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January 31, 1997

ROBERT REICH, et al., Defendants.

The opinion of the court was delivered by: JACKSON

 Plaintiffs American Trucking Association, Inc. ("ATA"), United Parcel Service of America, Inc. ("UPS"), and Federal Express Corporation ("FedEx"), filed this action in March, 1996, for declaratory judgment and an injunction to prohibit the defendant Occupational Safety and Health Administration ("OSHA") of the United States Department of Labor from forcing businesses such as theirs to respond an OSHA survey form, entitled "Occupational Injury and Illness Report, 1995" (the "Survey"), by which OSHA expects to acquire data to make future enforcement decisions. *fn1"

 The case is presently before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment, and plaintiffs' cross-motion for summary judgment.


 The record reflects that OSHA has implemented what it refers to as a Data Collection Initiative ("DCI"), the objective of which is to identify particular workplaces experiencing disproportionately high rates of injury and illnesses. Beginning in February, 1996, OSHA mailed its Survey to some 80,000 business "establishments" pre-selected on the basis of industry group and size. OSHA defines a business "establishment" as a "single physical location where business is conducted or where services or industrial operations are performed." 29 C.F.R. § 1904.12(g)(1).

 The Survey calls upon each recipient establishment to provide data on its average number of employees over the period specified, and the total number of hours its employees worked, as well as the job-related illnesses and injuries suffered by its employees in the calendar year 1995. For each responding establishment, OSHA's plan is to calculate an injury/illness incidence rate, thereby enabling it to determine whether to target that establishment for agency enforcement or other action.

 Aside from their concern that the information may be lade public, plaintiffs' principal objection to the Survey appears to rest on the practical ground that it imposes an enormous clerical burden on them to comply. Based on OSHA's definition of "establishment," they assert, "any of ATA's member. -- FedEx and UPS among them -- operate hundreds, if not thousands, of establishments." (Pl.s' Mot. for Summ. J., at n.2.) Although such establishments are required by regulation to keep illness and injury logs, see 29 C.F.R. § 1904.2, no regulation exists requiring an establishment to maintain records on the numbers of people it employs and the hours they work. Consequently, plaintiffs say, assembling this information retrospectively is likely to be an onerous and costly task.

 OSHA could, plaintiffs acknowledge, have adopted a regulation requiring the pertinent records to be maintained. See 29 U.S.C. § 657(c). It could also obtain the information (to the extent it is available at all) by way of an administrative subpoena to, or an on-site inspection of each designated respondent establishment. See 29 U.S.C. §§ 657(a) - (b). What OSHA cannot do, plaintiffs contend, is what its Survey purports to do, which is to make demand upon employers to assume the burden of compiling and reporting the data unsupported by an authorizing statute or regulation. Section 24(e) of the OSH Act provides:

On the basis of the records made and kept pursuant to section 657(c) of this title, employers shall file such reports with the Secretary as he shall prescribe by regulation, as necessary to carry out his functions under this chapter.

 29 U.S.C. § 673(e) (emphasis added). Had OSHA proceeded in accordance with its statutory mandate, it would have been obliged to propose an appropriate regulation to implement its DCI, and plaintiffs would have been afforded an opportunity to participate in the requisite notice-and-comment period to oppose, or at least to ameliorate it.

 The Survey, as unilaterally written by OSHA, however, speaks with the force of a command. On the cover page, immediately below the title, it states: "Public Law 91-596 requires you to complete this form." Only five sentences into the introductory instructions on page two, it declares:

Your participation in this data collection is mandatory under Section 24 of Public Law 91-596, the Occupational Safety and Health Act of 1970. Failure to properly maintain records and file this report as required may result in issuance of citations and assessment of penalties as provided for in Sections 9, 10, and 17 of the Act.

 Under the rubric, "Who must complete this form?," the Survey declares: "All establishments that receive this form must complete and return it within 30 days, even if they had no occupational injuries and illnesses [in 1995]." (Ex.[s] in Supp. of Pl.s' Mot. for Summ. J. at Ex. 1.)

 Those statements are false. Neither statute nor regulation purports to render the completion and return of the Survey mandatory, and OSHA admits it. ...

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