[Federal Register Volume 80, Number 145 (Wednesday, July 29, 2015)]
[Proposed Rules]
[Pages 45116-45131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18003]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR part 1904

[Docket No. OSHA-2015-0006]
RIN 1218-AC84


Clarification of Employer's Continuing Obligation To Make and 
Maintain an Accurate Record of Each Recordable Injury and Illness

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

ACTION: Notice of proposed rule.

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SUMMARY: OSHA is proposing to amend its recordkeeping regulations to 
clarify that the duty to make and maintain accurate records of work-
related injuries and illnesses is an ongoing obligation. The duty to 
record an injury or illness continues for as long as the employer must 
keep records of the recordable injury or illness; the duty does not

[[Page 45117]]

expire just because the employer fails to create the necessary records 
when first required to do so. The proposed amendments consist of 
revisions to the titles of some existing sections and subparts, and 
changes to the text of some existing provisions. The proposed 
amendments add no new compliance obligations; the proposal would not 
require employers to make records of any injuries or illnesses for 
which records are not currently required to be made.

DATES: Written comments to this proposed rule must be submitted 
(postmarked, sent or received) by September 28, 2015. All submissions 
must bear a postmark or provide other evidence of the submission date.

ADDRESSES: You may submit comments, identified by Docket No. OSHA-2015-
0006, by any of the following methods:
    Electronically: You may submit comments and attachments 
electronically at http://www.regulations.gov, which is the Federal e-
Rulemaking Portal. Follow the instructions on the Web site for making 
electronic submissions.
    Fax: If your submission, including attachments, does not exceed ten 
pages, you may fax it to the OSHA Docket Office at (202) 693-1648. OSHA 
does not require hard copies of documents transmitted by facsimile. 
However, if you have supplemental attachments that are not delivered by 
facsimile, you must submit those attachments, by the applicable 
deadline, to the OSHA Docket Office, Technical Data Center, OSHA, U.S. 
Department of Labor, 200 Constitution Avenue NW., Room N-2625, 
Washington, DC 20210. Any such attachment must clearly identify the 
sender's name, the date of submission, the title of the rulemaking 
(Clarification of Employer's Continuing Obligation to Make and Maintain 
an Accurate Record of Each Recordable Injury and Illness), and the 
docket number (OSHA-2015-0006) so that the Docket Office can add the 
attachment(s) to the appropriate facsimile submission.
    Mail, express mail, hand delivery, messenger, or courier service: 
You may submit comments to the OSHA Docket Office, Docket Number OSHA-
2015-0006, Technical Data Center, OSHA, U.S. Department of Labor, 200 
Constitution Avenue NW., Room N-2625, Washington, DC 20210; telephone: 
(202) 693-2350. (OSHA's TTY number is (877) 889-5627). Please contact 
the OSHA Docket Office for information about Department of Labor 
security procedures that could affect the delivery of materials by 
express mail, hand delivery, and messenger or courier service. Also 
note that security-related procedures may delay the Agency's receipt of 
comments submitted by regular mail. The Docket Office will accept 
deliveries by hand, express mail, or messenger and courier service 
during the Docket Office's normal business hours, 8:15 a.m. to 4:45 
p.m.
    Instructions for submitting comments: All submissions must include 
the Agency's name (OSHA), the title of the rulemaking (Clarification of 
Employer's Continuing Obligation to Make and Maintain an Accurate 
Record of Each Recordable Injury and Illness), and the docket number 
(OSHA-2015-0006). OSHA will place comments and other material, 
including any personal information you provide, in the public docket 
without revision, and the comments and other materials will be 
available online at http://www.regulations.gov. Therefore, OSHA 
cautions you about submitting statements and information that you do 
not want made available to the public or that contain personal 
information (about yourself or others) such as Social Security numbers, 
birthdates, and medical data. For further information on submitting 
comments, plus additional information on the rulemaking process, see 
the Public Participation heading in the SUPPLEMENTARY INFORMATION part 
of this document.
    Docket: To read or download comments or other material in the 
docket, go to Docket Number OSHA-2015-0006 at http://www.regulations.gov or to the OSHA Docket Office at the address 
provided previously. The electronic docket for this proposed rule, 
established at http://www.regulations.gov, lists all of the documents 
in the docket. However, some information (e.g., copyrighted material) 
is not publicly available to read or download through that Web site. 
All submissions, including copyrighted material, are available for 
inspection at the OSHA Docket Office. Contact the OSHA Docket Office 
for assistance in locating docket submissions.

FOR FURTHER INFORMATION CONTACT: General information and press 
inquiries: Press inquiries: Mr. Frank Meilinger, Director, Office of 
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200 
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email [email protected].
    Technical inquiries: Mr. William Perry, Directorate of Standards 
and Guidance, OSHA, U.S. Department of Labor, Room N-3718, 200 
Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1950; email [email protected].
    Copies of this Federal Register notice and news releases: 
Electronic copies of these documents are available at OSHA's Web page 
at http://www.osha.gov.

SUPPLEMENTARY INFORMATION:

I. Table of Contents

I. Table of Contents
II. Background
    A. The OSH Act and OSH Act Violations
    B. The History and Importance of OSHA's Recordkeeping 
Regulations
    C. A Failure To Record a Recordable Illness or Injury is a 
Continuing Violation
    D. The D.C. Circuit's Decision in Volks II
    E. Advisory Committee on Construction Safety and Health
    III. Legal Authority
    A. Overview
    B. The OSH Act authorizes the Secretary To Impose a Continuing 
Obligation on Employers To Make and Maintain Accurate Records of 
Work-Related Injuries and Illnesses, and Incomplete or Otherwise 
Inaccurate Records Create Ongoing, Citable Conditions
    1. Section 8(c) of the Act Governs Employers' Recordkeeping 
Obligations, and That Provision Imposes Continuing Obligations on 
Employers To Make and Maintain Accurate Records of Work-Related 
Illnesses and Injuries
    2. The OSH Act's Statute of Limitations Does Not Define OSHA 
Violations, or Address When Violations Occur, Nor Does the Language 
in Section 9(c) Preclude Continuing Recordkeeping Violations
    3. Incomplete or otherwise inaccurate records of work-related 
illnesses and injuries create an ongoing condition detrimental to 
full enforcement of the Act.
    4. Interpreting the Duty to Record as a Continuing One Under the 
Act's Civil, Remedial Scheme is Entirely Consistent With the General 
Case Law
IV. Summary and Explanation of the Proposed Rule
    A. Description of proposed revisions
    1. Section 1904.0--Purpose
    2. Subpart C--Making and Maintaining Accurate Records, 
Recordkeeping Forms, and Recording Criteria
    3. Paragraph (a) of Sec.  1904.4--Basic requirement
    4. Note to paragraph (a) of Sec.  1904.4
    5. Paragraph (b)(3) of Sec.  1904.29--How quickly must each 
injury or illness be recorded?
    6. Section 1904.32--Year-end review and annual summary
    7. Paragraph (a) of Sec.  1904.32--Basic requirement
    8. Paragraph (b)(1) of Sec.  1904.32--How extensively do I have 
to review the OSHA 300 Log at the end of the year?
    9. Section 1904.33--Retention and maintenance of accurate 
records
    10. Paragraph (b)(1) of Sec.  1904.33--Other than the obligation 
identified in Sec.  1904.32, do I have further recording

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duties with respect to OSHA 300 Logs and 301 Incident Reports during 
the five-year retention period?
    11. Paragraph (b)(2) of Sec.  1904.33--Do I have to make 
additions or corrections to the annual summary during the five-year 
retention period?
    12. Paragraph (b)(3) of Sec.  1904.33
    13. Paragraph (b)(2) of Sec.  1904.35--Do I have to give my 
employees and their representatives access to the OSHA injury and 
illness records?
    14. Paragraph (b)(2)(iii) of Sec.  1904.35--If an employee or 
representative asks for access to the OSHA 300 Log, when do I have 
to provide it?
    15. Subpart E--Reporting Accurate Fatality, Injury, and Illness 
Information to the Government
    16. Section 1904.40--Providing accurate records to government 
representatives
    17. Paragraph (a) of Sec.  1904.40--Basic requirement
V. State Plans
VI. Preliminary Economic Analysis
VII. Regulatory Flexibility Certification
VIII. Environmental Impact Assessment
IX. Federalism
X. Unfunded Mandates
XI. Consultation and Coordination With Indian Tribal Governments
XII. Public Participation
XIII. The Paperwork Reduction Act of 1995

II. Background

A. The OSH Act and OSH Act Violations

    The Occupational Safety and Health Act of 1970 (OSH Act or Act) 
arose out of a Congressional finding that personal injuries and 
illnesses arising out of work situations impose a substantial burden 
upon, and are a hindrance to, interstate commerce in terms of lost 
production, wage loss, medical expenses, and disability compensation 
payments. See 29 U.S.C. 651(a). Accordingly, the purpose of the statute 
is to assure so far as possible every working man and woman in the 
Nation safe and healthful working conditions. See 29 U.S.C. 651(b).
    To effectuate the Act's purpose, Congress authorized the Secretary 
of Labor to promulgate occupational safety and health standards (29 
U.S.C. 655); a standard, as defined in the Act, requires conditions, or 
the adoption or use of one or more practices, means, methods, 
operations, or processes, reasonably necessary or appropriate to 
provide safe or healthful employment and places of employment. See 29 
U.S.C. 652(8). The Act also grants broad authority to the Secretary to 
promulgate regulations related to recordkeeping, employer self-
inspections, and keeping employees informed of matters related to 
occupational safety and health. 29 U.S.C. 657(c). OSHA issues citations 
and assesses monetary penalties when it finds that employers are not 
complying with applicable standards and regulations. 29 U.S.C. 658, 
659, 666.
    Section 9(c) of the OSH Act contains a statute of limitations 
providing that no citation may be issued after the expiration of six 
months following ``the occurrence of any violation.'' 29 U.S.C. 658(c). 
Generally, OSH Act violations continue to occur for as long as 
employees are exposed to the hazard posed by the non-compliant 
workplace. See Sec'y of Labor v. Cent. of Georgia R.R. Co., 5 BNA OSHC 
1209, 1211 (Rev. Comm'n 1977) (explaining that a violation occurs 
``whenever . . . [a] standard is not complied with and an employee has 
access to the resulting zone of danger''). Thus, employers have an 
ongoing obligation to correct conditions that violate OSHA standards 
and regulations, and under section 9(c), violations are subject to 
citations and penalties for up to six months after the last instance of 
employee exposure to the relevant hazard.

B. The History and Importance of OSHA's Recordkeeping Regulations

    The OSH Act requires the Secretary of Labor to promulgate 
regulations requiring employers to make and maintain accurate records 
of work-related injuries and illnesses. 29 U.S.C. 657(c)(1) and (2), 
673(a); see also 651(b)(12), 657(g)(2), 673(e). In 1971, the Secretary 
(via OSHA) issued the first recordkeeping regulations at 29 CFR part 
1904. The Agency promulgated revisions to these regulations in 2001 in 
an effort to improve the quality of workplace injury and illness 
records by making OSHA's recordkeeping system easier to use and 
understand. See 66 FR 5916 (January 19, 2001).
    OSHA's recordkeeping regulations require employers to record 
information about certain injuries and illnesses occurring in their 
workplaces, and to make that information available to employees, OSHA, 
and the Bureau of Labor Statistics (BLS). Employers must record work-
related injuries and illnesses that meet one or more recording 
criteria, including injuries and illnesses resulting in death, loss of 
consciousness, days away from work, restricted work activity or job 
transfer, medical treatment beyond first aid, or a diagnosis of a 
significant injury or illness by a physician or other licensed health 
care professional. 29 CFR 1904.7. Employers must document each 
recordable injury or illness on an ``OSHA 300'' form, which is a log of 
all work-related injuries and illnesses. 29 CFR 1904.29(a) through 
(b)(1). Employers also must prepare a supplementary ``OSHA 301 Incident 
Report'' or equivalent form for each recordable injury and illness; the 
Incident Reports provide additional details about the injuries and 
illnesses recorded in the 300 Log. 29 CFR 1904.29(b)(2).
    At the end of each calendar year, employers must review their 300 
Logs to verify that the entries are complete and accurate. 29 CFR 
1904.32(a)(1). Employers also must correct any deficiencies identified 
during the annual review. Id. By February 1 of each year, employers 
must create, certify, and post annual summaries of the cases listed on 
their 300 Logs for the prior calendar year. 29 CFR 1904.32(a)(2) 
through (4) and (b)(6). Annual summaries must remain posted until April 
30 each year. 29 CFR 1904.32(b)(6). Employers must retain their OSHA 
Logs, Incident Reports, and annual summaries for five years following 
the end of the calendar year that they cover. 29 CFR 1904.33(a). During 
the retention period, employers must update their 300 Logs to include 
newly discovered recordable cases and to show any changes in the 
classification, description, or outcome of previously-recorded cases. 
29 CFR 1904.33(b)(1). The regulations do not require employers to 
update Incident Reports or annual summaries during the retention 
period. 29 CFR 1904.33(b)(2) and (3).
    Accurate injury and illness records serve several important 
purposes. See 66 FR at 5916-17, January 19, 2001. One purpose is to 
provide information to employers. The information in the OSHA-required 
records makes employers more aware of the kinds of injuries and 
illnesses occurring and the hazards that cause or contribute to them. 
When employers analyze and review the information in their records, 
they can identify and correct hazardous workplace conditions. Injury 
and illness records are essential for employers to effectively manage 
their safety and health programs; these records permit employers to 
track injuries and illnesses over time so they can evaluate the 
effectiveness of protective measures implemented in response to 
identified hazards.
    Similarly, employees--who have access to OSHA injury and illness 
records throughout the five-year retention period (see 29 CFR 
1904.35)--can use information about the occupational injuries and 
illnesses occurring in their workplaces to become better informed 
about, and more alert to, the hazards they face. Employees who are 
aware of the hazards around them may be more likely to follow safe work 
practices and to report workplace hazards to their employers. When

[[Page 45119]]

employees are aware of workplace hazards, and participate in the 
identification and control of those hazards, the overall level of 
safety and health in the workplace can improve.
    OSHA also has access to employer injury and illness records during 
the retention period (see 29 CFR 1904.40 and 1904.41), and these 
records are an important source of information for the Agency and 
enhance the Agency's enforcement efforts. During the initial stages of 
an inspection, an OSHA representative reviews the employer's injury and 
illness data so that the Agency can focus its inspection on the hazards 
revealed by the records. In some years, OSHA has also surveyed a subset 
of employers covered by the OSH Act for their injury and illness data, 
and used that information to help identify the most dangerous types of 
worksites and the most prevalent types of safety and health hazards.
    Additionally, BLS uses data derived from employers' injury and 
illness records to develop national statistics on workplace injuries 
and illnesses. These statistics include information about the source, 
nature, and type of the injuries and illnesses that are occurring in 
the nation's workplaces. To obtain the data to develop national 
statistics, BLS and participating State agencies conduct an annual 
survey of employers in almost all sectors of private industry. BLS 
makes the aggregate survey results available for research purposes and 
for public information. This data provides information about the 
incidence of workplace injuries and illnesses and the nature and 
magnitude of workplace safety and health problems. Congress, OSHA, and 
safety and health policymakers in Federal, State, and local governments 
use BLS statistics to make decisions concerning safety and health 
legislation, programs, and standards. And employers and employees can 
use BLS statistics to compare the injury and illness data from their 
workplaces with data from the nation as a whole.

C. A Failure To Record a Recordable Illness or Injury is a Continuing 
Violation

    A continuing violation exists when there is noncompliance with 
``the text of . . . [a] pertinent law [that] imposes a continuing 
obligation to act or refrain from acting.'' Earle v. Dist. of Columbia, 
707 F.3d 299, 307 (D.C. Cir. 2012). Where there is an ongoing 
obligation to act, each day the action is not taken results in a 
continuing, ongoing violation. In other words, ``a new claim accrues 
each day the violation is extant.'' Interamericas Inv., Ltd. v. Fed. 
Reserve Sys., 111 F.3d 376, 382 (5th Cir. 1997). For example, in United 
States v. Edelkind, 525 F.3d 388 (5th Cir. 2008), the Fifth Circuit 
found that the crime of willfully failing to pay child support as 
required by federal law was a continuing offense because ``each day's 
acts . . . [brought] a renewed threat of the substantive evil Congress 
sought to prevent.'' Id. at 394-95 (internal quotation marks and 
citations omitted). And in Postow v. OBA Federal Savings & Loan 
Association, 627 F.2d 1370 (D.C. Cir. 1980), the D.C. Circuit held that 
a lender's failure to provide required disclosures to borrowers was a 
continuing violation of the Truth-in-Lending Act because the violation 
subverted the goals of the statute every day the borrowers did not have 
the information. Id. at 1379-80. See, also, e.g., United States v. 
Bailey, 444 U.S. 394, 413 (1980) (escape from federal custody is a 
continuing offense in light of ``the continuing threat to society posed 
by an escaped prisoner''); United States v. George, 625 F.3d 1124 (9th 
Cir. 2010) (failure to comply with statute requiring registration as a 
sex offender is a continuing offense), vacated on other grounds, 672 
F.3d 1126 (9th Cir. 2012); United States v. Franklin, 188 F.2d 182 (7th 
Cir. 1951) (Alien Registration Act imposes ongoing registration 
obligation; failure to register is a continuing violation).
    Recordkeeping violations under the OSH Act are likewise continuing 
violations. OSHA's longstanding position is that an employer's duty to 
record an injury or illness continues for the full duration of the 
record-retention-and-access period, i.e., for five years after the end 
of the calendar year in which the injury or illness became recordable. 
This means that if an employer initially fails to record a recordable 
injury or illness, the employer still has an ongoing duty to record 
that case; the recording obligation does not expire simply because the 
employer failed to record the case when it was first required to do so. 
As long as an employer fails to comply with its ongoing duty to record 
an injury or illness, there is an ongoing violation of OSHA's 
recordkeeping requirements that continues to occur every day employees 
work at the site. Therefore, OSHA can cite employers for such 
recordkeeping violations for up to six months after the five-year 
retention period expires without running afoul of the OSH Act's statute 
of limitations.\1\
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    \1\ Of course, OSHA may not issue a citation more than six 
months after the employer corrects the violation. See, e.g., Sec'y 
of Labor v. Manganas Painting Co., 21 BNA OSHC 2043, 2048 (Rev. 
Comm'n 2007) (citation was time-barred where the employer abated the 
violation more than six months prior to the issuance date).
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    The Occupational Safety and Health Review Commission has upheld 
OSHA's position on the continuing nature of recordkeeping violations. 
See, e.g., Sec'y of Labor v. Gen. Dynamics, 15 BNA OSHC 2122 (Rev. 
Comm'n 1993) (recordkeeping violations ``occur'' at any point during 
the retention period when records are inaccurate, so citations for 
those violations are not barred simply because they are issued more 
than six months after the obligation to record first arose); Sec'y of 
Labor v. Johnson Controls, Inc., 15 BNA OSHC 2132 (Rev. Comm'n 1993) 
(recordkeeping violations continue until correction or expiration of 
the retention period). The Commission addressed this issue most 
recently in Secretary of Labor v. AKM LLC (Volks I), 23 BNA OSHC 1414 
(Rev. Comm'n 2011), confirming that an employer's failure to make a 
required OSHA record is a continuing violation, and that an uncorrected 
violation continues until the employer is no longer required to keep 
OSHA records for the year at issue.

D. The D.C. Circuit's Decision in Volks II

    A panel of the D.C. Circuit reviewed the Commission's Volks I 
decision, and on April 6, 2012, issued a decision--Volks II--reversing 
the Commission. AKM LLC v. Sec'y of Labor (Volks II), 675 F.3d 752 
(D.C. Cir. 2012). The majority opinion in Volks II disagreed with the 
Commission and held that ``the . . . language in [the OSH Act] . . . 
which deals with record-keeping is not authorization for OSHA to cite 
the employer for a record-making violation more than six months after 
the recording failure.'' Id. at 758. According to the majority opinion, 
OSHA must cite an employer for failing to record an injury or illness 
within six months of the first day on which the regulations require the 
recording; a citation issued later than that is barred by the OSH Act's 
statute of limitations. Id. at 753-59.
    In a separate concurring opinion in Volks II, Judge Garland 
recognized that the OSH Act allows for continuing violations of 
recordkeeping requirements. He concluded, however, that the specific 
language in OSHA's existing recordkeeping regulations does not 
implement this statutory authority and does not create continuing 
recordkeeping obligations. Id. at 759-64. No other appellate court has 
ruled on these issues.

[[Page 45120]]

    The Volks II decision has led to a need for OSHA to clarify 
employers' obligations under its recordkeeping regulations and to 
elaborate on its understanding of the statutory basis for those 
obligations. The Agency is proposing changes to its recordkeeping 
regulations to clarify that the duty to make and maintain an accurate 
record of a work-related illness or injury is an ongoing obligation 
that continues until the required record is made or until the end of 
the record-retention-and-access period prescribed by the regulations. 
To that end, OSHA is proposing revisions to the titles of some existing 
sections and subparts in part 1904, and changes to the text of some 
existing recordkeeping requirements. The Agency describes the proposed 
changes in SUPPLEMENTARY INFORMATION, Section IV, later in this notice.

E. Advisory Committee on Construction Safety and Health

    OSHA consulted with the Advisory Committee on Construction Safety 
and Health (ACCSH) on this rulemaking. The Agency provided ACCSH with a 
summary and explanation of this proposal and a statement regarding the 
need for the proposed revisions to 29 CFR part 1904. On December 4, 
2014, ACCSH voted to recommend that OSHA proceed with this proposal.

III. Legal Authority

A. Overview

    As explained previously, in SUPPLEMENTARY INFORMATION, Section 
II.A, the OSH Act authorizes the Secretary of Labor to issue 
``standards'' and other ``regulations.'' See, e.g., 29 U.S.C. 655, 657. 
An occupational safety and health standard, issued pursuant to section 
6 of the Act, prescribes measures to be taken to remedy an identified 
occupational hazard. Other regulations, issued pursuant to general 
rulemaking authority found, inter alia, in section 8 of the Act, 
establish enforcement or detection procedures designed to further the 
goals of the Act generally. 29 U.S.C. 657(c); Workplace Health and 
Safety Council v. Reich, 56 F. 3d 1465, 1468 (D.C. Cir. 1995). The 
proposed amendments are to a regulation issued pursuant to authority 
expressly granted by sections 8 and 24 of the Act. 29 U.S.C. 657, 673. 
They simply clarify existing duties under part 1904, and do not impose 
any new substantive recordkeeping requirements. Numerous provisions of 
the OSH Act both underscore Congress' acknowledgement that accurate 
injury and illness records are a critical component of the national 
occupational safety and health program and give the Secretary broad 
authority to enact recordkeeping regulations that create a continuing 
obligation for employers to make and maintain accurate records of work-
related illnesses and injuries. Section 2(b)(12) of the Act states that 
one of the purposes of the OSH Act is to assure, so far as possible, 
safe and healthful working conditions by providing for appropriate 
reporting procedures that will help achieve the objectives of the Act 
and ``accurately describe'' the nature of the occupational safety and 
health problem. See 29 U.S.C. 651(b)(12). Section 8(c)(1) requires each 
employer to ``make, keep and preserve'' and ``make available'' to the 
Secretary such records prescribed by regulation as necessary or 
appropriate for the enforcement of the Act or for developing 
information regarding the causes and prevention of occupational 
accidents and illnesses. See 29 U.S.C. 657(c)(1). Section 8(c)(2) 
requires the Secretary to prescribe regulations requiring employers to 
``maintain accurate records'' of, and to make periodic reports on, 
work-related deaths, injuries and illnesses. See 29 U.S.C. 657(c)(2). 
Section 8(g)(2) of the Act generally empowers the Secretary to 
prescribe such rules and regulations as he may deem necessary to carry 
out his responsibilities under the Act. See 29 U.S.C. 657(g)(2). 
Section 24(a) requires the Secretary to develop and maintain an 
effective program of collection, compilation and analysis of 
occupational safety and health statistics and to compile accurate 
statistics on work injuries and illnesses. See 29 U.S.C. 673(a). 
Section 24(e) provides that on the basis of the records made and kept 
pursuant to section 8(c) of the Act, employers must file such reports 
with the Secretary that the Secretary prescribes by regulation as 
necessary to carry out his functions under the Act. See 29 U.S.C. 
673(e). Some of these provisions will be addressed more thoroughly in 
SUPPLEMENTARY INFORMATION, Section III.B, later in this notice.

B. The OSH Act Authorizes the Secretary To Impose a Continuing 
Obligation on Employers To Make and Maintain Accurate Records of Work-
Related Injuries and Illnesses, and Incomplete or Otherwise Inaccurate 
Records Create Ongoing, Citable Conditions

1. Section 8(c) of the Act Governs Employers' Recordkeeping 
Obligations, and That Provision Imposes Continuing Obligations on 
Employers To Make and Maintain Accurate Records of Work-Related 
Illnesses and Injuries
    ``Whether [an] . . . obligation is continuing is a question of 
statutory construction,'' Earle, 707 F.3d at 307. The express language 
of the OSH Act readily supports a continuing violation theory in 
recordkeeping cases. And, section 8(c) grants the Secretary broad 
authority to issue requirements he considers ``necessary or 
appropriate,'' including recordkeeping regulations that provide that an 
employer's duty to make records of injuries and illnesses is an ongoing 
obligation. 29 U.S.C. 657(c).
    Section 8(c)(2) requires the Secretary to prescribe regulations 
requiring employers to ``maintain accurate records'' of work-related 
deaths, injuries and illnesses. See 29 U.S.C. 657(c)(2) (emphasis 
added). And section 8(c)(1) requires employers to ``make, keep and 
preserve'' and to ``make available'' records that the Secretary 
identifies as necessary or appropriate for the enforcement of the Act 
or for developing information regarding the causes and prevention of 
occupational accidents and illnesses. See 29 U.S.C. 657(c)(1) (emphasis 
added). The language Congress used in these provisions therefore 
authorizes the Secretary to require employers to have on hand and make 
available records that accurately reflect all of the recordable 
injuries and illnesses that occurred during the years for which the 
Agency requires the keeping of records. And this statutory language 
also is inconsistent with any suggestion that Congress intended the 
duty to record an injury or illness to be a discrete obligation that 
expires if the employer fails to comply on the first day the Agency's 
regulations require recording.
    Moreover, the words ``accurate'' and ``maintain'' in section 
8(c)(2) of the Act connote a continued course of conduct that includes 
an ongoing obligation to create records. The word ``maintain'' means to 
``[c]ause or enable (a condition or state of affairs) to continue,'' an 
example being when one works to ensure that something stays ``in good 
condition or in working order by checking or repairing it regularly.''

[[Page 45121]]

http://www.oxforddictionaries.com/us/definition/american_english/maintain?searchDictCode=all. ``Maintain'' is also synonymous with 
``keep.'' http://thesaurus.com/browse/maintain. In ordinary speech, an 
instruction to ``keep records'' of something requires both creating and 
preserving the records, and may include organizing and managing them as 
well. Therefore, ``maintain'' plainly implies an ongoing action. See, 
e.g., Carey v. Shiley, Inc., 32 F.Supp.2d 1093, 1103 (S.D. Iowa 1998) 
(``continuing duty to maintain records for'' the Food and Drug 
Administration). And ``accurate'' means ``conforming exactly to 
truth,'' and is synonymous with ``exact.'' http://www.meriam-webster.com/dictionary/accurate. See also, e.g., Huntington Sec. Corp. 
v. Busey, 112 F.2d 368, 370 (6th Cir. 1940) (noting that the term `` 
`accurately' . . . in its ordinary use[ ] means precisely, exactly 
correctly, without error or defect''). Therefore, the OSH Act's call 
for regulations requiring employers to ``maintain accurate [injury and 
illness] records'' is a mandate for the Secretary to impose an ongoing 
or continuing duty on employers to have (or keep) true or exact 
documentation of recordable incidents. An employer cannot be said to 
have (or to be keeping or maintaining) accurate (or true or exact) 
records of injuries and illnesses for a particular calendar year if 
there are recordable injuries or illnesses that occurred during that 
year that are missing from those records. Put simply, the Secretary 
cannot fulfill the statutory obligation of ensuring that employers 
``maintain'' (or keep) ``accurate records'' without imposing on 
employers an ongoing duty to create records for injuries and illnesses 
in the first place; a duty to make and maintain accurate records 
inherently implies an ongoing obligation to create the records that 
must be maintained.
    The Fourth Circuit recognized as much in Sierra Club v. Simkins 
Industries, 847 F.2d 1109, 1115 (4th Cir. 1988), a Clean Water Act 
case, when it refused to allow a company to defend against its failure 
to file and retain water sampling records on the grounds that it never 
collected the data it needed to create the records in the first place. 
The court ruled that an ongoing duty to maintain records implies a 
corresponding, and continuing, duty to have those records, explaining 
that it would not allow the company ``to escape liability . . . by 
failing at the outset to sample and to create and retain the necessary 
. . . records.'' Id. See also, e.g., Big Bear Super Mkt. No. 3 v. INS, 
913 F.2d 754, 757 (9th Cir. 1990) (per curiam) (statutory and 
regulatory scheme described by the court as requiring companies to 
``maintain'' documents is interpreted to impose a ``continuing duty'' 
on those companies ``to prepare and make'' the documents in the first 
instance); Park v. Comm'r of Internal Revenue, 136 T.C. 569, 574 (U.S. 
Tax Ct. 2011) (noting that a party that did not create required records 
thereby failed to ``keep'' those records), rev'd and remanded on other 
grounds, 722 F.3d 384 (D.C. Cir. 2013).
    The ``make, keep, and preserve'' and ``make available'' language in 
section 8(c)(1) similarly envisions a continuing duty to record and 
provides additional support for the Agency's interpretation of the 
``maintain accurate records'' language in section 8(c)(2). The 
corresponding authorization to the Secretary to prescribe such 
recordkeeping regulations as he considers ``necessary or appropriate'' 
emphasizes the breadth of the Secretary's discretion in implementing 
the statute. As mentioned previously, ``keep'' is a synonym for 
``maintain,'' and both words imply a continued course of conduct, as of 
course does ``preserve.'' \2\ See e.g., Powerstein v. Comm'r of 
Internal Revenue, T.C. Memo 2011-271, 2011 WL 5572600, at *13 (U.S. Tax 
Ct. Nov. 16, 2011) (interpreting statutory and regulatory requirements 
to ``keep'' tax records to mean that taxpayers must ``maintain'' such 
records); Freedman v. Comm'r of Internal Revenue, T.C. Memo 2010-155, 
2010 WL 2942167, at *1 (U.S. Tax Ct. July 21, 2010) (same).
---------------------------------------------------------------------------

    \2\ The legislative history of the OSH Act shows that Congress 
used ``keep'' and ``maintain'' synonymously. In a Senate Report, 
Congress described section 8(c)(2)--which talks about 
``maintaining'' records--as ``requiring employers to keep records of 
all work-related injuries and diseases.'' S. Rep. No. 91-1282, at 31 
(1970), reprinted in Subcomm. on Labor of the Comm. on Labor and 
Public Welfare, Legislative History of the Occupational Safety and 
Health Act of 1970, at 171 (1971) (emphasis added).
---------------------------------------------------------------------------

    The fact that Congress included the word ``make'' in a phrase with 
two other terms that both call for a continuing action suggests that 
``make'' was also intended to signify a continuing course of conduct in 
the recordkeeping context. The most reasonable reading of section 
8(c)(1), particularly in light of the ``maintain accurate records'' 
language in section 8(c)(2), is that the phrase ``make, keep, and 
preserve'' authorizes one continuous recordkeeping requirement that 
includes both the creation and the keeping of records. See, e.g., Davis 
v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989) (noting a 
``fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme'').
    Thus, the Secretary does not believe that section 8(c) authorizes 
two and only two discrete duties: A duty to create a record that can 
arise at only one moment in time, and a duty to preserve that record, 
if it should be created. Such a view would be inconsistent with the 
most relevant provision of the Act, section 8(c)(2), which is the 
provision that specifically addresses the Secretary's authority to 
prescribe regulations for injury and illness recordkeeping, i.e., to 
prescribe regulations that require employers to ``maintain accurate 
records'' of workplace illnesses and injuries. Nothing about the 
Congressional direction to ``maintain accurate records'' is naturally 
read as creating two entirely discrete obligations, or as conveying 
Congressional intent to limit the duty to make a required record to a 
single point in time. Records that omit work-related injuries and 
illnesses are not accurate, and no purpose is served by maintaining 
inaccurate records. Instead, Congress intended employees, and the 
Secretary, to have access to accurate information about injuries and 
illnesses occurring in workplaces.
    The requirement in section 8(c)(1) that employers ``make 
available'' such records as the Secretary prescribes regarding 
accidents and illnesses further illustrates that section 9(c)'s statute 
of limitations does not limit the Secretary to acquiring only six 
months of injury and illness data. A regulation requiring employers, if 
requested, to make available accurate records showing injuries and 
illness that have occurred within the past few years is on its face 
well within the OSH Act's grant of authority. Nothing in the statutory 
language suggests that the Secretary can only require employers to 
provide information regarding work-related injuries and illnesses that 
have occurred within the past six months. Such a limitation would 
cripple the Agency's ability to gather complete information and to 
improve understanding of safety and health issues, contrary to 
Congressional intent. Furthermore, the duty to make accurate multi-year 
records available upon request arises when the request is made, and the 
statute of limitations therefore does not begin to run until the 
request is made and the employer fails to comply.\3\
---------------------------------------------------------------------------

    \3\ This does not mean that the Secretary's authority is 
unconstrained. Under section 8(c)(1), the records the Secretary 
requires must be ``necessary or appropriate'' to enforcement of the 
Act or to gathering information regarding the causes or prevention 
of occupational accidents or illnesses. 29 U.S.C. 657(c)(1). Under 
section 8(d), the Secretary must obtain information with a minimum 
burden on employers, especially small businesses, and reduce 
unnecessary duplication to the maximum extent feasible. 29 U.S.C. 
657(d). Moreover, under the Paperwork Reduction Act, the Secretary 
and the Office of Management and Budget must determine that a 
recordkeeping requirement will have practical utility and will not 
be unduly burdensome. 44 U.S.C. 3506(c)(3).

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

[[Page 45122]]

    It therefore follows that section 8(c) of the Act authorizes the 
Secretary to enact regulations that impose a continuing obligation on 
employers to make and maintain accurate records of work-related 
illnesses and injuries. Not only are such recordkeeping regulations 
expressly called for by the language of section 8(c), but they are also 
consistent with Congressional intent and the purpose of the OSH Act. 
The Supreme Court recognizes a ``familiar canon of statutory 
construction that remedial legislation should be construed broadly to 
effectuate its purposes.'' Tcherepnin v. Knight, 389 U.S. 332, 336 
(1967). And reading the statute in light of its protective purposes 
further supports the Secretary's interpretation that the Act calls for 
treating the duty to record injuries and illnesses as a continuing 
obligation. See, e.g., United States v. Advance Mach. Co., 547 F.Supp. 
1085, 1090-91 (D.Minn. 1982) (requirement in Consumer Product Safety 
Act to ``immediately inform'' the government of product defects is read 
as creating a continuing obligation to report because any other reading 
would frustrate the statute's goal of protecting the public from 
hazards).
    Finally, the legislative history of the OSH Act also demonstrates 
that Congress wanted employers to have accurate injury and illness 
records both for the purpose of making workplaces safer and healthier, 
and for the purpose of allowing the Agency to study the nation's 
occupational safety and health problems. As the House Committee on 
Education and Labor noted, before passage of the OSH Act it was 
impossible to know the extent of national occupational safety and 
health issues due to variability in state reporting measures; thus, 
Congress viewed it as an ``evident Federal responsibility'' to provide 
for ``[a]ccurate, uniform reporting standards.'' H.R. Rep. No. 91-1291, 
at 15 (1970), reprinted in Subcomm. on Labor of the Comm. on Labor and 
Public Welfare, Legislative History of the Occupational Safety and 
Health Act of 1970, at 845 (1971). See also 29 U.S.C. 673(a) (``The 
Secretary shall compile accurate statistics on work injuries and 
illnesses . . . .''); Sec'y of Labor v. Gen. Motors Corp., 8 BNA OSHC 
2036, 2039 (Rev. Comm'n 1980) (``Examination of the legislative history 
of [sections 8(c)(1) and 8(c)(2)] . . . shows a clear congressional 
intent that th[e] reporting requirement be interpreted broadly in order 
to develop information for future scientific use.'').
2. The OSH Act's Statute of limitations Does Not Define OSHA 
Violations, or Address When Violations Occur, Nor Does the Language in 
Section 9(c) Preclude Continuing Recordkeeping Violations
    As explained previously, it is section 8(c) of the OSH Act that 
determines the nature and scope of employers' recordkeeping 
obligations. The statute of limitations in section 9(c) deals only with 
the question of when OSHA can cite a violation; it says nothing about 
what constitutes a violation, or when a violation occurs. A violation 
is a breach of a duty, and the question of what duties the Secretary 
may prescribe must logically be dealt with prior to addressing the 
statute of limitations. Section 9(c) cannot be read as prohibiting the 
Secretary from imposing continuing recordkeeping obligations on 
employers covered by the OSH Act, when the text and legislative history 
of the Act show that section 8(c) authorizes the Secretary to create 
such obligations. Thus, the OSH Act's statute of limitations simply 
sets the period within which legal action must be taken after the 
obligation ceases to continue or the employer comes into compliance. 
See, e.g., Inst. For Wildlife Prot. v. United States Fish & Wildlife 
Serv., No. 07-CV-358-PK, 2007 WL 4117978, at *6 (D.Or. Nov. 16, 2007) 
(declining to apply applicable statute of limitations to ``nullify . . 
. [the government's] ongoing duty to designate critical habitat'' for 
an endangered species ``and . . . insulate the agency from challenges 
to any continued inaction'').
    In any event, ``statutes of limitation in the civil context are to 
be strictly construed in favor of the Government against repose,'' 
Interamericas, 111 F.3d at 382 (citing Badaracco v. Comm'r of Internal 
Revenue, 464 U.S. 386 (1984) and E.I. Dupont De Nemours & Co. v. Davis, 
264 U.S. 456 (1924)), and nothing in section 9(c) precludes continuing 
violations in recordkeeping cases. To the contrary, the language in 
section 9(c) is very broad, providing only that ``[n]o citation may be 
issued . . . after the expiration of six months following the 
occurrence of any violation.'' 29 U.S.C. 658(c). The ``occurrence'' of 
something is not necessarily a discrete event; it can encompass actions 
or events that continue over time. For example, one dictionary defines 
``occurrence'' as ``the existence or presence of something.'' http://dictionary.cambridge.org/dictionary/american-english/occurrence_2. See 
also, e.g., PECO Energy Co. v. Boden, 64 F.3d 852, 856-57 (3d Cir. 
1995) (scheme of repeated thefts over the span of six years constituted 
a single ``occurrence'' such that only one insurance deductible applied 
to the resulting loss). Similarly, the term ``occurrence of any 
violation'' in section 9(c) does not mean that an OSHA violation is 
necessarily a discrete event that takes place at one, and only one, 
point in time.
    Had Congress wanted the statute of limitations to run from the time 
a violation first occurred, it could have used language so stating. 
Indeed, Congress has used language more readily susceptible to that 
interpretation in other statutes. See, e.g., the Multiemployer Pension 
Plans Amendments Act, 29 U.S.C. 1451(f)(1) (statute of limitations runs 
from ``the date on which the cause of action arose''); the Federal 
Employers' Liability Act, 45 U.S.C. 56 (statute of limitations runs 
from ``the day the cause of action accrued''); the general statute of 
limitations governing civil actions against the United States, 28 
U.S.C. 2401(a) (claims barred unless ``filed within six years after the 
right of action first accrues'').
    Neither OSHA nor the Commission has ever treated section 9(c) as 
precluding continuing violations. Indeed, continuing violations are 
common in the OSHA context, with the Commission taking the position 
that violations of OSHA requirements, including recordkeeping 
violations, generally continue as long as employees are exposed to the 
non-complying conditions. See, e.g., Sec'y of Labor v. Arcadian Corp., 
20 BNA OSHC 2001 (Rev. Comm'n 2004) (violation of the OSH Act's general 
duty clause stemming from the unsafe operation of a urea reactor); 
Johnson Controls, 15 BNA OSHC 2132 (recordkeeping); Sec'y of Labor v. 
Safeway Store No. 914, 16 BNA OSHC 1504 (Rev. Comm'n 1993) (hazard 
communication program and material safety data sheets); Sec'y of Labor 
v. Yelvington Welding Serv., 6 BNA OSHC 2013 (Rev. Comm'n 1978) 
(fatality reporting); Cent. of Georgia R.R., 5 BNA OSHC 1209 
(housekeeping). Indeed, the Volks II panel also acknowledged that the 
duties to preserve records, to train employees, and to correct unsafe 
machines may continue. 675 F.3d 756, at 758. The OSH Act simply would 
not achieve Congress' fundamental objectives if basic employer 
obligations were not continuing.

[[Page 45123]]

    These cases reflect fundamental OSH Act principles. Safety and 
health standards are rules that require, inter alia, ``conditions.'' 29 
U.S.C. 652(8). The absence of a required condition violates the 
standard. It does not matter when the absence first arose or how long 
it has persisted. If a condition is required and is not present (e.g., 
a machine is not guarded or a hazardous materials container is not 
labeled), a violation occurs and a citation requiring abatement may be 
issued within six months of the observed noncompliance. This 
construction follows from the language of the Act and is essential to 
the Secretary's ability to enforce compliance. Accordingly, continuing 
obligations and violations are a regular occurrence under the OSH Act. 
Nothing in section 9(c), which applies equally to standards and 
recordkeeping violations, bars them.
    In addition, continuing violations have been found to exist under 
other laws with statutes of limitations that contain language similar 
to that in section 9(c) of the OSH Act. For example, in National 
Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the 
Supreme Court addressed the statute of limitations in Title VII of the 
Civil Rights Act of 1964, which precludes the filing of claims a 
certain number of days after the alleged unlawful employment practice 
``occurred.'' See 42 U.S.C. 2000e-5(e)(1). The Court concluded that the 
statute authorized application of a continuing violations doctrine in 
hostile work environment cases, holding that in such cases, an unlawful 
employment action can ``occur'' over a series of days or even years. 
Morgan, 536 U.S. at 116-20. Similarly, in Havens Realty Corporation v. 
Coleman, 455 U.S. 363 (1982), the Supreme Court found continuing 
violations of the Fair Housing Act, which at the time required the 
commencement of civil actions within 180 days ``after the alleged 
discriminatory housing practice occurred.'' And in Postow, 627 F.2d 
1370, the D.C. Circuit found a continuing violation of the Truth-in-
Lending Act, which, at 15 U.S.C. 1640(e), provides that actions must be 
brought within one year from the date of the ``occurrence'' of the 
violation. The language of section 9(c) of the OSH Act is at least 
equally receptive to continuing violations, since it allows citation 
within six months of ``the occurrence of any violation.'' 
``Occurrence'' of ``any'' violation is open-ended language that does 
not suggest that a violation can exist at only one moment of time.
    Notably, even the Volks II panel appeared to recognize that the 
word ``occurrence'' does not necessarily have a single fixed meaning, 
stating that ``[o]f course, where . . . a company continues to subject 
its employees to unsafe machines . . . or continues to send its 
employees into dangerous situations without appropriate training . . . 
OSHA may be able to toll the statute of limitations on a continuing 
violations theory since the dangers created by the violations 
persist.'' 675 F.3d at 758. The court also stated that a violation of 
the record-retention requirement--through the loss or destruction of a 
previously-created record--is a violation that continues from the time 
of the loss or destruction until the conclusion of the five-year 
retention period. Id. at 756.
    Moreover, continuing violations have been found even under statutes 
of limitations that contain language that is arguably less receptive to 
continuing violations than section 9(c); courts implicitly recognize 
that the underlying legal requirement, not the statute of limitations, 
determines whether there is a continuing legal obligation. For example, 
courts have found continuing violations of various laws that are 
governed by the general five-year statute of limitations for criminal 
cases in 18 U.S.C. 3282(a), which requires initiation of an action 
``within five years . . . after . . . [the] offense shall have been 
committed.'' See, e.g., United States v. Bell, 598 F.3d 366, 368-69 
(7th Cir. 2010) (continuing violation of child support payment 
requirements), overruled on other grounds, United States v. Vizcarra, 
668 F.3d 516 (7th Cir. 2012); Edelkind, 525 F.3d 388 (same); United 
States v. Are, 498 F.3d 460 (7th Cir. 2007) (crime of being found in 
the United States after deportation is a continuing violation).
    The D.C. Circuit has suggested that suits alleging a continuing 
failure to act are permissible even under the general statute of 
limitations governing civil actions against the United States (28 
U.S.C. 2401(a)), which provides that claims are barred unless ``filed 
within six years after the right of action first accrues.'' Wilderness 
Soc'y v. Norton, 434 F.3d 584 (D.C. Cir. 2006). In Wilderness Society, 
the court intimated, but did not decide, that an agency's failure to 
act in accordance with a statutory deadline for action was a continuing 
violation, such that a lawsuit to compel agency action would not be 
time barred just because it was filed more than six years after the 
agency first missed the statutory deadline. The court explained that 
because the suit `` `does not complain about what the agency has done 
but rather about what the agency has yet to do,' '' it likely would not 
be time-barred. Id. at 589 (quoting In re United Mine Workers of 
America Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999)). See also, 
e.g., Padres Hacia Una Vida Mejor v. Jackson, No. 1:11-CV-1094 AWI DLB, 
2012 WL 1158753 (E.D. Cal. April 6, 2012) (28 U.S.C. 2401(a) did not 
bar a claim based on EPA's ongoing failure to act on complaints of 
discrimination within regulatory deadlines). And the Fifth Circuit 
found continuing violations of the Bank Holding Company Act in a case 
governed by the general statute of limitations in 28 U.S.C. 2462, which 
requires actions to enforce civil fines, penalties, or forfeitures to 
be ``commenced within five years from the date when the claim first 
accrued.'' Interamericas, 111 F.3d 376. See also, e.g., Newell 
Recycling Co. v. EPA, 231 F.3d 204 (5th Cir. 2000) (finding a 
continuing violation of disposal requirements for polychlorinated 
biphenyls under the Toxic Substances Control Act in a case involving 
the general statute of limitations at 28 U.S.C. 2462); Advance Mach 
Co., 547 F.Supp. 1085 (finding a continuing violation of the Consumer 
Product Safety Act in a case governed by 28 U.S.C. 2462); \4\ cf. 
Capital Tel. Co v. FCC, 777 F.2d 868, 871 (2d Cir. 1985) (per curiam) 
(deferring to FCC determination that company's ``actions constituted a 
`continuing violation' '' despite an applicable statute of limitations 
(47 U.S.C. 415(b)) requiring the filing of complaints ``within two 
years from the time the cause of action accrues'').
---------------------------------------------------------------------------

    \4\ In Gabelli v. SEC, 133 S.Ct. 1216 (2013)--a case involving a 
civil enforcement action under the Investment Advisers Act--the 
Supreme Court held that the five-year statute of limitations in 28 
U.S.C. 2462 ran from the date a fraud was complete, not from the 
date the government discovered the fraud. Gabelli does not, however, 
stand for the proposition that the language in 28 U.S.C. 2462 
precludes application of a continuing violation theory. In Gabelli, 
the government agreed that the alleged illegal activity ended more 
than five years prior to the filing of the complaint, so there was 
no issue about the duration of the violative conduct.
---------------------------------------------------------------------------

    Finally, concerns about stale claims have little bearing on OSHA 
recordkeeping cases. The Agency recognizes that statutes of limitations 
are designed to ``keep stale claims out of the courts.'' Havens Realty, 
455 U.S. at 380. They protect parties from having to defend against 
stale claims and ensure that courts are not faced with ``adjudicat[ing] 
claims that because of their staleness may be impossible to resolve 
with even minimum accuracy.'' Stephan v. Goldinger, 325 F.3d 874, 876 
(7th Cir. 2003). Claims generally are considered stale when so much 
time has passed that relevant evidence has been

[[Page 45124]]

lost and witnesses are no longer available or do not have reliable 
memories of the relevant occurrence. Id. But ``[w]here the challenged 
violation is a continuing one, the staleness concern disappears.'' 
Havens Realty, 455 U.S. at 380. And nothing about continuing violations 
in the context of OSHA recordkeeping violations undermines this general 
principle.
    In the vast majority of OSHA cases stemming from an employer's 
failure to record an injury or illness, the issues will be very 
straightforward. The first question will be whether a work-related 
injury or illness occurred that required more than a minimum level of 
treatment. And the second question will be whether the employer 
recorded the injury or illness as required by the OSHA regulations. The 
availability of evidence and witnesses should not be a problem on 
either question--especially given that even under a continuing 
violation theory, OSHA must cite the recordkeeping violation within six 
months after the end of the five-year retention period for injury and 
illness records.
    One can ordinarily ascertain whether an injury or illness occurred, 
and what treatment was necessary, by looking at medical reports, 
workers' compensation documents, and other relevant records, even if 
the affected employee or other witnesses are no longer available. In 
fact, OSHA's Recordkeeping Policies and Procedure Manual, CPL 02-00-135 
(Dec. 30, 2004), directs compliance officers to review medical records 
to determine whether an employer has failed to enter recordable 
injuries and illnesses on the OSHA forms. And with respect to whether 
the employer recorded the injury or illness, the only evidence the 
parties and the court will need are the employer's OSHA Log and 
Incident Report Forms, which existing regulations require employers to 
maintain for five years. Furthermore, given that OSHA ultimately bears 
the burden of proving that an injury or illness occurred and the 
employer did not record it, the absence of documents and witnesses 
generally will be more prejudicial to OSHA's case than to the 
employer's defense. And, any limited staleness concerns that exist are 
outweighed by the fact that ongoing recordkeeping requirements are 
essential to fulfilling the purposes of the OSH Act. See generally 
Connecticut Light & Power Co. v. Sec'y of Labor, 85 F.3d 89, 96 (2d 
Cir. 1996) (``Consideration of limitations periods requires a fair and 
reasonable weighing of the conflicting concerns of the remedial intent 
of the [statute] . . . and the desire to keep stale claims out of the 
courts.'').
3. Incomplete or Otherwise Inaccurate Records of Work-Related Illnesses 
and Injuries Create an Ongoing Condition Detrimental to Full 
Enforcement of the Act
    OSHA records ``are a cornerstone of the Act and play a crucial role 
in providing the information necessary to make workplaces safer and 
healthier.'' Gen. Motors Corp., 8 BNA OSHC at 2041. As explained 
previously, in SUPPLEMENTARY INFORMATION, Section II.B, employers must 
give employees (as well as OSHA and BLS) access to injury and illness 
records. OSHA injury and illness records are designed to be used by 
employers, employees, and the government to learn about the injuries 
and illnesses that are occurring in American workplaces. Accurate OSHA 
injury and illness records enable employers to identify, and correct, 
hazardous conditions, allow employees to learn about the hazards they 
face, and permit the government to determine where and why injuries are 
occurring so that appropriate regulatory or enforcement measures can be 
taken. (See SUPPLEMENTARY INFORMATION, Section II.B, earlier in this 
preamble, for a full discussion of the purposes served by OSHA injury 
and illness records.) Thus, Congress viewed accurate records as 
necessary for the enforcement of the Act. 29 U.S.C. 657(c). Inaccurate 
or incomplete injury and illness records, however, will leave all of 
the relevant parties underinformed, and thereby create an ongoing 
condition detrimental to full enforcement of the Act. The Commission 
has recognized as much. See, e.g., Gen. Dynamics, 15 BNA OSHC at 2131 
n. 17 (recordkeeping regulations ``clearly are safety- and health-
related''); Johnson Controls, 15 BNA OSHC at 2135-36 (``[A] failure to 
record an occupational injury or illness . . . does not differ in 
substance from any other condition that must be abated pursuant to . . 
. occupational safety and health standards . . . .'').
    Nor is there any meaningful distinction to be drawn between cases 
involving inadequate training or unsafe machines (which may be seen as 
involving repeated affirmative acts, for example, sending untrained 
employees to work in hazardous conditions) and recordkeeping cases 
(which may be seen as failures to right past wrongs). The lack of 
access--by employers, employees and OSHA--to accurate records is as 
much an ongoing non-complying condition under the Act as is an 
untrained employee or an unguarded machine. Whether the condition was 
created by an act of omission or of commission, the condition is one 
that continues to violate the Act until it is abated.
    Moreover, under the scheme Congress established in the OSH Act, any 
distinction that can be drawn between overt action and inaction lacks 
legal significance. As the Commission recognizes, ``unlike other 
federal statutes in which an overt act is needed to show any violation, 
the OSH Act penalizes both overt acts and failures to act in the face 
of an ongoing, affirmative duty to perform prescribed obligations.'' 
Volks I, 23 BNA OSHC at 1417 n.3 (emphasis in original). See also, 
e.g., Gen. Dynamics, 15 BNA OSHC at 2130 (``[T]he Act penalizes the 
occurrence of noncomplying conditions which are accessible to employees 
and of which the employer knew or reasonably could have known. That is 
the only `act' that the Secretary must show to prove a violation.''). 
That is why it is still a citable violation if an employer has left a 
hazardous machine unguarded for years--even though the employer has not 
done anything to the machine since first removing the guard. That is 
why it is a violation if an employer fails to label containers of 
hazardous chemicals or have safety data sheets on hand, regardless how 
long the inaction persists. And courts regularly find that a failure to 
act in accordance with an ongoing legal obligation constitutes a 
continuing violation. Such cases have included a lender's failure to 
make required disclosures to a borrower (Postow, 627 F.2d 1370), a sex 
offender's failure to register with authorities (George, 625 F.3d 
1124), a parent's failure to pay child support (Edelkind, 525 F.3d 
388), an agency's failure to comply with statutory mandates and 
deadlines (Wilderness Soc'y, 434 F.3d 584), a company's failure to 
create and maintain water sampling records (Sierra Club, 847 F.2d 
1109), and a failure on the part of the government to act on complaints 
of discrimination (Padres Hacia Una Vida Mejor, 2012 WL 1158753).
    Additionally, the legislative history of the Act reflects Congress' 
concern about harm resulting to employees in workplaces with incomplete 
records of occupational injuries and illnesses. Most notably, a report 
of the Senate Committee on Labor and Public welfare stated that 
``[f]ull and accurate information is a fundamental precondition for 
meaningful administration of an occupational safety and health 
program.'' S. Rep. No. 91-1282, at 16 (1970), reprinted in Subcomm. on 
Labor of the Comm. on Labor and Public Welfare, Legislative

[[Page 45125]]

History of the Occupational Safety and Health Act of 1970, at 156 
(1971) (emphasis added). Additionally, a report from the House of 
Representatives shows that Congress recognized ``comprehensive [injury 
and illness] reporting'' as playing a key role in ``effective safety 
programs.'' H.R. Rep. No. 91-1291, at 15 (1970), reprinted in Subcomm. 
on Labor of the Comm. on Labor and Public Welfare, Legislative History 
of the Occupational Safety and Health Act of 1970, at 845 (1971).
    Incomplete and inaccurate OSHA records therefore result in an 
ongoing non-complying condition--namely employers, employees, and the 
government, being denied access to information necessary to full 
enforcement of the Act. And this non-complying condition continues 
every day that the records are inaccurate.
4. Interpreting the Duty To Record as a Continuing One Under the Act's 
Civil, Remedial Scheme Is Entirely Consistent With the General Case Law
    As touched upon previously in this notice, general case law on 
continuing violations also supports a continuing violation theory for 
OSHA recordkeeping violations. The Volks II majority stated that 
recordkeeping violations are not ``the sort of conduct we generally 
view as giving rise to a continuing violation[,]'' i.e., the kind of 
violation ``whose `character as a violation . . . [does] not become 
clear until . . . repeated during the limitations period . . . because 
it is . . . [the] cumulative impact . . . that reveals . . . 
illegality.' '' Volks II, 675 F.3d at 757 (quoting Taylor v. FDIC, 132 
F.3d 753, 765 (D.C. Cir. 1997)). On the other hand, all OSHA 
violations--including recordkeeping violations--``continue'' only 
insofar as non-compliant conditions exist and employees are exposed to 
the relevant hazards. While the ``cumulative impact'' theory is one way 
to establish a continuing violation (see, e.g., Morgan, 536 U.S. 101 
(hostile environment claims under Title VII)), established precedent 
recognizes an additional type of continuing violation--a violation that 
continues to occur on a day-by-day (or act-by-act) basis and whose 
illegality was clear from the beginning. See, e.g., Edelkind, 525 F.3d 
388 (failure to pay child support is a continuing offense); Sierra 
Club, 847 F.2d 1109 (finding continuing violations of the Clean Water 
Act where the company failed to comply with permit requirements for 
reporting and record retention); Postow, 627 F.2d 1370 (violation of 
Truth-in-Lending Act's disclosure requirements is a continuing 
violation).
    The DC Circuit explicitly recognized the existence of these two 
types of continuing violation cases in Earle, 707 F.3d 299. The court 
explained that where a statute `` `imposes a continuing obligation to 
act, a party can continue to violate it until that obligation is 
satisfied and the statute of limitations will not begin to run until it 
does.' '' Id. at 307 (quoting Judge Garland's concurring opinion in 
Volks II, 675 F.3d at 763). And ``[w]hether the obligation is 
continuing is a question of statutory construction.'' Earle, 707 F.3d 
at 307. The court explained that Postow had found a continuing 
violation of the Truth-in-Lending Act because the ``goals of the Act'' 
required construing the obligation to be continuing. Id. So too, the 
goals of the OSH Act require construing the recordkeeping obligation to 
be continuing. The purpose of recording injuries is so that the 
recorded information can be used thereafter, throughout the retention 
and access period. Accurate and complete OSHA records enable employers, 
employees, and the Government to understand the hazards present in the 
workplace, so that corrective measures can be taken. Inaccurate and 
incomplete records, by contrast, are likely to be misleading.
    The Secretary recognizes that one court has said that: ``The 
Supreme Court has made clear . . . that the application of the 
continuing violations doctrine should be the exception, rather than the 
rule.'' Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) (not 
referring to any specific decision) (quoted in Volks II, 675 F.3d at 
757). Even so, the Secretary believes that the language and purposes of 
the OSH Act make it clear that the duty to maintain and make available 
records is a continuing obligation for all the reasons set forth 
previously.\5\
---------------------------------------------------------------------------

    \5\ In Toussie v. United States, 397 U.S. 112 (1970), the 
Supreme Court stated that ``the doctrine of continuing offenses 
should be applied in only limited circumstances since . . . `the 
tension between the purpose of a statute of limitations and the 
continuing offense doctrine is apparent.' '' Id. at 115 (citations 
omitted). But Toussie was a criminal case subject to the general 
principle that ``criminal limitations statutes are `to be liberally 
interpreted in favor of repose.' '' Id. (emphasis added and 
citations omitted). See also Diamond v. United States, 427 F.2d 
1246, 1247 (Ct. Cl. 1970) (per curiam) (``[T]he considerations 
moving the Court to decide [in Toussie] that the offense was not a 
continuing one were entwined with the criminal aspects of the 
matter, and the holding was limited to criminal statutes of 
limitations.''). In contrast, as noted previously, in SUPPLEMENTARY 
INFORMATION, Section III.B.2, OSHA civil enforcement cases are 
subject to the opposing principle that ``statutes of limitation in 
the civil context are to be strictly construed in favor of the 
Government against repose.'' Interamericas, 111 F.3d at 382.
---------------------------------------------------------------------------

IV. Summary and Explanation of the Proposed Rule

    OSHA is proposing to amend its recordkeeping regulations, 29 CFR 
part 1904, to clarify that employers covered by the recordkeeping 
requirements have a continuing obligation to make and maintain accurate 
records of all recordable injuries and illnesses. This obligation 
continues for as long as the employer must maintain records for the 
year in which an injury or illness became recordable, and it does not 
expire if the employer fails to create a record when first required to 
do so.
    The continuing obligation to make and maintain accurate records of 
work-related illnesses and injuries is in accord with longstanding OSHA 
policy. Thus, this proposal is not meant to impose new or additional 
obligations on employers covered by part 1904. Employers will not be 
required to make records of any injuries or illnesses for which records 
are not currently required; nor are the recording requirements 
themselves changing. As discussed at length previously, the amendments 
are meant simply to clarify employers' obligations in the wake of the 
Volks II decision. The amendments being proposed consist of revisions 
to various sections of the regulatory text as well as changes to the 
titles of some sections and subparts.
    As discussed in more detail later in this notice, the amendments 
clarify the following: (1) OSHA 300 Log. Employers must record every 
recordable injury or illness on the Log. This obligation continues 
through the five-year record retention-and-access period. In addition, 
during that period, employers must update the Log by adding cases not 
previously recorded and by showing changes to previously recorded 
cases. (2) OSHA 301 Incident Report. Employers must prepare a Form 301 
Incident Report for each recordable illness or injury. This obligation 
continues throughout the five-year retention-and-access period. 
Employers are not required to update the form to show changes to the 
case that occur after the form is initially prepared. (3) Year-end 
records review; preparation certification, and posting of the Form 300A 
annual summary. These ancillary tasks are intended to be performed at 
particular times during each year. They are not continuing obligations.

A. Description of Proposed Revisions

1. Section 1904.0--Purpose
    OSHA is proposing to revise this section to clarify and emphasize 
employers' ongoing duties to make and maintain accurate records of each 
and

[[Page 45126]]

every recordable injury and illness under part 1904. The proposed new 
language reflects the existing requirement for employers to provide 
their injury and illness records to certain government representatives, 
and to employees and former employees and their representatives. The 
proposed additions to the regulatory text include language reiterating 
that these recordkeeping requirements are important in helping the 
Agency achieve its mission of providing safe and healthful working 
conditions for the nation's workers.
    OSHA is proposing to add a new sentence at the end of this section 
to explain what the Agency deems to be an ``accurate'' record. Records 
will be considered ``accurate'' if correct and complete records are 
made and maintained for each and every recordable injury and illness in 
accordance with the provisions of part 1904. This concept is not new, 
as the requirement for employers to maintain accurate records is 
derived directly from the OSH Act, 29 U.S.C. 657(c)(2).
2. Subpart C--Making and Maintaining Accurate Records, Recordkeeping 
Forms, and Recording Criteria
    OSHA is proposing to amend the title of this Subpart to better 
reflect the content of revised Sec. Sec.  1904.4 and 1904.29, which 
address employers' duties to make and maintain accurate records, as 
well as recordkeeping forms and criteria.
3. Paragraph (a) of Sec.  1904.4--Basic Requirement
    OSHA is proposing to revise this paragraph to reiterate the 
requirement that employers make and maintain accurate records of every 
injury and illness that meets the recording criteria in paragraphs 
(a)(1) through (3) of Sec.  1904.4. The current version of paragraph 
(a), which requires employers to ``record'' injuries and illnesses, is 
less explicit in expressing OSHA's intent that employers both create 
and keep accurate records. The proposed language is intended to express 
that an employer's duty includes both creating and preserving accurate 
records of recordable injuries and illnesses. To be accurate, these 
records must be correct and complete. The proposed language is also 
meant to reflect more closely the language of the OSH Act at 29 U.S.C. 
657(c)(1) and (2). OSHA is not proposing to change the recording 
criteria in paragraphs (a)(1) through (3) of existing Sec.  1904.4.
4. Note to Paragraph (a) of Sec.  1904.4
    OSHA is proposing to add this note to Sec.  1904.4(a) to clarify 
the Agency's longstanding position that the duty to make and maintain 
accurate injury and illness records continues throughout the entire 
record-retention period set out in Sec.  1904.33(a). This retention 
period runs for five years from the end of the calendar year that the 
records cover. An employer who fails to create a required record during 
the seven-day period provided for in Sec.  1904.29(b)(3) must still 
create the record so long as the retention period has not elapsed. 
Given this ongoing duty, OSHA may issue recordkeeping citations to 
employers that have incomplete or otherwise inaccurate records at any 
point during the retention period, and, under the six-month statute of 
limitations set out in 29 U.S.C. 658(c), for up to six months 
thereafter.
5. Paragraph (b)(3) of Sec.  1904.29--How quickly must each injury or 
illness be recorded?
    Proposed paragraph (b)(3) of Sec.  1904.29 states the Agency's 
long-standing requirement that each and every recordable injury and 
illness must be recorded on both the OSHA 300 Log for that year and a 
301 Incident Report within seven calendar days of when the employer 
gets information that the injury or illness occurred. OSHA is proposing 
minor wording changes to the first sentence of existing paragraph 
(b)(3). The remainder of proposed paragraph (b)(3) is designed to make 
clear that employers that miss this seven-day recording deadline are 
not excused from the recording obligations after the seven-day period 
expires. Thus the obligation to record continues until the five-year 
retention period in Sec.  1904.33(a) has run.
    OSHA has always interpreted the seven-day recording period in the 
existing recordkeeping rules as a grace period when an employer can 
gather information on an injury or illness without fear of being cited 
by OSHA for a failure to record. Similarly, OSHA has always interpreted 
the obligation to record as continuing throughout the record retention 
period. The amendments to this paragraph simply clarify OSHA's long-
held positions.
6. Section 1904.32--Year-End Review and Annual Summary
    OSHA is proposing to amend the title of this section to more 
accurately describe the topics covered by Sec.  1904.32, which include 
an employer's year-end review of records.
7. Paragraph (a) of Sec.  1904.32--Basic Requirement
    OSHA is proposing revisions to paragraph (a)(1) of Sec.  1904.32 to 
make clear that employers must examine each year's OSHA 300 Log at the 
end of the year to ensure that each and every recordable injury and 
illness is recorded on the Log, and that each entry is accurate. If an 
employer discovers, during this review, that an injury or illness is 
missing or that any aspect of an entry is inaccurate, the employer must 
correct the deficiency.
    The Agency is also proposing a new paragraph (a)(2) for Sec.  
1904.32. This proposed paragraph provides that after reviewing and 
verifying the Log entries under Sec.  1904.32(a)(1), employers must 
verify that all entries on the Log are accurately recorded on OSHA 301 
Incident Reports. Proposed paragraph (a)(2) clarifies that if an 
employer discovers, during the Sec.  1904.32(a)(1) review, that an 
injury or illness was initially left off of the OSHA 300 Log, the 
employer must both add it to the log and create an accurate Incident 
Report for that injury or illness.
    OSHA is proposing to move the language from existing paragraph 
(a)(2) in Sec.  1904.32 to proposed paragraph (a)(3) in the same 
section. The Agency is proposing to add a clause to that paragraph to 
explain that the annual summary should be created only after an 
employer verifies the accuracy of the Log. This language is for 
clarification purposes only and does not add any new compliance 
requirements. OSHA is also proposing to renumber existing paragraphs 
(a)(3) and (4) of Sec.  1904.32 as paragraphs (a)(4) and (5), 
respectively. The Agency is not proposing any substantive changes to 
these provisions.
    The specific tasks required of employers under Sec.  1904.32(a)--to 
conduct a year-end review of the Log, and to prepare, certify and post 
the annual summary--are in addition to the duties described elsewhere 
in part 1904, and do not supersede or modify them. These other duties 
include the fundamental continuing obligation for employers to ensure 
that Logs are accurate and complete and that all recordable cases are 
included on them. The specific steps required under Sec.  1904.32(a) 
are supplementary tasks designed to help ensure that employers are 
maintaining accurate records. These supplementary tasks are to be 
performed at specified times (at the end of each calendar year, and 
from February 1 to April 30 for posting). Failure to perform one of 
these supplementary tasks by the required deadline or during the 
required time period is a violation of Sec.  1904.32

[[Page 45127]]

that may be cited during the following six months. See Volks II, 675 
F.3d at 761-62 (concurring opinion).
8. Paragraph (b)(1) of Sec.  1904.32--How extensively do I have to 
review the OSHA 300 Log at the end of the year?
    OSHA is proposing to amend paragraph (b)(1) of Sec.  1904.32 to 
reflect the proposed revisions to Sec.  1904.32(a)(1). The proposed 
changes to paragraph (b)(1) reiterate that employers must review the 
Log and its entries sufficiently to verify that all recordable injuries 
and illnesses for the relevant year are entered, and that those entries 
are accurate. In addition, OSHA is proposing one minor, non-substantive 
change to the heading of existing paragraph (b)(1).
9. Section 1904.33--Retention and Maintenance of Accurate Records
    OSHA is proposing to update the title of this section to more 
accurately reflect the obligations described in proposed Sec.  1904.33.
10. Paragraph (b)(1) of Sec.  1904.33--Other than the obligation 
identified in Sec.  1904.32, do I have further recording duties with 
respect to OSHA 300 Logs and 301 Incident Reports during the five-year 
retention period?
    OSHA is proposing to amend the heading for this paragraph to 
reflect that employers have recording duties with respect to Incident 
Reports, as well as OSHA 300 Logs, during the five-year retention 
period. The Agency is also proposing to amend the text of paragraph 
(b)(1) of Sec.  1904.33 to provide an introduction to the paragraphs 
that follow.
    OSHA is proposing to add paragraphs (b)(1)(i) through (iii) to 
Sec.  1904.33 to provide further guidance to employers on the existing 
duties to update Log entries and Incident Reports. Proposed paragraph 
(b)(1)(i) clarifies employers' duties to make and keep OSHA 300 Log 
entries for each and every recordable injury and illness that occurs 
during the year to which the Log relates. There must also be an 
associated Incident Report for each illness and injury recorded on the 
Log. As the proposed language makes explicit, these duties continue 
until the five-year retention period ends; thus, an employer may be 
required to make an entry on the OSHA Log or fill out an Incident 
Report for an illness or injury that occurred several years ago.
    Proposed paragraph (b)(1)(ii) addresses changes that must be made 
to OSHA Logs throughout the retention period. As emphasized throughout 
this proposed rule, employers' OSHA 300 Logs must be accurate. This 
means that if an employer discovers that any aspect of a previously-
recorded case (such as the classification, description, or outcome of 
the case) has changed, or that a case was recorded incorrectly at the 
outset, the employer must amend the entry to reflect the new or 
corrected information.
    Proposed paragraph (b)(1)(iii) reiterates the requirement in 
proposed paragraph (b)(1)(i) that there must be an Incident Report for 
each and every recordable injury and illness. The primary purpose of 
proposed paragraph (b)(1)(iii) is to explain that employers are not 
required to update or correct existing Incident Reports during the 
retention period. This principle is currently stated in existing Sec.  
1904.33(b)(3).
    These proposed requirements are not intended to change, but rather 
to state more clearly, what is required under the existing rule. The 
existing rule provides that during the five-year retention period, the 
employer must update the Logs to include newly discovered recordable 
injuries and illnesses and to show changes that have occurred in 
previously recorded cases. It does not explicitly state the employer's 
continuing duty to record cases it had previously learned about. Judge 
Garland's concurring opinion in Volks II drew the inference that the 
regulation does not create a continuing obligation to record such 
cases, as compared with newly discovered cases. Volks II, 675 F.3d at 
760-61. This was not the Secretary's intention. At the time the current 
regulation was issued in 2001, it was well-established law in the 
Commission that employers had a continuing duty to record these older 
cases on their Logs. See Gen. Dynamics, 15 BNA OSHC 2122; Johnson 
Controls, 15 BNA OSHC 2132. Nothing in the 2001 rulemaking suggested 
that the Agency had any intention of changing this fundamental 
requirement.
    The existing recordkeeping regulations explain that the employer 
must promptly record cases on the 300 Log, and that, throughout the 
five-year retention period, if the employer discovers a case that 
occurred previously, it must record that case on the applicable Log. As 
with nearly all rules, this rule is written to describe compliance. As 
with other rules, it does not assume noncompliance, in other words, it 
does not explicitly state what an employer must do if it fails to 
record a case it knows about. By stating that newly discovered cases 
should be recorded, the Secretary did not intend to signify that other 
cases the employer had learned about need not be recorded. The command 
to update was not intended to signify permission to ignore knowledge 
that had been acquired earlier.
    The current regulations also state that the employer is not 
required to ``update'' Form 301 Incident Reports. In Volks II, Judge 
Garland read this to mean that employers do not have to create a form 
at all, once the initial seven-day recording period is over. See Volks 
II, 675 F.3d at 760-61 (concurring opinion). That was not the 
Secretary's intention. The intent was to distinguish between the Log, 
which employers must update to reflect new and changed information, and 
the 301 Form, which employers do not need to update. (The Secretary 
explained that although updating the Log would provide useful, accurate 
information, updating Incident Reports would not enhance the 
information in the employer's records sufficiently to warrant the 
additional burden that would be associated with such a requirement. See 
66 FR at 6050, January 19, 2001.) The fact that the Agency does not 
require employers to update Incident Reports does not mean that the 
Agency does not require employers to create the forms in the first 
place. The language in the proposed rule clarifies this.
11. Paragraph (b)(2) of Sec.  1904.33--Do I have to make additions or 
corrections to the annual summary during the five-year retention 
period?
    OSHA is proposing minor changes to paragraph (b)(2) of Sec.  
1904.33. These changes are not substantive. Neither the proposed nor 
the existing rules require employers to update or make changes to 
annual summaries during the five-year retention period.
12. Paragraph (b)(3) of Sec.  1904.33
    OSHA is proposing to delete existing paragraph (b)(3). In the 
proposal, this paragraph has been moved, in slightly modified form, to 
paragraph (b)(1)(iii) in Sec.  1904.33.
13. Paragraph (b)(2) of Sec.  1904.35--Do I have to give my employees 
and their representatives access to the OSHA injury and illness 
records?
    Paragraph (b)(2) of existing Sec.  1904.35 addresses employee 
access to records created under part 1904. OSHA is proposing only one 
minor change to this paragraph--the addition of the word ``accurate'' 
to describe the records to which employees, former employees, and their 
representatives must be given access. Accurate records are described in 
proposed Sec.  1904.0.

[[Page 45128]]

14. Paragraph (b)(2)(iii) of Sec.  1904.35--If an employee or 
representative asks for access to the OSHA 300 Log, when do I have to 
provide it?
    In proposed paragraph (b)(2)(iii) of Sec.  1904.35, OSHA is simply 
adding the term ``accurate'' to describe the OSHA 300 Logs to which 
employees, former employees, and their representatives must be given 
access. Accurate records are described in proposed Sec.  1904.0. 
Records are required so they can be used, and records must be accurate 
if they are to serve this purpose. The duty to provide an accurate 
record upon request arises when the request is made, not before, so the 
six-month statute of limitations cannot begin to run until the request 
is made.
15. Subpart E--Reporting Accurate Fatality, Injury, and Illness 
Information to the Government
    OSHA is proposing to revise the title of Subpart E to more 
precisely reflect the requirement in the Subpart that government 
representatives be given access to accurate fatality, injury, and 
illness information.
16. Section 1904.40--Providing Accurate Records to Government 
Representatives
    OSHA is proposing to revise the title of Sec.  1904.40 to reflect 
the proposed changes to paragraph (a) of that section.
17. Paragraph (a) of Sec.  1904.40--Basic Requirement
    OSHA is proposing to add the term ``accurate'' to paragraph (a) of 
Sec.  1904.40(a) to reflect OSHA's long-standing expectation that 
employers provide government representatives with accurate records upon 
request. OSHA is also proposing some non-substantive wording changes to 
this paragraph.

V. State Plans

    The 27 States and U.S. Territories with their own OSHA-approved 
occupational safety and health plans must adopt a rule comparable to 
any amendments that Federal OSHA ultimately promulgates to 29 CFR part 
1904. The States and U.S. Territories with OSHA-approved occupational 
safety and health plans covering private employers and State and local 
government employees are: Alaska, Arizona, California, Hawaii, Indiana, 
Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, 
North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, 
Vermont, Virginia, Washington, and Wyoming. In addition, five States 
and U.S. Territories have OSHA-approved State plans that apply to State 
and local government employees only: Connecticut, Illinois, New Jersey, 
New York, and the Virgin Islands.
    Under 29 CFR 1952.4(a), States with approved occupational safety 
and health plans under section 18 of the OSH Act (29 U.S.C. 667) must 
adopt recordkeeping and reporting regulations that are ``substantially 
identical'' to those set forth in 29 CFR part 1904. State plans' 
recording and reporting requirements for determining which injuries and 
illnesses must be recorded, and how they will be recorded, must be the 
same as the Federal requirements. 29 CFR 1952.4(a). Otherwise, State 
plans may promulgate injury or illness recording and reporting 
requirements that are more stringent than, or supplemental to, 29 CFR 
part 1904, after consulting with, and obtaining approval from, Federal 
OSHA. Id.
    State plans may not grant variances from injury and illness 
recording and reporting requirements for private sector employers; any 
such variances must be granted by Federal OSHA. 29 CFR 1952.4(b). And a 
State may grant such a variance for a State or local government entity 
only after obtaining Federal OSHA approval. Id.

VI. Preliminary Economic Analysis

    The proposed revisions to OSHA's recordkeeping rules do not 
constitute an economically significant regulatory action under 
Executive Order 12866. (See 58 FR 51735, September 30, 1993). Executive 
Order 12866 requires regulatory agencies to conduct an economic 
analysis for significant rules. A rule is economically significant 
under Executive Order 12866 if it will have an annual effect on the 
economy of $100 million or more. This proposal does not satisfy that 
criterion; as explained later in this notice, neither the benefits nor 
the costs of the proposal equal or exceed $100 million. OSHA has also 
determined that this proposal does not meet the definition of a major 
rule under the Congressional Review provisions of the Small Business 
Regulatory Enforcement Fairness Act (SBREFA). See 5 U.S.C. 804(2).
    The Regulatory Flexibility Act of 1980, as amended by SBREFA in 
1996, requires OSHA to determine whether the Agency's regulatory 
actions will have a significant impact on a substantial number of small 
entities. See 5 U.S.C. 601 et seq. OSHA's analysis indicates that the 
proposed rule will not have such an impact.
    This proposal simply reiterates and clarifies employers' existing 
obligations to record work-related injuries and illnesses. This 
proposal would not require employers to make records of any injuries or 
illnesses for which records are not currently required. OSHA estimated 
the costs to employers of these requirements when the existing 
regulations were promulgated in 2001, see 66 FR 6081-6120, January 19, 
2001. The proposed revisions impose no new cost burden.
    Moreover, even if the proposed revisions to OSHA's recordkeeping 
rules would result in some costs beyond those the Agency estimated in 
2001, any such costs would be nominal. According to OSHA's 2014 request 
to the Office of Management and Budget for an extension of the approval 
of the information collection requirements in the recordkeeping rules, 
an estimated 2.44 million injuries and illnesses must be recorded on 
OSHA logs each year. See http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201405-1218-003. Although OSHA accounted for 
the costs associated with full recordkeeping compliance as part of the 
2001 rulemaking, the Agency assumes, for the sake of this analysis, a 
non-compliance rate under the current rule of 1 percent of recordable 
injuries and illnesses, or an additional 24,400 injuries and illnesses 
that would be recorded as a result of the proposal. (In OSHA's view, 
this is a high, or conservative, estimate.)
    In 2014, OSHA prepared a Final Economic Analysis for a final rule 
addressing the industries entitled to a partial exemption from 
recordkeeping requirements and the reporting of injuries and fatalities 
to the Agency. In that analysis, OSHA estimated that it takes .38 of an 
hour to record an injury or illness on all required OSHA forms, taking 
into account requirements for providing access to records. See 79 FR 
56130, 56165 (September 18, 2014). And according to the 2014 ICR, the 
average hourly rate for an Occupational Health and Safety Specialist 
(Standard Occupational Classification code 29-9011) is estimated to be 
$46.72 (which includes a 43% addition for benefits). See http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201405-1218-003. This 
means that the total estimated cost of preparing OSHA records is $17.75 
per injury or illness.
    Thus, if 24,400 cases would be newly recorded as a result of the 
proposal, the total cost associated with this regulatory action would 
be 24,400 times $17.75, or approximately $433,100 per year. (The Agency 
notes that if it makes the even more conservative assumption that 5 
percent of 2.44 million injuries and illnesses (122,000) would be newly 
recorded as a result of the proposal, the total estimated cost of the 
proposed

[[Page 45129]]

rule, across all affected employers, would be under $2.2 million per 
year.)
    Just as there are no (or minimal) new costs associated with this 
proposal, the proposal will result in no new economic benefits. OSHA 
believes the proposed revisions to the recordkeeping rules are 
technologically feasible because they do not require employers to 
perform any actions that they are not performing under existing 
requirements. And because the proposal does not impose any significant 
new compliance costs, the Agency deems it economically feasible.

VII. Regulatory Flexibility Certification

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. (as amended), OSHA examined the regulatory requirements of the 
proposed rule to determine if they would have a significant economic 
impact on a substantial number of small entities. As indicated in 
Section VI, Preliminary Economic Analysis, earlier in this notice, the 
proposed rule is expected to have no effect, or at most a nominal 
effect, on compliance costs and regulatory burden for employers, 
whether large or small. Accordingly, the Agency certifies that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.

VIII. Environmental Impact Assessment

    OSHA has reviewed the proposed rule in accordance with the 
requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321 et seq.), the regulations of the Council on Environmental Quality 
(40 CFR parts 1500 through 1508), and the Department of Labor's NEPA 
procedures (29 CFR part 11). The Agency finds that the revisions 
included in the proposal would have no major negative impact on air, 
water, or soil quality, plant or animal life, the use of land or other 
aspects of the environment. And recordkeeping and reporting 
requirements normally qualify for categorical exclusion from NEPA 
requirements in any event. See 29 CFR 11.10(a).

IX. Federalism

    OSHA reviewed this proposed rule in accordance with the most recent 
Executive Order on Federalism (Executive Order 13132, 64 FR 43255, 
August 10, 1999). This Executive Order requires that Federal agencies, 
to the extent possible, refrain from limiting State policy options, 
consult with States prior to taking any actions that would restrict 
State policy options, and take such actions only when clear 
constitutional authority exists and the problem is national in scope. 
Executive Order 13132 provides for preemption of State law only with 
the expressed consent of Congress. Any such preemption must be limited 
to the extent possible. Because this proposed rulemaking action 
involves a regulation that is not an occupational safety and health 
standard under section 6 of the OSH Act, it does not preempt State law. 
See 29 U.S.C. 667(a). The effect of a final rule on states and 
territories with OSHA-approved occupational safety and health plans is 
discussed previously in Section V, State Plans.

X. Unfunded Mandates

    OSHA cannot enforce compliance with its regulations or standards on 
``any State or political subdivision of a State.'' 29 U.S.C. 652(5). 
Under voluntary agreement with OSHA, some States enforce compliance 
with their State standards on public sector entities, and these 
agreements specify that these State standards must be equivalent to 
OSHA standards. But the proposed rule does not involve any unfunded 
mandates being imposed on any State or local government entity. 
Moreover, as discussed previously, OSHA estimates that that there are 
no, or minimal, compliance costs associated with the proposed rule. 
Therefore, this proposed rule would not impose a Federal mandate on the 
private sector in excess of $100 million in expenditures in any one 
year. Thus, OSHA certifies that this proposed rule is not a significant 
regulatory action within the meaning of Section 202 of the Unfunded 
Mandates Reform Act (2 U.S.C. 1532).

XI. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this proposed rule in accordance with Executive Order 
13175 (65 FR 67249, November 6, 2000) and determined that it does not 
have ``tribal implications'' as defined in that order. The proposed 
rule does not have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.

XII. Public Participation

    Recordkeeping requirements promulgated under the Occupational 
Safety and Health Act of 1970 (OSH Act) are regulations, not standards. 
Therefore, this rulemaking is governed by the notice and comment 
requirements in the Administrative Procedure Act (APA), 5 U.S.C. 553, 
rather than by section 6(b) of the OSH Act (29 U.S.C. 655(b)) and 29 
CFR part 1911 (both of which apply only to promulgating, modifying or 
revoking occupational safety or health standards). The OSH Act 
requirement for the Agency to hold an informal public hearing on a 
proposed rule, when requested, does not apply to this rulemaking. See 
29 U.S.C. 655(b)(3).
    The APA, which governs this rulemaking, does not require a public 
hearing; instead, it states that the agency must ``give interested 
persons an opportunity to participate in the rulemaking through 
submission of written data, views, or arguments with or without 
opportunity for oral presentation.'' 5 U.S.C. 553(c). To promulgate a 
proposed regulation, the APA requires the Agency to provide the terms 
of the proposed rule (or a description of those terms) and specify the 
time, place, and manner of rulemaking proceedings. See 5 U.S.C. 553(b). 
The APA does not specify a minimum period for submitting comments. In 
accordance with the goals of Executive Order 12866, OSHA is providing 
60 days for public comment (see section 6(a)(1) of Executive Order 
12866).
    Public Submissions: OSHA invites comments on all aspects of the 
proposed rule. OSHA will carefully review and evaluate any comments, 
information, or data received, as well as all other information in the 
rulemaking record, to determine how to proceed.
    When submitting comments, please follow the procedures specified in 
the sections titled DATES and ADDRESSES of this document. The comments 
should clearly identify the provision of the proposal being addressed, 
the position taken with respect to each issue, and the basis for that 
position. Comments, along with supporting data and references, 
submitted by the end of the specified comment period will become part 
of the rulemaking record, and will be available for public inspection 
at the Federal eRulemaking Portal (http://www.regulations.gov) and at 
the OSHA Docket Office, 200 Constitution Avenue NW.--Room N-2625, 
Washington, DC 20210. (See the section titled ADDRESSES of this 
document for additional information on how to access these documents.)

XIII. The Paperwork Reduction Act of 1995

    The information collection requirements contained in 29 CFR part 
1904 Recording and Reporting Occupational Injuries and Illnesses have 
been approved by OMB and have been assigned OMB control number 1218-
0176. This proposal simply reiterates

[[Page 45130]]

and clarifies employers' existing obligations to record and maintain 
work-related injuries and illnesses and does not add any new collection 
of information requirements. Therefore, there are no increases or 
decreases to the Recording and Reporting Occupational Injuries and 
Illnesses burden hour and cost estimates. The Agency solicits comments 
on this determination, and on the following items:
     Whether the revised collection of information requirements 
are necessary for the proper performance of the Agency's functions, 
including whether the information is useful;
     The accuracy of OSHA's estimate of the burden (time and 
cost) of the information collection requirements, including the 
validity of the methodology and assumptions used;
     The quality, utility and clarity of the information 
collected; and
     Ways to minimize the compliance burden on employers, for 
example, by using automated or other technological techniques for 
collecting and transmitting information.
    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the 
following paragraphs provide information about this ICR:
    Title: 29 CFR part 1904 Recordkeeping and Reporting Occupational 
Injuries and Illnesses (29 CFR part 1904).
    Description of the ICR: The Occupational Safety and Health Act and 
29 CFR part 1904 require that certain employers generate, maintain, and 
post records of job-related injuries and illnesses; and report to OSHA 
any work-related incident resulting in the death of the worker and 
work-related incidents resulting in in-patient hospitalization, 
amputation or loss of an eye.
    Summary of the Collections of Information: Completion of the OSHA 
Forms 300 and 301; Entry on privacy concern case confidential list; 
Complete, certify and post OSHA Form 300A, Employee access to OSHA 
Forms 300 and 301; Reporting fatalities/catastrophes to OSHA; Requests 
for variances.
    Number of respondents: 1,594,040.
    Frequency of responses: Frequency of response varies depending on 
the specific collection of information.
    Number of responses: 6,312,003.
    Average time per response: Ranges from 58 minutes to complete, 
certify and post Form 300A to five minutes for employers to allow 
employees, former employees, or employee representatives access to 
records being maintained by 29 CFR part 1904.
    Estimated total burden hours: 2,881,842.
    Estimated costs (capital-operation and maintenance): 0.
    Members of the public who wish to comment on the Agency's revised 
collection of information must send their written comments to the 
Office of Information and Regulatory Affairs, Attn: OMB Desk Officer 
for the Department of Labor, OSHA (please reference control number 
1218-0176 in order to help ensure proper consideration), Office of 
Management and Budget, Room 10235, Washington, DC 20503, Fax: 202-395-
5806 (this is not a toll-free number), email: 
[email protected]. The Agency encourages commenters also to 
submit their comments related to the Agency's clarification of the 
collection of information requirements to the rulemaking docket (Docket 
Number OSHA-2015-0006) along with their comments on other parts of the 
proposed rule. For instructions on submitting these comments to the 
rulemaking docket, see the sections of this Federal Register document 
titled DATES and ADDRESSES. You also may obtain an electronic copy of 
the complete ICR by visiting the Web page at http://www.reginfo.gov/public/do/PRAMain and scrolling under ``Currently Under Review'' to 
``Department of Labor (DOL)'' to view all of the DOL's ICRs, including 
those ICRs submitted for proposed rulemakings. To make inquiries, or to 
request other information, contact Mr. Todd Owen, Directorate of 
Standards and Guidance, OSHA, Room N-3609, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2222.
    OSHA notes that a federal agency cannot conduct or sponsor a 
collection of information unless it is approved by OMB under the PRA 
and displays a currently valid OMB control number, and the public is 
not required to respond to a collection of information unless the 
collection of information displays a currently valid OMB control 
number. Also, notwithstanding any other provision of law, no person 
shall be subject to penalty for failing to comply with a collection of 
information if the collection of information does not display a 
currently valid OMB control number.

List of Subjects in 29 CFR Part 1904

    Health statistics, Occupational safety and health, Safety, 
Reporting and recordkeeping requirements, State plans.

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. It is issued pursuant to 29 U.S.C. 
657, 673; 5 U.S.C. 553; and Secretary of Labor's Order No. 1-2012 (77 
FR 3912, January 25, 2012).

    Signed at Washington, DC, on July 16, 2015.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

    Accordingly, the Occupational Safety and Health Administration 
proposes that part 1904 of title 29 of the Code of Federal Regulations 
be amended as follows:

PART 1904--RECORDING AND REPORTING OCCUPATIONAL INJURIES AND 
ILLNESSES

0
1. Revise the authority citation for part 1904 to read as follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 3-2000 (65 FR 50017), or 1-2012 (77 FR 3912), and 
5 U.S.C. 553.

0
2. Revise Sec.  1904.0 to read as follows:


Sec.  1904.0  Purpose.

    The purpose of this rule (part 1904) is to require employers to 
make and maintain accurate records of and report work-related 
fatalities, injuries, and illnesses, and to make such records available 
to the Government and to employees and their representatives so that 
they can be used to secure safe and healthful working conditions. For 
purposes of this part, accurate records are records of each and every 
recordable injury and illness that are made and maintained in 
accordance with the requirements of this part.

    Note to Sec.  1904.0: Recording or reporting a work-related 
injury, illness, or fatality does not mean that the employer or 
employee was at fault, that an OSHA rule has been violated, or that 
the employee is eligible for workers' compensation or other 
benefits.

Subpart C--Making and Maintaining Accurate Records, Recordkeeping 
Forms, and Recording Criteria

0
3. Revise the heading of subpart C as set forth above.
0
4. In Sec.  1904.4, revise paragraph (a) introductory text and add a 
note to Sec.  1904.4(a) to read as follows:


Sec.  1904.4  Recording criteria.

    (a) Basic requirement. Each employer required by this part to keep 
records of fatalities, injuries, and illnesses must, in accordance with 
the requirements of

[[Page 45131]]

this part, make and maintain an accurate record of each and every 
fatality, injury, and illness that:
* * * * *

    Note to Sec.  1904.4(a): This obligation to make and maintain an 
accurate record of each and every recordable fatality, injury, and 
illness continues throughout the entire record retention period 
described in Sec.  1904.33.

* * * * *
0
5. Revise Sec.  1904.29(b)(3) to read as follows:


Sec.  1904.29  Forms.

* * * * *
    (b) * * *
    (3) How quickly must each injury or illness be recorded? You must 
enter each and every recordable injury or illness on the OSHA 300 Log 
and on a 301 Incident Report within seven (7) calendar days of 
receiving information that the recordable injury or illness occurred. A 
failure to meet this deadline does not extinguish your continuing 
obligation to make a record of the injury or illness and to maintain 
accurate records of all recordable injuries and illnesses in accordance 
with the requirements of this part. This obligation continues 
throughout the entire record retention period described in Sec.  
1904.33. See Sec. Sec.  1904.4(a); 1904.32(a)(1); 1904.33(b)(1); and 
1904.40(a).
* * * * *
0
6. Revise the heading and paragraphs (a) and (b)(1) of Sec.  1904.32 to 
read as follows:


Sec.  1904.32  Year-end review and annual summary.

    (a) Basic requirement. At the end of each calendar year, you must:
    (1) Review that year's OSHA 300 Log to verify that it contains 
accurate entries for all recordable injuries and illnesses that 
occurred during the year, and make any additions or corrections 
necessary to ensure its accuracy;
    (2) Verify that each injury and illness recorded on the 300 Log, 
including any injuries and illnesses added to the Log following your 
year-end review pursuant to Sec.  1904.32(a)(1), is accurately recorded 
on a corresponding 301 Incident Report form;
    (3) After you have verified the accuracy of the Log, create an 
annual summary of injuries and illnesses recorded on the Log;
    (4) Certify the summary; and
    (5) Post the summary.
    (b) * * *
    (1) How extensively do I have to review the OSHA 300 Log at the end 
of the year? You must review the Log and its entries as extensively as 
necessary to verify that all recordable injuries and illnesses that 
occurred during the year are entered and that the Log and its entries 
are accurate.
* * * * *
0
7. Revise the heading and paragraph (b) of Sec.  1904.33 to read as 
follows:


Sec.  1904.33  Retention and maintenance of accurate records.

* * * * *
    (b) Implementation--(1) Other than the obligation identified in 
Sec.  1904.32, do I have further recording duties with respect to the 
OSHA 300 Logs and 301 Incident Reports during the five-year retention 
period? You must make the following additions and corrections to the 
OSHA Log and Incident Reports during the five-year retention period:
    (i) The OSHA Logs must contain entries for all recordable injuries 
and illnesses that occurred during the calendar year to which each Log 
relates. In addition, each and every recordable injury and illness must 
be recorded on an Incident Report. This means that if a recordable case 
occurred and you failed to record it on the Log for the year in which 
the injury or illness occurred, and/or on an Incident Report, you are 
under a continuing obligation to record the case on the Log and/or 
Incident Report during the five-year retention period for that Log and/
or Incident Report;
    (ii) You must also make any additions and corrections to the OSHA 
Log that are necessary to accurately reflect any changes that have 
occurred with respect to previously recorded injuries and illnesses. 
Thus, if the classification, description, or outcome of a previously 
recorded case changes, you must remove or line out the original entry 
and enter the new information; and
    (iii) You must have an Incident Report for each and every 
recordable injury and illness; however, you are not required to make 
additions or corrections to Incident Reports during the five-year 
retention period.
    (2) Do I have to make additions or corrections to the annual 
summary during the five-year retention period? You are not required to 
make additions or corrections to the annual summaries during the five-
year retention period.
0
8. Revise paragraphs (b)(2) introductory text and (b)(2)(iii) of Sec.  
1904.35 to read as follows:


Sec.  1904.35  Employee involvement.

* * * * *
    (b) * * *
    (2) Do I have to give my employees and their representatives access 
to the OSHA injury and illness records? Yes, your employees, former 
employees, their personal representatives, and their authorized 
employee representatives have the right to access accurate OSHA injury 
and illness records, with some limitations, as discussed below.
* * * * *
    (iii) If an employee or representative asks for access to the OSHA 
300 Log, when do I have to provide it? When an employee, former 
employee, personal representative, or authorized employee 
representative asks for copies of your current or stored OSHA 300 
Log(s) for an establishment the employee or former employee has worked 
in, you must give the requester a copy of the relevant and accurate 
OSHA 300 Log(s) by the end of the next business day.
* * * * *

Subpart E--Reporting Accurate Fatality, Injury, and Illness 
Information to the Government

0
9. Revise the heading of subpart E as set forth above.
0
10. Revise the heading and paragraph (a) of Sec.  1904.40 to read as 
follows:


Sec.  1904.40  Providing accurate records to government 
representatives.

    (a) Basic requirement. When an authorized government representative 
requests the records you keep under part 1904, you must provide 
accurate records, or copies thereof, within four (4) business hours of 
the request.
* * * * *
[FR Doc. 2015-18003 Filed 7-28-15; 8:45 am]
 BILLING CODE 4510-26-P