[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)][Proposed Rules][Pages 47605-47610]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19083]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904 and 1952
[Docket No. OSHA-2013-0023]
RIN 1218-AC49
Improve Tracking of Workplace Injuries and Illnesses
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: On November 08, 2013, OSHA published a notice of proposed
rulemaking to amend the agency's regulation on the annual OSHA injury
and illness reporting requirements to add three new electronic
reporting obligations. At a public meeting on the proposal, many
stakeholders expressed concern that the proposal could motivate
employers to under-record their employees' injuries and illnesses. They
expressed concern that the proposal could promote an increase in
workplace policies and procedures that deter or discourage employees
from reporting work related injuries and illnesses. These include
adopting unreasonable requirements for reporting injuries and illnesses
and retaliating against employees who report injuries and illnesses. In
order to protect the integrity of the injury and illness data, OSHA is
considering adding provisions that will make it a violation for an
employer to discourage employee reporting in these ways. To facilitate
further evaluation of this issue, OSHA is extending the comment period
for 60 days for public comment on this issue. In promulgating a final
rule, OSHA will consider the comments already received as well as the
information it receives in response to this notice.
DATES: The comment period for the proposed rule published November 8,
2013 (78 FR 67254) is extended. Comments must be submitted by October
14, 2014.
ADDRESSES:
Electronically: You may submit comments electronically at
http://www.regulations.gov, which is the federal e-rulemaking portal.
Follow the instructions on the Web site for making electronic submissions;
Fax: If your submission, including attachments, does not exceed 10
pages, you may fax it to the OSHA docket office at (202) 693-1648;
Mail, Hand Delivery, Express Mail, Messenger, or Courier Service:
You may submit your comments and attachments to the OSHA Docket Office,
Docket Number OSHA-2013-0023, U.S. Department of Labor, Room N-2625,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand, express
mail, messenger, and courier service) are accepted during the
Department of Labor's and docket office's normal business hours, 8:15
a.m.-4:45 p.m.
Instructions for Submitting Comments: All submissions must include
the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218-
AC49) for this rulemaking. Because of security-related procedures,
submission by regular mail may result in significant delay. Please
contact the OSHA docket office for information about security
procedures for making submissions by hand delivery, express delivery,
and messenger or courier service.
All comments, including any personal information you provide, are
placed in the public docket without change and may be made available
online at http://www.regulations.gov. Therefore, OSHA cautions you
about submitting personal information such as Social Security numbers
and birthdates.
Docket: To read or download submissions in response to this Federal
Register document, go to docket number OSHA-2013-0023, at
http://regulations.gov. All submissions are listed in the
http://regulations.gov index. However, some information (e.g., copyrighted
material) is not publicly available to read or download through that
Web site. All submissions, including copyrighted material, are
available for inspection and copying at the OSHA docket office.
Electronic copies of this Federal Register document are available
at http://www.regulations.gov. This document, as well as news releases
and other relevant information, is available at OSHA's Web site at
http://www.osha.gov.
FOR FURTHER INFORMATION, CONTACT: For press inquiries: Frank Meilinger,
OSHA Office of Communications, Room N-3647, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email: meilinger.francis2@dol.gov.
For general and technical information on the proposed rule: Miriam
Schoenbaum, OSHA Office of Statistical Analysis, Room N-3507, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210;
telephone (202) 693-1841; email: schoenbaum.miriam@dol.gov.
SUPPLEMENTARY INFORMATION: By notice published November 08, 2013, OSHA
proposed to amend its recordkeeping regulations to add requirements for
the electronic submission of injury and illness information that
employers are already required to keep. (78 FR 67254). The proposal
would require certain establishments that are already required to keep
injury and illness records under OSHA's regulations for recording and
reporting occupational injuries and illnesses to electronically submit
information from these records to OSHA. OSHA plans to post the
establishment-specific injury and illness data on its Web site.
On January 09-10, 2014, OSHA held a public meeting on the proposal.
A prevalent concern expressed by many meeting participants was that the
proposal might create motivations for employers to under-record
injuries and illnesses, since each covered establishment's injury and
illness data would become publically available on OSHA's Web site. Some
participants also commented that some employers already discourage
employees from making injury and illness reports by disciplining or
taking other adverse action against employees who file injury and
illness reports. These participants expressed concern that the
increased visibility of establishment injury and illness data under the
proposal would lead to an increase in the number of employers who adopt
practices that have the effect of discouraging employees from reporting
recordable injuries and illnesses. OSHA is concerned that the accuracy
of the data collected under the new proposal could be compromised if
employers adopt these practices. In addition, OSHA wants to ensure that
employers, employees, and the public have access to the most accurate
data about injuries and illnesses in their workplaces so that they can
take the most appropriate steps to protect worker safety and health.
Therefore, the Agency is seeking comment on whether to amend the
proposed rule to (1) require that employers inform their employees of
their right to report injuries and illnesses; (2) require that any
injury and illness reporting requirements established by the employer
be reasonable and not unduly burdensome; and (3) prohibit employers
from taking adverse action against employees for reporting injuries and
illnesses.
OSHA is particularly interested in the answers to the following
questions:
(1) What are the costs and benefits of OSHA using this rulemaking
to address the issue of employers who discourage employees from
reporting injuries and illnesses?
(2) Are the cost estimates in this document accurate?
(3) What other actions can OSHA take to address the issue of
employers who discourage employees from reporting injuries and
illnesses?
(4) How should OSHA clarify the requirement that injury and illness
reporting requirements established by the employer are reasonable and
not unduly burdensome?
I. Legal Authority
OSHA is issuing this proposal pursuant to authority expressly
granted by sections 8 and 24 of the Occupational Safety and Health Act
(the "OSH Act" or "Act") (29 U.S.C. 657, 673). Section 8(c)(2) of
the Act directs the Secretary to prescribe regulations "requiring
employers to maintain accurate records of . . . work-related deaths,
injuries and illnesses," (29 U.S.C. 657(c)(2)), and section 8(g)(2)
broadly empowers the Secretary to "prescribe such rules and
regulations as he may deem necessary to carry out [his]
responsibilities under this Act" (29 U.S.C. 657(g)(2)). Similarly,
section 24 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 which shall include all
disabling, serious, or significant injuries and illnesses . . ." (29
U.S.C. 673(a)).
Rules that prohibit employers from discouraging employee reports of
injury and illness fit comfortably within these various statutory
grants of authority. If employers may not discipline or take adverse
action against workers for reporting injuries and illnesses, workers
will feel less hesitant to report their injuries and illnesses, and
their employers' records and reports will be more "accurate", as
required by sections 8 and 24 of the Act. Further, given testimony that
some employers already engage in such practices, and the possibility
that the proposed rule could provide additional motivation for
employers to do so, prohibiting employers from taking adverse actions
against their employees for reporting injuries and illnesses in this
rulemaking is "necessary to carry out" the recordkeeping requirements of
the Act. (See 29 U.S.C. 657(g)(2).).
Section 11(c) of the Act prohibits any person from discharging or
discriminating against any employee because that employee has exercised
any right under the Act. (29 U.S.C. 660(c)(1).) Under this provision,
an employee who believes he or she has been discriminated against may
file a complaint with OSHA, and if, after investigation, the Secretary
determines that Section 11(c) has been violated, then the Secretary can
file suit against the employer in U.S. District Court seeking "all
appropriate relief" including reinstatement and back pay. (29 U.S.C.
660(c)(2).) Taking adverse action against an employee who reports a
fatality, injury, or illness is a violation of 11(c), (see 29 CFR
1904.36); therefore, much of the primary conduct that would be
prohibited by the new provision is likely already proscribed by 11(c).
The advantage of this provision is that it would provide OSHA with
additional enforcement tools to promote the accuracy and integrity of
the injury and illness records employers are required to keep under
Part 1904. For example, under 11(c), OSHA may not act against an
employer unless an employee files a complaint. Under the additions to
the proposed rule under consideration, OSHA would be able to cite an
employer for taking adverse action against an employee for reporting an
injury or illness, even if the employee did not file a complaint.
Moreover, an abatement order can be a more efficient tool to correct
employer policies and practices than the injunctions authorized under
11(c).
The fact that Section 11(c) already provides a remedy for
retaliation does not preclude the Secretary from implementing
alternative remedies under the OSH Act. Where retaliation threatens to
undermine a program that Congress required the Secretary to adopt, the
Secretary may proscribe that retaliation through a regulatory provision
unrelated to 11(c). For example, under the medical removal protection
(MRP) provision of the lead standard, employers are required to pay the
salaries of workers who cannot work due to high blood lead levels. 29
CFR 1910.1025(k); see United Steelworkers, AFL-CIO v. Marshall, 647
F.2d 1189, 1238 (D.C. Cir. 1980). And it is well established that OSHRC
may order employers to pay back pay as abatement for violations of the
MRP requirements. See United Steelworkers, AFL-CIO v. St. Joe
Resources, 916 F.2d 294, 299 (5th Cir. 1990); Dole v. East Penn
Manufacturing Co., 894 F.2d 640, 646 (3d Cir. 1990). If the reason that
an employer decided not to pay MRP benefits was to retaliate for an
employee's exercise of some right under the Act, OSHA can still cite
the employer and seek the benefits as abatement, because payment of the
benefits is important to vindicate the health interests underlying MRP.
The mere fact that that the employer might have a retaliatory motive
does not require that OSHA treat the matter as an 11(c) case. See St.
Joe Resources, 916 F.2d at 298 (stating that that 11(c) was not an
exclusive remedy, because otherwise the remedial purposes of MRP would
be undermined). This would also be the case here. If employers reduce
the accuracy of their injury and illness records by retaliating against
employees who report an injury or illness, then OSHA may use its
authority to collect accurate injury and illness records to proscribe
such conduct even if the conduct would also be covered by 11(c).
II. Questions for Comment and Provisions under Consideration
In light of the comments and the testimony at the public meeting,
OSHA is concerned that, in at least some workplaces, injury reporting
may be inaccurate because employers adopt practices or policies that
discourage employees from reporting their injuries. OSHA seeks any
information stakeholders might have about such practices and policies,
and their effect on injury and illness records, including answers to
the following questions:
1. Are you aware of situations where employers have discouraged the
reporting of injuries and illnesses? If so, describe any techniques,
practices, or procedures used by employers that you are aware of. If
such techniques, practices, or procedures are in writing, please
provide a copy.
2. Will the fact that employer injury and illness statistics will
be publically available on the internet cause some employers to
discourage their employees from reporting injuries and illnesses? Why
or why not? If so, what practices or policies do you expect such
employers to adopt?
3. Are you aware of any studies or reports on practices that
discourage injury and illness reporting? If so, please provide them.
Under 29 CFR 1904.35(a)(1) and (b)(1), employers are already
required to set up a way for employees to report work-related injuries
and illnesses to the employer promptly and to inform each employee how
to report work-related injuries and illnesses to the employer. OSHA is
considering adding three provisions to this section: (1) A requirement
that employers inform their employees of their right to report injuries
and illnesses free from discrimination or retaliation; (2) a provision
requiring that any injury and illness reporting requirements
established by the employer be reasonable and not unduly burdensome;
and (3) a prohibition against disciplining employees for reporting
injuries and illnesses. Each of these three provisions under
consideration is discussed below. OSHA seeks comment information, data,
and studies that shed light on the appropriateness of each provision as
a way to improve the accuracy of injury and illness records by
prohibiting employers from taking adverse actions against employees for
reporting injuries and illnesses. OSHA also seeks comment on ways to
improve each of the three possible provisions discussed below, as well
as any additional information on employer practices that may discourage
employees from reporting injuries or and illnesses. Requiring employers
to inform their employees that the employees have a right to report
injuries and illnesses. Several participants at the public meeting
described situations where workers did not report injuries or illnesses
for fear of retaliation from their employers. (Day 1 Tr. 200, 203; Day
2 Tr. 124-25.) If employees do not know that the OSH Act protects their
right to report an injury or illness, they might be less likely to
report an injury or illness to their employer. OSHA is therefore
considering amending 29 CFR 1904.35 to require employers to inform each
employee that employees have a right to report injuries and illnesses,
and that it is unlawful for an employer to take adverse action against
an employee for reporting an injury or illness. This requirement would
have the additional benefit of reminding the employer that such adverse
actions are illegal, which should also reduce the incidence of such
retaliation. OSHA seeks comment on this provision, including answers to
the following questions:
4. Do you or does your employer currently inform employees of their
right to report injuries and illnesses? If so, please describe how and
when this information is provided.
5. Are there any difficulties or barriers an employer might face in
trying to provide such information to its employees? If so, please
describe them.
6. How might an employer best provide this information: orally to
the employee, through a written notice, posting, or in some other
manner?
Requiring the injury and illness reporting procedures established
by the employer under 29 CFR 1904.35(a)(1) and (b)(1) to be reasonable
and not unduly burdensome. 29 CFR 1904.35(b)(1) requires employers to
provide a way for employees to report injuries and illnesses promptly.
However, if employers adopt reporting procedures that are unreasonably
burdensome, they may discourage reporting. For example, an employee might
be discouraged from reporting an injury or illness if the employer
required the employee to report in person at a location distant from the
employee's workplace, or if the employer penalized employees for failing
to report an injury within a specific time period (e.g., within 24 hours
of an incident), even if the employees did not realize that they were
injured or made ill until after that time. One participant at the public
meeting, for example, said that he knew of health care facilities where
employees often did not report incidents of workplace violence, even
though those incidents happened routinely, because the reporting
procedures were too cumbersome (Day 2 Tr. 91-92.) While OSHA believes
that onerous and unreasonable reporting requirements are already in
effect prohibited by the regulation (i.e. one has not created a "way
to report" injuries if the "way" is too difficult to use), this
proposal would add additional text to communicate that point more
clearly. OSHA seeks comment on this provision, including answers to the
following questions:
7. What procedures do you or does your employer have about the time
and manner of reporting injuries and illnesses? How do these procedures
assist in the collection and maintenance of accurate records? May an
employee be disciplined for failing to observe these procedures? If so,
what kind of discipline may be imposed?
8. Are you aware of any examples of reporting requirements that you
consider to be unreasonably burdensome and could discourage reporting?
What are they?
9. How should OSHA clarify the requirement that reporting
requirements are "reasonable and not unduly burdensome"?
Prohibiting employers from disciplining employees for reporting
injuries and illnesses. If an employer disciplines or takes adverse
action against an employee for reporting an injury or illness, this may
discourage employees from reporting injuries and illnesses. These
adverse actions could include termination, reduction in pay,
reassignment to a less desirable position, or any other action that
might dissuade a reasonable employee from reporting an injury. See
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68
(2006). Adverse actions mentioned by participants in the public meeting
included requiring employees who reported an injury to wear fluorescent
orange vests, disqualifying employees who reported two injuries or
illnesses from their current job, requiring an employee who reported an
injury to undergo drug testing where there was no reason to suspect
drug use, automatically disciplining those who seek medical attention,
and enrolling employees who report an injury in an "Accident Repeater
Program" that included mandatory counseling on workplace safety and
progressively more serious sanctions for additional reports, ending in
termination. (See Day 1 Tr. 36, 39-40, 203; Day 2 Tr. 58, 126-27, 142-
143.) Likewise, an employer rule to take adverse action against all
employees who are injured or made ill, regardless of fault, would
discourage reporting and would be prohibited by this rulemaking.
Also falling under this prohibition would be pre-textual
disciplinary actions--that is, where an employer disciplines an
employee for violating a safety rule, but the real reason for the
action is the employee's injury or illness report. This can be the case
when the safety rule is only enforced against workers who report, or
enforced more severely against those employees. Public meeting
participants noted particular situations where employers selectively
enforced vague rules, such as maintain "situational awareness" and
"work carefully," only against employees who reported injuries or
illnesses (See Day 2 Tr. 143-44, 150-151.)
As noted above, these retaliatory actions would likely be
actionable under 11(c), as well as under the provisions that OSHA is
considering as amendments to 1904.35. The remedy, however, would be
different. Under this provision, OSHA could issue citations to
employers under Section 9 of the OSH Act for violating the provision,
and the employer could challenge the citations before the Occupational
Safety and Health Review Commission. The citations would carry civil
penalties in accordance with Section 17 of the OSH Act, as well as a
requirement to abate the violation; the abatement could include
reinstatement and back pay. See United Steelworkers of America, AFL-CIO
v. St. Joe Resources, 916 F.2d 294, 299 (5th Cir. 1990) (holding that
the Commission has authority to issue an abatement order mandating the
payment of back pay required under the lead standard's medical removal
protection (MRP) requirement); Dole v. East Penn Manufacturing Co., 894
F.2d 640, 646 (3d Cir. 1990) (ordering employer to abate MRP violation
by paying owed overtime pay). A further discussion of the legal
interplay between 11(c) and this provision is covered in the Legal
Authority section above. OSHA seeks comment on this provision,
including responses to the following questions:
10. Are you aware of employer practices or policies to take adverse
action against persons who report injuries or illnesses? Please
describe them.
11. Are you aware of any particular situations where an employee
decided not to report an injury or illness to his or her employer
because of a fear that the employer would take adverse action against
the employee? If so, please describe the situation, including the
nature of the injury or illness and the reasons the employee had for
believing he or she would be retaliated against.
12. What kinds of adverse actions might lead an employee to decide
not to report an injury or illness? Are there other employer actions
that would not dissuade a reasonable employee from reporting an injury
or illness?
13. OSHA encourages employers to enforce safety rules as part of a
well-functioning workplace safety program. Are there any employer
practices that OSHA should explicitly exclude under this provision to
ensure that employers are able to run an effective workplace safety
program?
14. What other actions can OSHA take to address the issue of
employers who discourage employees from reporting injuries and
illnesses?
Economic Issues
This reopening is for the purpose of discussing a modification of
the recordkeeping rules to provide several clarifications of OSHA's
current recordkeeping rules with respect to the rights of employees to
report injuries and illnesses without discrimination. These provisions
do not require employers to provide any new or additional records not
already required in existing standards. (When the existing standards
were promulgated, OSHA estimated the costs to employers of the records
that would be required.) These provisions add no new rights to
employees, but are instead designed to assure that employers recognize
the existing right of employees to report work-related injuries and
illnesses. OSHA considered that such a reinforcement of the importance
of these rights might be valuable because of concerns that providing
public access to a wider range of injury and illness information from a
greater number of employers might cause some employers to put greater
pressure on employees to not report injuries and illnesses. These
provisions represent a clarification of the existing rule, add minor
additional expenses, and may generate cost savings. To show this, OSHA
will examine the possible additions on a provision by provision basis.
OSHA is considering a potential provision to require employers to
inform their employees that the employees have a right to report
injuries and illnesses. Under 1904.35(a) employers are already required
to inform each employee about how he or she is to report an injury or
illness to the employer. For new and future employees, this possible
new requirement to inform employees of their right to report injuries
and illnesses could be met at no additional cost by informing employees
of their rights at the same time that they are informed of how to
report. Employers who meet this requirement through annual training, or
the posting of procedures, or as part of an employee handbook might
incur a small one-time cost to change these materials. If employers use
materials that cannot be inexpensively changed or updated, or if
employers who meet the existing requirement to provide information on
reporting procedures do so solely by informing new employees of their
procedures, those employers would need to incur a small one-time cost
to inform all existing employees of their rights. This could be done
through a sign. OSHA estimates that posting a sign would typically
require 3 to 5 minutes of time. OSHA believes that many employers
already have in place programs and systems (such as illness and injury
prevention programs or IIPPs) for either encouraging or requiring
employees to report all workplace injuries and illnesses. OSHA welcomes
comment on the possible costs of this potential requirement.
15. Is the fact that retaliation for reporting workplace injuries
and illnesses is illegal communicated in your workplace? How? What
costs are associated with communicating this information?
OSHA is also considering a potential provision to require that the
injury and illness reporting procedures established by the employer
under 29 CFR 1904.35(a)(1), and (b)(1), be reasonable and not unduly
burdensome. OSHA is concerned both about unusually burdensome methods
and also about reporting requirements that may punish employees for
failure to report at the exact time and place required by procedures.
This provision could be considered a clarification of the existing
requirements in 1904.35 that employers provide a way for employees to
report work-related injuries and illnesses promptly and in 1904.36 that
employers are prohibited from discriminating against employees for
reporting. It is possible that this clarification may cause some
employers to incur costs to change their reporting policies and
announce the change to their employees. Given that even for remote
workers there are many ways of facilitating the reporting of injuries
and illnesses that are not burdensome to either the employer or the
employee, such as permitting telephonic reporting, the provision could
be cost-saving in the aggregate in terms of reduced employee time for
reporting injuries and illnesses. Indeed the one strong piece of
evidence that a reporting procedure is unreasonable would be that it
causes costs to the employee in excess of any cost savings for the
employer. For example, a procedure requiring in person rather than
telephonic reporting at a location an hour from the employee's typical
workplace would save an hour of employee time at no measurable expense
to the employer. OSHA welcomes comment on the costs and benefits
associated with this provision.
16. What kinds of existing reporting procedures might be prohibited
by this requirement? What costs or other detrimental effects might
employers incur if they are prevented from requiring these procedures?
Finally, OSHA is considering a potential provision prohibiting
employers from disciplining employees for reporting injuries and
illnesses. This provision would simply make more explicit the existing
requirement in 1904.36 that states that "Section 11(c) of the Act
prohibits you from discriminating against an employee for reporting a
work-related fatality, injury or illness. That provision of the Act
also protects the employee who files a safety and health complaint,
asks for access to the Part 1904 records, or otherwise exercises any
rights afforded by the OSH Act." There is no new requirement here. The
additional explicitness is necessary because many stakeholders were
concerned that the new requirements to publicize recordkeeping data
might provide employers new motivation for disciplining employees for
reporting. This provision may help counter such motivation. This
provision would be enforced as the existing 1904 requirements are
enforced, which would also allow OSHA and employers a way to resolve
these issues without either the lengthy delays or the high costs
associated with enforcement under Section 11(c) of the Act.
17. Do you anticipate any additional costs associated with the
enforcement of the prohibition against discrimination through the
citation and penalty provisions of the OSH Act that would not be
incurred if OSHA instead used its authority under section 11(c) of the
Act? If so, please describe them.
OSHA also expects that, because these three potential provisions
will only clarify existing requirements, there are also no new economic
benefits. The provisions will at most serve to counter the additional
motivations for employers to discriminate against employees attempting
to report injuries and illnesses.
OSHA believes these potential provisions are technologically
feasible because they do not require employers to do anything not
already implicitly or explicitly required in existing standards. OSHA
also believes that these potential requirements would be economically
feasible, since they require no more than posting a sign, and in some
cases, reviewing and changing procedures.
18. OSHA welcomes any information you have on the costs, benefits,
and feasibility of the three provisions discussed in this supplemental
notice. What are the costs and benefits of using this rulemaking to
address the issue of employers who discourage employees from reporting
injuries and illnesses? Are the cost estimates in this document
accurate?
Regulatory Flexibility Analysis
OSHA also examined the regulatory requirements of these potential
requirements to determine if they could have a significant economic
impact on a substantial number of small entities. As noted above, the
maximum indicated costs to any firm of these potential requirements is
an additional three to five minutes of time to post a sign. There may
be some circumstances where the clarification would make it easier to
assess fines, but the costs of any fines can easily be avoided by
meeting the relatively low costs of compliance with the record keeping
rule.
Environmental Impact Assessment
OSHA has also reviewed these potential requirement in accordance
with the requirements of the National Environmental Policy Act (NEPA)
of 1969 (42 U.S.C. 4321 et seq.), the regulations of the Council on
Environmental Quality (40 U.S.C. 1500), and the Department of Labor's
NEPA procedures (29 CFR part 11). The Agency finds that the revisions
included in the proposal would have no major negative impact on air,
water or soil quality, plant or animal life, the use of land or other
aspects of the environment.
Finally, OSHA has reviewed these potential requirements in
accordance with E.O. 13132 regarding Federalism. E.O. 13132 requires
that 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
there is clear constitutional authority and the presence of a problem
of national scope. Additionally, E.O. 13132 provides for preemption of
State law only if there is a clear Congressional intent for the Agency
to do so. Any such preemption is to be limited to the extent possible.
Section 18 of the OSH Act, 29 U.S.C. 667, expresses Congress' clear
intent to preempt State laws relating to issues on which Federal OSHA
has promulgated occupational safety and health standards. A state can
avoid preemption by obtaining Federal approval of a State plan for the
development of such standards and their enforcement. Occupational
safety and health standards developed by such State Plan States must,
among other things, be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
The Agency concludes that these potential requirements comply with
E.O. 13132. In States without State Plans, Congress has expressly
provided for Federal preemption on issues addressed by an occupational
safety and health standard. The final rule would preempt State law in
the same manner as any OSHA standard. States with State Plans are free
to develop their own policy options on the issues addressed by this
proposed rule, provided their standards are at least as effective as
the final rule. State comments are invited on this proposal and will be
fully considered prior to promulgation of a final rule.
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. It is issued under Sections 8 and 24 of the Occupational Safety
and Health Act (29 U.S.C. 657, 673), Section 553 of the Administrative
Procedure Act (5 U.S.C. 553), and Secretary of Labor's Order No. 41-
2012 (77 FR 3912 (Jan. 25, 2012)).
Signed at Washington, DC, on August 6, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-19083 Filed 8-13-14; 8:45 am]
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