state and federal privacy
laws. Therefore, although adoption of
this rule is not required, State Plans
must have procedures covering this
issue that are at least as effective as
those of Federal OSHA and are
encouraged to adopt requirements
comparable to those in 29 CFR 1913.10.
Within 60 days of the effective date of
this final rule, a State Plan must submit
a notice of intent indicating whether
they already have a similar policy in
place, intend to adopt new policies and
procedures, or do not intend to adopt
this final rule. If a State Plan does not
adopt at first, but at some later point
decides to adopt this final rule or an at
least as effective version of this final
rule, the State Plan must notify OSHA
of this change in intent. Within 60 days
of adoption, the State Plan must provide
an electronic copy of the regulation or
policy, or a link to where their policy
is posted on the State Plan’s website.
The State Plan must also provide the
date of adoption and identify
differences, if any, between their policy
and this final rule. OSHA will provide
summary information on the State Plan
responses to this instruction on its
website at: www.osha.gov/dcsp/osp/
index.html.
V. Regulatory Flexibility Certification
The notice and comment procedures
of section 553 of the APA do not apply
‘‘to interpretative rules, general
statements of policy, or rules of agency
organization, procedure, or practice.’’ 5
U.S.C. 553(b)(A). Rules that are exempt
from APA notice and comment
requirements are also exempt from the
Regulatory Flexibility Act (RFA). See
SBA Office of Advocacy, A Guide for
Government Agencies: How to Comply
with the Regulatory Flexibility Act
(August 2017); also found at http://
www.sba.gov/sites/default/files/rfaguide
5F05125F0.pdf. This is a rule of agency
procedure, practice, and interpretation
within the meaning of that section; and
therefore, is exempt from both the
notice and comment rulemaking

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procedures of the APA and the
requirements of the RFA.
VI. Environmental Impact Analysis
In accordance with the requirements
of the National Environmental Policy
Act (NEPA) (42 U.S.C. 4231 et seq.),
Council on Environmental Quality
NEPA regulations (40 CFR parts 1500
through 1518), and the Department of
Labor NEPA regulations (29 CFR part
11), OSHA has determined that this
final rule will not have a significant
impact on the external environment.
VII. Federalism
OSHA reviewed this final rule in
accordance with the most recent
Executive order on federalism
(Executive Order 13132, 64 FR 43255,
August 10, 1999). This Executive order
requires Federal agencies, to the extent
possible, to refrain from limiting state
policy options, consult with states prior
to taking any action that would restrict
state policy options, and take such
actions only when clear constitutional
authority exists and the problem is
national in scope.
This rule does not have ‘‘federalism
implications.’’ The rule does not have
‘‘substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government’’ and therefore is
not subject to Executive Order 13132
(Federalism).
VIII. Unfunded Mandates
The Department has concluded that
this rule is not a ‘‘significant regulatory
action’’ within the meaning of Executive
Order 12866, reaffirmed by Executive
Order 13563, because it is not likely to
(1) have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or Tribal governments or
communities; (2) create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency; (3) materially alter the
budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the
President’s priorities, or the principles
set forth in Executive Order 12866.
Therefore, no economic impact analysis
under section 6(a)(3)(C) of Executive
Order 12866 has been prepared. For the
same reason, and because no notice of
proposed rulemaking was published, no

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45791

statement is required under section 202
of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1532. In any event, this
rulemaking is procedural and
interpretive in nature and is thus not
expected to have a significant economic
impact.
IX. Consultation and Coordination With
Indian Tribal Governments
OSHA reviewed this rule in
accordance with Executive Order 13175
(65 FR 67249, November 6, 2000) and
determined that it does not have ‘‘tribal
implications’’ as defined in that order.
The rule does not have substantial
direct effects on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
X. Office of Management and Budget
Review Under the Paperwork
Reduction Act of 1995
The Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.) and OMB
regulations (5 CFR part 1320) require
agencies to obtain approval from OMB
before conducting any collection of
information. The PRA defines a
‘‘collection of information’’ as ‘‘the
obtaining, causing to be obtained,
soliciting, or requiring the disclosure to
third parties or the public of facts or
opinions by or for an agency regardless
of form or format’’ (44 U.S.C.
3502(3)(A)). The PRA does not apply to
this final rule because it amends
existing internal agency procedures and
does not impose any new recordkeeping
or information collection requirements
that require OMB approval.
Authority and Signature
This document was prepared under
the direction of Loren Sweatt, Principal
Deputy Assistant Secretary for
Occupational Safety and Health. It is
issued under Section 8 of the
Occupational Safety and Health Act (29
U.S.C. 657), 5 U.S.C. 553, 5 U.S.C.
552a(e), 5 U.S.C. 301, and Secretary of
Labor’s Order No. 5–2012 (77 FR 3912).
Signed at Washington, DC, on July 14,
2020.
Loren Sweatt,
Principal Deputy Assistant Secretary of Labor
for Occupational Safety and Health.

Final Rule
Part 1913 of title 29 of the Code of
Federal Regulations is hereby amended
as follows:

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PART 1913—[AMENDED]
1. The authority citation for part 1913
is revised to read as follows:

■

Authority: 29 U.S.C. 657; 5 U.S.C. 553; 5
U.S.C. 301; Secretary of Labor’s Order No. 8–
76 (41 FR 25059), 5–2002 (67 FR 65008), or
1–2012 (77 FR 3912) as applicable.

2. Amend § 1913.10 by:
a. Revising paragraphs (b)(6), (c)(1)
and (2), and (d)(1) and (2);
■ b. Removing and reserving paragraph
(g);
■ c. Revising paragraph (m); and
■ d. Adding paragraph (n).
The revisions and addition read as
follows:
■
■

§ 1913.10 Rules of agency practice and
procedure concerning OSHA access to
employee medical records.

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*

*
*
*
*
(b) * * *
(6) This section does not apply where
a written directive by the OSHA
Medical Records Officer authorizes
appropriately qualified personnel to
conduct limited reviews of specific
medical information mandated by an
occupational safety and health standard,
or of specific biological monitoring test
results.
*
*
*
*
*
(c) * * *
(1) Assistant Secretary. The Assistant
Secretary of Labor for Occupational
Safety and Health (Assistant Secretary)
shall designate an OSHA official with
experience or training in the evaluation,
use, and privacy protection of medical
records to be the OSHA Medical
Records Officer. The Assistant Secretary
may change the designation of the
OSHA Medical Records Officer at will.
(2) OSHA Medical Records Officer.
The OSHA Medical Records Officer
shall be responsible for the overall
administration and implementation of
the procedures contained in this
section. The OSHA Medical Records
Officer shall report directly to the
Assistant Secretary on matters
concerning this section and be
responsible for:
(i) Making final determinations
concerning the approval or denial of
medical access orders (paragraph (d) of
this section);
(ii) Assuring that medical access
orders meet the requirements of
paragraphs (d)(2) and (3) of this section;
(iii) Responding to objections
concerning medical access orders
(paragraph (f) of this section);
(iv) Overseeing internal agency use
and security of personally identifiable
employee medical information
(paragraphs (g) through (j) of this
section);

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(v) Assuring that the results of agency
analyses of personally identifiable
medical information are, where
appropriate, communicated to
employees (paragraph (k) of this
section);
(vi) Preparing an annual report of
OSHA’s experience under this section
(paragraph (l) of this section); and
(vii) Making final determinations
concerning inter-agency transfer or
public disclosure of personally
identifiable employee medical
information (paragraph (m) of this
section). The Medical Records Officer
shall also assure that advance notice is
given of intended inter-agency transfers
or public disclosures.
*
*
*
*
*
(d) * * *
(1) Requirement for medical access
order. Except as provided in paragraph
(d)(4) of this section, each request by an
OSHA representative to examine or
copy personally identifiable employee
medical information contained in a
record held by an employer or other
recordholder shall be made pursuant to
a written medical access order which
has been approved by the OSHA
Medical Records Officer. A medical
access order does not constitute an
administrative subpoena.
(2) Approval criteria for medical
access order. Before approving a
medical access order, the OSHA
Medical Records Officer shall determine
that:
(i) The medical information to be
examined or copied is relevant to a
statutory purpose and there is a need to
gain access to this personally
identifiable information;
(ii) The personally identifiable
medical information to be examined or
copied is limited to only that
information needed to accomplish the
purpose for access; and
(iii) The personnel authorized to
review and analyze the personally
identifiable medical information are
limited to those who have a need for
access and have appropriate
professional qualifications.
*
*
*
*
*
(m) Inter-agency transfer and public
disclosure. (1) Personally identifiable
employee medical information shall not
be transferred to another agency or
office outside of OSHA (other than to
the Office of the Solicitor of Labor) or
disclosed to the public (other than to the
affected employee or the original
recordholder) except when required by
law or when approved by the OSHA
Medical Records Officer.
(2) Except as provided in paragraph
(m)(3) of this section, the OSHA

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Medical Records Officer shall not
approve a request for an inter-agency
transfer of personally identifiable
employee medical information, which
has not been consented to by the
affected employees, unless the request is
by a public health agency which:
(i) Needs the requested information in
a personally identifiable form for a
substantial public health purpose;
(ii) Will not use the requested
information to make individual
determinations concerning affected
employees which could be to their
detriment;
(iii) Has regulations or established
written procedures providing protection
for personally identifiable medical
information substantially equivalent to
that of this section; and
(iv) Satisfies an exemption to the
Privacy Act to the extent that the
Privacy Act applies to the requested
information (see 5 U.S.C. 552a(b); 29
CFR 70a.3).
(3) Upon the approval of the OSHA
Medical Records Officer, personally
identifiable employee medical
information may be transferred to:
(i) The National Institute for
Occupational Safety and Health
(NIOSH); and
(ii) The Department of Justice when
necessary with respect to a specific
action under the Occupational Safety
and Health Act.
(4) The OSHA Medical Records
Officer shall not approve a request for
public disclosure of employee medical
information containing direct personal
identifiers unless there are compelling
circumstances affecting the health or
safety of an individual.
(5) The OSHA Medical Records
Officer shall not approve a request for
public disclosure of employee medical
information which contains information
which could reasonably be used
indirectly to identify specific employees
when the disclosure would constitute a
clearly unwarranted invasion of
personal privacy (see 5 U.S.C. 552(b)(6);
29 CFR 70.26).
(6) Except as to inter-agency transfers
to NIOSH or the Department of Justice,
the OSHA Medical Records Officer shall
ensure that advance notice is provided
to any collective bargaining agent
representing affected employees and to
the employer on each occasion that
OSHA intends to either transfer
personally identifiable employee
medical information to another agency
or disclose it to a member of the public
other than to an affected employee.
When feasible, the OSHA Medical
Records Officer shall take reasonable
steps to assure that advance notice is
provided to affected employees when

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khammond on DSKJM1Z7X2PROD with RULES

Federal Register / Vol. 85, No. 147 / Thursday, July 30, 2020 / Rules and Regulations
the employee medical information to be
transferred or disclosed contains direct
personal identifiers.
(n) Medical records maintained in
electronic form. (1) In general, when
accessing and/or copying personally
identifiable employee medical
information in electronic form, OSHA
personnel shall follow all of the
requirements set forth in this section.
(2) When personally identifiable
employee medical information in
electronic form is taken off-site, the
Principal OSHA Investigator is
primarily responsible for ensuring that
such information is properly used and
kept secured.
(i) The Principal OSHA Investigator is
responsible for preventing any
accidental or unintentional disclosure
of, modification to, or destruction of
personally identifiable employee
medical information in electronic form.
(ii) The Principal OSHA Investigator
is responsible for controlling the flow of
data into, through, and from agency
computer operations.
(iii) The Principal OSHA Investigator
shall ensure the distribution and review
of medical information in electronic
form is limited to only those OSHA
personnel and contractors with a need
for access.
(3) The transfer and/or duplication of
medical information in electronic form
shall be kept to the minimum necessary
to accomplish the purpose for which it
was obtained.
(4) Electronic files containing
personally identifiable employee
medical information shall be
downloaded only to a computer hard
drive or laptop that is secured in
accordance with Federal Information
Processing Standard (FIPS) 201–2
‘‘Personal Identity Verification (PIV) of
Federal Employees and Contractors’’
and ‘‘Homeland Security Presidential
Directive 12: Policy for a Common
Identification Standard for Federal
Employees and Contractors (HSPD–
12).’’
(5) Electronic files containing
personally identifiable employee
medical information shall not be
transferred to authorized personnel
through email attachment unless
appropriately encrypted.
(6) When an employer or other record
holder(s) provides access to employee
medical information through a properly
encrypted email attachment, the
attachment shall be downloaded to a
secured hard drive or laptop. After the
attachment is downloaded, the email
shall be permanently deleted.
(7) Personally identifiable employee
medical information in electronic form
shall be secured when not in use.

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(i) Medical information in electronic
form shall only be maintained or stored
where facilities and conditions are
designed to prevent unauthorized
access.
(ii) Personally identifiable employee
medical information in electronic form
shall be maintained only for so long as
needed to accomplish the purpose for
access.
(iii) When no longer needed, the
Principal OSHA Investigator shall
ensure that all personally identifiable
employee medical information on
electronic files has been deleted,
destroyed, or returned to the original
record holder.
(iv) The disposal of personally
identifiable employee medical
information maintained in electronic
form shall be accomplished in such a
manner as to make the data unattainable
by unauthorized personnel.
[FR Doc. 2020–15562 Filed 7–29–20; 8:45 am]
BILLING CODE 4510–26–P

FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket Nos. 18–143, 10–90, 14–58; FCC
19–95; FRS 16955]

The Uniendo a Puerto Rico Fund and
the Connect USVI Fund, Connect
America Fund, ETC Annual Reports
and Certifications
Federal Communications
Commission.
ACTION: Final rule; announcement of
effective date.
AGENCY:

In this document, the Federal
Communications Commission
(Commission) announces that the Office
of Management and Budget (OMB) has
approved, for a period of three years, an
information collection associated with
the rules for the Connect America Fund
contained in the Commission’s Uniendo
a Puerto Rico Fund and Connect USVI
Fund Order, FCC 19–95. This document
is consistent with the Uniendo a Puerto
Rico Fund and Connect USVI Fund
Order, which stated that the
Commission would publish a document
in the Federal Register announcing the
effective date of the new information
collection requirements.
DATES: The amendments to §§ 54.1505,
54.1508 and 54.1515 published at 84 FR
59937, November 7, 2019 are effective
July 30, 2020.
FOR FURTHER INFORMATION CONTACT:
Alexander Minard, Wireline
Competition Bureau at (202) 418–7400
SUMMARY:

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45793

or TTY (202) 418–0484. For additional
information concerning the Paperwork
Reduction Act information collection
requirements contact Nicole Ongele at
(202) 418–2991 or via email:
Nicole.Ongele@fcc.gov.
SUPPLEMENTARY INFORMATION: The
Commission submitted revised
information collection requirements for
review and approval by OMB, as
required by the Paperwork Reduction
Act (PRA) of 1995, on May 20, 2020,
which were approved by OMB on July
9, 2020. The information collection
requirements are contained in the
Commission’s Uniendo a Puerto Rico
Fund and Connect USVI Fund Order,
FCC 19–95 published at 84 FR 59937,
November 7, 2019. The OMB Control
Number is 3060–1274. If you have any
comments on the burden estimates
listed in the following, or how the
Commission can improve the
collections and reduce any burdens
caused thereby, please contact Nicole
Ongele, Federal Communications
Commission, Room 1–A620, 445 12th
Street SW, Washington, DC 20554.
Please include the OMB Control
Number, 3060–1274, in your
correspondence. The Commission will
also accept your comments via email at
PRA@fcc.gov.
To request materials in accessible
formats for people with disabilities
(Braille, large print, electronic files,
audio format), send an email to fcc504@
fcc.gov or call the Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Synopsis
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507),
the Commission is notifying the public
that it received OMB approval on July
9, 2020, for the information collection
requirements contained in 47 CFR
54.1505, 54.1508 and 54.1515 published
at 84 FR 59937, November 7, 2019.
Under 5 CFR part 1320, an agency may
not conduct or sponsor a collection of
information unless it displays a current,
valid OMB Control Number.
No person shall be subject to any
penalty for failing to comply with a
collection of information subject to the
Paperwork Reduction Act that does not
display a current, valid OMB Control
Number. The OMB Control Number is
3060–1274.
The foregoing notice is required by
the Paperwork Reduction Act of 1995,
Public Law 104–13, October 1, 1995,
and 44 U.S.C. 3507.
The total annual reporting burdens
and costs for the respondents are as
follows:

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