“SECRETARY OF LABOR,Complainant,v.THERMAL REDUCTION CORPORATION,Respondent.OSHRC Docket No. 81-2135_DECISION_Before: BUCKLEY, Chairman, and CLEARY, Commissioner.CLEARY, Commissioner:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(i), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. _See_ section 10(c) of the Act, 29 U.S.C. ? 659(c).I.At issue in this case is a single alleged willful violation of theSecretary’s recordkeeping regulation at 29 C.F.R. ? 1904.7, whichrequires in pertinent part that \”[e]ach employer shall provide, uponrequest, records provided for in ?? 1904.2, 1904.4, and 1904.5, forinspection and copying by any representative of the Secretary of Laborfor the purpose of carrying out the provision of the act….\” Thealleged violation resulted from an inspection conducted pursuant to awarrant which was based on a complaint by a former employee that unsafeand unhealthful conditions existed in a facility of Thermal ReductionCorporation (\”Thermal\”). The warrant authorized the Secretary toinspect the worksite to determine whether Thermal was in compliance withthe Act with regard to the conditions charged in the complaint. Thewarrant also authorized the inspection and copying of \”injury andillnesses [sic] records required to be maintained by 29 C.F.R. ? 1904.\” This case concerns the records prescribed by 29 C.F.R. ? 1904.2, whichrequires that an employer maintain a log and summary of recordableoccupational injuries and illnesses on form OSHA No. 200 or its equivalent.The parties stipulated that on two separate occasions, June 1 and June2, 1981, Nicholas Schorsch, Thermal’s vice-president, refused to produceThermal’s OSHA Form 200 at the request of Sullivan, the Secretary’scompliance officer. Schorsch refused Sullivan’s request becauseSullivan would not sign a \”Statement of Intent\” prepared by Schorschwhich read as follows: \”No information Nicholas Schorsch, of theThermal Reduction Corporation, divulges will be used against the ThermalReduction Corporation, or any of its divisions, at this or any time.\” The stipulation states that Schorsch indicated he had read the warrantand was familiar with its provisions. The warrant application andsupporting documentation were incorporated by the stipulation. Noevidentiary hearing was held.Based on the stipulation, Administrative Law Judge Paul A. Tenney foundThermal in willful violation as alleged. The judge rejected Thermal’scontention that the provision of the warrant allowing the Secretaryaccess to records kept by Thermal was invalid because it was notsupported by a showing of probable cause[[1]] and because the Act doesnot permit the Secretary to examine any employer records during aphysical inspection. The judge also concluded, contrary to Thermal’sarguments, that in order to prove a violation of 29 C.F.R. ? 1904.7 theSecretary does not have to establish either that employees areendangered by the employer’s failure to disclose records or thatrecordable injuries or illnesses have occurred in the employer’sfacility. For the reasons stated in our separate opinions, ChairmanBuckley and I affirm Judge Tenney’s decision.[[2]]IIThe parties do not dispute that section 8 of the Act, 29 U.S.C. ? 657,imposes specific recordkeeping responsibilities on employers. Thus,section 8(c)(1) requires that each employer prepare and make availableto the Secretary those records \”regarding his activities relating tothis Act\” which the Secretary \”may prescribe by regulation as necessaryor appropriate for the enforcement of this Act or for developinginformation regarding the causes and prevention of occupationalaccidents and illnesses.\” Section 8(c)(2) imposes a mandatory duty onthe Secretary to prescribe regulations \”requiring employers to maintainaccurate records of, and to make periodic reports on, work-relateddeaths, injuries and illnesses other than minor injuries requiring onlyfirst-aid treatments that do not involve medical treatment, loss ofconsciousness, restriction of work or motion, or transfer to anotherjob.\” At section 8(g)(2) of the Act Congress empowered the Secretary to\”prescribe such rules and regulations as he may deem necessary to carryout [his] responsibilities under this Act, including rules andregulations dealing with the inspection of an employer’sestablishment.\” Pursuant to the authority conferred by section 8 theSecretary promulgated ?? 1904.2 and 1904.5, requiring the maintenance ofthe log and summary at issue in this case, as well as ? 1904.4,requiring the employer to make supplementary records of eachoccupational injury or illness. In addition to ? 1904.7, the disclosureregulation cited here, the Secretary also promulgated a regulation at 29C.F.R. ? 1903.3, which expressly authorizes inspectors during aninspection \”to review records required by the Act and regulationspublished in this chapter. . . .\”The Act states that its purpose is to develop safe and healthful workingconditions in part \”by providing for appropriate reporting procedureswith respect to occupational safety and health which procedures willhelp achieve the objectives of this Act and accurately describe thenature of the occupational safety and health problem.\” Section2(b)(12). The legislative history of section 8 clearly indicatesCongress’s recognition that a comprehensive system of recording andreporting occupational injuries and illnesses is essential to achievingthe purposes of the Act and insuring employer compliance with itsrequirements. The Senate committee stated that \”[f]ull and accurateinformation is a fundamental precondition for meaningful administrationof an occupational safety and health program.\” S. Rep. No. 91-1282,91st Cong., 2d Sess. 16 (1970), _reprinted_ _in_ Subcomm. on Labor ofthe Senate Comm. on Labor and Public Welfare, 92d Cong., 1st Sess.,Legislative History of the Occupational Safety and Health Act of 1970,at 156 (Comm. Print 1971). According to the conference committee,recordkeeping is required \”to insure compliance\” as well as for thecollection of research information. H.R. Rep. No. 91-1765, 91st Cong.,2d Sess. 36 (Comm. Print 1971, at 1189). As the Secretary stated at 29C.F.R. ? 1904.1, entitled \”Purpose and scope\”:These sections provide for recordkeeping and reporting by employerscovered under the act as necessary or appropriate for enforcement of theact, for developing information regarding the causes and prevention ofoccupational accidents and illnesses, and for maintaining a program ofcollection, compilation and analysis of occupational safety and healthstatistics . . .[[3]]There is no basis on which to conclude, and Thermal does not contend,that the obligations imposed on employers by section 8(c) do notreasonably implement the purposes of the legislation or that Congresscould not reasonably determine that these requirements would accomplishits goals. Similarly, it is well settled that regulations issuedpursuant to an agency’s authority to promulgate rules necessary for theimplementation of a statute will be upheld so long as they arereasonably related to achieving the purposes of the legislation. _Mourning v. Family Publications, Inc_., 411 U.S. 356 (1973); _Gemsco v.Walling_, 324 U.S. 244 (1945). The Secretary’s promulgation of Part1904 requiring that the employer maintain injury and illness records andproduce such records for examination during a physical inspectionreasonably effectuates Congress’s requirement that employers maintainand make available to the Secretary records pertaining to the incidenceof injuries and illnesses in the workplace. Accordingly, theexamination of these records during an inspection is consistent with theAct.[[4]]The warrant allowing the Secretary access to Thermal’s records requiredunder Part 1904 is valid for similar reasons. In _Marshall v_._Barlow’s Inc_., 436 U.S. 307, 321 (1978), the Supreme Court concludedthat probable cause for issuance of an inspection warrant under the Actcould be based on \”reasonable legislative or administrative standards,\”and that any general plan for enforcement of the Act derived from\”neutral sources\” would suffice. The maintenance of employee injury andillness records required by regulations pursuant to section 8(c) and thedisclosure of such records to the Secretary constitutes a reasonablelegislative and administrative plan for the enforcement of the Actwithin the meaning of the _Barlow’s_ decision. And since all employersmust maintain and provide the same information, these requirements areneutral in their application, as further required under _Barlow’s_. Since the requirements of _Barlow’s_ have been satisfied, there wasprobable cause for the provision of the warrant allowing the Secretaryto examine those records required to be kept under Part 1904.5 _See__Donovan v. Enterprise Foundry, Inc_., No. 84-1329 (1st Cir. Dec. 20, 1984).Thermal contends, nevertheless, that it is not in violation of thedisclosure regulation cited in this case. Thermal argues that theCommission cannot affirm a citation for failure to produce injury andillness records at the request of the Secretary absent proof by theSecretary that its employees are endangered by the failure to disclose,and absent proof that recordable injuries or illnesses had in factoccurred at its workplace. Thermal further argues that it cannot befound in violation of 29 C.F.R. ? 1904.7 because the warrant on whichthe inspection was based allows the Secretary only to examine the Part1904 records and does not require Thermal affirmatively to produce suchrecords.[[6]] Thermal also contends that to require it to assist in theSecretary’s examination of its records would violate the privilegeagainst self-incrimination.Judge Tenney concluded that exposure to a hazard is not an element ofproof of the disclosure regulation but that an employer can defendagainst an alleged violation of that regulation by affirmatively provingthat it has not experienced any recordable injuries or illnesses. Sincethe stipulation in this case does not demonstrate an absence of injuriesor illnesses, the judge found a violation. The judge also concludedthat the privilege against self-incrimination does not protect againstthe disclosure of corporate as opposed to personal records, but did notexpressly rule on Thermal’s other contention that requiring productionwould in any event be contrary to the precise wording of the warrant.The judge correctly held that a requirement that the Secretarydemonstrate exposure of employees to a hazard is not appropriate incases dealing with recordkeeping regulations. Under section 3(8) of theAct, substantive standards must be \”reasonably necessary or appropriateto provide safe and healthful employment . . . .\” _Industrial UnionDepartment, AFL-CIO v. American Petroleum_ _Institute_, 448 U.S. 607(1980); _Pratt & Whitney Aircraft, Division of United Technologies Corp.v. Secretary of Labor_, 649 F.2d 96 (2d Cir. 1981). Recordkeepingregulations, however, are not intended to eliminate an existing andidentified hazard in a particular workplace. Rather, as previouslyindicated, they are promulgated pursuant to a different section of theAct, section 8, which mandates that the Secretary prescriberecordkeeping and reporting requirements for work-related injuries andillnesses and authorizes the Secretary to make other provisions as theSecretary deems necessary for the implementation of the Act. _See__Louisiana Chemical Association v. Bingham_, 657 F.2d 777, 782 (5th Cir.1981), in which the court differentiated standards from regulationsaccording to whether the rule \”reasonably purports to correct aparticular ‘significant risk’ or instead is merely an enforcement ordetection procedure to further the goals of the Act generally.\” _Cf_._General Motors Corp., Inland Division_, 80 OSAHRC 85\/A2, 8 BNA OSHC2036, 1980 CCH OSHD ? 24,743 (No.76-5033, 1980) (recordkeepingrequirements of the Act cannot be considered _de_ _minimis_ in nature,that is, trifling or insignificant, in view of the importance of theserequirements in providing information to be used in improving the safetyand healthfulness of workplaces).Judge Tenney’s conclusion that an employer should be permitted to defendagainst an alleged violation of 29 C.F.R. ? 1904.7 by showing an absenceof recordable injuries or illnesses is based on the regulation’s silenceas to the employer’s duty in such circumstances as well as on theCommission’s prior decision in _Jack Shelton Painting Co_., 74 OSAHRC72\/A14, 2 BNA OSHC 1264, 1974-75 CCH OSHD ? 18,829 (No. 1111, 1974). Inthat case a judge vacated a citation for violation of 29 C.F.R. ? 1904.4regarding supplementary injury and illness records. The judge ruled, andthe Commission agreed, that there could not have been a violation ofthis regulation since no employee at the establishment involved had everhad an occupational injury or illness._Shelton_, however, is distinguishable. Subsequent to that decision,but prior to the issuance of the citation here, the Secretary amended 29C.F.R. ? 1904.5, which prescribes instructions for completing the annualsummary portion of the Form 200. 42 Fed. Reg. 65165 (1977). Asamended, ? 1904.5 specifically requires an employer to make entries onthe Form 200 even in the absence of recordable injuries or illnesses: \”If no injuries or illnesses occurred in the year, zeros must be enteredon the totals line, and the form must be posted.\” Since ? 1904.7requires the disclosure of the Form 200, we conclude that the Secretarydoes not have to establish the existence of recordable injuries orillnesses as a precondition to examining Thermal’s records under ?1904.7 and that Thermal may not defend against an alleged violation ofthat section by demonstrating that it has not experienced any injuriesor illnesses.Contrary to Thermal’s contention, it may be found in violation of ?1904.7 despite the fact that the warrant does not expressly requireThermal to produce its injury and illness records for the Secretary’sexamination. The warrant allows the Secretary access to these recordsconsistent with the Fourth Amendment,[[7]] while ? 1904.7 is anappropriate exercise of the Secretary’s statutory authority to determinethe manner by which he will examine such records. The warrant also doesnot by its plain wording preclude the Secretary from requiring Thermalto produce the appropriate records for the Secretary’s examination.As Judge Tenney correctly observed, the privilege againstself-incrimination does not extend to the disclosure of corporate asopposed to individual records, nor may a corporate officer or custodianof corporate records refuse to produce corporate records on the groundthat such records will incriminate either the corporation or theindividual. _Curcio v. United States_, 354 U.S. 118 (1957); _UnitedStates v. White_, 322 U.S. 694 (1944); _Wilson v. United States_, 221U.S. 361 (1911); _Gemsco v. Walling, supra_. This rule is particularlyapplicable with respect to records required to be kept by law. _Wilson_, _supra_, 221 U.S. at 380. _See_ _Shapiro v. United_ _States_,335 U.S. 1 (1948). Accordingly, Thermal cannot claim a privilegeagainst self-incrimination in the circumstances presented here.[[8]]V.Assuming that the judge did not err in concluding that a privilegeagainst self-incrimination could not be claimed in the circumstancespresented here and did not err in rejecting Thermal’s other contentionsregarding the existence of a violation, Thermal claims nevertheless thatit did not commit a willful violation. Thermal argues that its failureto disclose the Form 200 is not willful in nature because the recorddoes not show that Schorsch was aware that self-incrimination was not avalid ground for refusal to produce corporate records. Although beforethe judge Thermal characterized Schorsch as requesting an assuranceagainst self-incrimination, Thermal now contends before us that theSecretary also made no attempt to determine specifically what Schorschwas seeking, such as a nondisclosure agreement, a release from civilliability, or Fifth Amendment protection. Lastly, Thermal points outthat the stipulation does not show that Schorsch was actually aware thatproduction of the Form 200 was required under the Act, but that even ifSchorsch had indicated such an awareness, he simply would have beenmistaken as to the requirements of the law in view of cases holding thatrecords do not have to be produced during the physical inspection.To establish that a violation is willful, the Secretary must show thatit was committed with intentional, knowing or voluntary disregard forthe requirements of the Act or with plain indifference to employeesafety. _Asbestos Textile Co., Inc_., 84 OSAHRC __\/__, 12 BNA OSHC1062, 1984 CCH OSHD ? 27,101 (No. 79-3831, 1984). In this case,Schorsch refused to disclose the Form 200 because the inspector wouldnot sign a statement purporting to protect Thermal from liability. Since the case law is well settled that a corporation cannot claim theright against self-incrimination as to the production of corporaterecords required by law, Schorsch could not reasonably have believedthat he had a right to refuse to produce the OSHA Form 200 on thisbasis. _See_ _Anaconda Aluminum Co_., 81 OSAHRC 27\/A2, 9 BNA OSHC 1460,1478-79, 1981 CCH OSHD ? 25,300 at p. 31,351 (No. 13102, 1981). Inaddition, the stipulation states that Schorsch refused to answerquestions asked of him by the inspector, Sullivan. Therefore, there isno merit to Thermal’s further argument that the violation cannot befound willful because the Secretary failed to make an additional inquiryto determine specifically what sort of protection Schorsch was seeking.The Secretary presented a warrant which expressly allowed the Secretaryaccess to the OSHA Form 200. Furthermore, contrary to Thermal’sargument, the record demonstrates that Schorsch was aware that he wasrequired by law to produce the OSHA log at the Secretary’s request,[[9]] and the instructions to the form itself state that it must beavailable for inspection and copying. Finally, there is no case lawestablishing that records such as the Form 200 cannot be examined duringan inspection. Accordingly, the violation is willful in nature asalleged. Thermal consciously refused to comply with the Act and thedisclosure regulation in issue even though it was fully aware of itsobligation to disclose its Form 200 at the Secretary’s request and hadno reasonable justification for not doing so. _See_ _Coleman v. JiffyJune Farms Inc_., 458 F.2d 1139 (5th Cir. 1971), _cert_. _denied_, 409U.S. 948 (1972).The judge assessed the proposed penalty of $1000 primarily on the basisof the willful character of the violation. In the circumstances, theassessment is appropriate.The judge’s decision is therefore affirmed.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: APR 17 1985————————————————————————BUCKLEY, Chairman, concurring:When the issues in this case are succinctly stated, the case is muchless complex than the parties have made it.[[10\/]] The cited regulationrequires Respondent to provide to the Secretary upon request certainrecords required to be maintained by regulation. 29 C.F.R. ? 1904.7(\”Each employer shall provide, upon request, records provided for in ??1904.2, 1904.4, and 1904.5, for inspection and copying by anyrepresentative of the Secretary of Labor . . . .\”) Respondent has notchallenged the authority of the Secretary or Congress to require thatthese records be maintained and it is uncontroverted that the requestedrecords fall within the category of records required to be maintained. Respondent has admitted that it did not comply with the Secretary’srequest for such records. A violation is therefore established unlessthere is some reason why Respondent was not legally required to providethese records to the Secretary. I find no legal impediment to theSecretary’s request and no legal excuse for the Respondent’s failure toprovide the records for examination.Respondent first asserts that the Secretary cannot obtain these recordswithout a subpoena and that he is not authorized to examine them duringa physical inspection of the worksite. I disagree with bothcontentions. Thermal’s argument that the Secretary cannot obtain therecords without a subpoena is premised on the assertions that section8(a) of the Act does not authorize the inspection of records during aphysical inspection of the workplace, and that the statutory authorityfor the Secretary to inspect documentary evidence found in section 8(b)of the Act requires the Secretary to obtain a subpoena. Whether theseassertions have merit is irrelevant because the request for records madeby the Secretary in this case was authorized by a different section ofthe Act not subject to the restrictions Respondent cites sections 8(a)and (b).The standards at 29 C.F.R. ?? 1904.2, 1904.4, and 1904.7, which requireemployers to maintain certain records and provide the records to theSecretary for inspection and copying, were promulgated under thestatutory mandate in section 8(c) of the Act. Section 8(c) requires eachemployer to maintain and provide to the Secretary certain recordsregarding the employer’s activities related to the Act, including injuryand illness records. The statute also authorizes the Secretary topromulgate regulations necessary or appropriate for enforcement of thisstatutory authority. The standard at 29 C.F.R. ? 1904.7 is authorizedby, and subject to the limits of, section 8(c) of the Act. I findnothing in either section 8(a) or 8(b) that limits the statutoryrequirement in section 8(c) that the employer keep these records andmake them available to the Secretary upon request. The standard at 29C.F.R. ? 1904.7 was properly promulgated under the authority of section8(c) and the Secretary is not limited by the language of sections 8(a)and 8(b). _See_ _Donovan v. Wollaston Alloys, Inc_., 695 F.2d 1, 7-8(1st Cir. 1982). Nor does section 8(c) require the Secretary to obtaina subpoena to examine records or preclude examination in the course of aplant inspection.Respondent has not challenged the Secretary’s authority under section8(c) to issue 29 C.F.R. ? 1904.7. The only challenge to that authoritywould be that section 8(c) is unconstitutional to the extent that it maypermit the \”search\” of an employer’s record without a search warrant. Because there was a warrant obtained in this case, that argument clearlydoes not apply here. The records sought by the Secretary here arestrictly limited to records required by section 8(c) and regulationspromulgated pursuant to that section. It is unnecessary to decide herethe questions of whether a warrant is required for the Secretary toobtain records under section 8(c) or whether Thermal’s arguments wouldbe correct for records not required to be kept by authority of section8(c).Respondent also asserts that the evidence should be suppressed becausethere was insufficient probable cause for the magistrate to issue abroad-based warrant, and because the inspection went beyond the limitspermitted by the warrant. There was an independent determination madeby a United States magistrate that there was probable cause to issue thewarrant. The Commission and its administrative law judges have noauthority to review such a determination by a judicial officer of acourt created under Article III of the United States Constitution. _See_ _Brooks Woolen Co._, Nos. 79-45 and 79-158, slip op. at 3-4 (April10, 1985) (view of Chairman Buckley); _Beauty Craft Tile of theSouthwest, Inc_., 84 OSAHRC ____, 12 BNA OSHC 1082, 1083, 1984-85 CCHOSHD ? 27,091, pp. 34,929-30 (No. 80-471, 1984) (lead opinion). Accepting and ruling on Respondent’s argument that probable cause didnot exist to support a broad-based warrant would require the Commissionto sit as an appellate review body in judgment on the decision of anArticle III court. The Commission cannot do this and must accept theCourt’s decision to issue the warrant. _Id_.The Commission and it’s judges can, as overseer of the administration ofthe Act, examine the conduct of OSHA’s officials in obtaining andexecuting the warrant. A finding that OSHA misled the magistrate inits application for the warrant or exceeded the scope of the warrantmight justify the suppression of evidence thus improperly obtained. Such an inquiry is not a review of the magistrate’s determination ofprobable cause. Suppressing evidence that has been improperly obtainedis appropriate where the effect would be to deter improper conduct byofficials charged with enforcing the law. Here there is no allegationand no evidence to support the argument that any OSHA official actedimproperly in seeking or obtaining the warrant. The warrant that issuedclearly provided for the inspection of records required to be maintainedunder section 8(c) of the Act. In seeking to examine such records, thecompliance officer obviously did not exceed the limits of the warrant.[[11\/]]I also agree that the violation was willful. Respondent initiallyrequested a warrant before an inspection would be allowed. TheSecretary obtained a warrant authorizing inspection of the documents. Notwithstanding the regulations requiring disclosure and the warrantauthorizing an examination of the records, Respondent refused to providethe records unless the Secretary would sign a document absolving thecompany of any liability concerning any matter that would arise as aresult of information disclosed. The Respondent acted willfully inrefusing to comply with the standard unless it could be given such anassurance. _See_ _Asbestos Textile_ _Co_., 84 OSAHRC ___,12 BNA OSHC1062, 1063, 1984-85 CCH OSHD ? 27,101, p. 34,948 (No. 70-3831, 1984) (aviolation is willful if committed with intentional or knowing disregardfor the requirements of the Act). I concur in affirming the citationfor a willful violation of 29 C.F.R. ? 1904.7.————————————————————————FOOTNOTES:[[1]] Thermal contends that the warrant in its entirety was notsupported by probable cause and was overbroad. I find it unnecessary toconsider Thermal’s objections to the validity of any portion of thewarrant other than the recordkeeping provision. Since Thermal was notcited for any violation other than that related to recordkeeping, thereis no evidence arising from the remaining portion of the warrant to besuppressed even in the event I were to conclude that other provisions ofthe warrant were defective. And since the records access provision is aseparate and distinct clause within the warrant, it is severable fromthe remainder of the warrant. Therefore, any defects in the remainingportions of the warrant would not justify invalidating the warrant inits entirety. _See_ _Donovan v. Wollaston Alloys, Inc._, 695 F.2d 1, 8(1st Cir. 1982); _United States v. Christine_, 687 F.2d 749, 758 (3dCir. 1982).[[2]] The judge also rejected Thermal’s contentions on several groundsthat the pleadings were insufficient to afford it fair notice of thecharges against it. The judge properly disposed of these contentionsfor the reasons he stated. In addition, contrary to Thermal’scontention that it lacked notice that the regulation at 29 C.F.R. ?1904.7 was in issue, Thermal’s interrogatories to the Secretary referredto Thermal’s \”alleged noncompliance with the requirements of …..regulations stated in the citation.\”[[3]] The Secretary also referred to his authority under section 24 ofthe Act, which deals with statistical programs covering all employmentsnot expressly excluded from the Act.[[4]] Thermal points out that section 8(a) of the Act, which confers onthe Secretary the authority to make inspections, does not expresslyinclude records within the permissible scope of an inspection. Accordingly, Thermal contends that the only means by which the Secretarymay examine records is through a subpoena issued under section 8(b),which empowers the Secretary to \”require the attendance and testimony ofwitnesses and the production of evidence under oath.\”The cases Thermal cites in support of this proposition are inappositebecause they do not involve records of the type required to bemaintained and made available under Part 1904. Thus, in _In reEstablishment Inspection of Inland Steel Co._, 492 F. Supp. 1310 (N.D.Ind. 1980), the warrant application included a request to examineemployee medical and personnel records. In _Erie Bottling_ _Corp_., 539F. Supp. 600 (D.C. Pa. 1982), the court in dictum stated that injury andillness records required under the Secretary’s regulations should bemade available during an inspection; it noted, however, that theemployer had agreed to allow the Secretary access to those records. Thecourt in _In re Establishment Inspection of Kulp Foundry, Inc._, 691F.2d 1125, 1132 n.18 (3d Cir. 1982), specifically stated that it was notdeciding the question of whether a subpoena is necessary to reach thoserecords that an employer is required to make available under section8(c). On the other hand, the one court which has specificallyconsidered that issue has held that a subpoena is not the exclusivemeans of access to an employer’s OSHA Form 200. _Donovan v. WollastonAlloys, Inc_., 695 F.2d 1 (1st Cir. 1982). In that case the court notedthat an employer would have less privacy interest in a document it isrequired by statute or regulation to maintain than in a document itproduces and maintains on its own initiative and for its own purposes. _See also In re Establishment Inspection of Metal Bank of America,Inc_., 516 F. Supp. 674 (E.D. Pa. 1981) (examination during a physicalinspection of records required by regulations under section 8(c) is notinconsistent with section 8(b)).[[5]] Thermal also contends that the warrant’s authorization forinspection of records did not limit the time period to which it relatedand contained no \”guidelines\” to circumscribe the inspector’sdiscretion. Contrary to Thermal’s contention, however, a specific timeperiod is provided by 29 C.F.R. ? 1904.6, which requires that theemployer maintain injury and illness records, including the Form 200,for five years. Since the regulations in Part 1904 specificallyidentify and describe in some detail the injury and illness recordsrequired, the reference in the warrant to records maintained under Part1904 affords sufficient guidance to the inspector. Thermal points out that the warrant also authorizes inspection of\”employee medical and exposure records required to be maintained by 29C.F.R. ? 1910.20.\” The latter is the Secretary’s regulation governingaccess to records prepared by an employer relating to employee exposureto toxic substances or harmful physical agents. Thermal asserts thatthe records required by the \”cited OSHA regulations\” are more extensivethan those required to be made available under section 8(c) of the Act. Although not clearly stated, Thermal’s argument appears to be that therecords required under section 1910.20 exceed those contemplated bysection 8 of the Act. The merits of this contention need not beconsidered because there is no indication that the Secretary ever soughtThermal’s employee exposure or medical records or even that Thermal hasany such records. Assuming that Thermal is arguing that the recordsrequired under Part 1904 also go beyond the scope of section 8, itsargument is frivolous because the records prescribed by Part 1904 areclearly consistent with section 8.As a related matter, Thermal contends that the records access provisionof the warrant is of no force and effect whatever because it conflictswith another provision setting forth the scope of the warrant. Thejudge properly rejected this argument for the reasons he stated.[[6]] Thermal also claims that 29 C.F.R. ? 1904.7 only requires thatrecords be made available and not that the employer physically producethem. The regulation, however, specifically states that the employermust provide the prescribed records on request.[[7]] It is unnecessary to rule on the Secretary’s further contentionthat a warrant itself is not required because an employer can have noreasonable expectation of privacy with respect to records it has tomaintain under the Act.[[8]] The custodian of records, however, may not be required to providepersonally incriminating information regarding such records. _Curcio v.United States_, 354 U.S. 118 (1957). With one exception, Thermal doesnot claim that there is any possibility of personal incrimination ofSchorsch. Before the judge, Thermal referred to section 17(g) of theAct, which imposes criminal liability on any person who knowingly makesa false statement, representation, or certification in any recordrequired under the Act. This liability, however, attaches not to thedisclosure of records but to their contents. Based on the record beforeus it would be purely speculative to conclude that Thermal’s OSHA Form200 contains information which could be incriminating under section 17(g).[[9]] The stipulation incorporates the Secretary’s answers to Thermal’sinterrogatories, in which the Secretary avers that Schorsch had said hewas aware of the regulation requiring the Form 200 to be disclosed uponrequest and was aware that a citation could be issued for nonproduction.[[10\/]] I agree with Commissioner Cleary’s rejection of Thermal’scontentions that it did not have fair notice of the allegations againstit and that production of records required to be kept under 29 C.F.R.Part 1904 violates its privilege against self-incrimination. I alsoagree with Commissioner Cleary’s rejection of Thermal’s assertion thatthe Secretary must prove that Thermal’s employees have been exposed to ahazard before Thermal can be required to produce its Form 200, and Iagree that Thermal must maintain and disclose the form even if thenumber of injuries or illnesses is recorded as zero. Finally, I agreewith Commissioner Cleary that it is unnecessary to reach Thermal’sargument that the records required under 29 C.F.R. ? 1910.20 exceed thescope of section 8 of the Act, since there is no evidence that theSecretary here sought any records required by that standard.[[11\/]] The only issue before us is a challenge to the citation issuedto Respondent for failing to provide section 8(c) records on request. Whether other aspects of the warrant were exceeded is not before us.”