[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.
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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]
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