[Federal Register Volume 78, Number 150 (Monday, August 5, 2013)][Rules and Regulations]
[Pages 47180-47191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18457]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1960
[Docket No. OSHA-2013-0018]
Basic Program Elements for Federal Employee Occupational Safety
and Health Programs and Related Matters; Subpart I for Recordkeeping
and Reporting Requirements
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is issuing a final rule amending the Basic Program
Elements to require Federal agencies to submit their occupational
injury and illness recordkeeping information to the Bureau of Labor
Statistics (BLS) and OSHA on an annual basis. The information, which is
already required to be created and maintained by Federal agencies, will
be used by BLS to aggregate injury and illness information throughout
the Federal government. OSHA will use the information to identify
Federal establishments with high incidence rates for targeted
inspection, and assist in determining the most effective safety and
health training for Federal employees. The final rule also interprets
several existing basic program elements in our regulations to clarify
requirements applicable to Federal agencies, amends the date when
Federal agencies must submit to the Secretary of Labor their annual
report on occupational safety and health programs, amends the date when
the Secretary of Labor must submit to the President the annual report
on Federal agency safety and health, and clarifies that Federal
agencies must include uncompensated volunteers when reporting and
recording occupational injuries and illnesses.
DATES: This final rule becomes effective January 1, 2014.
FOR FURTHER INFORMATION CONTACT: Francis Yebesi, Director, Office of
Federal Agency Programs, Occupational Safety and Health Administration,
U.S. Department of Labor, 200 Constitution Avenue NW., Room N-3622,
Washington, DC 20210, telephone 202-693-2122, email:
yebesi.francis@dol.gov.
SUPPLEMENTARY INFORMATION:
Executive Summary for This Final Rule
A. Purpose
Today's final rule establishes requirements directing Federal
agencies to submit their occupational injury and illness recordkeeping
information to the Secretary of Labor which will allow (1) BLS to
analyze injury and illness data at Federal establishments, and (2) OSHA
to better track injury trends at Federal agencies, and to better target
inspections at the most hazardous Federal establishments.
B. Summary of Major Provisions
Revisions to update existing regulatory language: Since
the basic program elements were originally published in 1980, changes
have occurred that make the existing language out of date.
The Unites States Postal Service: The Occupational Safety
and Health Act of 1970 (OSH Act) was amended to make it applicable to
the U.S. Postal Service (USPS) in the same manner as any other private
sector employer. Therefore, language in the basic program elements has
been modified to indicate that the USPS is not included in the
definition of "agency."
Financial management: The Office of Management and Budget
(OMB) circulars referenced in the original regulations are no longer in
use. Therefore the language has been revised to reference only relevant
OMB regulations and documents.
Abatement of unsafe or unhealthful working conditions:
Abatement requirements have been changed to follow private sector
procedures.
Records retention: A section of the basic program elements
addressing retention and access of employee records was inadvertently
deleted in a prior revision and is now being reinserted in this
rulemaking.
Changes are being made to require Federal agencies to
annually submit their OSHA required injury and illness data.
Modifying dates to reflect the collection of calendar year
data, rather than fiscal year data: We have modified the due date when
Federal agencies must submit their annual report on safety and health
to OSHA, and the report from OSHA to the President, to
allow for the use of OSHA required injury and illness data.
Submission of the OSHA required injury and illness data:
We are stipulating that the Secretary of Labor will be collecting the
OSHA required injury/illness data annually. Clarification is also
provided on how to identify the injuries/illnesses of volunteers, the
calculation of the total number of hours worked by uncompensated
volunteers, and that OMB job series numbers should be used to identify
job titles.
Table of Contents
This final rule is organized as follows:
I. Background
III. Injury and Illness Recordkeeping in the Federal Sector
IIII. OSHA's Injury and Illness Recordkeeping System
IIV. OSHA Access to and Use of Recordkeeping Information
V. Federal Agency Injury and Illness Data Submission
VI. Identification and Listing of Federal Establishments
VII. Uncompensated Volunteers and Federal Service
VIII. Federal Agency Employees That Supervise Workers
IX. Other Issues Addressed by Today's Final Rule
I. Background: Federal Agency Safety and Health Programs.
Section 19 of the Occupational Safety and Health Act (the "OSH
Act") (29 U.S.C. 668) includes provisions to ensure safe and healthful
working conditions for Federal sector employees. Under that section,
each Federal agency is responsible for establishing and maintaining an
effective and comprehensive occupational safety and health program
consistent with the standards promulgated by OSHA under Section 6 of
the OSH Act. Executive Order 12196, Occupational Safety and Health
Programs for Federal Employees, issued February 26, 1980, prescribes
additional responsibilities for the heads of Federal agencies, the
Secretary of Labor, and the General Services Administration. Among
other things, the Secretary of Labor, through OSHA, is required to
issue basic program elements with which the heads of agencies must
operate their safety and health programs. These basic program elements
are set forth at 29 CFR Part 1960. Section 19 of the OSH Act, the
Executive Order, and the basic program elements under 29 CFR Part 1960
apply to all agencies of the Executive Branch except military personnel
and uniquely military equipment, systems, and operations.
II. Injury and Illness Recordkeeping in the Federal Sector
Pursuant to Section 19(a) of the OSH Act, each head of a Federal
agency is responsible for keeping adequate records of all occupational
injuries and illnesses. Section 1-401(d) of Executive Order 12196
provides the Secretary with authority to prescribe recordkeeping and
reporting requirements for Federal agencies. On October 21, 1980, OSHA
issued a final rule addressing Federal agency safety and health
programs which included occupational injury and illness recordkeeping
requirements at 29 CFR Part 1960, Subpart I, Recordkeeping and
Reporting Requirements, (45 FR 69796).
On January 19, 2001, OSHA issued a revised system of injury and
illness recordkeeping requirements for private sector employers at 29
CFR Part 1904, (66 FR 5916). The revised recordkeeping rules were
designed, among other things, to provide better information about the
incidence of occupational injuries and illnesses; simplify the
recordkeeping system for employers; promote improved employee awareness
and involvement in the recording and reporting of injuries and illness;
and permit the increased use of computers and telecommunications in
carrying out OSHA-required recordkeeping.
By 2004, it was clear to OSHA that significant inconsistencies
existed between the private sector and the Federal Government's
recording and tracking of occupational injuries and illnesses. In order
to make the private sector and Federal sector systems consistent, OSHA,
on November 26, 2004, issued a final rule to amend the occupational
injury and illness recordkeeping requirements applicable to Federal
agencies, (69 FR 68793). OSHA's final rule adopted applicable
provisions of 29 CFR Part 1904, which made the recording and reporting
requirements for the Federal sector essentially identical to those for
the private sector.
III. OSHA's Injury and Illness Recordkeeping System
OSHA's regulation at 29 CFR 1904, Recording and Reporting
Occupational Injuries and Illnesses, was one of the first regulations
promulgated by OSHA. First issued in 1971, this regulation requires
employers to record information on the occurrence of injuries and
illnesses in their workplaces if the injuries and illnesses meet one or
more of certain recording criteria. In accordance with the OSH Act,
OSHA requires employers to record work-related injuries and illnesses
that involve death, loss of consciousness, days away from work,
restricted work activity or job transfer, medical treatment beyond
first aid, or diagnosis of a significant injury or illness by a
physician or other licensed health care professional.
The OSHA recordkeeping system consists of three forms. First,
employers must maintain a log (OSHA Form 300, commonly referred to as
the "OSHA log," or an equivalent form) that lists each injury and
illness that occurred in each establishment during the year. The log is
available to employees, former employees, and their representatives.
For each case on the log, the employer also prepares a supplementary
record (OSHA Form 301, or an equivalent), that provides additional
details about the injury or illness. A summary of the log (OSHA Form
300A, or an equivalent) is prepared by the employer and posted in the
workplace from February 1 to April 30 of the year following the year to
which the records pertain. As noted in the November 2004 recordkeeping
final rule, Federal agencies may choose to use the Office of Workers'
Compensation Program (OWCP) Forms CA-1, CA-2 and CA-6 \1\ for the
purpose of complying with OSHA's recordkeeping requirements (excluding
contractors), as long as Federal agencies include the additional OSHA-
required information for the OSHA 301 form. If agencies use these forms
for OSHA recordkeeping requirements, they must ensure all OSHA required
fields on these forms are complete, whether or not they are required by
OWCP.
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\1\ CA-1, Notice of Traumatic Injury and Claim for Continuation
of Pay/Compensation; CA-2, Notice of Occupational Disease and Claim
for Compensation; CA-6, Official Superior's Report of Employee's
Death.
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Occupational injury and illness records, and the statistics based
on them, have several desired functions or uses. One use is to provide
information to employers and employees about the kinds of injuries and
illnesses occurring in the workplace, and the hazards that cause or
contribute to them. Injury and illness statistics play an important
role in shaping an employer's injury and illness prevention program,
and investigation into patterns of injuries can provide information
useful in abating hazards and preventing additional injuries from
occurring.
The records are also an important source of information for OSHA.
During the initial stages of an inspection, an OSHA representative
reviews the recordkeeping data for the establishment as an aid to
focusing the inspection effort on safety and health hazards. OSHA also
uses establishment-
specific injury and illness information to help target its intervention
efforts on the most dangerous worksites. Injury and illness statistics
help OSHA identify the scope of occupational safety and health problems
and decide whether regulatory intervention, compliance assistance, or
other measures are warranted.
Finally, the records required by the OSHA recordkeeping regulation
are the source of information for the BLS-generated national statistics
on workplace injuries and illnesses, including information on the
source, nature, and type of these injuries and illnesses. BLS makes the
aggregate information available both for research purposes and for
public information. BLS has published occupational safety and health
statistics since 1971, and this information charts the magnitude and
nature of injury and illness problems across the country.
IV. OSHA Access to and Use of Recordkeeping Information
1. Private Sector
In the private sector, OSHA has long had in place rules pertaining
to Agency access to information concerning worker safety and health.
Section 8 of the OSH Act provides OSHA with the authority to issue
regulations and standards requiring employers to make, keep and
preserve, and make available to OSHA, records relating to the OSH Act.
OSHA's regulation at 29 CFR 1910.1020, Access to employee exposure and
medical records, provides access to exposure and medical records to
employees, their designated representatives, and OSHA. Several of
OSHA's substance-specific health standards, such as those for
occupational exposure to benzene and lead, include requirements for
employee and OSHA access to information required to be maintained by
those standards.
With respect to OSHA injury and illness recordkeeping, Section
1904.40 requires employers to provide a complete copy of records kept
under Part 1904 to an authorized government representative when the
representative asks for such records during a workplace safety and
health inspection. Section 1904.40(b)(1) states that authorized
government representatives who have a right to obtain Part 1904 records
are a representative of the Secretary of Labor conducting an inspection
or investigation under the OSH Act, a representative of the Secretary
of Health and Human Services (including the National Institute for
Occupational Safety and Health (NIOSH) conducting an investigation
under Section 20(b) of the OSH Act, or a representative of a State
agency responsible for administering a State plan under Section 18 of
the OSH Act.
Section 8(c) of the OSH Act also gives the Secretary the authority
to prescribe regulations requiring employers to make periodic reports
on work-related deaths, injuries and illnesses. For purposes of OSHA
injury and illness recordkeeping, periodic reporting from a subset of
employers is accomplished through the OSHA Data Initiative (ODI), and
the Annual Survey of Occupational Injuries and Illnesses conducted by
BLS. Although OSHA and BLS collect injury and illness information,
collection of the information is conducted through different means and
used for different purposes.
Under Section 1904.41, each year OSHA sends injury and illness
survey forms to employers in certain high-hazard industries. In any
year, some employers will receive a survey form, and others will not.
Employers are not required to send injury and illness recordkeeping
information to OSHA unless they receive a survey form.
Employers that receive a survey form submit information on the
number of workers employed, the number of hours worked by employees,
and requested information from records created and maintained under
Part 1904. The information produced from the survey includes incidence
rates, as well as the number of occupational injuries and illnesses.
Incidence rates relate the number of injuries and illnesses to a common
base of exposure. The rate shows the number of injuries and illnesses
per 100 workers. This common base allows for accurate cross-industry
comparisons, trend analysis over time and comparisons among firms
regardless of size. The establishment-specific data collected by OSHA
are used to administer OSHA's various programs and to measure the
performance of those programs at individual workplaces.
Section 1904.42 establishes requirements for employers, when asked,
to complete and submit an annual survey from BLS. BLS collects data
from a statistical sample of employers in all industries and across all
size classes, using the data to compile occupational injury and illness
statistics for the Nation. BLS gives each respondent a pledge of
confidentiality (as it does on all BLS surveys), and the establishment-
specific injury and illness data are not shared with the public, OSHA
or other government agencies.
2. Federal Sector
Section 19 of the OSH Act provides the Secretary of Labor with
access to occupational injury and illness records and reports kept and
filed by Federal agencies "unless those records and reports are
specifically required by Executive Order to be kept secret in the
interest of the national defense or foreign policy, in which case the
Secretary of Labor shall have access to such information as will not
jeopardize national defense or foreign policy." Section I-201(j) of
Executive Order 12196 requires the head of each agency to operate an
occupational safety and health management information system, which
includes the maintenance of records required by the Secretary of Labor.
Section I-201(l) also requires the head of each agency to submit to the
Secretary of Labor an annual report on the agency occupational safety
and health program that includes information the Secretary prescribes.
Section 401(d) of the Executive Order states that the Secretary of
Labor shall prescribe recordkeeping and reporting requirements.
V. Federal Agency Injury and Illness Data Submission
Today's final rule establishes requirements directing Federal
agencies to submit their occupational injury and illness recordkeeping
information to the Secretary. The final rule does not require Federal
agencies to create or maintain any new records. Instead, the final rule
amends the basic program elements at 29 CFR part 1960 by adding Sec.
1960.72, and requires Federal agencies to submit information included
on the three OSHA recordkeeping forms to BLS. BLS will then
electronically transmit the data from these forms to OSHA.
Under the final rule, by May 1 of each year, Federal agencies must
submit their injury and illness recordkeeping data from the previous
calendar year directly to BLS. The May 1 deadline for submission of the
previous calendar year's information is based on the posting
requirements in Sec. 1904.32. That Section requires employers to post
their Annual Summary from the previous calendar year from February 1
through April 30. During the posting period, employees have the
opportunity to review the information, and this review may result in
new or revised entries about injuries and illnesses at the
establishment. Therefore, the May 1 submission deadline should allow
for the submission of more accurate and complete recordkeeping
information.
BLS is leading the collection effort established by today's final
rule because it already has a system in place to collect injury and
illness data from the private sector. However, the final rule includes
two important differences from the private sector data collection
system. First, unlike the private sector collection effort, which is a
statistical sample, today's final rule requires the submission of all
Federal agency injury and illness data from each Federal establishment.
Second, unlike the private sector BLS survey, which is conducted solely
for statistical purposes and not shared with OSHA, the BLS collection
of federal agency data from the OSHA forms will be electronically
transmitted to OSHA.
Individually identifiable information will not be made public.
Establishment data will not be published if such information will
result in a breach of employee privacy. DOL will carefully review all
information before it is released, to ensure that privacy is not
violated.
1. How the Data Will Be Used by BLS
The submitted information will be used by BLS when developing and
analyzing Federal Government injury and illness statistics. In the
private sector and State and local government, BLS collects injury and
illness data from employers through the Annual Survey of Occupational
Injuries and Illnesses. An employer selected by BLS to participate in
the Annual Survey must provide information about employee injuries and
illnesses recorded on the employer's OSHA forms. BLS collects the
information from a statistical sample in all industries and across all
size classes, and uses the data to estimate the number of work-related
injuries and illnesses across the Nation, as well as a measure of the
frequency (rate) at which they occur. The BLS survey, which is
conducted solely for statistical purposes, is not directly related to
OSHA's enforcement of workplace safety and health requirements.
BLS will use the data required to be submitted by today's final
rule to calculate injury and illness incidence rates for the Federal
sector. BLS develops incidence rates by industry, establishment size,
and many other case types, and Federal agencies will be able to compare
their incidence rates with national averages for similar types of
organizations. The information will be aggregated from other Federal
agencies and similar establishments in the private sector and State and
local government to identify injury and illness patterns among
industries and occupations.
2. How the Data Will Be Used by OSHA
OSHA will use the submitted information for a variety of purposes,
including targeting of Federal workplaces for OSHA inspection;
deployment of resources for safety and health training; periodic
assessment of the basic program elements; development of information
for promulgating, revising or evaluating OSHA standards and
regulations; evaluating and analyzing Presidential initiatives
addressing injury and illness rate reduction in the Federal Government;
and OSHA evaluations. By using the establishment-specific information,
OSHA will be able to more effectively allocate its resources to focus
on the most hazardous Federal establishments.
In the past, OSHA used statistical data provided by the OWCP to
target safety and health inspections of Federal agency workplaces.
However, the OWCP data is based on whether a case is compensable, and
not on whether a case is recordable under OSHA's injury and illness
recordkeeping system. Because OSHA has relied on OWCP statistical data,
the Agency has not had an effective means of identifying and targeting
the most hazardous Federal establishments for comprehensive safety and
health inspection. On the other hand, occupational injury and illness
records provide safety and health information about specific Federal
establishments, including information about the location, equipment,
materials or chemicals used at the time of an injury or illness.
Moreover, OSHA uses injury and illness recordkeeping information
collected from the OSHA Data Initiative (ODI) when it targets private
sector employers for safety and health inspection. By analyzing the
recordkeeping data required to be submitted by today's final rule, OSHA
will be relying on the same type of information for targeting Federal
establishments as it currently uses to make such determinations in the
private sector.
OSHA also intends to incorporate the collected information into the
Secretary of Labor's Annual Report to the President on Federal Agency
Safety and Health. Section 19(a)(5) of the OSH Act and Executive Order
12196 require Federal agencies to make an annual report to the
Secretary on occupational accidents and injuries, as well as the
Federal agency's program for providing safe and healthful places and
conditions of employment. The OSH Act and Executive Order also direct
the Secretary to submit an annual summary report to the President on
the status of Federal agency occupational safety and health.
Historically, when preparing the report for the President, OSHA has
included information furnished by OWCP when compiling statistical data
concerning Federal agency injury and illness case rates and lost time
case rates. In the future, OSHA intends to use the occupational safety
and health related data collected from the submitted data when
preparing the annual report for the President.
3. Options for Submitting the Data
Under the final rule, Federal agencies will submit their injury and
illness data using BLS internet data collection facilities. At present,
Federal agencies have three options for submitting their OSHA injury
and illness recordkeeping information. First, Federal agencies may
submit their annual data securely through an internet system with
individual password protection, as about 80 percent of the private- and
governmental-establishments do today. Second, Federal agencies with
existing electronic recordkeeping data collection systems can be
provided with a file structure and file transfer protocol to allow them
to transmit all of their injury and illness information to BLS.
Finally, Federal agencies without existing electronic recordkeeping
systems may choose to receive a database structure from the Department
of Labor they can use to collect and track their OSHA recordable
injuries and illnesses. The current available database structure, known
as ECOMP, will require Federal agencies to electronically file their
OWCP CA-1 and CA-2 forms. In addition, it will allow Federal agencies
to generate their own injury and illness recordkeeping forms. Those
agencies may then use the BLS internet system or, like the second
option, use a file structure and file transfer protocol to
electronically transmit the data to BLS through ECOMP.
BLS collects injury and illness data from private sector employers
and state and local governments under a pledge of confidentiality in
accordance with Confidential Information Protection and Statistical
Efficiency Act of 2002 (CIPSEA), Title 5 of Public Law 107-347, and
other applicable Federal law. This pledge of confidentiality does not
extend to Federal agencies. BLS will electronically transfer Federal
agency data from the OSHA forms to OSHA annually, after the end of each
collection cycle.
OSHA intends to develop specific instructions and guidance for
Federal agencies, which will be issued annually through written
memoranda, on how to
submit the data to BLS using the available options. OSHA also intends
to develop and maintain a page on its Web site listing the options for
submitting the information, as well as specific instructions and
guidance included in the annual memorandum to Federal agencies. The
annual memorandum and Web page will also serve to notify Federal
agencies about the development of new technologies or options for
submitting injury and illness information.
VI. Identification and Listing of Federal Establishments
Section 1904.46 of OSHA's private sector recordkeeping regulation
includes a definition of the term "establishment." When the injury
and illness recordkeeping requirements for Federal agencies were
revised in November 2004, OSHA did not incorporate the Part 1904
definition of establishment. Instead, OSHA retained the definition of
establishment for Federal agencies in 29 CFR 1960.2(h).
The term "establishment" is defined at 29 CFR 1960.2(h) as "a
single physical location where business is conducted or where services
or operations are performed. Where distinctly separate activities are
performed at a single physical location, each activity is to be treated
as a separate establishment. Typically, the term establishment refers
to a field activity, regional office, area office, installation, or
facility."
Federal agencies are responsible for keeping a separate OSHA 300
Log (or equivalent), and preparing a single OSHA 300-A Annual Summary
for each establishment. (They are also required to keep case details on
the OSHA 301 form.) Establishment-specific records are a key component
of the recordkeeping system because each separate record represents the
injury and illness experience of a given location, and therefore
reflects the particular circumstances and hazards that led to the
injuries and illnesses at that workplace.
Since 2004, some uncertainty has developed concerning the
definition of establishment and its application to Federal agencies.
Federal agencies face unique challenges in determining whether specific
workplaces meet the definition of "establishment" in Sec. 1960.2(h).
For example, in some cases, a single Federal building may house several
different Federal agencies, which in turn may have several sub-
agencies, divisions or offices. Federal agencies may also establish
temporary or short-term offices or workplaces during a given year. In
addition, Federal employees may work at multiple locations, at a
regional or satellite office, or from home.
For Federal agency OSHA recordkeeping, major organizational units
with distinct lines of authority are considered separate
establishments. Each Federal department has an organizational structure
consisting of agencies, bureaus, or other components that come under
the line of authority of an Assistant Secretary, Under Secretary,
Assistant Administrator, or similar level. These agencies, bureaus or
components are considered major organizational units of a department.
The definition of establishment for Federal agencies at 29 CFR
1960.2(h) includes the phrase: "where distinctly separate activities
are performed at a single physical location." This definition means
that each major organizational unit, such as agencies, bureaus or
similar components within a Department, is considered an establishment,
even if they occupy the same building. For example, the OSHA, the
Employment and Training Administration and the Employee Benefits
Security Administration are all agencies within the Department of Labor
(DOL), and are housed in DOL's Frances Perkins Building. Even though
they occupy the same building, these agencies are considered separate
establishments for OSHA recordkeeping. This analysis would apply to
major organizational units within national, regional or area buildings.
On the other hand, lower organizational units or offices within an
agency or bureau located at the same physical location are not separate
establishments. For example, the Directorate of Enforcement Programs
and Office of Occupational Medicine are both OSHA units located in the
DOL Frances Perkins Building, but they are not major organizational
units, and therefore are not considered separate establishments.
Other individual Federal agency workplaces with separate physical
locations would also be considered separate establishments. For
example, OSHA has Regional and Area offices in cities throughout the
United States. Even though the Regional and Area offices are part of a
major organizational unit (i.e., OSHA), since these offices are at
separate locations, they would each be considered a separate
establishment. Likewise, Federal agencies with several physical
locations within the same city or geographic region are separate
establishments. For example, the Civil Rights Division within the U.S.
Department of Justice (DOJ) has offices in various buildings located
several miles apart in Washington, DC. Even though the offices are all
within the same agency (i.e., the Civil Rights Division of DOJ),
because they are at separate physical locations, they would be
considered separate establishments for OSHA recordkeeping purposes.
Section 1904.30 addresses the procedures to be followed when
recording injuries and illnesses occurring in separate establishments
operated by the same employer. Section 1904.30(a) states that employers
are required to keep separate OSHA 300 Logs for each establishment
expected to be in operation for one year or longer. Section
1904.30(b)(1) provides that for short-term establishments, i.e., those
that will exist for less than one year, employers are required to keep
injury and illness records, but are not required to keep separate OSHA
300 Logs. Instead, employers may keep one OSHA 300 Log covering all
short-term establishments, or they may include the short-term
establishment records in logs that cover individual company divisions
or geographic regions. Federal agencies have the same option when
recording injuries and illnesses at short-term establishments.
In some cases, Federal employees work at several different
locations, or do not work at any establishment. Section 1904.30(b)(3)
provides that each employee must be linked, for recordkeeping purposes,
to one of the employer's establishments. This means that all of the
employee's injuries or illnesses must be recorded on either his or her
home establishment's OSHA 300 Log, or on a general OSHA 300 Log for
short-term establishments. The provision ensures that all employees are
included in a Federal agency's records.
1. Federal Employees Visiting or Working at Other Federal
Establishments
Under Section 1904.30(b)(4), if an employee is injured or made ill
while visiting or working at another of the employer's establishments,
then the injury or illness must be recorded on the 300 Log of the
establishment where the injury or illness occurred. For the vast
majority of cases, the place where the injury or illness occurred is
the most useful recording location. (See 66 FR6037). The events or
exposures that caused the case are most likely to be present at that
location, so the data are most useful for analysis of that location's
records. If cases were always recorded at the employee's home base, the
injury or illness information would be disconnected from the place
where the event or exposure took place, and
where analysis of the data may help reveal a workplace hazard. Of
course, if the injury or illness occurs at another employer's
workplace, or while the employee is in transit, the case would be
recorded on the OSHA 300 Log of the employee's home establishment.
For Federal agency recordkeeping purposes, each Department or
Bureau is considered the Federal employee's employer, and injuries or
illnesses occurring at other Federal Department facilities would be
recorded on the employee's home establishment's OSHA 300 Log. For
example, if an employee of the Department of Labor is either visiting,
or working under the supervision of his or her own agency at a
Department of Justice facility, and is injured or made ill, the case
would be recorded on the employee's home DOL establishment OSHA 300
Log. Of course, as discussed above, if the DOL employee in this example
is being supervised by DOJ employees on a day-to-day basis, and is
injured or made ill, the case would be recorded on the DOJ's
establishment log.
Injuries and illnesses occurring at facilities operated by the same
Department would be recorded on the OSHA Log where the injury or
illness took place. For example, if an employee from DOL/OSHA were
either visiting or working at a DOL/Mine Safety and Health
Administration (MSHA) facility, and was injured or made ill, the case
would be recorded on the DOL/MSHA Log. Again, in this example, since
the Department of Labor is considered the OSHA employee's employer, the
case would be recorded on the log where the injury or illness took
place.
2. Federal Employees That Work From Home
When a Federal employee telecommutes, the employee's home is not a
separate establishment for recordkeeping purposes, and a separate OSHA
300 Log is not required. For these workers, the worker's establishment
is the office to which they report, receive direction or supervision,
collect pay, and otherwise stay in contact with their agency, and it is
at this establishment where the log is kept.
Agencies should keep in mind that injuries/illnesses that take
place while an employee is working from home are not automatically
presumed work-related. Work-relationship must be established by
demonstrating that the employee's work activity is a discernible cause
of the injury/illness.
Section 1904.5(b)(7) addresses the work-relatedness of injuries/
illnesses that take place at home. When an employee is working from
home on federal agency business, and reports an injury/illness to his
or her supervisor, and the employee's work activity caused or
contributed to the injury/illness, the case is considered work-related
and must be further evaluated to determine whether the case meets any
of the recording criteria (i.e., the injury resulted in medical
treatment, days away from work, work restrictions etc.). If the injury/
illness at home is related to non-work activities, or the general home
environment, the case is not work-related. See, the preamble to the
final rule revising OSHA's recordkeeping regulation 66 FR 5915 at 5962
for examples of injuries/illnesses at home that are work-related and
non-work-related.
3. Listing of Federal Establishments
In order to effectively target Federal workplaces for safety and
health inspection, OSHA needs to be able to identify, collect, and
track the injury and illness data from each Federal establishment.
Today's final rule adds a new basic program element at 29 CFR
1960.72(c) to require each Federal agency to provide OSHA with a
comprehensive listing of their establishments, as defined by 29 CFR
1960.2(h), by May 1, 2014. The list must include the department/agency
affiliation, a street address, city, state and zip code for each
establishment. Federal agencies are also responsible for updating the
list when they submit their annual report to the Secretary on
occupational safety and health.
The new basic program element at Sec. 1960.72(c) also requires
Federal agencies to provide the North American Industry Classification
System (NAICS) code for each of the establishments included on their
list. NAICS is the standard used by Federal statistical agencies in
classifying business establishments for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S. economy.
NAICS was developed under the auspices of the Office of Management and
Budget (OMB), and adopted in 1997 to replace the Standard Industrial
Classification (SIC) system. It was developed jointly by the United
States, Canada, and Mexico to allow for a high level of compatibility
in business statistics among the North American countries.
The NAICS information will be used by BLS to compile and analyze
injury and illness statistical information for the Federal sector. The
NAICS information is also important for OSHA and BLS when comparing
Federal agency injury and illness information with the private sector
or State and local government.
Federal agencies should determine NAICS codes based on the
activities in their given establishments. As noted in the NAICS Manual,
"In general, ownership is not a criterion for classification in NAICS.
Therefore, government establishments engaged in the production of
private-sector-like goods and services should be classified in the same
industry as private-sector-establishments engaged in similar
activities." The official 2012 NAICS Manual is available in print and
on CD-ROM from the National Technical Information Service (NTIS) at
(800) 553-6847, or through the NTIS Web site at http://www.ntis.gov.
VII. Uncompensated Volunteers and Federal Service
In general, Federal agencies are prohibited from accepting
uncompensated volunteer service. (See 31 U.S.C. 1342, Limitation on
Voluntary Services). However, some statutes authorize Federal agencies
to accept voluntary services during emergencies involving the
protection of human life or property (31 U.S.C. 1342); voluntary
services to assist disabled Federal employees in performing duties (5
U.S.C. 3102); voluntary services by experts and consultants; and
voluntary services by students to further their education (5 U.S.C.
3111). In addition, some Federal agencies, such as the National Park
Service and the Forest Service, have specific authorization to accept
unpaid services for specific jobs or functions. See Volunteers in the
Parks Act of 1969, 16 U.S.C. 18g-18i, and Volunteers in the National
Forest Program, 16 U.S.C. 558(a).
OSHA has long considered uncompensated volunteers conducting work
for Federal agencies to be covered by the Federal safety and health
program. The 1980 final rule which established the basic program
elements in 29 CFR 1960.2(g) provides: "The term 'employee' as used in
this part means any person, other than members of the Armed Forces,
employed or otherwise suffered, permitted, or required to work by an
'agency.' " The preamble to the final rule states that OSHA
purposefully used a broad definition of employee so that individuals
like volunteers would be protected under Federal agency safety and
health programs. The preamble also states that occupational safety and
health programs are designed to address hazardous working conditions
and that when individuals, such as volunteers, are conducting work
activities similar to those performed by other paid employees, they
should receive all the protections of the Federal safety and health
program. The
definition of "employee" established in the 1980 final rule remains
in the current basic program elements for Federal agency safety and
health programs set forth at 29 CFR 1960.2(g).
The original injury and illness recordkeeping system for the
Federal sector required civilian Executive Branch agencies to record
occupational injury and illness information only when such information
was also reported to the Office of Workers' Compensation Programs
(OWCP). As such, occupational injuries and illnesses were recordable
only if a medical expense was incurred or expected, or if the employee
was away from work or on leave without pay (LWOP) or continuation of
pay (COP) as a result of the injury or illness. Because the Federal
Employees' Compensation Act (FECA) as amended (5 U.S.C. 1801 et seq.)
generally covers uncompensated volunteers, occupational injury and
illness information for volunteers was recorded by Federal agencies
under the original FECA-based recordkeeping system in Part 1960.
Since publication of the revised Federal sector recordkeeping final
rule in November 2004, there has been some uncertainty as to whether
Federal agencies should record occupational injury and illness
information for volunteer workers. While OSHA has consistently
considered volunteers to be within the definition of employee for
purposes of 29 CFR Part 1960, the preamble to the private sector Part
1904 recordkeeping final rule issued in 2001 essentially states that
unpaid volunteers in the private sector are not covered. In 2004, when
OSHA adopted most of the provisions from the Part 1904 system to the
Federal sector, the Agency did not intend to exclude individuals
performing voluntary services for Federal agencies from the Part 1960,
Subpart I, recordkeeping system. As a result, OSHA wishes to make clear
that the injuries and illnesses of volunteers conducting work
activities for Federal agencies, including both unpaid workers and
those individuals receiving minimal compensation for services provided,
be recorded under the revised Federal sector recordkeeping system.
A number of Federal agencies use large numbers of both full and
part-time volunteers to perform various work activities. For example,
in Fiscal Year 2009, approximately 173,000 volunteers conducted
5,700,000 work hours for the National Park Service; 95,248 volunteers
conducted 3,014,820 work hours for the Forest Service; and 84,367
volunteers conducted 11,897,208 work hours for the Department of
Veterans Affairs. The estimates include unpaid volunteers, as well as
those individuals receiving minimal compensation, such as meals or
academic credit, for services provided.
In some cases, the work activities conducted by volunteers for
Federal agencies are similar to those conducted by full-time paid
Federal employees. Volunteers may also be working alongside full-time
Federal employees, and may be exposed to the same hazards in the
workplace. Depending on the number of volunteers working at a
particular Federal establishment, the recording of volunteer injury and
illness information may produce a more accurate picture of the
effectiveness of the establishment's occupational safety and health
program. This is of particular concern to OSHA since occupational
injury and illness information is used by safety and health personnel
and workers to recognize and eliminate hazards in the workplace.
One reason given as part of OSHA's rationale for amending the Part
1960 recordkeeping requirements in November 2004 was to resolve the
incompatibility of data that existed between the private sector and the
Federal sector. However, one essential difference still remains between
the two recordkeeping systems, specifically as it relates to the
treatment of injuries and illnesses to volunteers. As previously
discussed, the preamble to the January 2001 private sector Part 1904
recordkeeping final rule essentially states that the injuries and
illnesses of unpaid volunteers should not be recorded. In the Federal
sector, uncompensated volunteers are considered employees and,
therefore, subject to the Part 1904 recordkeeping requirements. In
order to allow for valid comparisons of injury and illness data between
the private and Federal sectors, it is necessary to be able to
segregate the recordable injuries to volunteers in the Federal sector
from those to paid Federal civilian workers and contractors who are
supervised on a day-to-day basis by Federal agency personnel. Section
1960.73(b) of today's final rule requires that Federal agencies
designate a "V" in front of the OPM job title series number when
recording the injuries and illnesses of uncompensated volunteers on the
OSHA Form 300 or equivalent. (See the discussion below regarding entry
of the OPM job series number in Column (c) of the OSHA log). Agencies
should use the OPM job series number that most closely relates to the
type of work being performed by the volunteer at the time of injury or
illness. Section 1960.73(c) of today's final rule also requires that
Federal agencies with recordable injuries and illnesses to volunteers
separately track the total number of hours worked by volunteers, and
report this information to OSHA with their annual recordkeeping data
submissions.
VIII. Federal Agency Employees That Supervise Workers
Section 1904.31 requires employers to record the recordable
injuries and illnesses of all their employees, whether classified as
labor, executive, hourly, salaried, part-time, seasonal, or migrant
workers. Employers are also required to record the recordable injuries
and illnesses of all employees they supervise on a day-to-day basis,
even if these workers are not carried on the employer's payroll. Day-
to-day supervision generally exists when the employer "supervises not
only the output, product, or result to be accomplished by the person's
work, but also the details, means, methods and processes by which the
work objective is accomplished." (See OSHA's January 15, 2004 letter
of interpretation to Leann M. Johnson-Koch:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24735).
The requirements in Sec. 1904.31 assign the responsibility for
recording and reporting to the employer with the greatest amount of
control over the working conditions that led to the injury or illness.
OSHA stated in the 2001 preamble to the final rule revising the Part
1904 regulation that the supervising employer is in the best position
to obtain the necessary injury and illness information due to its
control over the worksite and its familiarity with the work tasks and
the work environment. The employer with day-to-day supervision is also
in the best position to use the injury and illness data to learn about
and correct hazards in the workplace.
For the Federal sector, the requirements in Sec. 1904.31 mean that
Federal agencies are responsible for recording not only the recordable
injuries and illnesses of their own Federal employees, but also are
responsible for recording the recordable injuries and illnesses of all
workers they supervise on a day-to-day basis.
Federal agencies often use outside contractors to provide goods and
services, or employ temporary workers from private sector temporary or
leasing agencies. For purposes of recording the injuries and illnesses
of private sector workers, the key question for Federal agencies is
whether they supervise such workers on a day-to-day basis. When making
determinations as to whether to record the injuries and illnesses of
private sector workers, Federal agencies must use the criteria set
forth in Sec. 1904.31 concerning day-to-day supervision. Of course, if
a private contractor or temporary agency is conducting work at a
Federal establishment, and provides day-to-day supervision for its
employees, the contractor or temporary agency, not the Federal agency,
would be responsible for recording injuries and illnesses.
Federal agencies are also responsible for recording the recordable
injuries and illnesses of employees from other Federal agencies they
supervise on a day-to-day basis. For example, if a Federal employee
from the Department of Commerce is detailed to a Department of
Transportation (DOT) establishment, the DOT establishment would be
responsible for recording any recordable injury or illness if the
detailed employee is supervised by DOT personnel on a day-to-day basis.
On the other hand, if for example, a Federal employee from the
Department of Interior is working at a Department of Treasury
establishment, but is still being supervised on a day-to-day basis by
his or her home office, the Department of Interior would be responsible
for recording injuries and illnesses to their employee.
Because the basic program elements in Part 1960 apply to all
Federal establishments worldwide, Federal establishments located in
foreign countries are responsible for recording the injuries and
illnesses (and calculating the total number of hours worked) of all
workers they supervise on a day-to-day basis, even if such individuals
are foreign nationals. As with other workers not generally considered
"employees" for other purposes, the recording by overseas Federal
establishments of injuries and illnesses sustained by foreign nationals
they supervise on a day-to-day basis will provide useful information to
Federal agencies in their efforts to ensure a safe and healthy
workplace for all workers.
1. Recording Injuries and Illnesses of Federal Employees From the Same
Department or Bureau
In the private sector, Sec. 1904.30(b)(4) addresses the issue of
employees who report to one establishment but are injured or made ill
at other locations of the same company. Under such circumstances,
employers must record cases on the log at the location where the
employee became injured or ill. In OSHA's view, in the majority of
cases, the place where the injury or illness occurred is the most
useful recording location. The events or exposures that caused the case
are most likely to be present at that location, so the data are useful
for analysis in that location's records. If the case is recorded at the
employee's home establishment, the injury or illness data have been
disconnected from the place where the case occurred and, therefore, are
less likely to be used to identify and correct any hazard. Of course,
if an employee is working under the day-to-day supervision of his or
her own employer, and the injury or illness occurred at another
employer's establishment, or while the employee was in transit, the
case would be recorded on the log of the employee's home establishment.
For purposes of Section 1904.30, the Department or Bureau is
considered the employer of a Federal employee. As such, the Federal
establishment where the injury or illness took place is responsible for
recording the case on its log when the incident involves a Federal
employee from the same Department or Bureau. For example, if an
employee from the Department of Labor's OSHA is conducting a safety and
health inspection at a Department of Labor Mine Safety and Health
Administration (MSHA) establishment, and sustains an injury or illness,
the case would be recorded on the log of the MSHA establishment. Under
1904.30(b)(4), even though the OSHA employee is under the day-to-day
supervision of his or her own OSHA establishment, because the employee
was injured or made ill at an establishment operated by the same
employer, the injury or illness would be recorded on the MSHA log.
IX. Other Issues Addressed by Today's Final Rule
1. Job Title on the OSHA Form 300
As noted elsewhere in today's preamble, Federal agencies are
required to record each recordable injury and illness on the OSHA 300
Log or equivalent. Column (c) of the OSHA 300 Log asks for the "job
title" of the injured or ill employee.
When filling out the OSHA 300 Log or equivalent, Sec. 1960.73(a)
requires Federal agencies to enter all four digits of the employee's
job series number in Column (c). For example, agencies should enter
"4607 Carpenter" or "0334 Computer Specialist." Recording the job
series number on the OSHA 300 Form will help identify occupations
across the Federal sector that are experiencing higher injury and
illness rates, and allow Federal agencies and OSHA to focus safety and
health training on these occupations. When entering the information in
Column (c) for private sector contractors they supervise on a daily
basis, Federal agencies should enter the four digit job series number
that best reflects the tasks undertaken by that employee.
2. Certification of the OSHA 300-A Annual Summary
Section 1904.32(a) of OSHA's private sector recordkeeping
regulation requires employers to review their OSHA 300 Log for
completeness and accuracy, and prepare an Annual Summary of the OSHA
300 Log using the OSHA Form 300-A, or an equivalent form. The summary
must be certified for accuracy and completeness and posted in the
workplace by February 1 of the year following the year covered by the
summary. Section 1904.32(b)(3) provides that a company executive must
certify that he or she examined the OSHA 300 Log and that he or she
reasonably believes, based on his or her knowledge of the process by
which the information was recorded, that the annual summary is correct
and complete.
For Federal agencies, the basic program element at Sec. 1960.67
provides that the person who performs the certification shall be one of
the following: (1) The senior management establishment official; (2)
the head of the agency for which the senior management official works;
or (3) any management official who is in the direct chain of command
between the senior establishment management official and the head of
the Agency. The note following the basic program element at 1960.67
makes clear that the requirement for certification of Federal agency
injury and illness records is necessary because the private sector
position titles in 29 CFR part 1904 do not correspond with Federal
agency position titles for agency executives. In the preamble to the
2004 final rule revising the Federal agency recordkeeping system, OSHA
stated that the certifying official is responsible for ensuring that
systems and processes are in place, and for holding the recordkeeper
accountable, (See 69 FR 68797). This official must certify that he or
she has examined the document and reasonably believes, based on his or
her knowledge of the process by which the information was recorded,
that the annual summary is accurate and complete.
Since 2004, some Federal agencies have had questions about which
official is responsible for certifying the Annual Summary. Under the
basic program element at 1960.67, the senior management official at the
Federal establishment, such as an Area Office
Director, would have the authority to certify the summary. Also, the
head of the Federal agency, such as the Assistant Secretary or Under
Secretary, can certify the summary. Finally, any management official,
such as a Regional Administrator, who is in the direct chain of command
between the senior establishment official and the head of the Agency,
can certify the summary.
It is important to note that while Federal agencies have several
options concerning which official can certify the Annual Summary, the
individual must still reasonably believe, based on his or her knowledge
of the process by which the information in the Log was reported and
recorded, that the Log and Summary are "true" and "complete."
Having a reasonable belief that the records are complete and accurate
would suggest, at a minimum, that the certifying official is familiar
with OSHA's recordkeeping requirements, and the Federal agency's
recordkeeping practices and policies, has read the Log and Summary, and
has obtained assurance from the staff responsible for maintaining the
records that all of OSHA's requirements have been met and all practices
and policies followed. In most cases, the certifying official will be
familiar with the details of some of the injuries and illnesses that
have occurred at the establishment and will, therefore, be able to spot
check the 300 Log to see if those cases have been entered correctly.
3. The Date for Submitting Annual Reports on Federal Agency Safety and
Health
Section 19(a)(5) of the OSH Act and Section 1-201(l) of Executive
Order 12196 require all Federal agencies to submit to the Secretary of
Labor an annual report on their agency's occupational safety and health
program. The existing basic program element at Sec. 1960.71(a)
requires each Federal agency to submit their report by January 1 of
each year, and include a description of the agency's occupational
safety and health program for the previous fiscal year, objectives for
the current fiscal year, and a summary of the agency's self-evaluation
of the effectiveness of their safety and health program. The basic
program element also states that the Secretary provide the agencies
with the guidelines and format for the reports.
Section 1960.71(b) provides that the Secretary must submit to the
President an annual summary report on the status of Federal employee
occupational safety and health. The report to the President, which is
developed by OSHA's Office of Federal Agency Programs, is partially
based on the information submitted by Federal agencies in their annual
reports. The basic program element also requires the Secretary to
submit the annual report to the President by October 1 of each year.
When OSHA revised the Federal agency occupational injury and
illness recordkeeping requirements in November 2004, it established a
system based on the private sector requirements in Part 1904, which
requires the recording of injuries and illnesses and the maintenance of
records on a calendar year basis. Accordingly, in order for Federal
agencies to evaluate and submit injury and illness data from the entire
calendar year, it is necessary to revise the date when Federal agencies
must submit their annual report.
Today's final rule amends the basic program element at 29 CFR
1960.71(a)(1), by revising the date when Federal agencies must submit
their annual report to the Secretary from January 1 to May 1. This
change is consistent with the timeline established for maintaining
records in the Part 1904 recordkeeping system, and will allow Federal
agencies to incorporate calendar year injury and illness information
into their annual reports. Today's final rule also amends the basic
program element at 29 CFR 1960.71(b) which establishes the date by
which OSHA must submit the Secretary of Labor's Report to the President
on Federal Department and Agency Safety and Health Program Activity.
Section 1960.71(b) is amended to require this report be submitted to
the President by January 1, or three months later than the previous due
date of October 1, while relying on fiscal year data.
4. Subparts A and B of Part 1904 Are Not Applicable to Federal Agencies
The November 2004 final rule revising the reporting and recording
requirements for Federal agencies incorporated most of the provisions
from the OSHA private sector recordkeeping regulation at 29 CFR Part
1904. The basic program element at Sec. 1960.66(b) provides: "Except
as modified by this subpart, Federal agency injury and illness
recording and reporting requirements will be the same as 29 CFR Part
1904 subparts C, D, E, and G".
OSHA did not incorporate Subpart A, Purpose, from the Part 1904
regulation because the basic program element at 29 CFR 1960.66(a).
already includes a "Purpose, scope, and general provisions" section
applicable to Federal agency recordkeeping. Also, Subpart B, Scope, to
Part 1904, which includes Section 1904.1, partial exemption for
employees with fewer than 10 employees; Sec. 1904.2, partial exemption
for establishments in certain industries; and Sec. 1904.3, keeping
records for more than one agency, is not applicable to Federal agency
recordkeeping. Accordingly, the recordkeeping requirements for Federal
agencies set forth at 29 CFR part 1960, Subpart I, are applicable to
all Federal establishments, including those that employ fewer than ten
employees, and those which conduct work activities considered to be in
a partially exempt industry.
5. United States Postal Service
The basic program element at 29 CFR 1960.2(b) provides, in part,
that the term "agency" means: "an Executive Department, as defined
in 5 U.S.C. 101 or any employing unit or authority of the Executive
Branch of the Government." Section 1960.2(b) also states that the term
"agency" includes the United States Postal Service (USPS).
In 1998, the Postal Employee Safety Enhancement Act, Public Law
105-241, made the OSH Act applicable to USPS. Under this legislation,
the OSH Act applies to USPS in the same manner as to a private sector
employer. For purposes of Section 19 of the OSH Act, Executive Order
12196 and the Basic Program Elements at 29 CFR Part 1960, the
definition of "agency" does not include USPS. This means that USPS is
subject to enforcement and penalty provisions of the OSHA Act similar
to private employers. Today's final rule revises the basic program
element at 29 CFR 1960.2(b) to make clear that the definition of
"agency" does not include USPS.
6. Federal Agency Abatement Verification
Under the OSH Act, OSHA inspects workplaces to determine whether
employers are complying with OSHA standards and other statutory and
regulatory requirements. In addition, OSHA inspections are conducted to
ensure that the hazards are abated. The citation references the alleged
violation, notes the proposed penalty, and indicates the date by which
the violation is to be abated. Abatement means action by an employer to
comply with a cited standard or regulation or to eliminate a recognized
hazard identified by OSHA during an inspection.
Employers are required to verify in writing that they have abated
cited conditions, in accordance with 29 CFR 1903.19. Section 1903.19(a)
provides that the scope of the regulation applies to "employers" who
receive a citation for a violation of the OSH Act.
The Federal agency equivalent of a "citation" is the Notice of
Unsafe or Unhealthful Working Conditions (OSHA Notice). The basic
program element at Sec. 1960.30 addresses the abatement of unsafe or
unhealthful working conditions. Among other things, the basic program
element provides that when an OSHA Notice is issued, abatement must be
within the time set forth in the Notice, or in accordance with an
established abatement plan.
The basic program elements do not include procedures for abatement
verification when a Federal agency receives an OSHA Notice. In the
past, OSHA's written policy has been for Federal agencies to follow the
abatement verification procedures for the private sector, (See OSHA
Instruction CPL 02-00-150-Field Operations Manual, Chapter 13, Federal
Agency Field Activities). Today's final rule clarifies that the
abatement verification procedures in 29 CFR 1903.19 are generally
applicable to Federal agencies.
OSHA notes that several of the provisions in Sec. 1903.19 make
reference to abatement verification procedures that are only applicable
to private sector employers. For example, Sec. 1903.19(b)(2)(ii),
addresses abatement dates for contested citation items for which the
Occupational Safety and Health Review Commission (Commission), has
issued a final order affirming a violation. Because Federal agencies do
not receive citations, and are not able to contest OSHA Notices before
the Commission, Sec. 1903.19(b)(2)(ii) would not be applicable to
Federal agencies.
Other provisions in Sec. 1903.19 are general and address the
procedures used by OSHA to ensure abatement. Specifically, paragraphs
(c) through (i) in Sec. 1903.19 include private sector abatement
verification provisions that are applicable to Federal agencies. When
evaluating the procedures in paragraphs (c) through (i), Federal
agencies should substitute the word "employer" with "Federal
agency," and "citation" with "OSHA Notice."
Today's final rule amends the basic program element at 29 CFR
1960.30 by adding paragraph (f) and makes clear that the abatement
verification procedures in Sec. 1903.19 are generally applicable to
Federal agencies.
7. Access to Medical Records
In the November 26, 2004 final rule revising Federal agency
occupational injury and illness recordkeeping requirements, OSHA
inadvertently deleted Sec. 1960.66(f). This section provided that
retention and access to employee records must be in accordance with
OSHA's regulation at 29 CFR 1910.1020, Access to employee exposure and
medical records. Today's final rule reestablishes the former basic
program element at 29 CFR 1960.66(f). The revised basic program element
states: "Retention and access of employee exposure and medical records
shall be in accordance with 29 CFR 1910.1020."
8. Financial Management
Section 1960.7(a) requires the head of each Federal agency to
ensure that the agency budget submission includes appropriate financial
and other resources to effectively implement and administer the
agency's occupational safety and health program. Section 1960.7(b),
provides that the Designated Safety and Health Official, management
officials in charge of each establishment, safety and health officials
at all appropriate levels, and other management officials are
responsible for planning, requesting resources, implementing, and
evaluating the occupational safety and health program budget in
accordance with the regulations of the Office of Management and Budget
Circular A-11 (sections 13.2(f) and 13.5(f)), and other relevant
documents.
The two sections referenced in 29 CFR 1960.7(b) are from the 1981
version of OMB Circular A-11. Section 13.2(f) states: "Agencies will
assure that estimates reflect full consideration of the
administration's goals and responsibilities to provide safe and
healthful work places for Federal employees in accordance with the
provisions of Executive Order No. 12196 and the related Safety and
Health Provisions for Federal Employees of the Secretary of Labor, (CFR
Title 29, Chapter XVII, Part 1960)."
Section 13.5(f) states: "Estimates for the design and construction
of Federal facilities and buildings, and for the purchase of equipment,
will include amounts required to insure safe and healthful workplaces
for Federal employees consistent with the standards promulgated under
section 19 of the Occupational Safety and Health Act of 1970. Agencies
will assure that estimates for capital improvement will reflect full
consideration of the expense of insuring that existing facilities
provide safe and healthful places and conditions of employment
consistent with these standards."
Over the years, OMB Circular A-11 has been revised several times.
The revisions have resulted in the deletion of Section 13.5(f) and the
transfer of some language from Section 13.2(f) to Section 33.1. In
order to reduce confusion, and with the realization that the Circular
may be revised in the future, OSHA has decided to delete the reference
to OMB Circular A-11 in 29 CFR 1960.7(b). OSHA believes that Federal
agencies should review and comply with all relevant OMB regulations and
documents when evaluating their occupational safety and health budget.
X. The Current Rulemaking
The Federal Advisory Council on Occupational Safety and Health
(FACOSH) was established by Executive Order 11612 to advise the
Secretary of Labor on matters relating to the occupational safety and
health of Federal employees.
During its March 11, 2007 meeting, FACOSH voted to establish a
subcommittee to determine how best to collect Federal employee injury
and illness recordkeeping information. The subcommittee held three
meetings on May 31, June 14, and July 31, 2007, to discuss proposed
changes to the Federal agency recordkeeping requirements in 29 CFR Part
1960, Subpart I.
The subcommittee was comprised of six voting members, with equal
representation from management and labor. The six voting members
included representatives from the Department of Defense, Department of
Homeland Security, National Aeronautics and Space Administration,
Seafarers International Union, American Federation of Government
Employees, and American Postal Service Union. In addition, there were
several representatives from various Federal agencies who actively
participated in the meeting discussions, and offered special technical
expertise and perspective, including representatives from the
Department of Labor (including BLS), Transportation Safety
Administration, NIOSH, and the Smithsonian Institution.
Participants at the subcommittee meetings supported OSHA's
collection of injury and illness records from Federal agencies;
encouraged OSHA to develop a variety of options for collecting the
data; and recommended that OSHA provide a mechanism for agencies to
analyze their injury and illness data. The subcommittee also encouraged
OSHA to publicize their intentions and to assist agencies who could not
currently aggregate their own data. The subcommittee recommendations
were presented to the full Council during an October 11, 2007 FACOSH
meeting.
OSHA responded to the FACOSH recommendations by writing to Federal
agencies, advising them of the database project, and soliciting a list
of Federal agency establishments. OSHA has developed three options for
agencies to submit their injury and illness data, with one option
offering real-time data entry and analysis capability.
XI. Administrative Procedure Act
This rule relates to matters of Federal agency management and
personnel and, therefore, is exempt from the usual Administrative
Procedure Act requirements for prior notice and comment and a 30-day
delay in effective date, (See 5 U.S.C. 553(a)(2) and (d)).
The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) does not apply
because this rulemaking, which applies only to Federal agencies, does
not create or modify information collection requirements that require
the approval of the Office of Management and Budget. Additionally, the
Department of Labor has determined that this rulemaking is a nonmajor
rule under the Congressional Review Act (5 U.S.C. Chapter 8), and will
submit a report thereon to the U.S. Senate, House of Representatives,
and General Accounting Office in accordance with that law at the same
time this rulemaking document is sent to the Office of the Federal
Register for publication.
Because this rulemaking applies only to Federal agencies, the
Department of Labor certifies pursuant to the Regulatory Flexibility
Act, (5 U.S.C. 605(b)) that this final rule will not have a significant
impact on a substantial number of small entities. Similarly, the
requirements of the Unfunded Mandates Reform Act of 1995 and Executive
Order 13132 addressing "Federalism" do not apply. The Department of
Labor has also determined that this is not a "significant regulatory
action" under Section 3(f) of Executive Order 12866, "Regulatory
Planning and Review," and that it relates to a matter of agency
organization, management, or personnel. See Executive Order 12866;
Section 3(d)(3).
XII. Summary and Explanation of the Final Rule, 29 CFR Part 1960.66(b)
As described below.
List of Subjects in 29 CFR Part 1960
Government employees, Occupational safety and health, Reporting and
recordkeeping requirements.
Authority and Signature
This document was prepared under the direction of David Michaels,
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor. 200 Constitution Avenue NW.,
Washington, DC 20210. Accordingly, pursuant to sections 19 and 24 of
the Occupational Safety and Health Act of 1970 (84 Stat. 1609, 1614; 29
U.S.C. 668, 673), 5 U.S.C. 553, Secretary of Labor's Order No. 1-2012
(77 FR 3912) and Executive Order 12196, the Department amends 29 CFR
part 1960 as set forth below.
Signed at Washington, DC, on July 26, 2013.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble, 29 CFR Part 1960 is amended
to read as follows:
PART 1960--BASIC PROGRAM ELEMENTS FOR FEDERAL EMPLOYEE OCCUPATIONAL
SAFETY AND HEALTH PROGRAMS AND OTHER RELATED MATTERS
0
1. The authority citation for Part 1960 continues to read as follows:
Authority: Sections 19 and 24 of the Occupational Safety and
Health Act of 1970 (84 Stat. 1609, 1614; 29 U.S.C. 668, 673, 5
U.S.C. 553, Secretary of Labor's Order No. 1-90 (55 FR 9033), and
Executive Order 12196.
0
2. Amend Sec. 1960.2 by revising paragraph (b) to read as follows:
Sec. 1960.2 Definitions.
* * * * *
(b) The term agency for the purposes of this part means an
Executive Department, as defined in 5 U.S.C. 101, or any employing unit
of authority of the Executive Branch of the Government. For the
purposes of this part to the extent it implements section 19 of the
Act, the term agency does not include the United States Postal Service.
By agreement between the Secretary of Labor and the head of an agency
of the Legislative or Judicial Branches of the Government, these
regulations may be applicable to such agencies.
* * * * *
0
3. Amend Sec. 1960.7 by revising paragraph (b) to read as follows:
Sec. 1960.7 Financial management.
* * * * *
(b) The Designated Agency Safety and Health Official, management
officials in charge of each establishment, safety and health officials
at all appropriate levels, and other management officials shall be
responsible for planning, requesting resources, implementing, and
evaluating the occupational safety and health program budget in
accordance with all relevant Office of Management and Budget
regulations and documents.
* * * * *
0
4. Amend Sec. 1960.30 by adding paragraph (f) to read as follows:
Sec. 1960.30 Abatement of unsafe or unhealthful working conditions.
* * * * *
(f) The procedures OSHA will use to verify Federal agency abatement
are included in the private sector guidelines at 29 CFR 1903.19.
* * * * *
0
5. Amend Sec. 1960.66 by adding paragraph (f) to read as follows:
Sec. 1960.66 Purpose, scope and general provisions.
* * * * *
(f) Retention and access of employee exposure and medical records
shall be in accordance with 29 CFR 1910.1020.
* * * * *
0
6. Amend Sec. 1960.71 by revising paragraphs (a)(1) and (b) to read as
follows:
Sec. 1960.71 Agency annual reports.
(a)* * *
(1) Each agency must submit to the Secretary by May 1 of each year
a report describing the agency's occupational safety and health program
of the previous calendar year and objectives for the current fiscal
year. The report shall include a summary of the agency's self-
evaluation finding as required by Sec. 1960.78(b).
* * * * *
(b) The Secretary will submit to the President by January 1 of each
year a summary report of the status of the occupational safety and
health of Federal employees based on agency reports, evaluations of
individual agency progress and problems in correcting unsafe or
unhealthful working conditions, and recommendations for improving their
performance.
0
7. Add new Sec. 1960.72 to read as follows:
Sec. 1960.72 Reporting Federal Agency Injury and Illness Information.
(a) Each agency must submit to the Secretary by May 1 of each year
all information included on the agency's previous calendar year's
occupational injury and illness recordkeeping forms. The information
submitted must include all data entered on the OSHA Form 300, Log of
Work-Related Injuries and Illnesses (or equivalent); OSHA Form 301,
Injury and Illness Incident Report (or equivalent); and OSHA Form 300A,
Summary of Work-Related Injuries and Illnesses (or equivalent).
(b) The Secretary must provide each agency by January 15 of each
year with the format and guidelines for electronically submitting the
agency's occupational injury and illness recordkeeping information.
(c) Each agency must submit to the Secretary by May 1, 2014, a list
of all establishments. The list must include information about the
department/agency affiliation, NAICS code, a street address, city,
state and zip code. Federal agencies are also responsible for updating
their list of establishments by May 1 of each year when they submit the
annual report to the Secretary required by Sec. 1960.71(a)(1).
* * * * *
0
8. Add new Sec. 1960.73 to read as follows:
Sec. 1960.73 Federal agency injury and illness recordkeeping forms.
(a) When filling out the OSHA Form 300 or equivalent, each agency
must enter the employee's OPM job series number and job title in Column
(c).
(b) When recording the injuries and illnesses of uncompensated
volunteers, each agency must enter a "V" before the OPM job series
number in Column (c) of the OSH Form 300 log or equivalent.
(c) Each agency must calculate the total number of hours worked by
uncompensated volunteers.
[FR Doc. 2013-18457 Filed 8-2-13; 8:45 am]
BILLING CODE 4510-26-P
