81 FR 91792 - Clarification of Employer's Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness
DEPARTMENT OF LABOR
Occupational Safety and Health Administration Federal Register Volume 81, Issue 243 (December 19, 2016)
Occupational Safety and Health Administration
Federal Register Volume 81, Issue 243 (December 19, 2016)
| Page Range | 91792-91810 | |
| FR Document | 2016-30410 |
[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)] [Rules and Regulations] [Pages 91792-91810] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30410] ----------------------------------------------------------------------- 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: Final rule. ----------------------------------------------------------------------- SUMMARY: OSHA is amending 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 expire just because the employer fails to create the necessary records when first required to do so. The amendments consist of revisions to the titles of some existing sections and subparts and changes to the text of some existing provisions. The amendments add no new compliance obligations and do not require employers to make records of any injuries or illnesses for which records are not currently required to be made. The amendments in this rule are adopted in response to a decision of the United States Court of Appeals for the District of Columbia Circuit. In that case, a majority held that the Occupational Safety and Health Act does not permit OSHA to impose a continuing recordkeeping obligation on employers. One judge filed a concurring opinion disagreeing with this reading of the statute, but finding that the text of OSHA's recordkeeping regulations did not impose continuing recordkeeping duties. OSHA disagrees with the majority's reading of the law, but agrees that its recordkeeping regulations were not clear with respect to the continuing nature of employers' recordkeeping obligations. This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit's decision. DATES: This final rule becomes effective on January 18, 2017. Collections of information: There are collections of information contained in this final rule (see Section XI, Office of Management and Budget Review Under the Paperwork Reduction Act of 1995). Notwithstanding the general date of applicability that applies to all other requirements contained in the final rule, affected parties do not have to comply with the collections of information in the recordkeeping regulations (as revised by this final rule) until the Department of Labor publishes a separate document in the Federal Register announcing that the Office of Management and Budget has approved them under the Paperwork Reduction Act. FOR FURTHER INFORMATION CONTACT: 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: Ms. Mandy Edens, Director, Directorate of Technical Support and Emergency Management, OSHA, U.S. Department of Labor, Room N-3653, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2270; 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: Table of Contents I. Background A. The OSH Act and Citation of OSH Act Violations B. OSHA's Recordkeeping Regulations and the Importance of Accurate Workplace Injury and Illness Data C. An Employer's Failure to Record a Recordable Illness or Injury Is a Failure To Maintain Accurate Injury and Illness Records and Is a Continuing Violation D. The D.C. Circuit's Decision in Volks II E. Events Preceding This Final Rule II. 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 Authorizes the Imposition of 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. OSHA Is Acting Within Its Regulatory Authority, and Consistently With the General Case Law, in Issuing This Clarifying Rule III. Summary and Explanation of the Final Rule A. Description of 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 [[Page 91793]] 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 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. Section 1904.34--Change in Business Ownership 14. 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? 15. 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? 16. Subpart E--Reporting Accurate Fatality, Injury, and Illness Information to the Government 17. Section 1904.40--Providing Accurate Records to Government Representatives 18. Paragraph (a) of Sec. 1904.40--Basic Requirement IV. State Plans V. Final Economic Analysis VI. Regulatory Flexibility Certification VII. Environmental Impact Assessment VIII. Federalism IX. Unfunded Mandates X. Consultation and Coordination With Indian Tribal Governments XI. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 I. Background A. The OSH Act and Citation of 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 other types of regulations such as those related to employer self-inspections and keeping employees informed of matters related to occupational safety and health. 29 U.S.C. 657(c). The OSH Act specifically directs the Secretary 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). OSHA issues citations and assesses monetary penalties when it finds that employers are not complying with the Act or 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 condition 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 violative condition. B. OSHA's Recordkeeping Regulations and the Importance of Accurate Workplace Injury and Illness Data In 1971, OSHA issued its first recordkeeping regulations at 29 CFR part 1904. OSHA 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 this 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), (b). 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). The regulations contain provisions explaining when records need to be revised during the retention period. 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 manage their safety and health programs effectively; 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 [[Page 91794]] 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 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 OSHA and enhance its enforcement efforts. During the initial stages of an inspection, an OSHA representative reviews the employer's injury and illness data so that OSHA 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. An Employer's Failure To Record a Recordable Illness or Injury Is a Failure To Maintain Accurate Injury and Illness Records and 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 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). OSHA has long treated recordkeeping violations under the OSH Act as continuing violations--and, as explained below in Section II.B.1 of this preamble--this view is consistent with section 8(c) of the Act, in which Congress instructed the Secretary to require employers to make and maintain accurate records of workplace injuries and illnesses. 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, and therefore with its obligation to maintain accurate records, 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\ OSHA has consistently issued such citations since it enacted its first recordkeeping regulations, as evidenced by the case law in the following paragraph. The purpose of this final rule is simply to clarify what has always been OSHA's interpretation of its recordkeeping regulations. --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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, 23 BNA OSHC 1414 (Rev. Comm'n 2011) (Volks I), 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.\2\ --------------------------------------------------------------------------- \2\ Although the Coalition for Workplace Safety stated that OSHA has never expressed a policy of treating recordkeeping violations as ongoing, Ex. 0013, OSHA's citation history--and the Commission decisions upholding those citations--make clear that OSHA took this approach for many years. See Martin v. OSHRC, 499 U.S. 144, 157 (1991) (OSHA citations embody the Secretary's interpretation of regulations). See discussion in Section I.C, Background, above. Throughout this preamble, exhibit numbers are referred to in the form Ex. XXXX, where XXXX reflects the last four digits of the full document number (OSHA-2015-006-XXXX). --------------------------------------------------------------------------- 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-- [[Page 91795]] Volks II--reversing the Commission. AKM LLC v. Sec'y of Labor, 675 F.3d 752 (D.C. Cir. 2012) (Volks II). The majority opinion in Volks II, without discussion of Commission precedent to the contrary, held that the OSH Act does not provide authority for the Secretary to impose a continuing recordkeeping obligation on employers, explaining 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; see also id. at 756-57. The majority stated that 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, according to the Volks II majority, is barred by the OSH Act's statute of limitations. Id. at 753-59. In a separate opinion concurring in the judgment in Volks II, Judge Garland disagreed with the majority's conclusion that the OSH Act did not permit continuing record-making obligations. Judge Garland agreed with the Secretary that the OSH Act does allow for continuing violations of recordkeeping requirements. He concluded, however, that the specific language in the recordkeeping regulations reviewed by the panel did not implement this statutory authority and did not create continuing recordkeeping obligations. Id. at 759-64. Under the analysis in Judge Garland's concurring opinion, OSHA in fact has statutory authority to create a continuing obligation for employers to make and maintain accurate records of work-related illnesses and injuries, and can revise its recordkeeping regulations to more clearly implement that statutory authority. Thus, because of the Volks II decision, OSHA has decided to clarify employers' obligations under its recordkeeping regulations and to elaborate on its understanding of the statutory basis for those obligations. OSHA disagrees with the legal holding in the majority opinion in Volks II, but agrees with Judge Garland that, while the OSH Act gives the Secretary authority to impose continuing recordkeeping obligations, the text of the recordkeeping regulations did not make clear OSHA's longstanding intention to fully implement that authority. Therefore, OSHA is changing 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 revising the titles of some sections and subparts in part 1904 and changing the text of some of the recordkeeping requirements. OSHA describes the changes in SUPPLEMENTARY INFORMATION, Section III, later in this preamble. E. Events Preceding This Final Rule On July 29, 2015, OSHA issued a proposed rule entitled ``Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.'' 80 FR 45116. Before issuing the proposal, OSHA consulted with the Advisory Committee on Construction Safety and Health (ACCSH). OSHA provided ACCSH with a summary and explanation of the 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 the proposal.\3\ --------------------------------------------------------------------------- \3\ The National Federation of Independent Businesses has requested that the transcript of ACCSH's meeting be added to the docket of this rulemaking. Ex. 0014. The transcript can now be found at Ex. 0030. --------------------------------------------------------------------------- OSHA provided 60 days for public comment and eventually extended the comment period for an additional 30 days. 80 FR 57765. OSHA received a total of 30 comments. The comments are addressed elsewhere in this preamble. II. Legal Authority A. Overview As explained previously, in SUPPLEMENTARY INFORMATION, Section I.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). This final rule amends OSHA's recordkeeping regulations issued pursuant to authority expressly granted by sections 8 and 24 of the Act. 29 U.S.C. 657, 673. It simply clarifies existing duties under part 1904, and does not impose any new substantive recordkeeping requirements. Many commenters suggested that OSHA does not have legal authority to promulgate this rule. Exs. 0003, 0008, 0009, 0010, 0011, 0012, 0013, 0014, 0016, 0017, 0020, 0021, 0023, 0026. OSHA disagrees. As recognized by Judge Garland in his concurring opinion in Volks II, and explained in more detail in SUPPLEMENTARY INFORMATION, Section II.B, later in this preamble, the OSH Act plainly authorizes this regulatory action. 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 to ``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). And 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 as the Secretary prescribes by regulation as necessary to carry out his functions under the Act. See 29 U.S.C. 673(e). [[Page 91796]] 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 Authorizes the Imposition of 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 impose 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 to make available records that accurately reflect all of the recordable injuries and illnesses that occurred during the designated time period. Moreover, this statutory language 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 Secretary's regulations require recording. This is because 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.'' http://www.oxforddictionaries.com/us/definition/american_english/maintain?searchDictCode=all. 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.merriam-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 direction to enact 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 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 accurate records'' without imposing on employers an ongoing duty to create records for injuries and illnesses in the first place; a duty to 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 ground 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 Secretary's interpretation of the ``maintain accurate records'' language in section 8(c)(2). ``Keep'' is a synonym for ``maintain,'' http://thesaurus.com/browse/maintain, and both words imply a continued course of conduct, as does ``preserve.'' \4\ 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). --------------------------------------------------------------------------- \4\ 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''). The related authorization to the Secretary to prescribe such recordkeeping regulations as he considers ``necessary or appropriate'' further emphasizes the breadth of the Secretary's discretion in implementing the statute. 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 [[Page 91797]] 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 employers, 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 injuries and illnesses further illustrates that section 9(c)'s statute of limitations does not limit the Secretary to acquiring only six months of accurate injury and illness data. A regulation requiring employers, if requested, to make available accurate records showing injuries and illnesses 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 OSHA'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. 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). 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 federal government 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.''). Some commenters, including the Coalition for Workplace Safety and the American Health Care Association, stated a concern that interpreting section 8(c) to authorize continuing violations means that OSHA is claiming unfettered discretion to essentially eliminate any statute of limitations for recordkeeping violations. Exs. 0011, 0013, 0020. OSHA disagrees. OSHA's interpretation 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). 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 authorizes the Secretary to establish the nature and scope of employers' recordkeeping obligations. The OSH Act's 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 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''). Moreover, ``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) [[Page 91798]] is very general, 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''). This new rule is intended to clarify that if an employer fails to record an injury or illness within seven days, the obligation to record continues on past the seventh day, such that each successive day where the injury or illness remains unrecorded constitutes a continuing ``occurrence'' of the ongoing violation. If the employer records the injury on the twentieth, thirtieth, or some later day, the violation ceases to occur at that point, and any citation would need to be issued within six months of the cessation of the violation. This position is entirely consistent with section 9(c). Neither OSHA nor the Commission nor any court has ever treated section 9(c) as precluding all 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).\5\ 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 at 756, 758. The OSH Act simply would not achieve Congress' fundamental objectives if basic employer obligations were not continuing. --------------------------------------------------------------------------- \5\ The American Petroleum Institute stated that the OSH Act limits continuing obligations only to ``physical hazards.'' Ex. 0020. This assertion finds no basis in the statute or case law. In any event, access to accurate injury and illness records helps employers and employees address and avoid physical hazards. See Section II.B.3, Legal Authority. --------------------------------------------------------------------------- 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 regulations such as recordkeeping requirements, 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 in time. Notably, even the Volks II majority 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 acknowledged 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; see id. at 763 (concurring opinion). 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 [[Page 91799]] . . . [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. at 1085 (finding a continuing violation of the Consumer Product Safety Act in a case governed by 28 U.S.C. 2462); 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''). Finally, concerns about stale claims have little bearing on OSHA recordkeeping cases. OSHA 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 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. The American Petroleum Institute cited an example of a case where the employer's recordkeeper had passed away by the time of the hearing. Ex. 0020. However, reliance on witness recollection is often not necessary in recordkeeping cases because 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--and contrary to the comment by the American Petroleum Institute that staleness concerns primarily hurt employers (Ex. 0020)-- OSHA ultimately bears the burden of proving that a recordable injury or illness occurred and the employer did not record it. Therefore, the absence of documents and witnesses generally will be more prejudicial to OSHA's case than to the employer's defense. See Secretary v. Home Depot #6512, 22 BNA OSHC 1863 (Rev. Comm'n 2009) (vacating citation for failure to report employee fatality because Secretary did not provide sufficient evidence to establish fatality was work-related). 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.''). Moreover, under this final rule, an employer's obligation is the same as under the current rule: To record injuries and illnesses within seven days and maintain the records for five years. The new rule simply clarifies that an employer cannot avoid the five-year maintenance requirement by failing to make the record in the initial seven days; rather, the obligation to make the record continues throughout the five-year maintenance period even if the employer fails to meet its initial obligation. Therefore, employers who record injuries and illnesses promptly, as paragraph 1904.29(b)(3) requires, will not face staleness concerns. 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 I.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, the public health community, and the government to learn about the injuries and illnesses that are occurring in American workplaces. See ``Improve Tracking of Injuries and Illnesses,'' 81 FR 29623 (May 12, 2016). 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 [[Page 91800]] appropriate regulatory or enforcement measures can be taken. (See SUPPLEMENTARY INFORMATION, Section I.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 will leave all of the relevant parties underinformed, and thereby create an ongoing hazardous 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 also be seen as involving repeated affirmative acts, for example, sending untrained employees to work in hazardous conditions) and recordkeeping cases (involving failures to create and maintain accurate records of workplace illnesses and injuries). 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 system Congress established in the OSH Act, any distinction that can be drawn between 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 of how long the inaction persists or when it first occurred. 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). 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. This non-complying condition continues every day that the records are inaccurate.\6\ --------------------------------------------------------------------------- \6\ For this reason, Gabelli v. SEC, 133 S.Ct. 1316 (2013), cited by Nabors Drilling USA and the National Association of Manufacturers, is inapposite. Exs. 0010, 0026. Gabelli deals with the discovery rule, which pertains to whether a claim's accrual date should be extended until the plaintiff learns of the unlawful conduct. The discovery rule is not needed where, as here, the unlawful conduct is ongoing. In Gabelli, which involved 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 stand for the proposition that the language in 28 U.S.C. 2462 precludes application of a continuing violation theory. Indeed, 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. --------------------------------------------------------------------------- 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 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). Some commenters, including Nabors Drilling USA and the North American Insulation Manufacturers' Association, expressed the opinion that this rule will do nothing to improve safety and health. Exs. 0010, 0016, 0017, 0019, 0026. For the reasons already stated, OSHA disagrees, and evidence submitted by other commenters supports OSHA's conclusion. For example, North America's Building Trades Unions commented that records of workplace injuries and illnesses are valuable to help identify hazards and correct problems in the workplace, both immediately and over time, and that this information is of particular value in the construction industry where workers change jobsites often. Ex. 0025. The United Steelworkers (USW) provided an example of a company safety committee noticing that the employer was not accurately recording hand lacerations caused by certain equipment; later, an employee using the same equipment suffered an amputation. Ex. 0028. Properly maintained records could have helped alert the employer to the hazardous machine before the amputation occurred. The USW also provided several examples of workplace hazards that emerge as trends over time, including occupational hearing loss, exposure to hazardous chemicals, and musculoskeletal disorders. Injury and illness records are an important tool in the identification of these types of hazards. Ex. 0028. Additionally, as noted by commenter ORCHSE Strategies, LLC, although most employers are diligent about recording injuries and illnesses as required, some are not.\7\ Ex. 0015. OSHA's ability to enforce the recordkeeping regulations is an important tool to ensure that accurate information about workplace safety is [[Page 91801]] available and that conscientious employers are not placed at a disadvantage by employers who intentionally underreport and thus appear safer than they actually are. Ex. 0015; see Ex. 0024. Although OSHA's recordkeeping rules have always required employers to maintain records for five years, they did not previously expressly state that an employer cannot skirt this requirement by ignoring its obligation to record an injury or illness when first learning of it. This final rule clarifies the recordkeeping requirements and enables OSHA to ensure that employers make and keep an accurate, five-year record of workplace injuries and illnesses. Indeed, without this clarification, as the AFL- CIO noted, the rule would not achieve Congress' intent that the Secretary collect accurate data about workplace safety. Ex. 0024. --------------------------------------------------------------------------- \7\ The USW suggested that OSHA incorporate into this rule a prohibition on employer practices that discourage reporting of injuries and illnesses. Ex. 0028. Such a prohibition would be beyond the scope of this rulemaking, which is limited to clarifying existing obligations. However, such practices are addressed in OSHA's recent rulemaking, ``Improve Tracking of Injuries and Illnesses,'' 81 FR 29623 (May 12, 2016). --------------------------------------------------------------------------- 4. OSHA Is Acting Within Its Regulatory Authority, and Consistently With the General Case Law, in Issuing This Clarifying Rule Several commenters expressed the view that the Volks II majority opinion prohibits the Secretary from imposing a continuing obligation on employers to record, and maintain records of, injuries and illnesses, with a few commenters stating that OSHA is improperly attempting to ``overturn'' the Volks II decision. Exs. 0003, 0008, 0009, 0010, 0011, 0012, 0013, 0014, 0016, 0017, 0020, 0021, 0023, 0026. OSHA disagrees. For the reasons described below, OSHA does not believe it is improper to respond to the Volks II decision by clarifying the regulations before there is any additional litigation over OSHA's statutory authority to establish continuing recordkeeping obligations. Given that OSHA agrees with Judge Garland that the regulations as previously written did not clearly convey the intended continuing obligation, it would have been fruitless for OSHA to seek further appellate review of the Volks II decision, as some commenters suggested. See Exs. 0017, 0020, 0021. The executive branch of the federal government may elect not to appeal an adverse decision from the judiciary for a number of reasons unrelated to its views about the merits of the ruling, and, as the Supreme Court recognizes, the government's decision to forgo appeal in a particular case should not foreclose future review of relevant issues in other appropriate judicial forums. See United States v. Mendoza, 464 U.S. 154, 160-61 (1984) (declining to apply non-mutual collateral estoppel against the federal government in part because doing so ``would force the . . . [government] to abandon prudential concerns and to appeal every adverse decision in order to avoid foreclosing further review''). Thus, OSHA has acted reasonably in deciding to clarify its regulations before there is any additional litigation over the issues of statutory interpretation addressed in Volks II. OSHA acknowledges that this clarification of its recordkeeping regulations to address the textual deficiencies identified by Judge Garland leaves unsettled the issue of OSHA's statutory authority to regulate in this manner. (Two of three judges on the Volks II panel found that the OSH Act did not permit OSHA to issue continuing recordkeeping regulations; however, Judge Garland disagreed with the majority's holding on this point.) When OSHA implements this rule, that issue will likely be the subject of future litigation in various federal courts, and potentially in the Supreme Court. Courts generally recognize the value of allowing the law to develop through litigation in multiple forums. See, e.g., Mendoza, 464 U.S. at 160 (noting ``benefit . . . from permitting several courts of appeals to explore a difficult question before this Court grants certiorari''); Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (``It often will be preferable to allow several courts to pass on a given class claim in order to gain the benefit of adjudication by different courts in different factual contexts.''). See also Holland v. Nat'l Mining Ass'n, 309 F.3d 909, 815 (D.C. Cir. 2002) (``Allowing one circuit's statutory interpretation to foreclose . . . review of the question in another circuit would squelch the circuit disagreements that can lead to Supreme Court review.''). OSHA has issued rules with a similar clarifying purpose following adverse court decisions before. For example, after the Fifth Circuit held that OSHA's respirator standard and the training provisions in the asbestos standard did not permit citing an employer for each individual employee who was not provided the required respirator or training, OSHA issued a final rule ``to make it unmistakably clear that each covered employee is required to receive PPE and training, and that each instance when an employee subject to a PPE or training requirement does not receive the required PPE or training may be considered a separate violation subject to a separate penalty.'' 73 FR 75568-01, 75569 (Dec. 12, 2008); see Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir. 2005). See also 72 FR 64342-01, 64342-43 (Nov. 15, 2007) (final rule clarifying employers' responsibility to pay for PPE, issued in response to Commission decision vacating citation for employer's failure to pay).\8\ --------------------------------------------------------------------------- \8\ Nor is it uncommon for federal agencies to engage in nonacquiescence when faced with what they believe are erroneous court decisions. See, e.g., Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989). --------------------------------------------------------------------------- OSHA also disagrees with the commenters, including the Coalition for Workplace Safety and the National Association of Home Builders, who suggested that a Supreme Court case, National Cable and Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) (``Brand X''), precludes the Secretary from promulgating this final rule. Exs. 0011, 0013, 0017, 0020. In holding that the Ninth Circuit should have deferred to the FCC's interpretation of a statutory term instead of following the contrary interpretation the court had adopted in an earlier case, Brand X stated that ``[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.'' 545 U.S. at 982 (emphasis added). Brand X does not control here, however, because Volks II did not clearly hold that the OSH Act unambiguously forecloses continuing recordkeeping violations. Indeed, the court expressly acknowledged that the loss or destruction of a record previously made constitutes a continuing violation of the requirement to retain records for five years. 675 F.3d at 756; see id. at 763 (concurring opinion). Moreover, although parts of the majority opinion suggest that the ``clear'' language in the OSH Act's statute of limitations precludes continuing record-making violations (because the majority said that the word ``occurrence'' requires a discrete action to have taken place within the six-month limitations period, 675 F.3d at 755-56), the court nevertheless acknowledged ambiguity in the meaning of ``occurrence'' when it agreed that training and machine guarding violations can continue, not because a discrete action occurs within the six-month window, but because ``the dangers created by th[ose] violations persist.'' Id. at 758.\9\ Notably, nothing in [[Page 91802]] the OSH Act's statute of limitations distinguishes between standards (such as machine guarding requirements) and regulations (such as recordkeeping requirements). Finally, the fact that Judge Garland disagreed with the majority about what the statute says lends further support to OSHA's view that Volks II should not be read as holding that the OSH Act unambiguously forecloses this regulatory action. --------------------------------------------------------------------------- \9\ The Coalition for Workplace Safety also stated that the cases Local Lodge No. 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960) and Ledbetter v. Goodyear, 550 U.S. 618 (2007) prohibit this final rule. Ex. 0013. However, these cases do not control this rule because they involve causes of action that the Court found to accrue at one discrete moment in time--the illegal execution of a collective bargaining agreement and a particular instance of sex discrimination, respectively. In contrast, a failure to maintain an accurate record of workplace injuries and illnesses is a continuing violation that reoccurs each day it persists. --------------------------------------------------------------------------- As touched upon previously in this preamble, OSHA further believes that general case law on continuing violations clearly 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)). 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 a second 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). This is the type of continuing violation relevant here because all OSHA violations--including recordkeeping violations--``continue'' only insofar as non-compliant conditions exist. The D.C. Circuit explicitly recognized the existence of these two types of continuing violation cases in Earle, 707 F.3d 299, 1307--a post-Volks II case that made no reference to the Volks II majority opinion, but cited, with approval, Judge Garland's concurring opinion.\10\ In Earle, the court, quoting Judge Garland, 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. 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 to allow the recorded information to 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. --------------------------------------------------------------------------- \10\ It is also noteworthy that Earle was written by Judge Henderson, who was part of the Volks II majority. --------------------------------------------------------------------------- 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.\11\ --------------------------------------------------------------------------- \11\ 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 Legal Authority, Section II.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. --------------------------------------------------------------------------- III. Summary and Explanation of the Final Rule OSHA is amending 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 final rule does not 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. Because the rule imposes no new burdens or obligations and changes no law, it is simply a clarification, not a substantive change (as a few commenters contended; see Exs. 0012, 0014, 0020). As discussed at length previously, the amendments are meant simply to clarify employers' obligations in the wake of the Volks II decision. The amendments consist of revisions to various sections of the regulatory text as well as changes to the titles of some sections and subparts. (Titles are useful for clarity but do not change the legal meaning of the text itself. See Penn. Dept. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998); INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 189-90 (1991)). As discussed in more detail later in this preamble, 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 if employers do not create the record when first required to do so. During that period, employers must update the Log by adding cases not previously recorded and by noting 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 if employers do not prepare the report when first required to do so. Unlike with the Log, employers are not required to update the Incident Report [[Page 91803]] 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. Many commenters expressed concern that this rule increases recordkeeping obligations and thus will require employers to devote additional time and resources to recordkeeping. Exs. 0008, 0010, 0012, 0013, 0014, 0020, 0021, 0026, 0027. For example, Nabors Drilling USA commented that the new rule will force it ``to hire one or more individuals whose sole job will be to police our volumes of OSHA 300, 300A, and 301 logs for accuracy one-hundred percent of the time,'' and the National Federation of Independent Businesses stated its belief that the rule imposes on employers ``a duty of daily reconsideration'' of each ``decision to not record or to not fully record an injury.'' Exs. 0010, 0014. This concern is misplaced. An employer's obligation remains the same as it was before: To record workplace injuries and illnesses within seven days and to maintain the record for five years. There is no new requirement to review or reassess existing records over the course of the maintenance period (and, correspondingly, there are no additional costs involved). The new rule simply makes clear that if an employer fails to record an injury or illness within seven days, it is not relieved of the requirement to make and keep an accurate record of all recordable injuries and illnesses for the duration of five years. As explained above in Section I.C, this has long been OSHA's position. In response to the observation in Volks II that a record cannot be maintained if it was never made, 657 F.3d at 756, the new rule is meant to explain that the obligations to make and maintain records go hand-in-hand. An employer cannot skirt the requirement to maintain accurate injury and illness records by failing to make the records in the first place. The commenters' concern about needing to regularly reassess recordkeeping determinations applies to only one type of recordkeeping violation--the type in which a well-intentioned employer simply makes a mistake and fails to record a recordable case (e.g., due to administrative oversight or because of an erroneous belief that the case is not recordable). The commenters' concern has no relevance to cases in which employers simply decide not to record cases they know to be recordable or in which employers have known, pervasive shortcomings in their recordkeeping policies and systems. See Ex. 0019 (comment from American Society of Safety Engineers). While inadvertent mistakes are always a possibility with respect to any regulatory obligation--whether discrete or continuing--OSHA generally focuses its recordkeeping enforcement resources on systematic recording failures, not on one-time errors made in good-faith attempts at compliance.\12\ See, e g., Secretary v. Pepperidge Farm, Inc., 17 BNA OSHC 1993 (Rev. Comm'n 1997) (affirming 176 willful recordkeeping violations where employer failed to train responsible employee on how to complete OSHA forms and failed to record dozens of injuries of a type that affected workers at ``an extraordinarily high rate''). And while employers are responsible for complying with the requirement to accurately record workplace injuries and illnesses and to maintain accurate records for five years, there is no separate requirement for daily (or regular) reconsideration of decisions not to record. Thus, even though OSHA may cite an employer for failing to record a recordable case, OSHA would have no basis for separately citing an employer for failing to reconsider prior recordkeeping determinations. --------------------------------------------------------------------------- \12\ OSHA notes, however, that an employer may be cited for an OSH Act violation as long as it has knowledge that the cited condition exists, whether or not the employer also has particular knowledge that the cited condition violates the Act. See, e.g., Secretary v. Shaw Constr., Inc., 6 BNA OSHC 1341 (Rev. Comm'n 1978) (finding employer in violation of trenching standard where employer knew trench was not sloped, even though employer was unsure which OSHA standard applied to the trench). Recordkeeping violations are no different from other OSH Act violations in this respect. --------------------------------------------------------------------------- A. Description of Revisions 1. Section 1904.0--Purpose OSHA received no comments on the proposed changes to Sec. 1904.0 and has adopted the provision as proposed. OSHA has revised this section to clarify and emphasize employers' ongoing duties to make and maintain accurate records of each and every recordable injury and illness under part 1904. The revised language reflects the longstanding requirement for employers to provide their injury and illness records to certain government representatives and to employees and former employees and their representatives. The additions to the regulatory text include language reiterating that recordkeeping requirements are important in helping OSHA achieve its mission of providing safe and healthful working conditions for the nation's workers. OSHA also added a new sentence at the end of this section to explain that 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 proposed 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. OSHA received no comments on this proposed change and has adopted the change as proposed. 3. Paragraph (a) of Sec. 1904.4--Basic Requirement OSHA received no comments on the proposed changes to Sec. 1904.4(a) and has adopted the changes as proposed. OSHA has revised 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 prior version of paragraph (a), which required employers to ``record'' injuries and illnesses, was less explicit in expressing OSHA's intent that employers both create and keep accurate records. The revised language confirms 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 revised language also reflects more closely the language of the OSH Act at 29 U.S.C. 657(c)(1) and (2). OSHA did not propose to change, and is not changing, the recording criteria in paragraphs (a)(1) through (3) of existing Sec. 1904.4. 4. Note to Paragraph (a) of Sec. 1904.4 OSHA proposed to add a note to Sec. 1904.4(a) to clarify the Secretary'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 grace period provided for in Sec. 1904.29(b)(3) must still create the record so long as the retention period has not elapsed. [[Page 91804]] 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. OSHA received a number of comments about its proposal to specify that the recordkeeping duty is a continuing one. These comments are addressed in Section II.B, Legal Authority, above. For the reasons stated there, OSHA has adopted the changes as proposed. 5. Paragraph (b)(3) of Sec. 1904.29--How quickly must each injury or illness be recorded? OSHA proposed to revise paragraph (b)(3) of Sec. 1904.29. The paragraph, as proposed and adopted in this final rule, states OSHA's longstanding 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 receives information that the injury or illness occurred. OSHA is making minor wording changes to the first sentence of paragraph (b)(3), and the remainder of paragraph (b)(3), as proposed and adopted, is designed to make clear that employers who fail to record as required within seven days are not then relieved of the obligation to record. Thus, the obligation to record continues until the five-year retention period in Sec. 1904.33(a) has ended. North America's Building Trades Unions suggested that OSHA's use of the word ``deadline'' to refer to the end of the seven-day reporting period might cause confusion about whether the obligation continues after the ``deadline'' is missed. Ex. 0025. OSHA agrees and is removing this word in the final rule. OSHA has always interpreted the seven-day recording period 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. Other comments disagreeing with OSHA's proposal to specify that the recordkeeping duty is a continuing one are addressed in Section II.B, Legal Authority, above. For the reasons stated there, OSHA has adopted the remainder of the provision as proposed. 6. Section 1904.32--Year-End Review and Annual Summary OSHA proposed 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. OSHA received no comments on this proposed change and has adopted the change as proposed. 7. Paragraph (a) of Sec. 1904.32--Basic Requirement OSHA received no comments on the proposed changes to Sec. 1904.32(a) and has adopted the changes as proposed. OSHA has revised 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. OSHA has added a new paragraph (paragraph (a)(2)) to Sec. 1904.32. This 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. 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 moving the language from paragraph (a)(2) in Sec. 1904.32 to paragraph (a)(3) in the same section. OSHA is adding 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 renumbering paragraphs (a)(3) and (4) of Sec. 1904.32 as paragraphs (a)(4) and (5), respectively. OSHA did not propose to make, and is not making, 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 date or during the required time period is a violation of Sec. 1904.32 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 received no comments on the proposed changes to paragraph (b)(1) of Sec. 1904.32 has adopted the changes as proposed. OSHA is amending paragraph (b)(1) of Sec. 1904.32 to reflect the revisions to Sec. 1904.32(a)(1). The 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 making one minor, non-substantive change to the heading of paragraph (b)(1). 9. Section 1904.33--Retention and Maintenance of Accurate Records OSHA proposed to update the title of this section to more accurately reflect the obligations described in Sec. 1904.33. OSHA received no comments on this proposed change and has adopted the change as proposed. 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 proposed 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. OSHA also proposed to amend the text of paragraph (b)(1) of Sec. 1904.33 to provide an introduction to the paragraphs that follow. OSHA proposed to add paragraphs (b)(1)(i) through (iii) to Sec. 1904.33 to provide further guidance to employers on the duties to update Log entries and Incident Reports. Proposed paragraph (b)(1)(i) was designed to clarify 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 [[Page 91805]] injury recorded on the Log. As the proposed language made 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, if the employer either just learned of the incident or failed initially to record as required upon learning of the incident. Proposed paragraph (b)(1)(ii) addressed changes that must be made to OSHA Logs throughout the retention period. As emphasized throughout this 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) reiterated the requirement in 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) was to explain that employers are not required to update or correct existing Incident Reports during the retention period. This principle was previously stated in Sec. 1904.33(b)(3). OSHA received a number of comments questioning its assertion that the proposed changes to paragraph (b)(1) of Sec. 1904.33 would not require anything new of employers. These comments are addressed below and in Section II.B, Legal Authority, above. The proposed language was intended not to change, but rather to state more clearly, what was already required under the recordkeeping rules. The prior recordkeeping rules provided 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 occurred in previously recorded cases. They did not explicitly state the employer's continuing duty to record cases it initially failed to record as required. Judge Garland's concurring opinion in Volks II concluded that the regulation was not worded explicitly enough to create a continuing obligation to record all such cases, as compared with newly discovered cases. Volks II, 675 F.3d at 760-61. At the time OSHA amended the recordkeeping rules in 2001, it was well-established law in the Commission that employers had a continuing duty to record these previously unrecorded injuries and illnesses on their Logs. See Gen. Dynamics, 15 BNA OSHC 2122; Johnson Controls, 15 BNA OSHC 2132. Nothing in the 2001 rulemaking suggested that OSHA had any intention of changing this fundamental requirement. The 2001 recordkeeping regulations required employers to promptly record cases on the 300 Log, and, throughout the five-year retention period, to add to the Log newly discovered cases even if they occurred some time ago. These rules did not assume noncompliance; in other words, the rules did not explicitly state what an employer must do if it failed to record a case that was recordable. But by stating in the 2001 regulations 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 2001 regulations also stated that employers were 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.) That OSHA did not require employers to update Incident Reports did not mean employers were not required to create the forms in the first place. The language in the final rule clarifies this. For the reasons stated above and in Section II.B, Legal Authority, OSHA has adopted the proposed revisions to Sec. 1904.33(b)(1) without change. 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 proposed minor changes to paragraph (b)(2) of Sec. 1904.33. These proposed changes were not substantive. The recordkeeping rules do not require employers to update or make changes to annual summaries during the five-year retention period. OSHA received no comments on the proposed changes to Sec. 1904.33(b)(2) and has adopted the changes as proposed. 12. Paragraph (b)(3) of Sec. 1904.33 OSHA proposed to delete paragraph (b)(3) from Sec. 1904.33 and move it, in slightly modified form, to paragraph (b)(1)(iii) in Sec. 1904.33. OSHA received no comments on this proposed change to the regulatory text and has adopted the change as proposed. 13. Section 1904.34--Change in Business Ownership Commenter Nabors Drilling USA observed that the language in the proposed rule might create confusion about the obligations of a new owner regarding the accuracy of the previous owner's injury logs. Ex. 0010. To eliminate any potential confusion, OSHA is adding a sentence at the end of Sec. 1904.34 to clarify that when a business changes ownership, the new owner is not responsible for recording work-related injuries and illnesses that occurred before the change in ownership. 14. 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 Sec. 1904.35 addresses employee access to records created under part 1904. OSHA proposed 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 Sec. 1904.0. OSHA received no comments on this proposed change to the regulatory text and has adopted the change as proposed. 15. 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 paragraph (b)(2)(iii) of Sec. 1904.35, OSHA proposed to add 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 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 does not begin to run until the request is made. Nabors Drilling USA asked whether the change to Sec. 1904.35 creates a private right of action by employees, former employees, and their representatives to pursue claims over recordkeeping. Ex. 0010. It does not. OSHA received no [[Page 91806]] other comments on the proposed change to Sec. 1904.35 and has adopted the change as proposed. 16. Subpart E--Reporting Accurate Fatality, Injury, and Illness Information to the Government OSHA proposed 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. OSHA received no comments on this proposed change and has adopted the change as proposed. 17. Section 1904.40--Providing Accurate Records to Government Representatives OSHA proposed to revise the title of Sec. 1904.40 to reflect the changes to paragraph (a) of that section. OSHA received no comments on this proposed change and has adopted the change as proposed. 18. Paragraph (a) of Sec. 1904.40--Basic Requirement OSHA proposed to add the term ``accurate'' to paragraph (a) of Sec. 1904.40 to reflect OSHA's longstanding expectation that employers provide government representatives with accurate records upon request. OSHA also proposed some non-substantive wording changes to this paragraph. Nabors Drilling USA suggested that OSHA revisit the four-business- hour timeframe in which employers must provide requested records to government representatives. Ex. 0010. This suggestion is beyond the scope of this rulemaking because this final rule only clarifies, and does not change, existing obligations. OSHA received no other comments on its proposed changes to Sec. 1904.40(a) and has adopted the changes as proposed. IV. State Plans The 28 States and U.S. Territories with their own OSHA-approved occupational safety and health plans must adopt a rule comparable to the amendments that Federal OSHA is promulgating to 29 CFR part 1904 in this final rule. 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, six States and U.S. Territories have OSHA-approved State plans that apply to State and local government employees only: Connecticut, Illinois, Maine, 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). 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. V. Final Economic Analysis These 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 rule does not satisfy that criterion; as explained later in this preamble, neither the benefits nor the costs of the rule equal or exceed $100 million. OSHA has also determined that this rule 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).\13\ --------------------------------------------------------------------------- \13\ Nor does this rule present a ``novel legal issue'' rendering it a significant regulatory action, as the Coalition for Workplace Safety suggests. Ex. 0013. The commenter states that the final rule presents such a novel legal issue because OSHA is ``us[ing] a rule to overturn a U.S. Court of Appeals decision.'' As explained above in Legal Authority, Section II.B.4, OSHA does not agree with this characterization of the rulemaking. This rule is intended simply to clarify the meaning of the recordkeeping regulations following the Volks II decision, and the decision does not deprive OSHA of authority to promulgate this rule. --------------------------------------------------------------------------- The Regulatory Flexibility Act of 1980, as amended by SBREFA in 1996, requires OSHA to determine whether its 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 final rule will not have such an impact. This final rule simply reiterates and clarifies employers' existing obligations to record work-related injuries and illnesses. This rule does not require employers to make records of any injuries or illnesses for which records were not already required. Nor does the rule impose any new requirement that employers reconsider or reassess records once they have been made; employers remain subject to the existing requirement that they ensure the accuracy and completeness of their 300 Logs. OSHA estimated the costs of these requirements as part of the final recordkeeping rule issued in January of 2001, see 66 FR 6081- 6120, January 19, 2001. The revisions contained in this final rule impose no new cost burden because they do not require employers to do anything new. A number of commenters stated their belief that the final rule will impose additional costs because it requires employers to reassess, or ``think about,'' each record of a workplace injury or illness repeatedly over the course of five full years. Exs. 0008, 0010, 0012, 0013, 0020, 0021, 0026, 0027. The National Federation of Independent Businesses estimated, ``conservatively,'' that this rule will cost the economy $1,933,710,222 over five years, assuming each employer has one ``unrecorded or partially-recorded injury.'' \14\ Ex. 0014. This concern is misplaced. An employer's obligations remain the same as they have always been under the recordkeeping rules: To record workplace injuries and illnesses within seven days of when it learns of them and to maintain the records for five years. The final rule does not contain any new requirement to review or reassess existing records over the course of the maintenance period (see Section III, SUMMARY AND EXPLANATION, above); it simply [[Page 91807]] makes clear that if an employer fails to record an injury or illness within seven days of learning about it, it is not relieved of the requirement to have and keep an accurate record of all recordable injuries and illnesses for the duration of five years. Because the final rule imposes no new requirement for review of records, there are no additional costs involved for the time it would take to conduct such review. Moreover, there is no evidence in the record that employers have ever incurred meaningful costs (let alone costs on the level of those described by the National Federation of Independent Businesses) for regularly reassessing or ``thinking about'' their records--either in the many years before the Volks II decision when OSHA was enforcing recordkeeping requirements in a manner consistent with the clarification contained in this final rule, or after the decision, when it is undisputed that the Secretary may cite an employer for a failure- to-record at any time within the six-month period following a violation. Therefore, there is no reason to think employers will incur such costs now. --------------------------------------------------------------------------- \14\ To arrive at this number, the commenter assumed that ``daily reconsideration'' would take one minute per day per unrecorded or partially recorded injury or illness, and then multiplied one minute per day by 365 days per year by five years (minus seven days for the regulatory grace period) by an estimated 1,365,985 covered businesses by $46.72 per hour. Ex. 0014. In addition to assuming a requirement for daily reconsideration that the rule does not impose, this calculation does not account for the fact that concerns about reassessment will apply to only a subset of all recordkeeping cases. See discussion in Section III, SUMMARY AND EXPLANATION, above. --------------------------------------------------------------------------- Even if these revisions to OSHA's recordkeeping rules would result in some costs beyond those OSHA estimated in 2001, any such costs would be nominal. According to OSHA's 2016 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 1.99 million injuries and illnesses must be recorded on OSHA logs each year. See http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1218-002.\15\ Although OSHA accounted for the costs associated with full recordkeeping compliance as part of the 2001 rulemaking, and finds that this rulemaking will impose no additional costs on employers, OSHA will assume, for the sake of this analysis, that this rule will lead to the recording of a small number of recordable cases (one percent of all recordable cases) that would not have been recorded previously. In other words, OSHA will calculate the costs that would be imposed even if an additional 19,900 injuries and illnesses will be recorded as a result of the final rule. (OSHA took the same approach in its preliminary economic analysis, although there OSHA referred to this as an assumption involving a one-percent rate of noncompliance. OSHA believes the terminology it used in the proposal led to some confusion, so it has clarified its approach for purposes of this final rule.) \16\ OSHA also will examine a sensitivity analysis of the results assuming that this rule will lead to the recording of an even larger number of cases (5 percent of recordable injuries and illnesses). --------------------------------------------------------------------------- \15\ The National Association of Manufacturers objected that BLS estimates of recordable injuries are larger than OSHA's estimate of the total injuries that must be recorded. Ex. 0026. This is correct, but not all employers are required to record their injuries. See 29 CFR 1904.1, 2 (describing exemptions for employers with 10 or fewer employees and those in certain industries). OSHA only uses BLS recordable injury estimates for those industries required to record injuries. \16\ Nabors Drilling USA commented that if OSHA is correct that 99% of employers already fully comply with the recordkeeping requirements, this final rule serves no purpose. Ex. 0010. As explained above, however, OSHA is not suggesting that 99% of employers are in full compliance with OSHA recordkeeping requirements. In any event, unlike most OSHA rulemakings, this final rule is not intended to change employers' behavior, but rather is designed to clarify OSHA's requirements. Thus, the current rate of recordkeeping compliance is unrelated to the need for this final rule. --------------------------------------------------------------------------- The National Association of Manufacturers questioned OSHA's preliminary economic analysis, suggesting that OSHA's one-percent and five-percent assumptions were too low. Ex. 0026. OSHA believes, however, that the true costs associated with this final rule are zero, and is using the one-percent and five-percent assumptions simply to demonstrate that even if this rule leads to the recording of some additional injuries and illnesses, any costs incurred by employers as a result will be minimal. 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 OSHA. 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 2016 Information Collection Request (ICR), the average hourly rate for an Occupational Health and Safety Specialist (Standard Occupational Classification code 29-9011) is estimated to be $48.78 (which includes a 43% addition for benefits). See http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1218-002. This means that the total estimated cost of preparing OSHA records is $18.54 per injury or illness. The American Society of Safety Engineers and the National Association of Manufacturers questioned these estimates of time and cost as too low. Exs. 0019, 0026. OSHA stands by these estimates, however, as they have been developed carefully through multiple notice and comment rulemakings and Paperwork Reduction Act notices. Those who believe OSHA underestimated these values are failing to recognize that not all costs of investigating an accident are attributable to OSHA's recordkeeping requirements. Much of the same information has to be collected for workers' compensation purposes. To avoid overlapping paperwork, OSHA allows, and many employers take advantage of, the option to use equivalent workers' compensation forms in place of OSHA's recordkeeping forms. See 29 CFR 1904.29(a), (b)(4). Thus, if 19,900 cases will be recorded as a result of the final rule, the total cost associated with this regulatory action will be 19,900 times $18.54, or approximately $368,946 per year. And if OSHA makes the even more conservative assumption that 5 percent of 1.99 million injuries and illnesses (99,500) would be recorded as a result of the final rule, the total estimated cost of the rule, across all affected employers, would be under $1.85 million per year. Even this hypothetical cost would only exist if employers are not currently complying fully with the existing rule, but increase their compliance as a result of this clarification. Just as there are no (or minimal) new costs associated with this rule, the rule will result in no new economic benefits. OSHA believes the revisions to the recordkeeping rules are technologically feasible because they do not require employers to perform any actions that they were not already performing under existing requirements. And because the rule does not impose any significant new compliance costs, OSHA deems it economically feasible. VI. 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 final rule to determine if they would have a significant economic impact on a substantial number of small entities. As indicated in Section V, Final Economic Analysis, earlier in this preamble, the 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, OSHA certifies that the rule will not have a significant economic impact on a substantial number of small entities. VII. Environmental Impact Assessment OSHA has reviewed the final rule in accordance with the requirements of the National Environmental Policy Act [[Page 91808]] (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). OSHA finds that the revisions included in the rule will 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). VIII. Federalism OSHA reviewed this final 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 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 IV, State Plans. IX. 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 final rule does not involve any unfunded mandates being imposed on any State or local government entity. Moreover, as discussed previously, OSHA estimates that there are no, or minimal, compliance costs associated with the rule. Therefore, this rule will 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 final rule is not a significant regulatory action within the meaning of Section 202 of the Unfunded Mandates Reform Act (2 U.S.C. 1532). X. Consultation and Coordination With Indian Tribal Governments OSHA reviewed this 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 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. XI. Office of Management and Budget Review Under the Paperwork Reduction Act of 1995 The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) and OMB regulations (5 CFR part 1320) require agencies to obtain approval from OMB before conducting any collection of information. The PRA defines a ``collection of information'' as ``the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public of facts or opinions by or for an agency regardless of form or format'' (44 U.S.C. 3502(3)(A)). OSHA's existing recordkeeping forms consist of the OSHA 300 Log, the 300A Summary, and the 301 Incident Report. These forms are contained in the Information Collection Request (ICR) titled 29 CFR part 1904, Recording and Reporting Occupational Injuries and Illnesses, which OMB approved under OMB Control Number 1218-0176 (expiration date 01/31/2018). In accordance with the PRA, OSHA solicited public comments on the July 29, 2015 proposed rule. The proposed rule also invited the public to submit comments to OMB and OSHA on the proposed collections of information with regard to the following:Whether the proposed collections of information 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 collections of information, 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. Because the proposal simply reiterated and clarified employers' existing obligations to record and maintain work-related injuries and illnesses and did not add any new collection of information, the Agency maintained the existing burden hour and cost estimates in the Recording and Reporting Occupational Injuries and Illnesses Information Collection Request. The Department also submitted this ICR to OMB for review in accordance with 44 U.S.C. 3507(d) on July 29, 2015. On October 7, 2015, OMB withheld approval of the revised ICR and issued a Notice of Action (NOA) stating that prior to publication of the final rule, the agency should provide a summary of any comments related to the information collection and their response, including any changes made to the ICR as a result of comments. In addition, the agency must enter the correct burden estimates (see http://www.reginfo.gov/public/do/DownloadNOA?requestID=266192). The final rule adds no new compliance obligations. The rule simply reiterates and clarifies employers' existing obligations to record work-related injuries and illnesses; it does not require employers to make records of any injuries or illnesses for which records were not already required. Nor does the rule impose any new requirement that employers reconsider or reassess records once they have been made; employers remain subject to the existing requirement that they ensure the accuracy and completeness of their 300 Logs. These revisions impose no new cost burden because they do not require employers to do anything new. The Department of Labor has submitted a final ICR to OMB maintaining the existing burden hours and cost estimates. A copy of this ICR is available at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201610-1218-003. OSHA will publish a separate notice in the Federal Register that will announce OMB results of that review. OSHA notes that a Federal agency cannot conduct or sponsor a collection of information unless it is approved by OMB under the PRA, and the collection of information notice displays a currently valid OMB control number (44 U.S.C. 3507(a)(3)). Also, notwithstanding any other provision of law, no employer 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 (44 U.S.C. 3512). OSHA received comments relating to the estimated time necessary to meet the paperwork requirements of the proposed changes published in the July [[Page 91809]] 29, 2015 proposed rule. A number of commenters stated their belief that the rule will impose additional costs because it requires employers to reassess, or ``think about,'' each record of a workplace injury or illness repeatedly over the course of five full years. Ex. 0008, 0010, 0012, 0013, 0020, 0021, 0026, 0027. This concern is misplaced. An employer's obligations remain the same as they are under the existing rule: To record workplace injuries and illnesses within seven days of when it learns of them and to maintain accurate records for five years. The final rule does not contain any new requirement to review or reassess existing records over the course of the maintenance period; it simply makes clear that if an employer fails to record an injury or illness within seven days of learning about it, it is not relieved of the requirement to have and keep an accurate record of all recordable injuries and illnesses for the duration of five years. Because the final rule imposes no new requirement for review of records, there are no additional costs involved for the time it would take to conduct such review. OSHA estimates 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. The average hourly rate for an Occupational Health and Safety Specialist (Standard Occupational Classification code 29-9011) is estimated to be $48.78 (which includes a 43% addition for benefits). This means that the total estimated cost of preparing OSHA records is $18.54 per injury or illness. The American Society of Safety Engineers and the National Association of Manufacturers questioned these estimates of time and cost as too low. Exs. 0019, 0026. OSHA stands by these estimates, however, as they have been developed carefully through multiple notice and comment rulemakings and Paperwork Reduction Act notices. Not all costs of investigating an accident are attributable to OSHA's recordkeeping requirements. Much of the same information has to be collected for workers' compensation purposes. To avoid overlapping paperwork, OSHA allows, and many employers take advantage of, the option to use equivalent workers' compensation forms in place of OSHA's recordkeeping forms. See 29 CFR 1904.29(a), (b)(4). As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the following paragraphs provide information about this ICR. 1. Title: 29 CFR part 1904 Recording and Reporting Occupational Injuries and Illnesses. 2. Number of respondents: Approximately 640,000 employers with 1,300,000 establishments are regularly required to maintain the forms. 3. Frequency of responses: Annually. 4. Number of responses: Approximately 1.99 million injury and illness cases are recorded on the OSHA forms. 5. Average time per response: Time required completing and maintaining an entry (other than a needlestick) on the OSHA Form 300 ranges from 5 minutes to 30 minutes and averages 14 minutes. Time required completing an entry on the OSHA 301 averages 22 minutes. OSHA estimates 40% of recordable cases are recorded on form 301. 6. Estimated total burden hours: The final rule adds no new compliance obligations and does not require employers to make records of any injuries or illnesses for which records are not currently required to be made. The current total burden hours for the recordkeeping (part 1904) ICR are 2,525,458. 7. Estimated costs (capital-operation and maintenance): There are no capital costs for the proposed information collection. 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). David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. Accordingly, the Occupational Safety and Health Administration amends part 1904 of title 29 of the Code of Federal Regulations 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 to read 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 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 record within seven days 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 [[Page 91810]] 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 paragraph (a)(1) of this section, 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 Sec. 1904.34 to read as follows: Sec. 1904.34 Change in business ownership. If your business changes ownership, you are responsible for recording and reporting work-related injuries and illnesses only for that period of the year during which you owned the establishment. You must transfer the Part 1904 records to the new owner. The new owner must save all records of the establishment kept by the prior owner, as required by Sec. 1904.33, but need not update or correct the records of the prior owner. The new owner is not responsible for recording and reporting work-related injuries and illnesses that occurred before the new owner took ownership of the establishment. 0 9. 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 10. Revise the heading of subpart E to read as set forth above. 0 11. 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. 2016-30410 Filed 12-16-16; 8:45 am] BILLING CODE 4510-26-P
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(d) The Special Counsel’s failure to illnesses is an ongoing obligation. The 693–1999; email meilinger.francis2@
file a complaint with respect to such duty to record an injury or illness dol.gov.
charge with OCAHO within the 120-day continues for as long as the employer Technical inquiries: Ms. Mandy
period shall not affect the right of the must keep records of the recordable Edens, Director, Directorate of Technical
Special Counsel to continue to injury or illness; the duty does not Support and Emergency Management,
investigate the charge or later to bring a expire just because the employer fails to OSHA, U.S. Department of Labor, Room
complaint before OCAHO. create the necessary records when first N–3653, 200 Constitution Avenue NW.,
(e) The Special Counsel may seek to required to do so. The amendments Washington, DC 20210; telephone (202)
intervene at any time in any proceeding consist of revisions to the titles of some 693–2270; email edens.mandy@dol.gov.
brought by a charging party before existing sections and subparts and Copies of this Federal Register
OCAHO. changes to the text of some existing notice and news releases: Electronic
provisions. The amendments add no copies of these documents are available
§ 44.304 Special Counsel acting on own new compliance obligations and do not at OSHA’s Web page at http://
initiative. www.osha.gov.
require employers to make records of
(a) The Special Counsel may, on the any injuries or illnesses for which SUPPLEMENTARY INFORMATION:
Special Counsel’s own initiative, records are not currently required to be
conduct investigations respecting unfair made. Table of Contents
immigration-related employment I. Background
The amendments in this rule are
practices when there is reason to believe A. The OSH Act and Citation of OSH Act
adopted in response to a decision of the
that a person or other entity has engaged Violations
United States Court of Appeals for the
or is engaging in such practices, and B. OSHA’s Recordkeeping Regulations and
District of Columbia Circuit. In that the Importance of Accurate Workplace
shall notify a respondent by certified
case, a majority held that the Injury and Illness Data
mail of the commencement of the
Occupational Safety and Health Act C. An Employer’s Failure to Record a
investigation.
does not permit OSHA to impose a Recordable Illness or Injury Is a Failure
(b) The Special Counsel may file a To Maintain Accurate Injury and Illness
continuing recordkeeping obligation on
complaint with OCAHO when there is Records and Is a Continuing Violation
employers. One judge filed a concurring
reasonable cause to believe that an D. The D.C. Circuit’s Decision in Volks II
opinion disagreeing with this reading of
unfair immigration-related employment E. Events Preceding This Final Rule
the statute, but finding that the text of II. Legal Authority
practice has occurred no more than 180
OSHA’s recordkeeping regulations did A. Overview
days prior to the date on which the
not impose continuing recordkeeping B. The OSH Act Authorizes the Secretary
Special Counsel opened an investigation
duties. OSHA disagrees with the To Impose a Continuing Obligation on
of that practice. Employers To Make and Maintain
majority’s reading of the law, but agrees
§ 44.305 Regional offices. that its recordkeeping regulations were Accurate Records of Work-Related
not clear with respect to the continuing Injuries and Illnesses, and Incomplete or
The Special Counsel, in accordance Otherwise Inaccurate Records Create
with regulations of the Attorney nature of employers’ recordkeeping Ongoing, Citable Conditions
General, shall establish such regional obligations. This final rule is designed 1. Section 8(c) of the Act Governs
offices as may be necessary to carry out to clarify the regulations in advance of Employers’ Recordkeeping Obligations,
the Special Counsel’s duties. possible future federal court litigation and That Provision Authorizes the
that could further develop the law on Imposition of Continuing Obligations on
Dated: December 14, 2016. the statutory issues addressed in the Employers To Make and Maintain
Loretta E. Lynch, D.C. Circuit’s decision. Accurate Records of Work-Related
Attorney General. Illnesses and Injuries
DATES: This final rule becomes effective 2. The OSH Act’s Statute of Limitations
[FR Doc. 2016–30491 Filed 12–16–16; 8:45 am]
on January 18, 2017. Collections of Does Not Define OSHA Violations or
BILLING CODE 4410–13–P Address When Violations Occur, Nor
information: There are collections of
information contained in this final rule Does the Language in Section 9(c)
Preclude Continuing Recordkeeping
DEPARTMENT OF LABOR (see Section XI, Office of Management
Violations
and Budget Review Under the 3. Incomplete or Otherwise Inaccurate
Occupational Safety and Health Paperwork Reduction Act of 1995). Records of Work-Related Illnesses and
Administration Notwithstanding the general date of Injuries Create an Ongoing Condition
applicability that applies to all other Detrimental to Full Enforcement of the
29 CFR Part 1904 requirements contained in the final rule, Act
affected parties do not have to comply 4. OSHA Is Acting Within Its Regulatory
[Docket No. OSHA–2015–0006] with the collections of information in Authority, and Consistently With the
General Case Law, in Issuing This
RIN 1218–AC84 the recordkeeping regulations (as Clarifying Rule
revised by this final rule) until the III. Summary and Explanation of the Final
Clarification of Employer’s Continuing Department of Labor publishes a Rule
Obligation To Make and Maintain an separate document in the Federal A. Description of Revisions
Accurate Record of Each Recordable Register announcing that the Office of 1. Section 1904.0—Purpose
Injury and Illness Management and Budget has approved 2. Subpart C—Making and Maintaining
them under the Paperwork Reduction Accurate Records, Recordkeeping Forms,
AGENCY: Occupational Safety and Health and Recording Criteria
Act.
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Administration (OSHA), Labor. 3. Paragraph (a) of § 1904.4—Basic
FOR FURTHER INFORMATION CONTACT: Requirement
ACTION: Final rule. 4. Note to Paragraph (a) of § 1904.4
Press inquiries: Mr. Frank Meilinger,
5. Paragraph (b)(3) of § 1904.29—How
SUMMARY: OSHA is amending its Director, Office of Communications, quickly must each injury or illness be
recordkeeping regulations to clarify that OSHA, U.S. Department of Labor, Room recorded?
the duty to make and maintain accurate N–3647, 200 Constitution Avenue NW., 6. Section 1904.32—Year-End Review and
records of work-related injuries and Washington, DC 20210; telephone (202) Annual Summary
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7. Paragraph (a) of § 1904.32—Basic necessary or appropriate to provide safe restricted work activity or job transfer,
Requirement or healthful employment and places of medical treatment beyond first aid, or a
8. Paragraph (b)(1) of § 1904.32—How employment. See 29 U.S.C. 652(8). The diagnosis of a significant injury or
extensively do I have to review the Act also grants broad authority to the illness by a physician or other licensed
OSHA 300 Log at the end of the year?
9. Section 1904.33—Retention and Secretary to promulgate other types of health care professional. 29 CFR 1904.7.
Maintenance of Accurate Records regulations such as those related to Employers must document each
10. Paragraph (b)(1) of § 1904.33—Other employer self-inspections and keeping recordable injury or illness on an
than the obligation identified in employees informed of matters related ‘‘OSHA 300’’ form, which is a log of all
§ 1904.32, do I have further recording to occupational safety and health. 29 work-related injuries and illnesses. 29
duties with respect to OSHA 300 Logs U.S.C. 657(c). The OSH Act specifically CFR 1904.29(a) through (b)(1).
and 301 Incident Reports during the five- directs the Secretary to promulgate Employers also must prepare a
year retention period? regulations requiring employers to make supplementary ‘‘OSHA 301 Incident
11. Paragraph (b)(2) of § 1904.33—Do I
and maintain accurate records of work- Report’’ or equivalent form for each
have to make additions or corrections to
the annual summary during the five-year related injuries and illnesses. 29 U.S.C. recordable injury and illness; the
retention period? 657(c)(1) and (2), 673(a); see also Incident Reports provide additional
12. Paragraph (b)(3) of § 1904.33 651(b)(12), 657(g)(2), 673(e). details about the injuries and illnesses
13. Section 1904.34—Change in Business OSHA issues citations and assesses recorded in the 300 Log. 29 CFR
Ownership monetary penalties when it finds that 1904.29(b)(2).
14. Paragraph (b)(2) of § 1904.35—Do I employers are not complying with the At the end of each calendar year,
have to give my employees and their Act or with applicable standards and employers must review their 300 Logs to
representatives access to the OSHA regulations. 29 U.S.C. 658, 659, 666. verify that the entries are complete and
injury and illness records? Section 9(c) of the OSH Act contains a accurate. 29 CFR 1904.32(a)(1).
15. Paragraph (b)(2)(iii) of § 1904.35—If an
employee or representative asks for
statute of limitations providing that no Employers also must correct any
access to the OSHA 300 Log, when do I citation may be issued after the deficiencies identified during this
have to provide it? expiration of six months following ‘‘the annual review. Id. By February 1 of each
16. Subpart E—Reporting Accurate occurrence of any violation.’’ 29 U.S.C. year, employers must create, certify, and
Fatality, Injury, and Illness Information 658(c). Generally, OSH Act violations post annual summaries of the cases
to the Government continue to occur for as long as listed on their 300 Logs for the prior
17. Section 1904.40—Providing Accurate employees are exposed to the condition calendar year. 29 CFR 1904.32(a), (b).
Records to Government Representatives posed by the non-compliant workplace. Annual summaries must remain posted
18. Paragraph (a) of § 1904.40—Basic See Sec’y of Labor v. Cent. of Georgia until April 30 each year. 29 CFR
Requirement
IV. State Plans
R.R. Co., 5 BNA OSHC 1209, 1211 (Rev. 1904.32(b)(6). Employers must retain
V. Final Economic Analysis Comm’n 1977) (explaining that a their OSHA Logs, Incident Reports, and
VI. Regulatory Flexibility Certification violation occurs ‘‘whenever . . . [a] annual summaries for five years
VII. Environmental Impact Assessment standard is not complied with and an following the end of the calendar year
VIII. Federalism employee has access to the resulting that they cover. 29 CFR 1904.33(a). The
IX. Unfunded Mandates zone of danger’’). Thus, employers have regulations contain provisions
X. Consultation and Coordination With an ongoing obligation to correct explaining when records need to be
Indian Tribal Governments conditions that violate OSHA standards revised during the retention period.
XI. Office of Management and Budget Review and regulations, and under section 9(c), Accurate injury and illness records
Under the Paperwork Reduction Act of
violations are subject to citations and serve several important purposes. See
1995
penalties for up to six months after the 66 FR at 5916–17, January 19, 2001. One
I. Background last instance of employee exposure to purpose is to provide information to
the violative condition. employers. The information in the
A. The OSH Act and Citation of OSH
OSHA-required records makes
Act Violations B. OSHA’s Recordkeeping Regulations employers more aware of the kinds of
The Occupational Safety and Health and the Importance of Accurate injuries and illnesses occurring and the
Act of 1970 (OSH Act or Act) arose out Workplace Injury and Illness Data hazards that cause or contribute to
of a Congressional finding that personal In 1971, OSHA issued its first them. When employers analyze and
injuries and illnesses arising out of work recordkeeping regulations at 29 CFR review the information in their records,
situations impose a substantial burden part 1904. OSHA promulgated revisions they can identify and correct hazardous
upon, and are a hindrance to, interstate to these regulations in 2001 in an effort workplace conditions. Injury and illness
commerce in terms of lost production, to improve the quality of workplace records are essential for employers to
wage loss, medical expenses, and injury and illness records by making manage their safety and health programs
disability compensation payments. See OSHA’s recordkeeping system easier to effectively; these records permit
29 U.S.C. 651(a). Accordingly, the use and understand. See 66 FR 5916 employers to track injuries and illnesses
purpose of the statute is to assure so far (January 19, 2001). over time so they can evaluate the
as possible every working man and OSHA’s recordkeeping regulations effectiveness of protective measures
woman in the Nation safe and healthful require employers to record information implemented in response to identified
working conditions. See 29 U.S.C. about certain injuries and illnesses hazards.
651(b). occurring in their workplaces, and to Similarly, employees—who have
To effectuate the Act’s purpose, make that information available to access to OSHA injury and illness
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Congress authorized the Secretary of employees, OSHA, and the Bureau of records throughout the five-year
Labor to promulgate occupational safety Labor Statistics (BLS). Employers must retention period (see 29 CFR 1904.35)—
and health standards (29 U.S.C. 655); a record work-related injuries and can use information about the
standard, as defined in the Act, requires illnesses that meet one or more occupational injuries and illnesses
conditions, or the adoption or use of one recording criteria, including injuries occurring in their workplaces to become
or more practices, means, methods, and illnesses resulting in death, loss of better informed about, and more alert to,
operations, or processes, reasonably consciousness, days away from work, the hazards they face. Employees who
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are aware of the hazards around them act, each day the action is not taken its obligation to maintain accurate
may be more likely to follow safe work results in a continuing, ongoing records, there is an ongoing violation of
practices and to report workplace violation. In other words, ‘‘a new claim OSHA’s recordkeeping requirements
hazards to their employers. When accrues each day the violation is that continues to occur every day
employees are aware of workplace extant.’’ Interamericas Inv., Ltd. v. Fed. employees work at the site. Therefore,
hazards, and participate in the Reserve Sys., 111 F.3d 376, 382 (5th Cir. OSHA can cite employers for such
identification and control of those 1997). For example, in United States v. recordkeeping violations for up to six
hazards, the overall level of safety and Edelkind, 525 F.3d 388 (5th Cir. 2008), months after the five-year retention
health in the workplace can improve. the Fifth Circuit found that willfully period expires without running afoul of
OSHA also has access to employer failing to pay child support as required the OSH Act’s statute of limitations.1
injury and illness records during the by federal law was a continuing offense OSHA has consistently issued such
retention period (see 29 CFR 1904.40 because ‘‘each day’s acts . . . [brought] citations since it enacted its first
and 1904.41), and these records are an a renewed threat of the substantive evil recordkeeping regulations, as evidenced
important source of information for Congress sought to prevent.’’ Id. at 394– by the case law in the following
OSHA and enhance its enforcement 95 (internal quotation marks and paragraph. The purpose of this final rule
efforts. During the initial stages of an citations omitted). And in Postow v. is simply to clarify what has always
inspection, an OSHA representative OBA Federal Savings & Loan been OSHA’s interpretation of its
reviews the employer’s injury and Association, 627 F.2d 1370 (D.C. Cir. recordkeeping regulations.
illness data so that OSHA can focus its 1980), the D.C. Circuit held that a The Occupational Safety and Health
inspection on the hazards revealed by lender’s failure to provide required Review Commission has upheld
the records. In some years, OSHA has disclosures to borrowers was a OSHA’s position on the continuing
also surveyed a subset of employers continuing violation of the Truth-in- nature of recordkeeping violations. See,
covered by the OSH Act for their injury Lending Act because the violation e.g., Sec’y of Labor v. Gen. Dynamics, 15
and illness data, and used that subverted the goals of the statute every BNA OSHC 2122 (Rev. Comm’n 1993)
information to help identify the most day the borrowers did not have the (recordkeeping violations ‘‘occur’’ at
dangerous types of worksites and the information. Id. at 1379–80. See also, any point during the retention period
most prevalent types of safety and e.g., United States v. Bailey, 444 U.S. when records are inaccurate, so
health hazards. 394, 413 (1980) (escape from federal citations for those violations are not
Additionally, BLS uses data derived custody is a continuing offense in light barred simply because they are issued
from employers’ injury and illness of ‘‘the continuing threat to society more than six months after the
records to develop national statistics on posed by an escaped prisoner’’); United obligation to record first arose); Sec’y of
workplace injuries and illnesses. These States v. George, 625 F.3d 1124 (9th Cir. Labor v. Johnson Controls, Inc., 15 BNA
statistics include information about the OSHC 2132 (Rev. Comm’n 1993)
2010) (failure to comply with statute
source, nature, and type of the injuries (recordkeeping violations continue until
requiring registration as a sex offender
and illnesses that are occurring in the correction or expiration of the retention
is a continuing offense), vacated on
nation’s workplaces. To obtain the data period). The Commission addressed this
other grounds, 672 F.3d 1126 (9th Cir.
to develop national statistics, BLS and issue most recently in Secretary of Labor
2012); United States v. Franklin, 188
participating State agencies conduct an v. AKM LLC, 23 BNA OSHC 1414 (Rev.
F.2d 182 (7th Cir. 1951) (Alien
annual survey of employers in almost Comm’n 2011) (Volks I), confirming that
Registration Act imposes ongoing
all sectors of private industry. BLS an employer’s failure to make a required
registration obligation; failure to register
makes the aggregate survey results OSHA record is a continuing violation,
is a continuing violation).
available for research purposes and for and that an uncorrected violation
public information. This data provides OSHA has long treated recordkeeping continues until the employer is no
information about the incidence of violations under the OSH Act as longer required to keep OSHA records
workplace injuries and illnesses and the continuing violations—and, as for the year at issue.2
nature and magnitude of workplace explained below in Section II.B.1 of this
safety and health problems. Congress, preamble—this view is consistent with D. The D.C. Circuit’s Decision in Volks
OSHA, and safety and health section 8(c) of the Act, in which II
policymakers in Federal, State, and Congress instructed the Secretary to A panel of the D.C. Circuit reviewed
local governments use BLS statistics to require employers to make and maintain the Commission’s Volks I decision, and
make decisions concerning safety and accurate records of workplace injuries on April 6, 2012, issued a decision—
health legislation, programs, and and illnesses. OSHA’s longstanding
standards. And employers and position is that an employer’s duty to 1 Of course, OSHA may not issue a citation more
record an injury or illness continues for than six months after the employer corrects the
employees can use BLS statistics to violation. See, e.g., Sec’y of Labor v. Manganas
compare the injury and illness data from the full duration of the record-retention- Painting Co., 21 BNA OSHC 2043, 2048 (Rev.
their workplaces with data from the and-access period, i.e., for five years Comm’n 2007) (citation was time-barred where the
nation as a whole. after the end of the calendar year in employer abated the violation more than six months
which the injury or illness became prior to the issuance date).
C. An Employer’s Failure To Record a recordable. This means that if an
2 Although the Coalition for Workplace Safety
Recordable Illness or Injury Is a Failure stated that OSHA has never expressed a policy of
employer initially fails to record a treating recordkeeping violations as ongoing, Ex.
To Maintain Accurate Injury and Illness recordable injury or illness, the 0013, OSHA’s citation history—and the
Records and Is a Continuing Violation employer still has an ongoing duty to Commission decisions upholding those citations—
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make clear that OSHA took this approach for many
A continuing violation exists when record that case; the recording years. See Martin v. OSHRC, 499 U.S. 144, 157
there is noncompliance with ‘‘the text of obligation does not expire simply (1991) (OSHA citations embody the Secretary’s
. . . [a] pertinent law [that] imposes a because the employer failed to record interpretation of regulations). See discussion in
continuing obligation to act or refrain the case when it was first required to do Section I.C, Background, above. Throughout this
preamble, exhibit numbers are referred to in the
from acting.’’ Earle v. Dist. of Columbia, so. As long as an employer fails to form Ex. XXXX, where XXXX reflects the last four
707 F.3d 299, 307 (D.C. Cir. 2012). comply with its ongoing duty to record digits of the full document number (OSHA–2015–
Where there is an ongoing obligation to an injury or illness, and therefore with 006–XXXX).
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Volks II—reversing the Commission. end of the record-retention-and-access promulgate this rule. Exs. 0003, 0008,
AKM LLC v. Sec’y of Labor, 675 F.3d period prescribed by the regulations. To 0009, 0010, 0011, 0012, 0013, 0014,
752 (D.C. Cir. 2012) (Volks II). The that end, OSHA is revising the titles of 0016, 0017, 0020, 0021, 0023, 0026.
majority opinion in Volks II, without some sections and subparts in part 1904 OSHA disagrees. As recognized by
discussion of Commission precedent to and changing the text of some of the Judge Garland in his concurring opinion
the contrary, held that the OSH Act does recordkeeping requirements. OSHA in Volks II, and explained in more detail
not provide authority for the Secretary describes the changes in SUPPLEMENTARY in SUPPLEMENTARY INFORMATION, Section
to impose a continuing recordkeeping INFORMATION, Section III, later in this II.B, later in this preamble, the OSH Act
obligation on employers, explaining that preamble. plainly authorizes this regulatory action.
‘‘the . . . language in [the OSH Act]
E. Events Preceding This Final Rule Numerous provisions of the OSH Act
. . . which deals with record-keeping is
On July 29, 2015, OSHA issued a both underscore Congress’
not authorization for OSHA to cite the
employer for a record-making violation proposed rule entitled ‘‘Clarification of acknowledgement that accurate injury
more than six months after the Employer’s Continuing Obligation to and illness records are a critical
recording failure.’’ Id. at 758; see also id. Make and Maintain an Accurate Record component of the national occupational
at 756–57. The majority stated that of Each Recordable Injury and Illness.’’ safety and health program and give the
OSHA must cite an employer for failing 80 FR 45116. Before issuing the Secretary broad authority to enact
to record an injury or illness within six proposal, OSHA consulted with the recordkeeping regulations that create a
months of the first day on which the Advisory Committee on Construction continuing obligation for employers to
regulations require the recording; a Safety and Health (ACCSH). OSHA make and maintain accurate records of
citation issued later than that, according provided ACCSH with a summary and work-related illnesses and injuries.
to the Volks II majority, is barred by the explanation of the proposal and a Section 2(b)(12) of the Act states that
OSH Act’s statute of limitations. Id. at statement regarding the need for the one of the purposes of the OSH Act is
753–59. proposed revisions to 29 CFR part 1904. to assure, so far as possible, safe and
In a separate opinion concurring in On December 4, 2014, ACCSH voted to healthful working conditions by
the judgment in Volks II, Judge Garland recommend that OSHA proceed with providing for appropriate reporting
disagreed with the majority’s conclusion the proposal.3 procedures that will help achieve the
that the OSH Act did not permit OSHA provided 60 days for public objectives of the Act and ‘‘accurately
continuing record-making obligations. comment and eventually extended the describe’’ the nature of the occupational
Judge Garland agreed with the Secretary comment period for an additional 30 safety and health problem. See 29 U.S.C.
that the OSH Act does allow for days. 80 FR 57765. OSHA received a 651(b)(12). Section 8(c)(1) requires each
continuing violations of recordkeeping total of 30 comments. The comments are
requirements. He concluded, however, employer to ‘‘make, keep and preserve’’
addressed elsewhere in this preamble.
that the specific language in the and to ‘‘make available’’ to the Secretary
recordkeeping regulations reviewed by II. Legal Authority such records prescribed by regulation as
the panel did not implement this A. Overview necessary or appropriate for the
statutory authority and did not create enforcement of the Act or for developing
As explained previously, in information regarding the causes and
continuing recordkeeping obligations.
SUPPLEMENTARY INFORMATION, Section prevention of occupational accidents
Id. at 759–64. Under the analysis in
Judge Garland’s concurring opinion, I.A, the OSH Act authorizes the and illnesses. See 29 U.S.C. 657(c)(1).
OSHA in fact has statutory authority to Secretary of Labor to issue ‘‘standards’’ Section 8(c)(2) requires the Secretary to
create a continuing obligation for and other ‘‘regulations.’’ See, e.g., 29
prescribe regulations requiring
employers to make and maintain U.S.C. 655, 657. An occupational safety
employers to ‘‘maintain accurate
accurate records of work-related and health standard, issued pursuant to
records’’ of, and to make periodic
illnesses and injuries, and can revise its section 6 of the Act, prescribes measures
to be taken to remedy an identified reports on, work-related deaths, injuries
recordkeeping regulations to more and illnesses. See 29 U.S.C. 657(c)(2).
clearly implement that statutory occupational hazard. Other regulations,
issued pursuant to general rulemaking Section 8(g)(2) of the Act generally
authority. empowers the Secretary to prescribe
Thus, because of the Volks II decision, authority found, inter alia, in section 8
of the Act, establish enforcement or such rules and regulations as he may
OSHA has decided to clarify employers’
detection procedures designed to further deem necessary to carry out his
obligations under its recordkeeping
regulations and to elaborate on its the goals of the Act generally. 29 U.S.C. responsibilities under the Act. See 29
understanding of the statutory basis for 657(c); Workplace Health and Safety U.S.C. 657(g)(2). Section 24(a) requires
those obligations. OSHA disagrees with Council v. Reich, 56 F.3d 1465, 1468 the Secretary to develop and maintain
the legal holding in the majority opinion (D.C. Cir. 1995). This final rule amends an effective program of collection,
in Volks II, but agrees with Judge OSHA’s recordkeeping regulations compilation, and analysis of
Garland that, while the OSH Act gives issued pursuant to authority expressly occupational safety and health statistics
the Secretary authority to impose granted by sections 8 and 24 of the Act. and to compile accurate statistics on
continuing recordkeeping obligations, 29 U.S.C. 657, 673. It simply clarifies work injuries and illnesses. See 29
the text of the recordkeeping regulations existing duties under part 1904, and U.S.C. 673(a). And Section 24(e)
did not make clear OSHA’s does not impose any new substantive provides that on the basis of the records
longstanding intention to fully recordkeeping requirements. made and kept pursuant to section 8(c)
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implement that authority. Therefore, Many commenters suggested that of the Act, employers must file such
OSHA is changing its recordkeeping OSHA does not have legal authority to reports with the Secretary as the
regulations to clarify that the duty to Secretary prescribes by regulation as
3 The National Federation of Independent
make and maintain an accurate record necessary to carry out his functions
Businesses has requested that the transcript of
of a work-related illness or injury is an ACCSH’s meeting be added to the docket of this under the Act. See 29 U.S.C. 673(e).
ongoing obligation that continues until rulemaking. Ex. 0014. The transcript can now be
the required record is made or until the found at Ex. 0030.
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B. The OSH Act Authorizes the by checking or repairing it regularly.’’ Internal Revenue, 136 T.C. 569, 574
Secretary To Impose a Continuing http://www.oxforddictionaries.com/us/ (U.S. Tax Ct. 2011) (noting that a party
Obligation on Employers To Make and definition/american_english/ that did not create required records
Maintain Accurate Records of Work- maintain?searchDictCode=all. thereby failed to ‘‘keep’’ those records),
Related Injuries and Illnesses, and Therefore, ‘‘maintain’’ plainly implies rev’d and remanded on other grounds,
Incomplete or Otherwise Inaccurate an ongoing action. See, e.g., Carey v. 722 F.3d 384 (D.C. Cir. 2013).
Records Create Ongoing, Citable Shiley, Inc., 32 F.Supp.2d 1093, 1103 The ‘‘make, keep, and preserve’’ and
Conditions (S.D. Iowa 1998) (‘‘continuing duty to ‘‘make available’’ language in section
maintain records for’’ the Food and 8(c)(1) similarly envisions a continuing
1. Section 8(c) of the Act Governs duty to record and provides additional
Employers’ Recordkeeping Obligations, Drug Administration). And ‘‘accurate’’
means ‘‘conforming exactly to truth,’’ support for the Secretary’s
and That Provision Authorizes the interpretation of the ‘‘maintain accurate
Imposition of Continuing Obligations on and is synonymous with ‘‘exact.’’ http://
www.merriam-webster.com/dictionary/ records’’ language in section 8(c)(2).
Employers To Make and Maintain ‘‘Keep’’ is a synonym for ‘‘maintain,’’
Accurate Records of Work-Related accurate. See also, e.g., Huntington Sec.
Corp. v. Busey, 112 F.2d 368, 370 (6th http://thesaurus.com/browse/maintain,
Illnesses and Injuries and both words imply a continued
Cir. 1940) (noting that the term
‘‘Whether [an] . . . obligation is ‘‘ ‘accurately’ . . . in its ordinary use[ ] course of conduct, as does
continuing is a question of statutory means precisely, exactly correctly, ‘‘preserve.’’ 4 See, e.g., Powerstein v.
construction.’’ Earle, 707 F.3d at 307. without error or defect’’). Therefore, the Comm’r of Internal Revenue, T.C. Memo
The express language of the OSH Act OSH Act’s direction to enact regulations 2011–271, 2011 WL 5572600, at *13
readily supports a continuing violation requiring employers to ‘‘maintain (U.S. Tax Ct. Nov. 16, 2011)
theory in recordkeeping cases. And accurate [injury and illness] records’’ is (interpreting statutory and regulatory
section 8(c) grants the Secretary broad a mandate for the Secretary to impose requirements to ‘‘keep’’ tax records to
authority to impose requirements he an ongoing or continuing duty on mean that taxpayers must ‘‘maintain’’
considers ‘‘necessary or appropriate,’’ employers to have true or exact such records); Freedman v. Comm’r of
including recordkeeping regulations documentation of recordable incidents. Internal Revenue, T.C. Memo 2010–155,
that provide that an employer’s duty to An employer cannot be said to have (or 2010 WL 2942167, at *1 (U.S. Tax Ct.
make records of injuries and illnesses is to be keeping or maintaining) accurate July 21, 2010) (same).
an ongoing obligation. 29 U.S.C. 657(c). (or true or exact) records of injuries and The fact that Congress included the
Section 8(c)(2) requires the Secretary word ‘‘make’’ in a phrase with two other
illnesses for a particular calendar year if
to prescribe regulations requiring terms that both call for a continuing
there are recordable injuries or illnesses
employers to ‘‘maintain accurate action suggests that ‘‘make’’ was also
records’’ of work-related deaths, injuries that occurred during that year that are
intended to signify a continuing course
and illnesses. See 29 U.S.C. 657(c)(2) missing from those records. Put simply,
of conduct in the recordkeeping context.
(emphasis added). And section 8(c)(1) the Secretary cannot fulfill the statutory
The most reasonable reading of section
requires employers to ‘‘make, keep and obligation of ensuring that employers
8(c)(1), particularly in light of the
preserve’’ and to ‘‘make available’’ ‘‘maintain accurate records’’ without
‘‘maintain accurate records’’ language in
records that the Secretary identifies as imposing on employers an ongoing duty
section 8(c)(2), is that the phrase ‘‘make,
necessary or appropriate for the to create records for injuries and
keep, and preserve’’ authorizes one
enforcement of the Act or for developing illnesses in the first place; a duty to
continuous recordkeeping requirement
information regarding the causes and maintain accurate records inherently
that includes both the creation and the
prevention of occupational accidents implies an ongoing obligation to create
keeping of records. See, e.g., Davis v.
and illnesses. See 29 U.S.C. 657(c)(1) the records that must be maintained. Michigan Dep’t of Treasury, 489 U.S.
(emphasis added). The language The Fourth Circuit recognized as 803, 809 (1989) (noting a ‘‘fundamental
Congress used in these provisions much in Sierra Club v. Simkins canon of statutory construction that the
therefore authorizes the Secretary to Industries, 847 F.2d 1109, 1115 (4th Cir. words of a statute must be read in their
require employers to have on hand and 1988), a Clean Water Act case, when it context and with a view to their place
to make available records that refused to allow a company to defend in the overall statutory scheme’’). The
accurately reflect all of the recordable against its failure to file and retain water related authorization to the Secretary to
injuries and illnesses that occurred sampling records on the ground that it prescribe such recordkeeping
during the designated time period. never collected the data it needed to regulations as he considers ‘‘necessary
Moreover, this statutory language is create the records in the first place. The or appropriate’’ further emphasizes the
inconsistent with any suggestion that court ruled that an ongoing duty to breadth of the Secretary’s discretion in
Congress intended the duty to record an maintain records implies a implementing the statute.
injury or illness to be a discrete corresponding, and continuing, duty to Thus, the Secretary does not believe
obligation that expires if the employer have those records, explaining that it that section 8(c) authorizes two and
fails to comply on the first day the would not allow the company ‘‘to only two discrete duties: A duty to
Secretary’s regulations require escape liability . . . by failing at the create a record that can arise at only one
recording. outset to sample and to create and retain moment in time, and a duty to preserve
This is because the words ‘‘accurate’’ the necessary . . . records.’’ Id. See
and ‘‘maintain’’ in section 8(c)(2) of the also, e.g., Big Bear Super Mkt. No. 3 v. 4 The legislative history of the OSH Act shows
Act connote a continued course of INS, 913 F.2d 754, 757 (9th Cir. 1990) that Congress used ‘‘keep’’ and ‘‘maintain’’
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synonymously. In a Senate Report, Congress
conduct that includes an ongoing (per curiam) (statutory and regulatory described section 8(c)(2)—which talks about
obligation to create records. The word scheme described by the court as ‘‘maintaining’’ records—as ‘‘requiring employers to
‘‘maintain’’ means to ‘‘[c]ause or enable requiring companies to ‘‘maintain’’ keep records of all work-related injuries and
(a condition or state of affairs) to documents is interpreted to impose a diseases.’’ S. Rep. No. 91–1282, at 31 (1970),
reprinted in Subcomm. on Labor of the Comm. on
continue,’’ an example being when one ‘‘continuing duty’’ on those companies Labor and Public Welfare, Legislative History of the
works to ensure that something stays ‘‘to prepare and make’’ the documents Occupational Safety and Health Act of 1970, at 171
‘‘in good condition or in working order in the first instance); Park v. Comm’r of (1971) (emphasis added).
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that record if it should be created. Such legislation should be construed broadly the causes or prevention of occupational
a view would be inconsistent with the to effectuate its purposes.’’ Tcherepnin accidents or illnesses. 29 U.S.C.
most relevant provision of the Act, v. Knight, 389 U.S. 332, 336 (1967). And 657(c)(1). Under section 8(d), the
section 8(c)(2), which is the provision reading the statute in light of its Secretary must obtain information with
that specifically addresses the protective purposes further supports the a minimum burden on employers,
Secretary’s authority to prescribe Secretary’s interpretation that the Act especially small businesses, and reduce
regulations for injury and illness calls for treating the duty to record unnecessary duplication to the
recordkeeping, i.e., to prescribe injuries and illnesses as a continuing maximum extent feasible. 29 U.S.C.
regulations that require employers to obligation. See, e.g., United States v. 657(d). Moreover, under the Paperwork
‘‘maintain accurate records’’ of Advance Mach. Co., 547 F. Supp. 1085, Reduction Act, the Secretary and the
workplace illnesses and injuries. 1090–91 (D. Minn. 1982) (requirement Office of Management and Budget must
Nothing about the Congressional in Consumer Product Safety Act to determine that a recordkeeping
direction to ‘‘maintain accurate records’’ ‘‘immediately inform’’ the government requirement will have practical utility
is naturally read as creating two entirely of product defects is read as creating a and will not be unduly burdensome. 44
discrete obligations, or as conveying continuing obligation to report because U.S.C. 3506(c)(3).
Congressional intent to limit the duty to any other reading would frustrate the
2. The OSH Act’s Statute of Limitations
make a required record to a single point statute’s goal of protecting the public
Does Not Define OSHA Violations or
in time. Records that omit work-related from hazards).
The legislative history of the OSH Act Address When Violations Occur, Nor
injuries and illnesses are not accurate,
also demonstrates that Congress wanted Does the Language in Section 9(c)
and no purpose is served by
employers to have accurate injury and Preclude Continuing Recordkeeping
maintaining inaccurate records. Instead,
illness records both for the purpose of Violations
Congress intended employers,
employees, and the Secretary to have making workplaces safer and healthier As explained previously, it is section
access to accurate information about and for the purpose of allowing the 8(c) of the OSH Act that authorizes the
injuries and illnesses occurring in federal government to study the nation’s Secretary to establish the nature and
workplaces. occupational safety and health scope of employers’ recordkeeping
The requirement in section 8(c)(1) problems. As the House Committee on obligations. The OSH Act’s statute of
that employers ‘‘make available’’ such Education and Labor noted, before limitations in section 9(c) deals only
records as the Secretary prescribes passage of the OSH Act it was with the question of when OSHA can
regarding injuries and illnesses further impossible to know the extent of cite a violation; it says nothing about
illustrates that section 9(c)’s statute of national occupational safety and health what constitutes a violation, or when a
limitations does not limit the Secretary issues due to variability in state violation occurs. A violation is a breach
to acquiring only six months of accurate reporting measures; thus, Congress of a duty, and the question of what
injury and illness data. A regulation viewed it as an ‘‘evident Federal duties the Secretary may prescribe must
requiring employers, if requested, to responsibility’’ to provide for logically be dealt with prior to
make available accurate records ‘‘[a]ccurate, uniform reporting addressing the statute of limitations.
showing injuries and illnesses that have standards.’’ H.R. Rep. No. 91–1291, at Section 9(c) cannot be read as
occurred within the past few years is on 15 (1970), reprinted in Subcomm. on prohibiting the Secretary from imposing
its face well within the OSH Act’s grant Labor of the Comm. on Labor and Public continuing recordkeeping obligations on
of authority. Nothing in the statutory Welfare, Legislative History of the employers covered by the OSH Act
language suggests that the Secretary can Occupational Safety and Health Act of when the text and legislative history of
only require employers to provide 1970, at 845 (1971). See also 29 U.S.C. the Act show that section 8(c)
information regarding work-related 673(a) (‘‘The Secretary shall compile authorizes the Secretary to create such
injuries and illnesses that have occurred accurate statistics on work injuries and obligations. Thus, the OSH Act’s statute
within the past six months. Such a illnesses . . .’’); Sec’y of Labor v. Gen. of limitations simply sets the period
limitation would cripple OSHA’s ability Motors Corp., 8 BNA OSHC 2036, 2039 within which legal action must be taken
to gather complete information and to (Rev. Comm’n 1980) (‘‘Examination of after the obligation ceases or the
improve understanding of safety and the legislative history of [sections 8(c)(1) employer comes into compliance. See,
health issues, contrary to Congressional and 8(c)(2)] . . . shows a clear e.g., Inst. For Wildlife Prot. v. United
intent. Furthermore, the duty to make congressional intent that th[e] reporting States Fish & Wildlife Serv., No. 07–CV–
accurate multi-year records available requirement be interpreted broadly in 358–PK, 2007 WL 4117978, at *6 (D. Or.
upon request arises when the request is order to develop information for future Nov. 16, 2007) (declining to apply
made, and the statute of limitations scientific use.’’). applicable statute of limitations to
therefore does not begin to run until the Some commenters, including the ‘‘nullify . . . [the government’s] ongoing
request is made and the employer fails Coalition for Workplace Safety and the duty to designate critical habitat’’ for an
to comply. American Health Care Association, endangered species ‘‘and . . . insulate
It therefore follows that section 8(c) of stated a concern that interpreting the agency from challenges to any
the Act authorizes the Secretary to enact section 8(c) to authorize continuing continued inaction’’).
regulations that impose a continuing violations means that OSHA is claiming Moreover, ‘‘statutes of limitation in
obligation on employers to make and unfettered discretion to essentially the civil context are to be strictly
maintain accurate records of work- eliminate any statute of limitations for construed in favor of the Government
related illnesses and injuries. Not only recordkeeping violations. Exs. 0011, against repose,’’ Interamericas, 111 F.3d
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are such recordkeeping regulations 0013, 0020. OSHA disagrees. OSHA’s at 382 (citing Badaracco v. Comm’r of
expressly called for by the language of interpretation does not mean that the Internal Revenue, 464 U.S. 386 (1984)
section 8(c), but they are also consistent Secretary’s authority is unconstrained. and E.I. Dupont De Nemours & Co. v.
with Congressional intent and the Under section 8(c)(1), the records the Davis, 264 U.S. 456 (1924)), and nothing
purpose of the OSH Act. The Supreme Secretary requires must be ‘‘necessary or in section 9(c) precludes continuing
Court recognizes a ‘‘familiar canon of appropriate’’ to enforcement of the Act violations in recordkeeping cases. To
statutory construction that remedial or to gathering information regarding the contrary, the language in section 9(c)
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is very general, providing only that are exposed to the non-complying ‘‘occurred.’’ See 42 U.S.C. 2000e–5(e)(1).
‘‘[n]o citation may be issued . . . after conditions. See, e.g., Sec’y of Labor v. The Court concluded that the statute
the expiration of six months following Arcadian Corp., 20 BNA OSHC 2001 authorized application of a continuing
the occurrence of any violation.’’ 29 (Rev. Comm’n 2004) (violation of the violations doctrine in hostile work
U.S.C. 658(c). The ‘‘occurrence’’ of OSH Act’s general duty clause environment cases, holding that in such
something is not necessarily a discrete stemming from the unsafe operation of cases, an unlawful employment action
event; it can encompass actions or a urea reactor); Johnson Controls, 15 can ‘‘occur’’ over a series of days or
events that continue over time. For BNA OSHC 2132 (recordkeeping); Sec’y even years. Morgan, 536 U.S. at 116–20.
example, one dictionary defines of Labor v. Safeway Store No. 914, 16 Similarly, in Havens Realty Corporation
‘‘occurrence’’ as ‘‘the existence or BNA OSHC 1504 (Rev. Comm’n 1993) v. Coleman, 455 U.S. 363 (1982), the
presence of something.’’ http:// (hazard communication program and Supreme Court found continuing
dictionary.cambridge.org/dictionary/ material safety data sheets); Sec’y of violations of the Fair Housing Act,
american-english/occurrence_2. See Labor v. Yelvington Welding Serv., 6 which at the time required the
also, e.g., PECO Energy Co. v. Boden, 64 BNA OSHC 2013 (Rev. Comm’n 1978) commencement of civil actions within
F.3d 852, 856–57 (3d Cir. 1995) (scheme (fatality reporting); Cent. of Georgia 180 days ‘‘after the alleged
of repeated thefts over the span of six R.R., 5 BNA OSHC 1209 discriminatory housing practice
years constituted a single ‘‘occurrence’’ (housekeeping).5 Indeed, the Volks II occurred.’’ And in Postow, 627 F.2d
such that only one insurance deductible panel also acknowledged that the duties 1370, the D.C. Circuit found a
applied to the resulting loss). Similarly, to preserve records, to train employees, continuing violation of the Truth-in-
the term ‘‘occurrence of any violation’’ and to correct unsafe machines may Lending Act, which, at 15 U.S.C.
in section 9(c) does not mean that an continue. 675 F.3d at 756, 758. The OSH 1640(e), provides that actions must be
OSHA violation is necessarily a discrete Act simply would not achieve Congress’ brought within one year from the date
event that takes place at one, and only fundamental objectives if basic of the ‘‘occurrence’’ of the violation. The
one, point in time. employer obligations were not language of section 9(c) of the OSH Act
Had Congress wanted the statute of continuing. is at least equally receptive to
limitations to run from the time a These cases reflect fundamental OSH continuing violations, since it allows
violation first occurred, it could have Act principles. Safety and health citation within six months of ‘‘the
used language so stating. Indeed, standards are rules that require, inter occurrence of any violation.’’
Congress has used language more alia, ‘‘conditions.’’ 29 U.S.C. 652(8). The ‘‘Occurrence’’ of ‘‘any’’ violation is
readily susceptible to that interpretation absence of a required condition violates open-ended language that does not
in other statutes. See, e.g., the the standard. It does not matter when suggest that a violation can exist at only
Multiemployer Pension Plans the absence first arose or how long it has one moment in time.
Amendments Act, 29 U.S.C. 1451(f)(1) persisted. If a condition is required and Notably, even the Volks II majority
(statute of limitations runs from ‘‘the is not present (e.g., a machine is not appeared to recognize that the word
date on which the cause of action guarded or a hazardous materials ‘‘occurrence’’ does not necessarily have
arose’’); the Federal Employers’ Liability container is not labeled), a violation a single fixed meaning, stating that ‘‘[o]f
Act, 45 U.S.C. 56 (statute of limitations occurs and a citation requiring course, where . . . a company continues
runs from ‘‘the day the cause of action abatement may be issued within six to subject its employees to unsafe
accrued’’); the general statute of months of the observed noncompliance. machines . . . or continues to send its
limitations governing civil actions This construction follows from the employees into dangerous situations
against the United States, 28 U.S.C. language of the Act and is essential to without appropriate training . . . OSHA
2401(a) (claims barred unless ‘‘filed the Secretary’s ability to enforce may be able to toll the statute of
within six years after the right of action compliance. Accordingly, continuing limitations on a continuing violations
first accrues’’). obligations and violations are a regular theory since the dangers created by the
This new rule is intended to clarify occurrence under the OSH Act. Nothing violations persist.’’ 675 F.3d at 758. The
that if an employer fails to record an in section 9(c), which applies equally to court also acknowledged that a violation
injury or illness within seven days, the standards and regulations such as of the record-retention requirement—
obligation to record continues on past recordkeeping requirements, bars them. through the loss or destruction of a
the seventh day, such that each In addition, continuing violations previously-created record—is a
successive day where the injury or have been found to exist under other violation that continues from the time of
illness remains unrecorded constitutes a laws with statutes of limitations that the loss or destruction until the
continuing ‘‘occurrence’’ of the ongoing contain language similar to that in conclusion of the five-year retention
violation. If the employer records the section 9(c) of the OSH Act. For period. Id. at 756; see id. at 763
injury on the twentieth, thirtieth, or example, in National Railroad (concurring opinion).
some later day, the violation ceases to Passenger Corporation v. Morgan, 536 Moreover, continuing violations have
occur at that point, and any citation U.S. 101 (2002), the Supreme Court been found even under statutes of
would need to be issued within six addressed the statute of limitations in limitations that contain language that is
months of the cessation of the violation. Title VII of the Civil Rights Act of 1964, arguably less receptive to continuing
This position is entirely consistent with which precludes the filing of claims a violations than section 9(c); courts
section 9(c). Neither OSHA nor the certain number of days after the alleged implicitly recognize that the underlying
Commission nor any court has ever unlawful employment practice legal requirement, not the statute of
treated section 9(c) as precluding all limitations, determines whether there is
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continuing violations. Indeed, 5 The American Petroleum Institute stated that a continuing legal obligation. For
continuing violations are common in the OSH Act limits continuing obligations only to example, courts have found continuing
the OSHA context, with the ‘‘physical hazards.’’ Ex. 0020. This assertion finds violations of various laws that are
Commission taking the position that no basis in the statute or case law. In any event, governed by the general five-year statute
access to accurate injury and illness records helps
violations of OSHA requirements, employers and employees address and avoid
of limitations for criminal cases in 18
including recordkeeping violations, physical hazards. See Section II.B.3, Legal U.S.C. 3282(a), which requires initiation
generally continue as long as employees Authority. of an action ‘‘within five years . . . after
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. . . [the] offense shall have been curiam) (deferring to FCC determination and witnesses generally will be more
committed.’’ See, e.g., United States v. that company’s ‘‘actions constituted a prejudicial to OSHA’s case than to the
Bell, 598 F.3d 366, 368–69 (7th Cir. ‘continuing violation’ ’’ despite an employer’s defense. See Secretary v.
2010) (continuing violation of child applicable statute of limitations (47 Home Depot #6512, 22 BNA OSHC 1863
support payment requirements), U.S.C. 415(b)) requiring the filing of (Rev. Comm’n 2009) (vacating citation
overruled on other grounds, United complaints ‘‘within two years from the for failure to report employee fatality
States v. Vizcarra, 668 F.3d 516 (7th Cir. time the cause of action accrues’’). because Secretary did not provide
2012); Edelkind, 525 F.3d 388 (same); Finally, concerns about stale claims sufficient evidence to establish fatality
United States v. Are, 498 F.3d 460 (7th have little bearing on OSHA was work-related). And any limited
Cir. 2007) (crime of being found in the recordkeeping cases. OSHA recognizes staleness concerns that exist are
United States after deportation is a that statutes of limitations are designed outweighed by the fact that ongoing
continuing violation). to ‘‘keep stale claims out of the courts.’’ recordkeeping requirements are
The D.C. Circuit has suggested that Havens Realty, 455 U.S. at 380. They essential to fulfilling the purposes of the
suits alleging a continuing failure to act protect parties from having to defend OSH Act. See generally Connecticut
are permissible even under the general against stale claims and ensure that Light & Power Co. v. Sec’y of Labor, 85
statute of limitations governing civil courts are not faced with ‘‘adjudicat[ing] F.3d 89, 96 (2d Cir. 1996)
actions against the United States (28 claims that because of their staleness (‘‘Consideration of limitations periods
U.S.C. 2401(a)), which provides that may be impossible to resolve with even requires a fair and reasonable weighing
minimum accuracy.’’ Stephan v. of the conflicting concerns of the
claims are barred unless ‘‘filed within
Goldinger, 325 F.3d 874, 876 (7th Cir. remedial intent of the [statute] . . . and
six years after the right of action first
2003). Claims generally are considered the desire to keep stale claims out of the
accrues.’’ Wilderness Soc’y v. Norton,
stale when so much time has passed courts.’’).
434 F.3d 584 (D.C. Cir. 2006). In
that relevant evidence has been lost and Moreover, under this final rule, an
Wilderness Society, the court intimated,
witnesses are no longer available or do employer’s obligation is the same as
but did not decide, that an agency’s
not have reliable memories of the under the current rule: To record
failure to act in accordance with a
relevant occurrence. Id. But ‘‘[w]here injuries and illnesses within seven days
statutory deadline for action was a
the challenged violation is a continuing and maintain the records for five years.
continuing violation, such that a lawsuit
one, the staleness concern disappears.’’ The new rule simply clarifies that an
to compel agency action would not be Havens Realty, 455 U.S. at 380. And employer cannot avoid the five-year
time-barred just because it was filed nothing about continuing violations in maintenance requirement by failing to
more than six years after the agency first the context of OSHA recordkeeping make the record in the initial seven
missed the statutory deadline. The court violations undermines this general days; rather, the obligation to make the
explained that because the suit ‘‘ ‘does principle. record continues throughout the five-
not complain about what the agency has The American Petroleum Institute year maintenance period even if the
done but rather about what the agency cited an example of a case where the employer fails to meet its initial
has yet to do,’ ’’ it likely would not be employer’s recordkeeper had passed obligation. Therefore, employers who
time-barred. Id. at 589 (quoting In re away by the time of the hearing. Ex. record injuries and illnesses promptly,
United Mine Workers of America Int’l 0020. However, reliance on witness as paragraph 1904.29(b)(3) requires, will
Union, 190 F.3d 545, 549 (D.C. Cir. recollection is often not necessary in not face staleness concerns.
1999)). See also, e.g., Padres Hacia Una recordkeeping cases because one can
Vida Mejor v. Jackson, No. 1:11–CV– ordinarily ascertain whether an injury 3. Incomplete or Otherwise Inaccurate
1094 AWI DLB, 2012 WL 1158753 (E.D. or illness occurred, and what treatment Records of Work-Related Illnesses and
Cal. April 6, 2012) (28 U.S.C. 2401(a) was necessary, by looking at medical Injuries Create an Ongoing Condition
did not bar a claim based on EPA’s reports, workers’ compensation Detrimental to Full Enforcement of the
ongoing failure to act on complaints of documents, and other relevant records, Act
discrimination within regulatory even if the affected employee or other OSHA records ‘‘are a cornerstone of
deadlines). And the Fifth Circuit found witnesses are no longer available. In the Act and play a crucial role in
continuing violations of the Bank fact, OSHA’s Recordkeeping Policies providing the information necessary to
Holding Company Act in a case and Procedure Manual, CPL 02–00–135 make workplaces safer and healthier.’’
governed by the general statute of (Dec. 30, 2004), directs compliance Gen. Motors Corp., 8 BNA OSHC at
limitations in 28 U.S.C. 2462, which officers to review medical records to 2041. As explained previously, in
requires actions to enforce civil fines, determine whether an employer has SUPPLEMENTARY INFORMATION, Section
penalties, or forfeitures to be failed to enter recordable injuries and I.B, employers must give employees (as
‘‘commenced within five years from the illnesses on the OSHA forms. And with well as OSHA and BLS) access to injury
date when the claim first accrued.’’ respect to whether the employer and illness records. OSHA injury and
Interamericas, 111 F.3d 376. See also, recorded the injury or illness, the only illness records are designed to be used
e.g., Newell Recycling Co. v. EPA, 231 evidence the parties and the court will by employers, employees, the public
F.3d 204 (5th Cir. 2000) (finding a need are the employer’s OSHA Log and health community, and the government
continuing violation of disposal Incident Report Forms, which existing to learn about the injuries and illnesses
requirements for polychlorinated regulations require employers to that are occurring in American
biphenyls under the Toxic Substances maintain for five years. Furthermore— workplaces. See ‘‘Improve Tracking of
Control Act in a case involving the and contrary to the comment by the Injuries and Illnesses,’’ 81 FR 29623
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general statute of limitations at 28 American Petroleum Institute that (May 12, 2016). Accurate OSHA injury
U.S.C. 2462); Advance Mach Co., 547 staleness concerns primarily hurt and illness records enable employers to
F.Supp. at 1085 (finding a continuing employers (Ex. 0020)—OSHA ultimately identify, and correct, hazardous
violation of the Consumer Product bears the burden of proving that a conditions, allow employees to learn
Safety Act in a case governed by 28 recordable injury or illness occurred about the hazards they face, and permit
U.S.C. 2462); cf. Capital Tel. Co v. FCC, and the employer did not record it. the government to determine where and
777 F.2d 868, 871 (2d Cir. 1985) (per Therefore, the absence of documents why injuries are occurring so that
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appropriate regulatory or enforcement not done anything to the machine since History of the Occupational Safety and
measures can be taken. (See first removing the guard. That is why it Health Act of 1970, at 156 (1971)
SUPPLEMENTARY INFORMATION, Section is a violation if an employer fails to (emphasis added). Additionally, a report
I.B, earlier in this preamble, for a full label containers of hazardous chemicals from the House of Representatives
discussion of the purposes served by or have safety data sheets on hand, shows that Congress recognized
OSHA injury and illness records.) Thus, regardless of how long the inaction ‘‘comprehensive [injury and illness]
Congress viewed accurate records as persists or when it first occurred. And reporting’’ as playing a key role in
necessary for the enforcement of the courts regularly find that a failure to act ‘‘effective safety programs.’’ H.R. Rep.
Act. 29 U.S.C. 657(c). Inaccurate or in accordance with an ongoing legal No. 91–1291, at 15 (1970), reprinted in
incomplete injury and illness records obligation constitutes a continuing Subcomm. on Labor of the Comm. on
will leave all of the relevant parties violation. Such cases have included a Labor and Public Welfare, Legislative
underinformed, and thereby create an lender’s failure to make required History of the Occupational Safety and
ongoing hazardous condition disclosures to a borrower (Postow, 627 Health Act of 1970, at 845 (1971).
detrimental to full enforcement of the F.2d 1370), a sex offender’s failure to Some commenters, including Nabors
Act. The Commission has recognized as register with authorities (George, 625 Drilling USA and the North American
much. See, e.g., Gen. Dynamics, 15 BNA F.3d 1124), a parent’s failure to pay Insulation Manufacturers’ Association,
OSHC at 2131 n. 17 (recordkeeping child support (Edelkind, 525 F.3d 388), expressed the opinion that this rule will
regulations ‘‘clearly are safety- and an agency’s failure to comply with do nothing to improve safety and health.
health-related’’); Johnson Controls, 15 statutory mandates and deadlines Exs. 0010, 0016, 0017, 0019, 0026. For
BNA OSHC at 2135–36 (‘‘[A] failure to (Wilderness Soc’y, 434 F.3d 584), a the reasons already stated, OSHA
record an occupational injury or illness company’s failure to create and disagrees, and evidence submitted by
. . . does not differ in substance from maintain water sampling records (Sierra other commenters supports OSHA’s
any other condition that must be abated Club, 847 F.2d 1109), and a failure on conclusion. For example, North
pursuant to . . . occupational safety and the part of the government to act on America’s Building Trades Unions
health standards . . .’’). complaints of discrimination (Padres commented that records of workplace
Nor is there any meaningful Hacia Una Vida Mejor, 2012 WL injuries and illnesses are valuable to
distinction to be drawn between cases 1158753). help identify hazards and correct
involving inadequate training or unsafe Incomplete and inaccurate OSHA problems in the workplace, both
machines (which may also be seen as records therefore result in an ongoing immediately and over time, and that
involving repeated affirmative acts, for non-complying condition—namely this information is of particular value in
example, sending untrained employees employers, employees, and the the construction industry where
to work in hazardous conditions) and government being denied access to workers change jobsites often. Ex. 0025.
recordkeeping cases (involving failures information necessary to full The United Steelworkers (USW)
to create and maintain accurate records enforcement of the Act. This non- provided an example of a company
of workplace illnesses and injuries). The complying condition continues every safety committee noticing that the
lack of access—by employers, day that the records are inaccurate.6 employer was not accurately recording
employees and OSHA—to accurate Additionally, the legislative history of hand lacerations caused by certain
records is as much an ongoing non- the Act reflects Congress’ concern about equipment; later, an employee using the
complying condition under the Act as is harm resulting to employees in same equipment suffered an
an untrained employee or an unguarded workplaces with incomplete records of amputation. Ex. 0028. Properly
machine. Whether the condition was occupational injuries and illnesses.
maintained records could have helped
created by an act of omission or of Most notably, a report of the Senate
alert the employer to the hazardous
commission, the condition is one that Committee on Labor and Public welfare
machine before the amputation
continues to violate the Act until it is stated that ‘‘[f]ull and accurate
occurred. The USW also provided
abated. information is a fundamental
several examples of workplace hazards
Moreover, under the system Congress precondition for meaningful
that emerge as trends over time,
established in the OSH Act, any administration of an occupational safety
including occupational hearing loss,
distinction that can be drawn between and health program.’’ S. Rep. No. 91–
exposure to hazardous chemicals, and
action and inaction lacks legal 1282, at 16 (1970), reprinted in
musculoskeletal disorders. Injury and
significance. As the Commission Subcomm. on Labor of the Comm. on
recognizes, ‘‘unlike other federal Labor and Public Welfare, Legislative illness records are an important tool in
statutes in which an overt act is needed the identification of these types of
to show any violation, the OSH Act 6 For this reason, Gabelli v. SEC, 133 S.Ct. 1316 hazards. Ex. 0028.
(2013), cited by Nabors Drilling USA and the Additionally, as noted by commenter
penalizes both overt acts and failures to
National Association of Manufacturers, is ORCHSE Strategies, LLC, although most
act in the face of an ongoing, affirmative inapposite. Exs. 0010, 0026. Gabelli deals with the employers are diligent about recording
duty to perform prescribed obligations.’’ discovery rule, which pertains to whether a claim’s
injuries and illnesses as required, some
Volks I, 23 BNA OSHC at 1417 n.3 accrual date should be extended until the plaintiff
(emphasis in original). See also, e.g., learns of the unlawful conduct. The discovery rule are not.7 Ex. 0015. OSHA’s ability to
Gen. Dynamics, 15 BNA OSHC at 2130 is not needed where, as here, the unlawful conduct enforce the recordkeeping regulations is
is ongoing. In Gabelli, which involved a civil an important tool to ensure that accurate
(‘‘[T]he Act penalizes the occurrence of enforcement action under the Investment Advisers
noncomplying conditions which are Act, the Supreme Court held that the five-year
information about workplace safety is
accessible to employees and of which statute of limitations in 28 U.S.C. 2462 ran from the
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date a fraud was complete, not from the date the 7 The USW suggested that OSHA incorporate into
the employer knew or reasonably could government discovered the fraud. Gabelli does not this rule a prohibition on employer practices that
have known. That is the only ‘act’ that stand for the proposition that the language in 28 discourage reporting of injuries and illnesses. Ex.
the Secretary must show to prove a U.S.C. 2462 precludes application of a continuing 0028. Such a prohibition would be beyond the
violation.’’). That is why it is still a violation theory. Indeed, in Gabelli the government scope of this rulemaking, which is limited to
agreed that the alleged illegal activity ended more clarifying existing obligations. However, such
citable violation if an employer has left than five years prior to the filing of the complaint, practices are addressed in OSHA’s recent
a hazardous machine unguarded for so there was no issue about the duration of the rulemaking, ‘‘Improve Tracking of Injuries and
years—even though the employer has violative conduct. Illnesses,’’ 81 FR 29623 (May 12, 2016).
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91801
available and that conscientious [government] to abandon prudential Commission decision vacating citation
employers are not placed at a concerns and to appeal every adverse for employer’s failure to pay).8
disadvantage by employers who decision in order to avoid foreclosing OSHA also disagrees with the
intentionally underreport and thus further review’’). Thus, OSHA has acted commenters, including the Coalition for
appear safer than they actually are. Ex. reasonably in deciding to clarify its Workplace Safety and the National
0015; see Ex. 0024. Although OSHA’s regulations before there is any Association of Home Builders, who
recordkeeping rules have always additional litigation over the issues of suggested that a Supreme Court case,
required employers to maintain records statutory interpretation addressed in National Cable and
for five years, they did not previously Volks II. Telecommunications Association v.
expressly state that an employer cannot OSHA acknowledges that this Brand X Internet Services, 545 U.S. 967
skirt this requirement by ignoring its clarification of its recordkeeping (2005) (‘‘Brand X’’), precludes the
obligation to record an injury or illness regulations to address the textual Secretary from promulgating this final
when first learning of it. This final rule deficiencies identified by Judge Garland rule. Exs. 0011, 0013, 0017, 0020. In
clarifies the recordkeeping requirements leaves unsettled the issue of OSHA’s holding that the Ninth Circuit should
and enables OSHA to ensure that statutory authority to regulate in this have deferred to the FCC’s
employers make and keep an accurate, manner. (Two of three judges on the interpretation of a statutory term instead
five-year record of workplace injuries Volks II panel found that the OSH Act of following the contrary interpretation
and illnesses. Indeed, without this did not permit OSHA to issue the court had adopted in an earlier case,
clarification, as the AFL–CIO noted, the continuing recordkeeping regulations; Brand X stated that ‘‘[a] court’s prior
rule would not achieve Congress’ intent however, Judge Garland disagreed with judicial construction of a statute trumps
that the Secretary collect accurate data the majority’s holding on this point.) an agency construction otherwise
about workplace safety. Ex. 0024. When OSHA implements this rule, that entitled to Chevron deference only if the
issue will likely be the subject of future prior court decision holds that its
4. OSHA Is Acting Within Its Regulatory litigation in various federal courts, and construction follows from the
Authority, and Consistently With the potentially in the Supreme Court. unambiguous terms of the statute and
General Case Law, in Issuing This Courts generally recognize the value of
Clarifying Rule thus leaves no room for agency
allowing the law to develop through discretion.’’ 545 U.S. at 982 (emphasis
Several commenters expressed the litigation in multiple forums. See, e.g., added). Brand X does not control here,
view that the Volks II majority opinion Mendoza, 464 U.S. at 160 (noting however, because Volks II did not
prohibits the Secretary from imposing a ‘‘benefit . . . from permitting several clearly hold that the OSH Act
continuing obligation on employers to courts of appeals to explore a difficult unambiguously forecloses continuing
record, and maintain records of, injuries question before this Court grants recordkeeping violations. Indeed, the
and illnesses, with a few commenters certiorari’’); Califano v. Yamasaki, 442 court expressly acknowledged that the
stating that OSHA is improperly U.S. 682, 702 (1979) (‘‘It often will be loss or destruction of a record
attempting to ‘‘overturn’’ the Volks II preferable to allow several courts to pass previously made constitutes a
decision. Exs. 0003, 0008, 0009, 0010, on a given class claim in order to gain continuing violation of the requirement
0011, 0012, 0013, 0014, 0016, 0017, the benefit of adjudication by different to retain records for five years. 675 F.3d
0020, 0021, 0023, 0026. OSHA courts in different factual contexts.’’). at 756; see id. at 763 (concurring
disagrees. For the reasons described See also Holland v. Nat’l Mining Ass’n, opinion). Moreover, although parts of
below, OSHA does not believe it is 309 F.3d 909, 815 (D.C. Cir. 2002) the majority opinion suggest that the
improper to respond to the Volks II (‘‘Allowing one circuit’s statutory ‘‘clear’’ language in the OSH Act’s
decision by clarifying the regulations interpretation to foreclose . . . review of statute of limitations precludes
before there is any additional litigation the question in another circuit would continuing record-making violations
over OSHA’s statutory authority to squelch the circuit disagreements that (because the majority said that the word
establish continuing recordkeeping can lead to Supreme Court review.’’). ‘‘occurrence’’ requires a discrete action
obligations. OSHA has issued rules with a similar to have taken place within the six-
Given that OSHA agrees with Judge clarifying purpose following adverse month limitations period, 675 F.3d at
Garland that the regulations as court decisions before. For example, 755–56), the court nevertheless
previously written did not clearly after the Fifth Circuit held that OSHA’s acknowledged ambiguity in the meaning
convey the intended continuing respirator standard and the training of ‘‘occurrence’’ when it agreed that
obligation, it would have been fruitless provisions in the asbestos standard did training and machine guarding
for OSHA to seek further appellate not permit citing an employer for each
review of the Volks II decision, as some violations can continue, not because a
individual employee who was not
commenters suggested. See Exs. 0017, discrete action occurs within the six-
provided the required respirator or
0020, 0021. The executive branch of the month window, but because ‘‘the
training, OSHA issued a final rule ‘‘to
federal government may elect not to dangers created by th[ose] violations
make it unmistakably clear that each
appeal an adverse decision from the persist.’’ Id. at 758.9 Notably, nothing in
covered employee is required to receive
judiciary for a number of reasons PPE and training, and that each instance 8 Nor is it uncommon for federal agencies to
unrelated to its views about the merits when an employee subject to a PPE or engage in nonacquiescence when faced with what
of the ruling, and, as the Supreme Court training requirement does not receive they believe are erroneous court decisions. See, e.g.,
recognizes, the government’s decision to the required PPE or training may be Samuel Estreicher & Richard L. Revesz,
forgo appeal in a particular case should Nonacquiescence by Federal Administrative
considered a separate violation subject
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Agencies, 98 Yale L.J. 679 (1989).
not foreclose future review of relevant to a separate penalty.’’ 73 FR 75568–01, 9 The Coalition for Workplace Safety also stated
issues in other appropriate judicial 75569 (Dec. 12, 2008); see Chao v. that the cases Local Lodge No. 1424 (Bryan Mfg.) v.
forums. See United States v. Mendoza, OSHRC and Erik K. Ho, 401 F.3d 355 NLRB, 362 U.S. 411 (1960) and Ledbetter v.
464 U.S. 154, 160–61 (1984) (declining (5th Cir. 2005). See also 72 FR 64342– Goodyear, 550 U.S. 618 (2007) prohibit this final
rule. Ex. 0013. However, these cases do not control
to apply non-mutual collateral estoppel 01, 64342–43 (Nov. 15, 2007) (final rule this rule because they involve causes of action that
against the federal government in part clarifying employers’ responsibility to the Court found to accrue at one discrete moment
because doing so ‘‘would force the . . . pay for PPE, issued in response to Continued
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the OSH Act’s statute of limitations opinion.10 In Earle, the court, quoting III. Summary and Explanation of the
distinguishes between standards (such Judge Garland, explained that where a Final Rule
as machine guarding requirements) and statute ‘‘ ‘imposes a continuing OSHA is amending its recordkeeping
regulations (such as recordkeeping obligation to act, a party can continue to regulations, 29 CFR part 1904, to clarify
requirements). Finally, the fact that violate it until that obligation is satisfied that employers covered by the
Judge Garland disagreed with the and the statute of limitations will not recordkeeping requirements have a
majority about what the statute says begin to run until it does.’ ’’ Id. at 307. continuing obligation to make and
lends further support to OSHA’s view And ‘‘[w]hether the obligation is maintain accurate records of all
that Volks II should not be read as continuing is a question of statutory recordable injuries and illnesses. This
holding that the OSH Act construction.’’ Earle, 707 F.3d at 307. obligation continues for as long as the
unambiguously forecloses this The court explained that Postow had employer must maintain records for the
regulatory action. found a continuing violation of the year in which an injury or illness
As touched upon previously in this Truth-in-Lending Act because the ‘‘goals became recordable, and it does not
preamble, OSHA further believes that expire if the employer fails to create a
of the Act’’ required construing the
general case law on continuing record when first required to do so.
obligation to be continuing. Id. So too,
violations clearly supports a continuing The continuing obligation to make
violation theory for OSHA the goals of the OSH Act require
construing the recordkeeping obligation and maintain accurate records of work-
recordkeeping violations. The Volks II related illnesses and injuries is in
majority stated that recordkeeping to be continuing. The purpose of
accord with longstanding OSHA policy.
violations are not ‘‘the sort of conduct recording injuries is to allow the
Thus, this final rule does not impose
we generally view as giving rise to a recorded information to be used
new or additional obligations on
continuing violation[,]’’ i.e., the kind of thereafter, throughout the retention and employers covered by part 1904.
violation ‘‘whose ‘character as a access period. Accurate and complete Employers will not be required to make
violation . . . [does] not become clear OSHA records enable employers, records of any injuries or illnesses for
until . . . repeated during the employees, and the government to which records are not currently
limitations period . . . because it is . . . understand the hazards present in the required; nor are the recording
[the] cumulative impact . . . that workplace so that corrective measures requirements themselves changing.
reveals . . . illegality.’ ’’ Volks II, 675 can be taken. Inaccurate and incomplete Because the rule imposes no new
F.3d at 757 (quoting Taylor v. FDIC, 132 records, by contrast, are likely to be burdens or obligations and changes no
F.3d 753, 765 (D.C. Cir. 1997)). While misleading. law, it is simply a clarification, not a
the ‘‘cumulative impact’’ theory is one The Secretary recognizes that one substantive change (as a few
way to establish a continuing violation court has said that: ‘‘The Supreme Court commenters contended; see Exs. 0012,
(see, e.g., Morgan, 536 U.S. 101 (hostile 0014, 0020). As discussed at length
has made clear . . . that the application
environment claims under Title VII)), previously, the amendments are meant
of the continuing violations doctrine
established precedent recognizes a simply to clarify employers’ obligations
second type of continuing violation—a should be the exception, rather than the
rule.’’ Cherosky v. Henderson, 330 F.3d in the wake of the Volks II decision. The
violation that continues to occur on a amendments consist of revisions to
day-by-day (or act-by-act) basis and 1243, 1248 (9th Cir. 2003) (not referring
various sections of the regulatory text as
whose illegality was clear from the to any specific decision) (quoted in
well as changes to the titles of some
beginning. See, e.g., Edelkind, 525 F.3d Volks II, 675 F.3d at 757). Even so, the
sections and subparts. (Titles are useful
388 (failure to pay child support is a Secretary believes that the language and for clarity but do not change the legal
continuing offense); Sierra Club, 847 purposes of the OSH Act make it clear meaning of the text itself. See Penn.
F.2d 1109 (finding continuing violations that the duty to maintain and make Dept. of Corrections v. Yeskey, 524 U.S.
of the Clean Water Act where the available records is a continuing 206, 212 (1998); INS v. Nat’l Ctr. for
company failed to comply with permit obligation for all the reasons set forth Immigrants’ Rights, Inc., 502 U.S. 183,
requirements for reporting and record previously.11 189–90 (1991)).
retention); Postow, 627 F.2d 1370 As discussed in more detail later in
(violation of Truth-in-Lending Act’s 10 It is also noteworthy that Earle was written by
this preamble, the amendments clarify
disclosure requirements is a continuing Judge Henderson, who was part of the Volks II the following: (1) OSHA 300 Log.
majority.
violation). This is the type of continuing 11 In Toussie v. United States, 397 U.S. 112 Employers must record every recordable
violation relevant here because all (1970), the Supreme Court stated that ‘‘the doctrine injury or illness on the Log. This
OSHA violations—including of continuing offenses should be applied in only obligation continues through the five-
recordkeeping violations—‘‘continue’’ limited circumstances since . . . ‘the tension year record retention-and-access period
only insofar as non-compliant between the purpose of a statute of limitations and
the continuing offense doctrine is apparent.’ ’’ Id. at
if employers do not create the record
conditions exist. 115 (citations omitted). But Toussie was a criminal when first required to do so. During that
The D.C. Circuit explicitly recognized case subject to the general principle that ‘‘criminal period, employers must update the Log
the existence of these two types of limitations statutes are ‘to be liberally interpreted by adding cases not previously recorded
continuing violation cases in Earle, 707 in favor of repose.’ ’’ Id. (emphasis added and
citations omitted). See also Diamond v. United
and by noting changes to previously
F.3d 299, 1307—a post-Volks II case that States, 427 F.2d 1246, 1247 (Ct. Cl. 1970) (per recorded cases. (2) OSHA 301 Incident
made no reference to the Volks II curiam) (‘‘[T]he considerations moving the Court to Report. Employers must prepare a Form
majority opinion, but cited, with decide [in Toussie] that the offense was not a 301 Incident Report for each recordable
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approval, Judge Garland’s concurring continuing one were entwined with the criminal
aspects of the matter, and the holding was limited
illness or injury. This obligation
to criminal statutes of limitations.’’). In contrast, as continues throughout the five-year
in time—the illegal execution of a collective noted previously, in Legal Authority, Section II.B.2, retention-and-access period if
bargaining agreement and a particular instance of OSHA civil enforcement cases are subject to the employers do not prepare the report
sex discrimination, respectively. In contrast, a opposing principle that ‘‘statutes of limitation in
failure to maintain an accurate record of workplace the civil context are to be strictly construed in favor
when first required to do so. Unlike
injuries and illnesses is a continuing violation that of the Government against repose.’’ Interamericas, with the Log, employers are not
reoccurs each day it persists. 111 F.3d at 382. required to update the Incident Report
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![91806 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
other comments on the proposed change State plans that apply to State and local The Regulatory Flexibility Act of
to § 1904.35 and has adopted the change government employees only: 1980, as amended by SBREFA in 1996,
as proposed. Connecticut, Illinois, Maine, New requires OSHA to determine whether its
Jersey, New York, and the Virgin regulatory actions will have a significant
16. Subpart E—Reporting Accurate
Islands. impact on a substantial number of small
Fatality, Injury, and Illness Information Under 29 CFR 1952.4(a), States with entities. See 5 U.S.C. 601 et seq. OSHA’s
to the Government approved occupational safety and health analysis indicates that the final rule will
OSHA proposed to revise the title of plans under section 18 of the OSH Act not have such an impact.
Subpart E to more precisely reflect the (29 U.S.C. 667) must adopt This final rule simply reiterates and
requirement in the Subpart that recordkeeping and reporting regulations clarifies employers’ existing obligations
government representatives be given that are ‘‘substantially identical’’ to to record work-related injuries and
access to accurate fatality, injury, and those set forth in 29 CFR part 1904. illnesses. This rule does not require
illness information. OSHA received no State plans’ recording and reporting employers to make records of any
comments on this proposed change and requirements for determining which injuries or illnesses for which records
has adopted the change as proposed. injuries and illnesses must be recorded, were not already required. Nor does the
17. Section 1904.40—Providing and how they will be recorded, must be rule impose any new requirement that
Accurate Records to Government the same as the Federal requirements. employers reconsider or reassess
Representatives 29 CFR 1952.4(a). State plans may records once they have been made;
promulgate injury or illness recording employers remain subject to the existing
OSHA proposed to revise the title of and reporting requirements that are requirement that they ensure the
§ 1904.40 to reflect the changes to more stringent than, or supplemental to, accuracy and completeness of their 300
paragraph (a) of that section. OSHA 29 CFR part 1904, after consulting with, Logs. OSHA estimated the costs of these
received no comments on this proposed and obtaining approval from, Federal requirements as part of the final
change and has adopted the change as OSHA. Id. recordkeeping rule issued in January of
proposed. State plans may not grant variances 2001, see 66 FR 6081–6120, January 19,
18. Paragraph (a) of § 1904.40—Basic from injury and illness recording and 2001. The revisions contained in this
Requirement reporting requirements for private sector final rule impose no new cost burden
employers; any such variances must be because they do not require employers
OSHA proposed to add the term granted by Federal OSHA. 29 CFR to do anything new.
‘‘accurate’’ to paragraph (a) of § 1904.40 1952.4(b). And a State may grant such A number of commenters stated their
to reflect OSHA’s longstanding a variance for a State or local belief that the final rule will impose
expectation that employers provide government entity only after obtaining additional costs because it requires
government representatives with Federal OSHA approval. Id. employers to reassess, or ‘‘think about,’’
accurate records upon request. OSHA each record of a workplace injury or
also proposed some non-substantive V. Final Economic Analysis
illness repeatedly over the course of five
wording changes to this paragraph. These revisions to OSHA’s full years. Exs. 0008, 0010, 0012, 0013,
Nabors Drilling USA suggested that recordkeeping rules do not constitute an 0020, 0021, 0026, 0027. The National
OSHA revisit the four-business-hour economically significant regulatory Federation of Independent Businesses
timeframe in which employers must action under Executive Order 12866. estimated, ‘‘conservatively,’’ that this
provide requested records to (See 58 FR 51735, September 30, 1993). rule will cost the economy
government representatives. Ex. 0010. Executive Order 12866 requires $1,933,710,222 over five years,
This suggestion is beyond the scope of regulatory agencies to conduct an assuming each employer has one
this rulemaking because this final rule economic analysis for significant rules. ‘‘unrecorded or partially-recorded
only clarifies, and does not change, A rule is economically significant under injury.’’ 14 Ex. 0014. This concern is
existing obligations. OSHA received no Executive Order 12866 if it will have an misplaced. An employer’s obligations
other comments on its proposed annual effect on the economy of $100 remain the same as they have always
changes to § 1904.40(a) and has adopted million or more. This rule does not been under the recordkeeping rules: To
the changes as proposed. satisfy that criterion; as explained later record workplace injuries and illnesses
IV. State Plans in this preamble, neither the benefits within seven days of when it learns of
nor the costs of the rule equal or exceed them and to maintain the records for
The 28 States and U.S. Territories $100 million. OSHA has also
with their own OSHA-approved five years. The final rule does not
determined that this rule does not meet contain any new requirement to review
occupational safety and health plans the definition of a major rule under the
must adopt a rule comparable to the or reassess existing records over the
Congressional Review provisions of the course of the maintenance period (see
amendments that Federal OSHA is Small Business Regulatory Enforcement
promulgating to 29 CFR part 1904 in Section III, SUMMARY AND
Fairness Act (SBREFA). See 5 U.S.C. EXPLANATION, above); it simply
this final rule. The States and U.S. 804(2).13
Territories with OSHA-approved 14 To arrive at this number, the commenter
occupational safety and health plans 13 Nor does this rule present a ‘‘novel legal issue’’ assumed that ‘‘daily reconsideration’’ would take
covering private employers and State rendering it a significant regulatory action, as the one minute per day per unrecorded or partially
and local government employees are: Coalition for Workplace Safety suggests. Ex. 0013. recorded injury or illness, and then multiplied one
Alaska, Arizona, California, Hawaii, The commenter states that the final rule presents minute per day by 365 days per year by five years
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such a novel legal issue because OSHA is ‘‘us[ing] (minus seven days for the regulatory grace period)
Indiana, Iowa, Kentucky, Maryland, a rule to overturn a U.S. Court of Appeals by an estimated 1,365,985 covered businesses by
Michigan, Minnesota, Nevada, New decision.’’ As explained above in Legal Authority, $46.72 per hour. Ex. 0014. In addition to assuming
Mexico, North Carolina, Oregon, Puerto Section II.B.4, OSHA does not agree with this a requirement for daily reconsideration that the rule
Rico, South Carolina, Tennessee, Utah, characterization of the rulemaking. This rule is does not impose, this calculation does not account
intended simply to clarify the meaning of the for the fact that concerns about reassessment will
Vermont, Virginia, Washington, and recordkeeping regulations following the Volks II apply to only a subset of all recordkeeping cases.
Wyoming. In addition, six States and decision, and the decision does not deprive OSHA See discussion in Section III, SUMMARY AND
U.S. Territories have OSHA-approved of authority to promulgate this rule. EXPLANATION, above.
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![91810 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
with the requirements of this part. This failed to record it on the Log for the year when do I have to provide it? When an
obligation continues throughout the in which the injury or illness occurred, employee, former employee, personal
entire record retention period described and/or on an Incident Report, you are representative, or authorized employee
in § 1904.33. See §§ 1904.4(a); under a continuing obligation to record representative asks for copies of your
1904.32(a)(1); 1904.33(b)(1); and the case on the Log and/or Incident current or stored OSHA 300 Log(s) for
1904.40(a). Report during the five-year retention an establishment the employee or
* * * * * period for that Log and/or Incident former employee has worked in, you
■ 6. Revise the heading and paragraphs
Report; must give the requester a copy of the
(a) and (b)(1) of § 1904.32 to read as (ii) You must also make any additions relevant and accurate OSHA 300 Log(s)
follows: and corrections to the OSHA Log that by the end of the next business day.
are necessary to accurately reflect any * * * * *
§ 1904.32 Year-end review and annual changes that have occurred with respect
summary. to previously recorded injuries and Subpart E—Reporting Accurate
(a) Basic requirement. At the end of illnesses. Thus, if the classification, Fatality, Injury, and Illness Information
each calendar year, you must: description, or outcome of a previously to the Government
(1) Review that year’s OSHA 300 Log recorded case changes, you must
to verify that it contains accurate entries remove or line out the original entry and ■ 10. Revise the heading of subpart E to
for all recordable injuries and illnesses enter the new information; and read as set forth above.
that occurred during the year, and make (iii) You must have an Incident Report ■ 11. Revise the heading and paragraph
any additions or corrections necessary for each and every recordable injury and (a) of § 1904.40 to read as follows:
to ensure its accuracy; illness; however, you are not required to
make additions or corrections to § 1904.40 Providing accurate records to
(2) Verify that each injury and illness government representatives.
recorded on the 300 Log, including any Incident Reports during the five-year
injuries and illnesses added to the Log retention period. (a) Basic requirement. When an
following your year-end review (2) Do I have to make additions or authorized government representative
pursuant to paragraph (a)(1) of this corrections to the annual summary requests the records you keep under
section, is accurately recorded on a during the five-year retention period? part 1904, you must provide accurate
corresponding 301 Incident Report You are not required to make additions records, or copies thereof, within four
form; or corrections to the annual summaries (4) business hours of the request.
(3) After you have verified the during the five-year retention period. * * * * *
accuracy of the Log, create an annual [FR Doc. 2016–30410 Filed 12–16–16; 8:45 am]
■ 8. Revise § 1904.34 to read as follows:
summary of injuries and illnesses BILLING CODE 4510–26–P
recorded on the Log; § 1904.34 Change in business ownership.
(4) Certify the summary; and If your business changes ownership,
(5) Post the summary. you are responsible for recording and DEPARTMENT OF HOMELAND
(b) * * * reporting work-related injuries and SECURITY
(1) How extensively do I have to illnesses only for that period of the year
Coast Guard
review the OSHA 300 Log at the end of during which you owned the
the year? You must review the Log and establishment. You must transfer the
33 CFR Part 117
its entries as extensively as necessary to Part 1904 records to the new owner. The
verify that all recordable injuries and new owner must save all records of the
establishment kept by the prior owner, [Docket No. USCG–2016–1029]
illnesses that occurred during the year
are entered and that the Log and its as required by § 1904.33, but need not
Drawbridge Operation Regulation;
entries are accurate. update or correct the records of the prior
Northeast Cape Fear River,
* * * * * owner. The new owner is not
Wilmington, NC
responsible for recording and reporting
■ 7. Revise the heading and paragraph
work-related injuries and illnesses that AGENCY: Coast Guard, DHS.
(b) of § 1904.33 to read as follows:
occurred before the new owner took ACTION:Notice of deviation from
§ 1904.33 Retention and maintenance of ownership of the establishment. drawbridge regulation; modification.
accurate records. ■ 9. Revise paragraphs (b)(2)
* * * * * introductory text and (b)(2)(iii) of SUMMARY: The Coast Guard has modified
(b) Implementation—(1) Other than § 1904.35 to read as follows: a temporary deviation from the
the obligation identified in § 1904.32, do operating schedule that governs the CSX
I have further recording duties with § 1904.35 Employee involvement. Hilton Railroad Bridge across the
respect to the OSHA 300 Logs and 301 * * * * * Northeast Cape Fear River, mile 1.5, at
Incident Reports during the five-year (b) * * * Wilmington, NC. This modified
retention period? You must make the (2) Do I have to give my employees deviation is necessary to manually
following additions and corrections to and their representatives access to the operate the bridge and perform
the OSHA Log and Incident Reports OSHA injury and illness records? Yes, emergency bridge repairs. This modified
during the five-year retention period: your employees, former employees, deviation allows the bridge to remain in
(i) The OSHA Logs must contain their personal representatives, and their the closed-to-navigation position.
srobinson on DSK5SPTVN1PROD with RULES
entries for all recordable injuries and authorized employee representatives DATES: This modified deviation is
illnesses that occurred during the have the right to access accurate OSHA effective without actual notice from
calendar year to which each Log relates. injury and illness records, with some December 19, 2016 through 6 p.m. on
In addition, each and every recordable limitations, as discussed below. December 30, 2016. For the purposes of
injury and illness must be recorded on * * * * * enforcement, actual notice will be used
an Incident Report. This means that if (iii) If an employee or representative from December 9, 2016 at 6 p.m., until
a recordable case occurred and you asks for access to the OSHA 300 Log, December 19, 2016.
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00168 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92035/page/19.svg)
Document Created: 2016-12-17 03:15:45
Document Modified: 2016-12-17 03:15:45
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule becomes effective on January 18, 2017. Collections of information: There are collections of information contained in this final rule (see Section XI, Office of Management and Budget Review Under the Paperwork Reduction Act of 1995). Notwithstanding the general date of applicability that applies to all other requirements contained in the final rule, affected parties do not have to comply with the collections of information in the recordkeeping regulations (as revised by this final rule) until the Department of Labor publishes a separate document in the Federal Register announcing that the Office of Management and Budget has approved them under the Paperwork Reduction Act. | |
| Contact | 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] | |
| FR Citation | 81 FR 91792 | |
| RIN Number | 1218-AC84 | |
| CFR Associated | Health Statistics; Occupational Safety and Health; Safety; Reporting and Recordkeeping Requirements and State Plans |
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