OSHA traditionally revises the list (Appendix A of Compliance Directive 02-00-051) every year in accordance with the latest BLS LWDI data to update the list of exempt industries in SIC codes having an LWDI rate below the national, private sector rate. However, this year the appendix cannot be updated due to changes in OSHA's recordkeeping rule that affect the manner in which BLS reports occupational injuries.

Since the mid 1970s, Congress has placed language in OSHA's appropriations bill that requires OSHA to exempt small business employers — those with ten or fewer employees — that are in industries with low LWDI rates from programmed safety inspections. Due to changes in OSHA's recordkeeping rule, the LWDI rate specified in the Appropriations Act is no longer published. BLS now publishes the Days Away from Work, Restriction, or Job Transfer (DART) rate.

Because appropriations language specifically requires the use of the most recent LWDI rate published by BLS, OSHA is obligated to use the 2001 LWDI data. The agency is currently taking steps to advise Congress of the changes in the published rates and is proposing a modification to the appropriations language that would permit the use of DART data.