[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)]
[Rules and Regulations]
[Pages 47180-47191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18457]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1960

[Docket No. OSHA-2013-0018]


Basic Program Elements for Federal Employee Occupational Safety 
and Health Programs and Related Matters; Subpart I for Recordkeeping 
and Reporting Requirements

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: OSHA is issuing a final rule amending the Basic Program 
Elements to require Federal agencies to submit their occupational 
injury and illness recordkeeping information to the Bureau of Labor 
Statistics (BLS) and OSHA on an annual basis. The information, which is 
already required to be created and maintained by Federal agencies, will 
be used by BLS to aggregate injury and illness information throughout 
the Federal government. OSHA will use the information to identify 
Federal establishments with high incidence rates for targeted 
inspection, and assist in determining the most effective safety and 
health training for Federal employees. The final rule also interprets 
several existing basic program elements in our regulations to clarify 
requirements applicable to Federal agencies, amends the date when 
Federal agencies must submit to the Secretary of Labor their annual 
report on occupational safety and health programs, amends the date when 
the Secretary of Labor must submit to the President the annual report 
on Federal agency safety and health, and clarifies that Federal 
agencies must include uncompensated volunteers when reporting and 
recording occupational injuries and illnesses.

DATES: This final rule becomes effective January 1, 2014.

FOR FURTHER INFORMATION CONTACT: Francis Yebesi, Director, Office of 
Federal Agency Programs, Occupational Safety and Health Administration, 
U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3622, 
Washington, DC 20210, telephone 202-693-2122, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Summary for This Final Rule

A. Purpose

    Today's final rule establishes requirements directing Federal 
agencies to submit their occupational injury and illness recordkeeping 
information to the Secretary of Labor which will allow (1) BLS to 
analyze injury and illness data at Federal establishments, and (2) OSHA 
to better track injury trends at Federal agencies, and to better target 
inspections at the most hazardous Federal establishments.

B. Summary of Major Provisions

     Revisions to update existing regulatory language: Since 
the basic program elements were originally published in 1980, changes 
have occurred that make the existing language out of date.
     The Unites States Postal Service: The Occupational Safety 
and Health Act of 1970 (OSH Act) was amended to make it applicable to 
the U.S. Postal Service (USPS) in the same manner as any other private 
sector employer. Therefore, language in the basic program elements has 
been modified to indicate that the USPS is not included in the 
definition of ``agency.''
     Financial management: The Office of Management and Budget 
(OMB) circulars referenced in the original regulations are no longer in 
use. Therefore the language has been revised to reference only relevant 
OMB regulations and documents.
     Abatement of unsafe or unhealthful working conditions: 
Abatement requirements have been changed to follow private sector 
procedures.
     Records retention: A section of the basic program elements 
addressing retention and access of employee records was inadvertently 
deleted in a prior revision and is now being reinserted in this 
rulemaking.
     Changes are being made to require Federal agencies to 
annually submit their OSHA required injury and illness data.
     Modifying dates to reflect the collection of calendar year 
data, rather than fiscal year data: We have modified the due date when 
Federal agencies must submit their annual report on safety and health 
to OSHA, and the report from OSHA to the President, to

[[Page 47181]]

allow for the use of OSHA required injury and illness data.
     Submission of the OSHA required injury and illness data: 
We are stipulating that the Secretary of Labor will be collecting the 
OSHA required injury/illness data annually. Clarification is also 
provided on how to identify the injuries/illnesses of volunteers, the 
calculation of the total number of hours worked by uncompensated 
volunteers, and that OMB job series numbers should be used to identify 
job titles.

Table of Contents

    This final rule is organized as follows:

I. Background
III. Injury and Illness Recordkeeping in the Federal Sector
IIII. OSHA's Injury and Illness Recordkeeping System
IIV. OSHA Access to and Use of Recordkeeping Information
V. Federal Agency Injury and Illness Data Submission
VI. Identification and Listing of Federal Establishments
VII. Uncompensated Volunteers and Federal Service
VIII. Federal Agency Employees That Supervise Workers
IX. Other Issues Addressed by Today's Final Rule

I. Background: Federal Agency Safety and Health Programs.

    Section 19 of the Occupational Safety and Health Act (the ``OSH 
Act'') (29 U.S.C. 668) includes provisions to ensure safe and healthful 
working conditions for Federal sector employees. Under that section, 
each Federal agency is responsible for establishing and maintaining an 
effective and comprehensive occupational safety and health program 
consistent with the standards promulgated by OSHA under Section 6 of 
the OSH Act. Executive Order 12196, Occupational Safety and Health 
Programs for Federal Employees, issued February 26, 1980, prescribes 
additional responsibilities for the heads of Federal agencies, the 
Secretary of Labor, and the General Services Administration. Among 
other things, the Secretary of Labor, through OSHA, is required to 
issue basic program elements with which the heads of agencies must 
operate their safety and health programs. These basic program elements 
are set forth at 29 CFR Part 1960. Section 19 of the OSH Act, the 
Executive Order, and the basic program elements under 29 CFR Part 1960 
apply to all agencies of the Executive Branch except military personnel 
and uniquely military equipment, systems, and operations.

II. Injury and Illness Recordkeeping in the Federal Sector

    Pursuant to Section 19(a) of the OSH Act, each head of a Federal 
agency is responsible for keeping adequate records of all occupational 
injuries and illnesses. Section 1-401(d) of Executive Order 12196 
provides the Secretary with authority to prescribe recordkeeping and 
reporting requirements for Federal agencies. On October 21, 1980, OSHA 
issued a final rule addressing Federal agency safety and health 
programs which included occupational injury and illness recordkeeping 
requirements at 29 CFR Part 1960, Subpart I, Recordkeeping and 
Reporting Requirements, (45 FR 69796).
    On January 19, 2001, OSHA issued a revised system of injury and 
illness recordkeeping requirements for private sector employers at 29 
CFR Part 1904, (66 FR 5916). The revised recordkeeping rules were 
designed, among other things, to provide better information about the 
incidence of occupational injuries and illnesses; simplify the 
recordkeeping system for employers; promote improved employee awareness 
and involvement in the recording and reporting of injuries and illness; 
and permit the increased use of computers and telecommunications in 
carrying out OSHA-required recordkeeping.
    By 2004, it was clear to OSHA that significant inconsistencies 
existed between the private sector and the Federal Government's 
recording and tracking of occupational injuries and illnesses. In order 
to make the private sector and Federal sector systems consistent, OSHA, 
on November 26, 2004, issued a final rule to amend the occupational 
injury and illness recordkeeping requirements applicable to Federal 
agencies, (69 FR 68793). OSHA's final rule adopted applicable 
provisions of 29 CFR Part 1904, which made the recording and reporting 
requirements for the Federal sector essentially identical to those for 
the private sector.

III. OSHA's Injury and Illness Recordkeeping System

    OSHA's regulation at 29 CFR 1904, Recording and Reporting 
Occupational Injuries and Illnesses, was one of the first regulations 
promulgated by OSHA. First issued in 1971, this regulation requires 
employers to record information on the occurrence of injuries and 
illnesses in their workplaces if the injuries and illnesses meet one or 
more of certain recording criteria. In accordance with the OSH Act, 
OSHA requires employers to record work-related injuries and illnesses 
that involve death, loss of consciousness, days away from work, 
restricted work activity or job transfer, medical treatment beyond 
first aid, or diagnosis of a significant injury or illness by a 
physician or other licensed health care professional.
    The OSHA recordkeeping system consists of three forms. First, 
employers must maintain a log (OSHA Form 300, commonly referred to as 
the ``OSHA log,'' or an equivalent form) that lists each injury and 
illness that occurred in each establishment during the year. The log is 
available to employees, former employees, and their representatives. 
For each case on the log, the employer also prepares a supplementary 
record (OSHA Form 301, or an equivalent), that provides additional 
details about the injury or illness. A summary of the log (OSHA Form 
300A, or an equivalent) is prepared by the employer and posted in the 
workplace from February 1 to April 30 of the year following the year to 
which the records pertain. As noted in the November 2004 recordkeeping 
final rule, Federal agencies may choose to use the Office of Workers' 
Compensation Program (OWCP) Forms CA-1, CA-2 and CA-6 \1\ for the 
purpose of complying with OSHA's recordkeeping requirements (excluding 
contractors), as long as Federal agencies include the additional OSHA-
required information for the OSHA 301 form. If agencies use these forms 
for OSHA recordkeeping requirements, they must ensure all OSHA required 
fields on these forms are complete, whether or not they are required by 
OWCP.
---------------------------------------------------------------------------

    \1\ CA-1, Notice of Traumatic Injury and Claim for Continuation 
of Pay/Compensation; CA-2, Notice of Occupational Disease and Claim 
for Compensation; CA-6, Official Superior's Report of Employee's 
Death.
---------------------------------------------------------------------------

    Occupational injury and illness records, and the statistics based 
on them, have several desired functions or uses. One use is to provide 
information to employers and employees about the kinds of injuries and 
illnesses occurring in the workplace, and the hazards that cause or 
contribute to them. Injury and illness statistics play an important 
role in shaping an employer's injury and illness prevention program, 
and investigation into patterns of injuries can provide information 
useful in abating hazards and preventing additional injuries from 
occurring.
    The records are also an important source of information for OSHA. 
During the initial stages of an inspection, an OSHA representative 
reviews the recordkeeping data for the establishment as an aid to 
focusing the inspection effort on safety and health hazards. OSHA also 
uses establishment-

[[Page 47182]]

specific injury and illness information to help target its intervention 
efforts on the most dangerous worksites. Injury and illness statistics 
help OSHA identify the scope of occupational safety and health problems 
and decide whether regulatory intervention, compliance assistance, or 
other measures are warranted.
    Finally, the records required by the OSHA recordkeeping regulation 
are the source of information for the BLS-generated national statistics 
on workplace injuries and illnesses, including information on the 
source, nature, and type of these injuries and illnesses. BLS makes the 
aggregate information available both for research purposes and for 
public information. BLS has published occupational safety and health 
statistics since 1971, and this information charts the magnitude and 
nature of injury and illness problems across the country.

IV. OSHA Access to and Use of Recordkeeping Information

1. Private Sector

    In the private sector, OSHA has long had in place rules pertaining 
to Agency access to information concerning worker safety and health. 
Section 8 of the OSH Act provides OSHA with the authority to issue 
regulations and standards requiring employers to make, keep and 
preserve, and make available to OSHA, records relating to the OSH Act. 
OSHA's regulation at 29 CFR 1910.1020, Access to employee exposure and 
medical records, provides access to exposure and medical records to 
employees, their designated representatives, and OSHA. Several of 
OSHA's substance-specific health standards, such as those for 
occupational exposure to benzene and lead, include requirements for 
employee and OSHA access to information required to be maintained by 
those standards.
    With respect to OSHA injury and illness recordkeeping, Section 
1904.40 requires employers to provide a complete copy of records kept 
under Part 1904 to an authorized government representative when the 
representative asks for such records during a workplace safety and 
health inspection. Section 1904.40(b)(1) states that authorized 
government representatives who have a right to obtain Part 1904 records 
are a representative of the Secretary of Labor conducting an inspection 
or investigation under the OSH Act, a representative of the Secretary 
of Health and Human Services (including the National Institute for 
Occupational Safety and Health (NIOSH) conducting an investigation 
under Section 20(b) of the OSH Act, or a representative of a State 
agency responsible for administering a State plan under Section 18 of 
the OSH Act.
    Section 8(c) of the OSH Act also gives the Secretary the authority 
to prescribe regulations requiring employers to make periodic reports 
on work-related deaths, injuries and illnesses. For purposes of OSHA 
injury and illness recordkeeping, periodic reporting from a subset of 
employers is accomplished through the OSHA Data Initiative (ODI), and 
the Annual Survey of Occupational Injuries and Illnesses conducted by 
BLS. Although OSHA and BLS collect injury and illness information, 
collection of the information is conducted through different means and 
used for different purposes.
    Under Section 1904.41, each year OSHA sends injury and illness 
survey forms to employers in certain high-hazard industries. In any 
year, some employers will receive a survey form, and others will not. 
Employers are not required to send injury and illness recordkeeping 
information to OSHA unless they receive a survey form.
    Employers that receive a survey form submit information on the 
number of workers employed, the number of hours worked by employees, 
and requested information from records created and maintained under 
Part 1904. The information produced from the survey includes incidence 
rates, as well as the number of occupational injuries and illnesses. 
Incidence rates relate the number of injuries and illnesses to a common 
base of exposure. The rate shows the number of injuries and illnesses 
per 100 workers. This common base allows for accurate cross-industry 
comparisons, trend analysis over time and comparisons among firms 
regardless of size. The establishment-specific data collected by OSHA 
are used to administer OSHA's various programs and to measure the 
performance of those programs at individual workplaces.
    Section 1904.42 establishes requirements for employers, when asked, 
to complete and submit an annual survey from BLS. BLS collects data 
from a statistical sample of employers in all industries and across all 
size classes, using the data to compile occupational injury and illness 
statistics for the Nation. BLS gives each respondent a pledge of 
confidentiality (as it does on all BLS surveys), and the establishment-
specific injury and illness data are not shared with the public, OSHA 
or other government agencies.

2. Federal Sector

    Section 19 of the OSH Act provides the Secretary of Labor with 
access to occupational injury and illness records and reports kept and 
filed by Federal agencies ``unless those records and reports are 
specifically required by Executive Order to be kept secret in the 
interest of the national defense or foreign policy, in which case the 
Secretary of Labor shall have access to such information as will not 
jeopardize national defense or foreign policy.'' Section I-201(j) of 
Executive Order 12196 requires the head of each agency to operate an 
occupational safety and health management information system, which 
includes the maintenance of records required by the Secretary of Labor. 
Section I-201(l) also requires the head of each agency to submit to the 
Secretary of Labor an annual report on the agency occupational safety 
and health program that includes information the Secretary prescribes. 
Section 401(d) of the Executive Order states that the Secretary of 
Labor shall prescribe recordkeeping and reporting requirements.

V. Federal Agency Injury and Illness Data Submission

    Today's final rule establishes requirements directing Federal 
agencies to submit their occupational injury and illness recordkeeping 
information to the Secretary. The final rule does not require Federal 
agencies to create or maintain any new records. Instead, the final rule 
amends the basic program elements at 29 CFR part 1960 by adding Sec.  
1960.72, and requires Federal agencies to submit information included 
on the three OSHA recordkeeping forms to BLS. BLS will then 
electronically transmit the data from these forms to OSHA.
    Under the final rule, by May 1 of each year, Federal agencies must 
submit their injury and illness recordkeeping data from the previous 
calendar year directly to BLS. The May 1 deadline for submission of the 
previous calendar year's information is based on the posting 
requirements in Sec.  1904.32. That Section requires employers to post 
their Annual Summary from the previous calendar year from February 1 
through April 30. During the posting period, employees have the 
opportunity to review the information, and this review may result in 
new or revised entries about injuries and illnesses at the 
establishment. Therefore, the May 1 submission deadline should allow 
for the submission of more accurate and complete recordkeeping 
information.

[[Page 47183]]

    BLS is leading the collection effort established by today's final 
rule because it already has a system in place to collect injury and 
illness data from the private sector. However, the final rule includes 
two important differences from the private sector data collection 
system. First, unlike the private sector collection effort, which is a 
statistical sample, today's final rule requires the submission of all 
Federal agency injury and illness data from each Federal establishment. 
Second, unlike the private sector BLS survey, which is conducted solely 
for statistical purposes and not shared with OSHA, the BLS collection 
of federal agency data from the OSHA forms will be electronically 
transmitted to OSHA.
    Individually identifiable information will not be made public. 
Establishment data will not be published if such information will 
result in a breach of employee privacy. DOL will carefully review all 
information before it is released, to ensure that privacy is not 
violated.

1. How the Data Will Be Used by BLS

    The submitted information will be used by BLS when developing and 
analyzing Federal Government injury and illness statistics. In the 
private sector and State and local government, BLS collects injury and 
illness data from employers through the Annual Survey of Occupational 
Injuries and Illnesses. An employer selected by BLS to participate in 
the Annual Survey must provide information about employee injuries and 
illnesses recorded on the employer's OSHA forms. BLS collects the 
information from a statistical sample in all industries and across all 
size classes, and uses the data to estimate the number of work-related 
injuries and illnesses across the Nation, as well as a measure of the 
frequency (rate) at which they occur. The BLS survey, which is 
conducted solely for statistical purposes, is not directly related to 
OSHA's enforcement of workplace safety and health requirements.
    BLS will use the data required to be submitted by today's final 
rule to calculate injury and illness incidence rates for the Federal 
sector. BLS develops incidence rates by industry, establishment size, 
and many other case types, and Federal agencies will be able to compare 
their incidence rates with national averages for similar types of 
organizations. The information will be aggregated from other Federal 
agencies and similar establishments in the private sector and State and 
local government to identify injury and illness patterns among 
industries and occupations.

2. How the Data Will Be Used by OSHA

    OSHA will use the submitted information for a variety of purposes, 
including targeting of Federal workplaces for OSHA inspection; 
deployment of resources for safety and health training; periodic 
assessment of the basic program elements; development of information 
for promulgating, revising or evaluating OSHA standards and 
regulations; evaluating and analyzing Presidential initiatives 
addressing injury and illness rate reduction in the Federal Government; 
and OSHA evaluations. By using the establishment-specific information, 
OSHA will be able to more effectively allocate its resources to focus 
on the most hazardous Federal establishments.
    In the past, OSHA used statistical data provided by the OWCP to 
target safety and health inspections of Federal agency workplaces. 
However, the OWCP data is based on whether a case is compensable, and 
not on whether a case is recordable under OSHA's injury and illness 
recordkeeping system. Because OSHA has relied on OWCP statistical data, 
the Agency has not had an effective means of identifying and targeting 
the most hazardous Federal establishments for comprehensive safety and 
health inspection. On the other hand, occupational injury and illness 
records provide safety and health information about specific Federal 
establishments, including information about the location, equipment, 
materials or chemicals used at the time of an injury or illness.
    Moreover, OSHA uses injury and illness recordkeeping information 
collected from the OSHA Data Initiative (ODI) when it targets private 
sector employers for safety and health inspection. By analyzing the 
recordkeeping data required to be submitted by today's final rule, OSHA 
will be relying on the same type of information for targeting Federal 
establishments as it currently uses to make such determinations in the 
private sector.
    OSHA also intends to incorporate the collected information into the 
Secretary of Labor's Annual Report to the President on Federal Agency 
Safety and Health. Section 19(a)(5) of the OSH Act and Executive Order 
12196 require Federal agencies to make an annual report to the 
Secretary on occupational accidents and injuries, as well as the 
Federal agency's program for providing safe and healthful places and 
conditions of employment. The OSH Act and Executive Order also direct 
the Secretary to submit an annual summary report to the President on 
the status of Federal agency occupational safety and health. 
Historically, when preparing the report for the President, OSHA has 
included information furnished by OWCP when compiling statistical data 
concerning Federal agency injury and illness case rates and lost time 
case rates. In the future, OSHA intends to use the occupational safety 
and health related data collected from the submitted data when 
preparing the annual report for the President.

3. Options for Submitting the Data

    Under the final rule, Federal agencies will submit their injury and 
illness data using BLS internet data collection facilities. At present, 
Federal agencies have three options for submitting their OSHA injury 
and illness recordkeeping information. First, Federal agencies may 
submit their annual data securely through an internet system with 
individual password protection, as about 80 percent of the private- and 
governmental-establishments do today. Second, Federal agencies with 
existing electronic recordkeeping data collection systems can be 
provided with a file structure and file transfer protocol to allow them 
to transmit all of their injury and illness information to BLS. 
Finally, Federal agencies without existing electronic recordkeeping 
systems may choose to receive a database structure from the Department 
of Labor they can use to collect and track their OSHA recordable 
injuries and illnesses. The current available database structure, known 
as ECOMP, will require Federal agencies to electronically file their 
OWCP CA-1 and CA-2 forms. In addition, it will allow Federal agencies 
to generate their own injury and illness recordkeeping forms. Those 
agencies may then use the BLS internet system or, like the second 
option, use a file structure and file transfer protocol to 
electronically transmit the data to BLS through ECOMP.
    BLS collects injury and illness data from private sector employers 
and state and local governments under a pledge of confidentiality in 
accordance with Confidential Information Protection and Statistical 
Efficiency Act of 2002 (CIPSEA), Title 5 of Public Law 107-347, and 
other applicable Federal law. This pledge of confidentiality does not 
extend to Federal agencies. BLS will electronically transfer Federal 
agency data from the OSHA forms to OSHA annually, after the end of each 
collection cycle.
    OSHA intends to develop specific instructions and guidance for 
Federal agencies, which will be issued annually through written 
memoranda, on how to

[[Page 47184]]

submit the data to BLS using the available options. OSHA also intends 
to develop and maintain a page on its Web site listing the options for 
submitting the information, as well as specific instructions and 
guidance included in the annual memorandum to Federal agencies. The 
annual memorandum and Web page will also serve to notify Federal 
agencies about the development of new technologies or options for 
submitting injury and illness information.

VI. Identification and Listing of Federal Establishments

    Section 1904.46 of OSHA's private sector recordkeeping regulation 
includes a definition of the term ``establishment.'' When the injury 
and illness recordkeeping requirements for Federal agencies were 
revised in November 2004, OSHA did not incorporate the Part 1904 
definition of establishment. Instead, OSHA retained the definition of 
establishment for Federal agencies in 29 CFR 1960.2(h).
    The term ``establishment'' is defined at 29 CFR 1960.2(h) as ``a 
single physical location where business is conducted or where services 
or operations are performed. Where distinctly separate activities are 
performed at a single physical location, each activity is to be treated 
as a separate establishment. Typically, the term establishment refers 
to a field activity, regional office, area office, installation, or 
facility.''
    Federal agencies are responsible for keeping a separate OSHA 300 
Log (or equivalent), and preparing a single OSHA 300-A Annual Summary 
for each establishment. (They are also required to keep case details on 
the OSHA 301 form.) Establishment-specific records are a key component 
of the recordkeeping system because each separate record represents the 
injury and illness experience of a given location, and therefore 
reflects the particular circumstances and hazards that led to the 
injuries and illnesses at that workplace.
    Since 2004, some uncertainty has developed concerning the 
definition of establishment and its application to Federal agencies. 
Federal agencies face unique challenges in determining whether specific 
workplaces meet the definition of ``establishment'' in Sec.  1960.2(h). 
For example, in some cases, a single Federal building may house several 
different Federal agencies, which in turn may have several sub-
agencies, divisions or offices. Federal agencies may also establish 
temporary or short-term offices or workplaces during a given year. In 
addition, Federal employees may work at multiple locations, at a 
regional or satellite office, or from home.
    For Federal agency OSHA recordkeeping, major organizational units 
with distinct lines of authority are considered separate 
establishments. Each Federal department has an organizational structure 
consisting of agencies, bureaus, or other components that come under 
the line of authority of an Assistant Secretary, Under Secretary, 
Assistant Administrator, or similar level. These agencies, bureaus or 
components are considered major organizational units of a department.
    The definition of establishment for Federal agencies at 29 CFR 
1960.2(h) includes the phrase: ``where distinctly separate activities 
are performed at a single physical location.'' This definition means 
that each major organizational unit, such as agencies, bureaus or 
similar components within a Department, is considered an establishment, 
even if they occupy the same building. For example, the OSHA, the 
Employment and Training Administration and the Employee Benefits 
Security Administration are all agencies within the Department of Labor 
(DOL), and are housed in DOL's Frances Perkins Building. Even though 
they occupy the same building, these agencies are considered separate 
establishments for OSHA recordkeeping. This analysis would apply to 
major organizational units within national, regional or area buildings.
    On the other hand, lower organizational units or offices within an 
agency or bureau located at the same physical location are not separate 
establishments. For example, the Directorate of Enforcement Programs 
and Office of Occupational Medicine are both OSHA units located in the 
DOL Frances Perkins Building, but they are not major organizational 
units, and therefore are not considered separate establishments.
    Other individual Federal agency workplaces with separate physical 
locations would also be considered separate establishments. For 
example, OSHA has Regional and Area offices in cities throughout the 
United States. Even though the Regional and Area offices are part of a 
major organizational unit (i.e., OSHA), since these offices are at 
separate locations, they would each be considered a separate 
establishment. Likewise, Federal agencies with several physical 
locations within the same city or geographic region are separate 
establishments. For example, the Civil Rights Division within the U.S. 
Department of Justice (DOJ) has offices in various buildings located 
several miles apart in Washington, DC. Even though the offices are all 
within the same agency (i.e., the Civil Rights Division of DOJ), 
because they are at separate physical locations, they would be 
considered separate establishments for OSHA recordkeeping purposes.
    Section 1904.30 addresses the procedures to be followed when 
recording injuries and illnesses occurring in separate establishments 
operated by the same employer. Section 1904.30(a) states that employers 
are required to keep separate OSHA 300 Logs for each establishment 
expected to be in operation for one year or longer. Section 
1904.30(b)(1) provides that for short-term establishments, i.e., those 
that will exist for less than one year, employers are required to keep 
injury and illness records, but are not required to keep separate OSHA 
300 Logs. Instead, employers may keep one OSHA 300 Log covering all 
short-term establishments, or they may include the short-term 
establishment records in logs that cover individual company divisions 
or geographic regions. Federal agencies have the same option when 
recording injuries and illnesses at short-term establishments.
    In some cases, Federal employees work at several different 
locations, or do not work at any establishment. Section 1904.30(b)(3) 
provides that each employee must be linked, for recordkeeping purposes, 
to one of the employer's establishments. This means that all of the 
employee's injuries or illnesses must be recorded on either his or her 
home establishment's OSHA 300 Log, or on a general OSHA 300 Log for 
short-term establishments. The provision ensures that all employees are 
included in a Federal agency's records.

1. Federal Employees Visiting or Working at Other Federal 
Establishments

    Under Section 1904.30(b)(4), if an employee is injured or made ill 
while visiting or working at another of the employer's establishments, 
then the injury or illness must be recorded on the 300 Log of the 
establishment where the injury or illness occurred. For the vast 
majority of cases, the place where the injury or illness occurred is 
the most useful recording location. (See 66 FR6037). The events or 
exposures that caused the case are most likely to be present at that 
location, so the data are most useful for analysis of that location's 
records. If cases were always recorded at the employee's home base, the 
injury or illness information would be disconnected from the place 
where the event or exposure took place, and

[[Page 47185]]

where analysis of the data may help reveal a workplace hazard. Of 
course, if the injury or illness occurs at another employer's 
workplace, or while the employee is in transit, the case would be 
recorded on the OSHA 300 Log of the employee's home establishment.
    For Federal agency recordkeeping purposes, each Department or 
Bureau is considered the Federal employee's employer, and injuries or 
illnesses occurring at other Federal Department facilities would be 
recorded on the employee's home establishment's OSHA 300 Log. For 
example, if an employee of the Department of Labor is either visiting, 
or working under the supervision of his or her own agency at a 
Department of Justice facility, and is injured or made ill, the case 
would be recorded on the employee's home DOL establishment OSHA 300 
Log. Of course, as discussed above, if the DOL employee in this example 
is being supervised by DOJ employees on a day-to-day basis, and is 
injured or made ill, the case would be recorded on the DOJ's 
establishment log.
    Injuries and illnesses occurring at facilities operated by the same 
Department would be recorded on the OSHA Log where the injury or 
illness took place. For example, if an employee from DOL/OSHA were 
either visiting or working at a DOL/Mine Safety and Health 
Administration (MSHA) facility, and was injured or made ill, the case 
would be recorded on the DOL/MSHA Log. Again, in this example, since 
the Department of Labor is considered the OSHA employee's employer, the 
case would be recorded on the log where the injury or illness took 
place.

2. Federal Employees That Work From Home

    When a Federal employee telecommutes, the employee's home is not a 
separate establishment for recordkeeping purposes, and a separate OSHA 
300 Log is not required. For these workers, the worker's establishment 
is the office to which they report, receive direction or supervision, 
collect pay, and otherwise stay in contact with their agency, and it is 
at this establishment where the log is kept.
    Agencies should keep in mind that injuries/illnesses that take 
place while an employee is working from home are not automatically 
presumed work-related. Work-relationship must be established by 
demonstrating that the employee's work activity is a discernible cause 
of the injury/illness.
    Section 1904.5(b)(7) addresses the work-relatedness of injuries/
illnesses that take place at home. When an employee is working from 
home on federal agency business, and reports an injury/illness to his 
or her supervisor, and the employee's work activity caused or 
contributed to the injury/illness, the case is considered work-related 
and must be further evaluated to determine whether the case meets any 
of the recording criteria (i.e., the injury resulted in medical 
treatment, days away from work, work restrictions etc.). If the injury/
illness at home is related to non-work activities, or the general home 
environment, the case is not work-related. See, the preamble to the 
final rule revising OSHA's recordkeeping regulation 66 FR 5915 at 5962 
for examples of injuries/illnesses at home that are work-related and 
non-work-related.

3. Listing of Federal Establishments

    In order to effectively target Federal workplaces for safety and 
health inspection, OSHA needs to be able to identify, collect, and 
track the injury and illness data from each Federal establishment. 
Today's final rule adds a new basic program element at 29 CFR 
1960.72(c) to require each Federal agency to provide OSHA with a 
comprehensive listing of their establishments, as defined by 29 CFR 
1960.2(h), by May 1, 2014. The list must include the department/agency 
affiliation, a street address, city, state and zip code for each 
establishment. Federal agencies are also responsible for updating the 
list when they submit their annual report to the Secretary on 
occupational safety and health.
    The new basic program element at Sec.  1960.72(c) also requires 
Federal agencies to provide the North American Industry Classification 
System (NAICS) code for each of the establishments included on their 
list. NAICS is the standard used by Federal statistical agencies in 
classifying business establishments for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. economy. 
NAICS was developed under the auspices of the Office of Management and 
Budget (OMB), and adopted in 1997 to replace the Standard Industrial 
Classification (SIC) system. It was developed jointly by the United 
States, Canada, and Mexico to allow for a high level of compatibility 
in business statistics among the North American countries.
    The NAICS information will be used by BLS to compile and analyze 
injury and illness statistical information for the Federal sector. The 
NAICS information is also important for OSHA and BLS when comparing 
Federal agency injury and illness information with the private sector 
or State and local government.
    Federal agencies should determine NAICS codes based on the 
activities in their given establishments. As noted in the NAICS Manual, 
``In general, ownership is not a criterion for classification in NAICS. 
Therefore, government establishments engaged in the production of 
private-sector-like goods and services should be classified in the same 
industry as private-sector-establishments engaged in similar 
activities.'' The official 2012 NAICS Manual is available in print and 
on CD-ROM from the National Technical Information Service (NTIS) at 
(800) 553-6847, or through the NTIS Web site at http://www.ntis.gov.

VII. Uncompensated Volunteers and Federal Service

    In general, Federal agencies are prohibited from accepting 
uncompensated volunteer service. (See 31 U.S.C. 1342, Limitation on 
Voluntary Services). However, some statutes authorize Federal agencies 
to accept voluntary services during emergencies involving the 
protection of human life or property (31 U.S.C. 1342); voluntary 
services to assist disabled Federal employees in performing duties (5 
U.S.C. 3102); voluntary services by experts and consultants; and 
voluntary services by students to further their education (5 U.S.C. 
3111). In addition, some Federal agencies, such as the National Park 
Service and the Forest Service, have specific authorization to accept 
unpaid services for specific jobs or functions. See Volunteers in the 
Parks Act of 1969, 16 U.S.C. 18g-18i, and Volunteers in the National 
Forest Program, 16 U.S.C. 558(a).
    OSHA has long considered uncompensated volunteers conducting work 
for Federal agencies to be covered by the Federal safety and health 
program. The 1980 final rule which established the basic program 
elements in 29 CFR 1960.2(g) provides: ``The term `employee' as used in 
this part means any person, other than members of the Armed Forces, 
employed or otherwise suffered, permitted, or required to work by an 
`agency.' '' The preamble to the final rule states that OSHA 
purposefully used a broad definition of employee so that individuals 
like volunteers would be protected under Federal agency safety and 
health programs. The preamble also states that occupational safety and 
health programs are designed to address hazardous working conditions 
and that when individuals, such as volunteers, are conducting work 
activities similar to those performed by other paid employees, they 
should receive all the protections of the Federal safety and health 
program. The

[[Page 47186]]

definition of ``employee'' established in the 1980 final rule remains 
in the current basic program elements for Federal agency safety and 
health programs set forth at 29 CFR 1960.2(g).
    The original injury and illness recordkeeping system for the 
Federal sector required civilian Executive Branch agencies to record 
occupational injury and illness information only when such information 
was also reported to the Office of Workers' Compensation Programs 
(OWCP). As such, occupational injuries and illnesses were recordable 
only if a medical expense was incurred or expected, or if the employee 
was away from work or on leave without pay (LWOP) or continuation of 
pay (COP) as a result of the injury or illness. Because the Federal 
Employees' Compensation Act (FECA) as amended (5 U.S.C. 1801 et seq.) 
generally covers uncompensated volunteers, occupational injury and 
illness information for volunteers was recorded by Federal agencies 
under the original FECA-based recordkeeping system in Part 1960.
    Since publication of the revised Federal sector recordkeeping final 
rule in November 2004, there has been some uncertainty as to whether 
Federal agencies should record occupational injury and illness 
information for volunteer workers. While OSHA has consistently 
considered volunteers to be within the definition of employee for 
purposes of 29 CFR Part 1960, the preamble to the private sector Part 
1904 recordkeeping final rule issued in 2001 essentially states that 
unpaid volunteers in the private sector are not covered. In 2004, when 
OSHA adopted most of the provisions from the Part 1904 system to the 
Federal sector, the Agency did not intend to exclude individuals 
performing voluntary services for Federal agencies from the Part 1960, 
Subpart I, recordkeeping system. As a result, OSHA wishes to make clear 
that the injuries and illnesses of volunteers conducting work 
activities for Federal agencies, including both unpaid workers and 
those individuals receiving minimal compensation for services provided, 
be recorded under the revised Federal sector recordkeeping system.
    A number of Federal agencies use large numbers of both full and 
part-time volunteers to perform various work activities. For example, 
in Fiscal Year 2009, approximately 173,000 volunteers conducted 
5,700,000 work hours for the National Park Service; 95,248 volunteers 
conducted 3,014,820 work hours for the Forest Service; and 84,367 
volunteers conducted 11,897,208 work hours for the Department of 
Veterans Affairs. The estimates include unpaid volunteers, as well as 
those individuals receiving minimal compensation, such as meals or 
academic credit, for services provided.
    In some cases, the work activities conducted by volunteers for 
Federal agencies are similar to those conducted by full-time paid 
Federal employees. Volunteers may also be working alongside full-time 
Federal employees, and may be exposed to the same hazards in the 
workplace. Depending on the number of volunteers working at a 
particular Federal establishment, the recording of volunteer injury and 
illness information may produce a more accurate picture of the 
effectiveness of the establishment's occupational safety and health 
program. This is of particular concern to OSHA since occupational 
injury and illness information is used by safety and health personnel 
and workers to recognize and eliminate hazards in the workplace.
    One reason given as part of OSHA's rationale for amending the Part 
1960 recordkeeping requirements in November 2004 was to resolve the 
incompatibility of data that existed between the private sector and the 
Federal sector. However, one essential difference still remains between 
the two recordkeeping systems, specifically as it relates to the 
treatment of injuries and illnesses to volunteers. As previously 
discussed, the preamble to the January 2001 private sector Part 1904 
recordkeeping final rule essentially states that the injuries and 
illnesses of unpaid volunteers should not be recorded. In the Federal 
sector, uncompensated volunteers are considered employees and, 
therefore, subject to the Part 1904 recordkeeping requirements. In 
order to allow for valid comparisons of injury and illness data between 
the private and Federal sectors, it is necessary to be able to 
segregate the recordable injuries to volunteers in the Federal sector 
from those to paid Federal civilian workers and contractors who are 
supervised on a day-to-day basis by Federal agency personnel. Section 
1960.73(b) of today's final rule requires that Federal agencies 
designate a ``V'' in front of the OPM job title series number when 
recording the injuries and illnesses of uncompensated volunteers on the 
OSHA Form 300 or equivalent. (See the discussion below regarding entry 
of the OPM job series number in Column (c) of the OSHA log). Agencies 
should use the OPM job series number that most closely relates to the 
type of work being performed by the volunteer at the time of injury or 
illness. Section 1960.73(c) of today's final rule also requires that 
Federal agencies with recordable injuries and illnesses to volunteers 
separately track the total number of hours worked by volunteers, and 
report this information to OSHA with their annual recordkeeping data 
submissions.

VIII. Federal Agency Employees That Supervise Workers

    Section 1904.31 requires employers to record the recordable 
injuries and illnesses of all their employees, whether classified as 
labor, executive, hourly, salaried, part-time, seasonal, or migrant 
workers. Employers are also required to record the recordable injuries 
and illnesses of all employees they supervise on a day-to-day basis, 
even if these workers are not carried on the employer's payroll. Day-
to-day supervision generally exists when the employer ``supervises not 
only the output, product, or result to be accomplished by the person's 
work, but also the details, means, methods and processes by which the 
work objective is accomplished.'' (See OSHA's January 15, 2004 letter 
of interpretation to Leann M. Johnson-Koch: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24735).
    The requirements in Sec.  1904.31 assign the responsibility for 
recording and reporting to the employer with the greatest amount of 
control over the working conditions that led to the injury or illness. 
OSHA stated in the 2001 preamble to the final rule revising the Part 
1904 regulation that the supervising employer is in the best position 
to obtain the necessary injury and illness information due to its 
control over the worksite and its familiarity with the work tasks and 
the work environment. The employer with day-to-day supervision is also 
in the best position to use the injury and illness data to learn about 
and correct hazards in the workplace.
    For the Federal sector, the requirements in Sec.  1904.31 mean that 
Federal agencies are responsible for recording not only the recordable 
injuries and illnesses of their own Federal employees, but also are 
responsible for recording the recordable injuries and illnesses of all 
workers they supervise on a day-to-day basis.
    Federal agencies often use outside contractors to provide goods and 
services, or employ temporary workers from private sector temporary or 
leasing agencies. For purposes of recording the injuries and illnesses 
of private sector workers, the key question for Federal agencies is 
whether they supervise such workers on a day-to-day basis. When making 
determinations as to whether to record the injuries and illnesses of

[[Page 47187]]

private sector workers, Federal agencies must use the criteria set 
forth in Sec.  1904.31 concerning day-to-day supervision. Of course, if 
a private contractor or temporary agency is conducting work at a 
Federal establishment, and provides day-to-day supervision for its 
employees, the contractor or temporary agency, not the Federal agency, 
would be responsible for recording injuries and illnesses.
    Federal agencies are also responsible for recording the recordable 
injuries and illnesses of employees from other Federal agencies they 
supervise on a day-to-day basis. For example, if a Federal employee 
from the Department of Commerce is detailed to a Department of 
Transportation (DOT) establishment, the DOT establishment would be 
responsible for recording any recordable injury or illness if the 
detailed employee is supervised by DOT personnel on a day-to-day basis. 
On the other hand, if for example, a Federal employee from the 
Department of Interior is working at a Department of Treasury 
establishment, but is still being supervised on a day-to-day basis by 
his or her home office, the Department of Interior would be responsible 
for recording injuries and illnesses to their employee.
    Because the basic program elements in Part 1960 apply to all 
Federal establishments worldwide, Federal establishments located in 
foreign countries are responsible for recording the injuries and 
illnesses (and calculating the total number of hours worked) of all 
workers they supervise on a day-to-day basis, even if such individuals 
are foreign nationals. As with other workers not generally considered 
``employees'' for other purposes, the recording by overseas Federal 
establishments of injuries and illnesses sustained by foreign nationals 
they supervise on a day-to-day basis will provide useful information to 
Federal agencies in their efforts to ensure a safe and healthy 
workplace for all workers.

1. Recording Injuries and Illnesses of Federal Employees From the Same 
Department or Bureau

    In the private sector, Sec.  1904.30(b)(4) addresses the issue of 
employees who report to one establishment but are injured or made ill 
at other locations of the same company. Under such circumstances, 
employers must record cases on the log at the location where the 
employee became injured or ill. In OSHA's view, in the majority of 
cases, the place where the injury or illness occurred is the most 
useful recording location. The events or exposures that caused the case 
are most likely to be present at that location, so the data are useful 
for analysis in that location's records. If the case is recorded at the 
employee's home establishment, the injury or illness data have been 
disconnected from the place where the case occurred and, therefore, are 
less likely to be used to identify and correct any hazard. Of course, 
if an employee is working under the day-to-day supervision of his or 
her own employer, and the injury or illness occurred at another 
employer's establishment, or while the employee was in transit, the 
case would be recorded on the log of the employee's home establishment.
    For purposes of Section 1904.30, the Department or Bureau is 
considered the employer of a Federal employee. As such, the Federal 
establishment where the injury or illness took place is responsible for 
recording the case on its log when the incident involves a Federal 
employee from the same Department or Bureau. For example, if an 
employee from the Department of Labor's OSHA is conducting a safety and 
health inspection at a Department of Labor Mine Safety and Health 
Administration (MSHA) establishment, and sustains an injury or illness, 
the case would be recorded on the log of the MSHA establishment. Under 
1904.30(b)(4), even though the OSHA employee is under the day-to-day 
supervision of his or her own OSHA establishment, because the employee 
was injured or made ill at an establishment operated by the same 
employer, the injury or illness would be recorded on the MSHA log.

IX. Other Issues Addressed by Today's Final Rule

1. Job Title on the OSHA Form 300

    As noted elsewhere in today's preamble, Federal agencies are 
required to record each recordable injury and illness on the OSHA 300 
Log or equivalent. Column (c) of the OSHA 300 Log asks for the ``job 
title'' of the injured or ill employee.
    When filling out the OSHA 300 Log or equivalent, Sec.  1960.73(a) 
requires Federal agencies to enter all four digits of the employee's 
job series number in Column (c). For example, agencies should enter 
``4607 Carpenter'' or ``0334 Computer Specialist.'' Recording the job 
series number on the OSHA 300 Form will help identify occupations 
across the Federal sector that are experiencing higher injury and 
illness rates, and allow Federal agencies and OSHA to focus safety and 
health training on these occupations. When entering the information in 
Column (c) for private sector contractors they supervise on a daily 
basis, Federal agencies should enter the four digit job series number 
that best reflects the tasks undertaken by that employee.

2. Certification of the OSHA 300-A Annual Summary

    Section 1904.32(a) of OSHA's private sector recordkeeping 
regulation requires employers to review their OSHA 300 Log for 
completeness and accuracy, and prepare an Annual Summary of the OSHA 
300 Log using the OSHA Form 300-A, or an equivalent form. The summary 
must be certified for accuracy and completeness and posted in the 
workplace by February 1 of the year following the year covered by the 
summary. Section 1904.32(b)(3) provides that a company executive must 
certify that he or she examined the OSHA 300 Log and that he or she 
reasonably believes, based on his or her knowledge of the process by 
which the information was recorded, that the annual summary is correct 
and complete.
    For Federal agencies, the basic program element at Sec.  1960.67 
provides that the person who performs the certification shall be one of 
the following: (1) The senior management establishment official; (2) 
the head of the agency for which the senior management official works; 
or (3) any management official who is in the direct chain of command 
between the senior establishment management official and the head of 
the Agency. The note following the basic program element at 1960.67 
makes clear that the requirement for certification of Federal agency 
injury and illness records is necessary because the private sector 
position titles in 29 CFR part 1904 do not correspond with Federal 
agency position titles for agency executives. In the preamble to the 
2004 final rule revising the Federal agency recordkeeping system, OSHA 
stated that the certifying official is responsible for ensuring that 
systems and processes are in place, and for holding the recordkeeper 
accountable, (See 69 FR 68797). This official must certify that he or 
she has examined the document and reasonably believes, based on his or 
her knowledge of the process by which the information was recorded, 
that the annual summary is accurate and complete.
    Since 2004, some Federal agencies have had questions about which 
official is responsible for certifying the Annual Summary. Under the 
basic program element at 1960.67, the senior management official at the 
Federal establishment, such as an Area Office

[[Page 47188]]

Director, would have the authority to certify the summary. Also, the 
head of the Federal agency, such as the Assistant Secretary or Under 
Secretary, can certify the summary. Finally, any management official, 
such as a Regional Administrator, who is in the direct chain of command 
between the senior establishment official and the head of the Agency, 
can certify the summary.
    It is important to note that while Federal agencies have several 
options concerning which official can certify the Annual Summary, the 
individual must still reasonably believe, based on his or her knowledge 
of the process by which the information in the Log was reported and 
recorded, that the Log and Summary are ``true'' and ``complete.'' 
Having a reasonable belief that the records are complete and accurate 
would suggest, at a minimum, that the certifying official is familiar 
with OSHA's recordkeeping requirements, and the Federal agency's 
recordkeeping practices and policies, has read the Log and Summary, and 
has obtained assurance from the staff responsible for maintaining the 
records that all of OSHA's requirements have been met and all practices 
and policies followed. In most cases, the certifying official will be 
familiar with the details of some of the injuries and illnesses that 
have occurred at the establishment and will, therefore, be able to spot 
check the 300 Log to see if those cases have been entered correctly.

3. The Date for Submitting Annual Reports on Federal Agency Safety and 
Health

    Section 19(a)(5) of the OSH Act and Section 1-201(l) of Executive 
Order 12196 require all Federal agencies to submit to the Secretary of 
Labor an annual report on their agency's occupational safety and health 
program. The existing basic program element at Sec.  1960.71(a) 
requires each Federal agency to submit their report by January 1 of 
each year, and include a description of the agency's occupational 
safety and health program for the previous fiscal year, objectives for 
the current fiscal year, and a summary of the agency's self-evaluation 
of the effectiveness of their safety and health program. The basic 
program element also states that the Secretary provide the agencies 
with the guidelines and format for the reports.
    Section 1960.71(b) provides that the Secretary must submit to the 
President an annual summary report on the status of Federal employee 
occupational safety and health. The report to the President, which is 
developed by OSHA's Office of Federal Agency Programs, is partially 
based on the information submitted by Federal agencies in their annual 
reports. The basic program element also requires the Secretary to 
submit the annual report to the President by October 1 of each year.
    When OSHA revised the Federal agency occupational injury and 
illness recordkeeping requirements in November 2004, it established a 
system based on the private sector requirements in Part 1904, which 
requires the recording of injuries and illnesses and the maintenance of 
records on a calendar year basis. Accordingly, in order for Federal 
agencies to evaluate and submit injury and illness data from the entire 
calendar year, it is necessary to revise the date when Federal agencies 
must submit their annual report.
    Today's final rule amends the basic program element at 29 CFR 
1960.71(a)(1), by revising the date when Federal agencies must submit 
their annual report to the Secretary from January 1 to May 1. This 
change is consistent with the timeline established for maintaining 
records in the Part 1904 recordkeeping system, and will allow Federal 
agencies to incorporate calendar year injury and illness information 
into their annual reports. Today's final rule also amends the basic 
program element at 29 CFR 1960.71(b) which establishes the date by 
which OSHA must submit the Secretary of Labor's Report to the President 
on Federal Department and Agency Safety and Health Program Activity. 
Section 1960.71(b) is amended to require this report be submitted to 
the President by January 1, or three months later than the previous due 
date of October 1, while relying on fiscal year data.

4. Subparts A and B of Part 1904 Are Not Applicable to Federal Agencies

    The November 2004 final rule revising the reporting and recording 
requirements for Federal agencies incorporated most of the provisions 
from the OSHA private sector recordkeeping regulation at 29 CFR Part 
1904. The basic program element at Sec.  1960.66(b) provides: ``Except 
as modified by this subpart, Federal agency injury and illness 
recording and reporting requirements will be the same as 29 CFR Part 
1904 subparts C, D, E, and G''.
    OSHA did not incorporate Subpart A, Purpose, from the Part 1904 
regulation because the basic program element at 29 CFR 1960.66(a). 
already includes a ``Purpose, scope, and general provisions'' section 
applicable to Federal agency recordkeeping. Also, Subpart B, Scope, to 
Part 1904, which includes Section 1904.1, partial exemption for 
employees with fewer than 10 employees; Sec.  1904.2, partial exemption 
for establishments in certain industries; and Sec.  1904.3, keeping 
records for more than one agency, is not applicable to Federal agency 
recordkeeping. Accordingly, the recordkeeping requirements for Federal 
agencies set forth at 29 CFR part 1960, Subpart I, are applicable to 
all Federal establishments, including those that employ fewer than ten 
employees, and those which conduct work activities considered to be in 
a partially exempt industry.

5. United States Postal Service

    The basic program element at 29 CFR 1960.2(b) provides, in part, 
that the term ``agency'' means: ``an Executive Department, as defined 
in 5 U.S.C. 101 or any employing unit or authority of the Executive 
Branch of the Government.'' Section 1960.2(b) also states that the term 
``agency'' includes the United States Postal Service (USPS).
    In 1998, the Postal Employee Safety Enhancement Act, Public Law 
105-241, made the OSH Act applicable to USPS. Under this legislation, 
the OSH Act applies to USPS in the same manner as to a private sector 
employer. For purposes of Section 19 of the OSH Act, Executive Order 
12196 and the Basic Program Elements at 29 CFR Part 1960, the 
definition of ``agency'' does not include USPS. This means that USPS is 
subject to enforcement and penalty provisions of the OSHA Act similar 
to private employers. Today's final rule revises the basic program 
element at 29 CFR 1960.2(b) to make clear that the definition of 
``agency'' does not include USPS.

6. Federal Agency Abatement Verification

    Under the OSH Act, OSHA inspects workplaces to determine whether 
employers are complying with OSHA standards and other statutory and 
regulatory requirements. In addition, OSHA inspections are conducted to 
ensure that the hazards are abated. The citation references the alleged 
violation, notes the proposed penalty, and indicates the date by which 
the violation is to be abated. Abatement means action by an employer to 
comply with a cited standard or regulation or to eliminate a recognized 
hazard identified by OSHA during an inspection.
    Employers are required to verify in writing that they have abated 
cited conditions, in accordance with 29 CFR 1903.19. Section 1903.19(a) 
provides that the scope of the regulation applies to ``employers'' who 
receive a citation for a violation of the OSH Act.

[[Page 47189]]

    The Federal agency equivalent of a ``citation'' is the Notice of 
Unsafe or Unhealthful Working Conditions (OSHA Notice). The basic 
program element at Sec.  1960.30 addresses the abatement of unsafe or 
unhealthful working conditions. Among other things, the basic program 
element provides that when an OSHA Notice is issued, abatement must be 
within the time set forth in the Notice, or in accordance with an 
established abatement plan.
    The basic program elements do not include procedures for abatement 
verification when a Federal agency receives an OSHA Notice. In the 
past, OSHA's written policy has been for Federal agencies to follow the 
abatement verification procedures for the private sector, (See OSHA 
Instruction CPL 02-00-150-Field Operations Manual, Chapter 13, Federal 
Agency Field Activities). Today's final rule clarifies that the 
abatement verification procedures in 29 CFR 1903.19 are generally 
applicable to Federal agencies.
    OSHA notes that several of the provisions in Sec.  1903.19 make 
reference to abatement verification procedures that are only applicable 
to private sector employers. For example, Sec.  1903.19(b)(2)(ii), 
addresses abatement dates for contested citation items for which the 
Occupational Safety and Health Review Commission (Commission), has 
issued a final order affirming a violation. Because Federal agencies do 
not receive citations, and are not able to contest OSHA Notices before 
the Commission, Sec.  1903.19(b)(2)(ii) would not be applicable to 
Federal agencies.
    Other provisions in Sec.  1903.19 are general and address the 
procedures used by OSHA to ensure abatement. Specifically, paragraphs 
(c) through (i) in Sec.  1903.19 include private sector abatement 
verification provisions that are applicable to Federal agencies. When 
evaluating the procedures in paragraphs (c) through (i), Federal 
agencies should substitute the word ``employer'' with ``Federal 
agency,'' and ``citation'' with ``OSHA Notice.''
    Today's final rule amends the basic program element at 29 CFR 
1960.30 by adding paragraph (f) and makes clear that the abatement 
verification procedures in Sec.  1903.19 are generally applicable to 
Federal agencies.

7. Access to Medical Records

    In the November 26, 2004 final rule revising Federal agency 
occupational injury and illness recordkeeping requirements, OSHA 
inadvertently deleted Sec.  1960.66(f). This section provided that 
retention and access to employee records must be in accordance with 
OSHA's regulation at 29 CFR 1910.1020, Access to employee exposure and 
medical records. Today's final rule reestablishes the former basic 
program element at 29 CFR 1960.66(f). The revised basic program element 
states: ``Retention and access of employee exposure and medical records 
shall be in accordance with 29 CFR 1910.1020.''

8. Financial Management

    Section 1960.7(a) requires the head of each Federal agency to 
ensure that the agency budget submission includes appropriate financial 
and other resources to effectively implement and administer the 
agency's occupational safety and health program. Section 1960.7(b), 
provides that the Designated Safety and Health Official, management 
officials in charge of each establishment, safety and health officials 
at all appropriate levels, and other management officials are 
responsible for planning, requesting resources, implementing, and 
evaluating the occupational safety and health program budget in 
accordance with the regulations of the Office of Management and Budget 
Circular A-11 (sections 13.2(f) and 13.5(f)), and other relevant 
documents.
    The two sections referenced in 29 CFR 1960.7(b) are from the 1981 
version of OMB Circular A-11. Section 13.2(f) states: ``Agencies will 
assure that estimates reflect full consideration of the 
administration's goals and responsibilities to provide safe and 
healthful work places for Federal employees in accordance with the 
provisions of Executive Order No. 12196 and the related Safety and 
Health Provisions for Federal Employees of the Secretary of Labor, (CFR 
Title 29, Chapter XVII, Part 1960).''
    Section 13.5(f) states: ``Estimates for the design and construction 
of Federal facilities and buildings, and for the purchase of equipment, 
will include amounts required to insure safe and healthful workplaces 
for Federal employees consistent with the standards promulgated under 
section 19 of the Occupational Safety and Health Act of 1970. Agencies 
will assure that estimates for capital improvement will reflect full 
consideration of the expense of insuring that existing facilities 
provide safe and healthful places and conditions of employment 
consistent with these standards.''
    Over the years, OMB Circular A-11 has been revised several times. 
The revisions have resulted in the deletion of Section 13.5(f) and the 
transfer of some language from Section 13.2(f) to Section 33.1. In 
order to reduce confusion, and with the realization that the Circular 
may be revised in the future, OSHA has decided to delete the reference 
to OMB Circular A-11 in 29 CFR 1960.7(b). OSHA believes that Federal 
agencies should review and comply with all relevant OMB regulations and 
documents when evaluating their occupational safety and health budget.

X. The Current Rulemaking

    The Federal Advisory Council on Occupational Safety and Health 
(FACOSH) was established by Executive Order 11612 to advise the 
Secretary of Labor on matters relating to the occupational safety and 
health of Federal employees.
    During its March 11, 2007 meeting, FACOSH voted to establish a 
subcommittee to determine how best to collect Federal employee injury 
and illness recordkeeping information. The subcommittee held three 
meetings on May 31, June 14, and July 31, 2007, to discuss proposed 
changes to the Federal agency recordkeeping requirements in 29 CFR Part 
1960, Subpart I.
    The subcommittee was comprised of six voting members, with equal 
representation from management and labor. The six voting members 
included representatives from the Department of Defense, Department of 
Homeland Security, National Aeronautics and Space Administration, 
Seafarers International Union, American Federation of Government 
Employees, and American Postal Service Union. In addition, there were 
several representatives from various Federal agencies who actively 
participated in the meeting discussions, and offered special technical 
expertise and perspective, including representatives from the 
Department of Labor (including BLS), Transportation Safety 
Administration, NIOSH, and the Smithsonian Institution.
    Participants at the subcommittee meetings supported OSHA's 
collection of injury and illness records from Federal agencies; 
encouraged OSHA to develop a variety of options for collecting the 
data; and recommended that OSHA provide a mechanism for agencies to 
analyze their injury and illness data. The subcommittee also encouraged 
OSHA to publicize their intentions and to assist agencies who could not 
currently aggregate their own data. The subcommittee recommendations 
were presented to the full Council during an October 11, 2007 FACOSH 
meeting.
    OSHA responded to the FACOSH recommendations by writing to Federal

[[Page 47190]]

agencies, advising them of the database project, and soliciting a list 
of Federal agency establishments. OSHA has developed three options for 
agencies to submit their injury and illness data, with one option 
offering real-time data entry and analysis capability.

XI. Administrative Procedure Act

    This rule relates to matters of Federal agency management and 
personnel and, therefore, is exempt from the usual Administrative 
Procedure Act requirements for prior notice and comment and a 30-day 
delay in effective date, (See 5 U.S.C. 553(a)(2) and (d)).
    The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) does not apply 
because this rulemaking, which applies only to Federal agencies, does 
not create or modify information collection requirements that require 
the approval of the Office of Management and Budget. Additionally, the 
Department of Labor has determined that this rulemaking is a nonmajor 
rule under the Congressional Review Act (5 U.S.C. Chapter 8), and will 
submit a report thereon to the U.S. Senate, House of Representatives, 
and General Accounting Office in accordance with that law at the same 
time this rulemaking document is sent to the Office of the Federal 
Register for publication.
    Because this rulemaking applies only to Federal agencies, the 
Department of Labor certifies pursuant to the Regulatory Flexibility 
Act, (5 U.S.C. 605(b)) that this final rule will not have a significant 
impact on a substantial number of small entities. Similarly, the 
requirements of the Unfunded Mandates Reform Act of 1995 and Executive 
Order 13132 addressing ``Federalism'' do not apply. The Department of 
Labor has also determined that this is not a ``significant regulatory 
action'' under Section 3(f) of Executive Order 12866, ``Regulatory 
Planning and Review,'' and that it relates to a matter of agency 
organization, management, or personnel. See Executive Order 12866; 
Section 3(d)(3).

XII. Summary and Explanation of the Final Rule, 29 CFR Part 1960.66(b)

    As described below.

List of Subjects in 29 CFR Part 1960

    Government employees, Occupational safety and health, Reporting and 
recordkeeping requirements.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and 
Health, U.S. Department of Labor. 200 Constitution Avenue NW., 
Washington, DC 20210. Accordingly, pursuant to sections 19 and 24 of 
the Occupational Safety and Health Act of 1970 (84 Stat. 1609, 1614; 29 
U.S.C. 668, 673), 5 U.S.C. 553, Secretary of Labor's Order No. 1-2012 
(77 FR 3912) and Executive Order 12196, the Department amends 29 CFR 
part 1960 as set forth below.

    Signed at Washington, DC, on July 26, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble, 29 CFR Part 1960 is amended 
to read as follows:

PART 1960--BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL 
SAFETY AND HEALTH PROGRAMS AND OTHER RELATED MATTERS

0
1. The authority citation for Part 1960 continues to read as follows:

    Authority:  Sections 19 and 24 of the Occupational Safety and 
Health Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 668, 673, 5 
U.S.C. 553, Secretary of Labor's Order No. 1-90 (55 FR 9033), and 
Executive Order 12196.


0
2. Amend Sec.  1960.2 by revising paragraph (b) to read as follows:


Sec.  1960.2  Definitions.

* * * * *
    (b) The term agency for the purposes of this part means an 
Executive Department, as defined in 5 U.S.C. 101, or any employing unit 
of authority of the Executive Branch of the Government. For the 
purposes of this part to the extent it implements section 19 of the 
Act, the term agency does not include the United States Postal Service. 
By agreement between the Secretary of Labor and the head of an agency 
of the Legislative or Judicial Branches of the Government, these 
regulations may be applicable to such agencies.
* * * * *

0
3. Amend Sec.  1960.7 by revising paragraph (b) to read as follows:


Sec.  1960.7  Financial management.

* * * * *
    (b) The Designated Agency Safety and Health Official, management 
officials in charge of each establishment, safety and health officials 
at all appropriate levels, and other management officials shall be 
responsible for planning, requesting resources, implementing, and 
evaluating the occupational safety and health program budget in 
accordance with all relevant Office of Management and Budget 
regulations and documents.
* * * * *

0
4. Amend Sec.  1960.30 by adding paragraph (f) to read as follows:


Sec.  1960.30  Abatement of unsafe or unhealthful working conditions.

* * * * *
    (f) The procedures OSHA will use to verify Federal agency abatement 
are included in the private sector guidelines at 29 CFR 1903.19.
* * * * *

0
5. Amend Sec.  1960.66 by adding paragraph (f) to read as follows:


Sec.  1960.66  Purpose, scope and general provisions.

* * * * *
    (f) Retention and access of employee exposure and medical records 
shall be in accordance with 29 CFR 1910.1020.
* * * * *

0
6. Amend Sec.  1960.71 by revising paragraphs (a)(1) and (b) to read as 
follows:


Sec.  1960.71  Agency annual reports.

    (a)* * *
    (1) Each agency must submit to the Secretary by May 1 of each year 
a report describing the agency's occupational safety and health program 
of the previous calendar year and objectives for the current fiscal 
year. The report shall include a summary of the agency's self-
evaluation finding as required by Sec.  1960.78(b).
* * * * *
    (b) The Secretary will submit to the President by January 1 of each 
year a summary report of the status of the occupational safety and 
health of Federal employees based on agency reports, evaluations of 
individual agency progress and problems in correcting unsafe or 
unhealthful working conditions, and recommendations for improving their 
performance.

0
7. Add new Sec.  1960.72 to read as follows:


Sec.  1960.72  Reporting Federal Agency Injury and Illness Information.

    (a) Each agency must submit to the Secretary by May 1 of each year 
all information included on the agency's previous calendar year's 
occupational injury and illness recordkeeping forms. The information 
submitted must include all data entered on the OSHA Form 300, Log of 
Work-Related Injuries and Illnesses (or equivalent); OSHA Form 301, 
Injury and Illness Incident Report (or equivalent); and OSHA Form 300A, 
Summary of Work-Related Injuries and Illnesses (or equivalent).

[[Page 47191]]

    (b) The Secretary must provide each agency by January 15 of each 
year with the format and guidelines for electronically submitting the 
agency's occupational injury and illness recordkeeping information.
    (c) Each agency must submit to the Secretary by May 1, 2014, a list 
of all establishments. The list must include information about the 
department/agency affiliation, NAICS code, a street address, city, 
state and zip code. Federal agencies are also responsible for updating 
their list of establishments by May 1 of each year when they submit the 
annual report to the Secretary required by Sec.  1960.71(a)(1).
* * * * *

0
8. Add new Sec.  1960.73 to read as follows:


Sec.  1960.73  Federal agency injury and illness recordkeeping forms.

    (a) When filling out the OSHA Form 300 or equivalent, each agency 
must enter the employee's OPM job series number and job title in Column 
(c).
    (b) When recording the injuries and illnesses of uncompensated 
volunteers, each agency must enter a ``V'' before the OPM job series 
number in Column (c) of the OSH Form 300 log or equivalent.
    (c) Each agency must calculate the total number of hours worked by 
uncompensated volunteers.

[FR Doc. 2013-18457 Filed 8-2-13; 8:45 am]
BILLING CODE 4510-26-P