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Federal Registers - Table of Contents
• Publication Date: 12/19/2016
• Publication Type: Final rule
• Fed Register #: 81:91792-91810
• Standard Number: 1904; 1904.29(a); 1904.7; 1904.29(b)(2); 1904.32(a)(1); 1904.32(a); 1904.32(b)(6); 1904.33(a); 1904.35; 1904.40 ; 1904.41; 1952.4(a); 1952.4(b); 1904.1; 1904.29(b)(4)
• Title: Clarification of Employer's Continuing Obligation To Make and Maintain an Accurate Record of Each Recordable Injury and Illness


  [Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
  [Rules and Regulations]
  [Pages 91792-91810]
  From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
  [FR Doc No: 2016-30410]


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  DEPARTMENT OF LABOR

  Occupational Safety and Health Administration

  29 CFR Part 1904

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


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

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

  ACTION: Final rule.

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

  SUMMARY: OSHA is amending its recordkeeping regulations to clarify that
  the duty to make and maintain accurate records of work-related injuries
  and illnesses is an ongoing obligation. The duty to record an injury or
  illness continues for as long as the employer must keep records of the
  recordable injury or illness; the duty does not expire just because the
  employer fails to create the necessary records when first required to
  do so. The amendments consist of revisions to the titles of some
  existing sections and subparts and changes to the text of some existing
  provisions. The amendments add no new compliance obligations and do not
  require employers to make records of any injuries or illnesses for
  which records are not currently required to be made.
      The amendments in this rule are adopted in response to a decision
  of the United States Court of Appeals for the District of Columbia
  Circuit. In that case, a majority held that the Occupational Safety and
  Health Act does not permit OSHA to impose a continuing recordkeeping
  obligation on employers. One judge filed a concurring opinion
  disagreeing with this reading of the statute, but finding that the text
  of OSHA's recordkeeping regulations did not impose continuing
  recordkeeping duties. OSHA disagrees with the majority's reading of the
  law, but agrees that its recordkeeping regulations were not clear with
  respect to the continuing nature of employers' recordkeeping
  obligations. This final rule is designed to clarify the regulations in
  advance of possible future federal court litigation that could further
  develop the law on the statutory issues addressed in the D.C. Circuit's
  decision.

  DATES: This final rule becomes effective on January 18, 2017.
  Collections of information: There are collections of information
  contained in this final rule (see Section XI, Office of Management and
  Budget Review Under the Paperwork Reduction Act of 1995).
  Notwithstanding the general date of applicability that applies to all
  other requirements contained in the final rule, affected parties do not
  have to comply with the collections of information in the recordkeeping
  regulations (as revised by this final rule) until the Department of
  Labor publishes a separate document in the Federal Register announcing
  that the Office of Management and Budget has approved them under the
  Paperwork Reduction Act.

  FOR FURTHER INFORMATION CONTACT: Press inquiries: Mr. Frank Meilinger,
  Director, Office of Communications, OSHA, U.S. Department of Labor,
  Room N-3647, 200 Constitution Avenue NW., Washington, DC 20210;
  telephone (202) 693-1999; email meilinger.francis2@dol.gov.
      Technical inquiries: Ms. Mandy Edens, Director, Directorate of
  Technical Support and Emergency Management, OSHA, U.S. Department of
  Labor, Room N-3653, 200 Constitution Avenue NW., Washington, DC 20210;
  telephone (202) 693-2270; email edens.mandy@dol.gov.
      Copies of this Federal Register notice and news releases:
  Electronic copies of these documents are available at OSHA's Web page
  at http://www.osha.gov.

  SUPPLEMENTARY INFORMATION:

  Table of Contents

  I. Background
      A. The OSH Act and Citation of OSH Act Violations
      B. OSHA's Recordkeeping Regulations and the Importance of
  Accurate Workplace Injury and Illness Data
      C. An Employer's Failure to Record a Recordable Illness or
  Injury Is a Failure To Maintain Accurate Injury and Illness Records
  and Is a Continuing Violation
      D. The D.C. Circuit's Decision in Volks II
      E. Events Preceding This Final Rule
  II. Legal Authority
      A. Overview
      B. The OSH Act Authorizes the Secretary To Impose a Continuing
  Obligation on Employers To Make and Maintain Accurate Records of
  Work-Related Injuries and Illnesses, and Incomplete or Otherwise
  Inaccurate Records Create Ongoing, Citable Conditions
      1. Section 8(c) of the Act Governs Employers' Recordkeeping
  Obligations, and That Provision Authorizes the Imposition of
  Continuing Obligations on Employers To Make and Maintain Accurate
  Records of Work-Related Illnesses and Injuries
      2. The OSH Act's Statute of Limitations Does Not Define OSHA
  Violations or Address When Violations Occur, Nor Does the Language
  in Section 9(c) Preclude Continuing Recordkeeping Violations
      3. Incomplete or Otherwise Inaccurate Records of Work-Related
  Illnesses and Injuries Create an Ongoing Condition Detrimental to
  Full Enforcement of the Act
      4. OSHA Is Acting Within Its Regulatory Authority, and
  Consistently With the General Case Law, in Issuing This Clarifying
  Rule
  III. Summary and Explanation of the Final Rule
      A. Description of Revisions
      1. Section 1904.0--Purpose
      2. Subpart C--Making and Maintaining Accurate Records,
  Recordkeeping Forms, and Recording Criteria
      3. Paragraph (a) of Sec.  1904.4--Basic Requirement
      4. Note to Paragraph (a) of Sec.  1904.4
      5. Paragraph (b)(3) of Sec.  1904.29--How quickly must each
  injury or illness be recorded?
      6. Section 1904.32--Year-End Review and Annual Summary



      7. Paragraph (a) of Sec.  1904.32--Basic Requirement
      8. Paragraph (b)(1) of Sec.  1904.32--How extensively do I have
  to review the OSHA 300 Log at the end of the year?
      9. Section 1904.33--Retention and Maintenance of Accurate
  Records
      10. Paragraph (b)(1) of Sec.  1904.33--Other than the obligation
  identified in Sec.  1904.32, do I have further recording duties with
  respect to OSHA 300 Logs and 301 Incident Reports during the five-
  year retention period?
      11. Paragraph (b)(2) of Sec.  1904.33--Do I have to make
  additions or corrections to the annual summary during the five-year
  retention period?
      12. Paragraph (b)(3) of Sec.  1904.33
      13. Section 1904.34--Change in Business Ownership
      14. Paragraph (b)(2) of Sec.  1904.35--Do I have to give my
  employees and their representatives access to the OSHA injury and
  illness records?
      15. Paragraph (b)(2)(iii) of Sec.  1904.35--If an employee or
  representative asks for access to the OSHA 300 Log, when do I have
  to provide it?
      16. Subpart E--Reporting Accurate Fatality, Injury, and Illness
  Information to the Government
      17. Section 1904.40--Providing Accurate Records to Government
  Representatives
      18. Paragraph (a) of Sec.  1904.40--Basic Requirement
  IV. State Plans
  V. Final Economic Analysis
  VI. Regulatory Flexibility Certification
  VII. Environmental Impact Assessment
  VIII. Federalism
  IX. Unfunded Mandates
  X. Consultation and Coordination With Indian Tribal Governments
  XI. Office of Management and Budget Review Under the Paperwork
  Reduction Act of 1995

  I. Background

  A. The OSH Act and Citation of OSH Act Violations

      The Occupational Safety and Health Act of 1970 (OSH Act or Act)
  arose out of a Congressional finding that personal injuries and
  illnesses arising out of work situations impose a substantial burden
  upon, and are a hindrance to, interstate commerce in terms of lost
  production, wage loss, medical expenses, and disability compensation
  payments. See 29 U.S.C. 651(a). Accordingly, the purpose of the statute
  is to assure so far as possible every working man and woman in the
  Nation safe and healthful working conditions. See 29 U.S.C. 651(b).
      To effectuate the Act's purpose, Congress authorized the Secretary
  of Labor to promulgate occupational safety and health standards (29
  U.S.C. 655); a standard, as defined in the Act, requires conditions, or
  the adoption or use of one or more practices, means, methods,
  operations, or processes, reasonably necessary or appropriate to
  provide safe or healthful employment and places of employment. See 29
  U.S.C. 652(8). The Act also grants broad authority to the Secretary to
  promulgate other types of regulations such as those related to employer
  self-inspections and keeping employees informed of matters related to
  occupational safety and health. 29 U.S.C. 657(c). The OSH Act
  specifically directs the Secretary to promulgate regulations requiring
  employers to make and maintain accurate records of work-related
  injuries and illnesses. 29 U.S.C. 657(c)(1) and (2), 673(a); see also
  651(b)(12), 657(g)(2), 673(e).
      OSHA issues citations and assesses monetary penalties when it finds
  that employers are not complying with the Act or with applicable
  standards and regulations. 29 U.S.C. 658, 659, 666. Section 9(c) of the
  OSH Act contains a statute of limitations providing that no citation
  may be issued after the expiration of six months following ``the
  occurrence of any violation.'' 29 U.S.C. 658(c). Generally, OSH Act
  violations continue to occur for as long as employees are exposed to
  the condition posed by the non-compliant workplace. See Sec'y of Labor
  v. Cent. of Georgia R.R. Co., 5 BNA OSHC 1209, 1211 (Rev. Comm'n 1977)
  (explaining that a violation occurs ``whenever . . . [a] standard is
  not complied with and an employee has access to the resulting zone of
  danger''). Thus, employers have an ongoing obligation to correct
  conditions that violate OSHA standards and regulations, and under
  section 9(c), violations are subject to citations and penalties for up
  to six months after the last instance of employee exposure to the
  violative condition.

  B. OSHA's Recordkeeping Regulations and the Importance of Accurate
  Workplace Injury and Illness Data

      In 1971, OSHA issued its first recordkeeping regulations at 29 CFR
  part 1904. OSHA promulgated revisions to these regulations in 2001 in
  an effort to improve the quality of workplace injury and illness
  records by making OSHA's recordkeeping system easier to use and
  understand. See 66 FR 5916 (January 19, 2001).
      OSHA's recordkeeping regulations require employers to record
  information about certain injuries and illnesses occurring in their
  workplaces, and to make that information available to employees, OSHA,
  and the Bureau of Labor Statistics (BLS). Employers must record work-
  related injuries and illnesses that meet one or more recording
  criteria, including injuries and illnesses resulting in death, loss of
  consciousness, days away from work, restricted work activity or job
  transfer, medical treatment beyond first aid, or a diagnosis of a
  significant injury or illness by a physician or other licensed health
  care professional. 29 CFR 1904.7. Employers must document each
  recordable injury or illness on an ``OSHA 300'' form, which is a log of
  all work-related injuries and illnesses. 29 CFR 1904.29(a) through
  (b)(1). Employers also must prepare a supplementary ``OSHA 301 Incident
  Report'' or equivalent form for each recordable injury and illness; the
  Incident Reports provide additional details about the injuries and
  illnesses recorded in the 300 Log. 29 CFR 1904.29(b)(2).
      At the end of each calendar year, employers must review their 300
  Logs to verify that the entries are complete and accurate. 29 CFR
  1904.32(a)(1). Employers also must correct any deficiencies identified
  during this annual review. Id. By February 1 of each year, employers
  must create, certify, and post annual summaries of the cases listed on
  their 300 Logs for the prior calendar year. 29 CFR 1904.32(a), (b).
  Annual summaries must remain posted until April 30 each year. 29 CFR
  1904.32(b)(6). Employers must retain their OSHA Logs, Incident Reports,
  and annual summaries for five years following the end of the calendar
  year that they cover. 29 CFR 1904.33(a). The regulations contain
  provisions explaining when records need to be revised during the
  retention period.
      Accurate injury and illness records serve several important
  purposes. See 66 FR at 5916-17, January 19, 2001. One purpose is to
  provide information to employers. The information in the OSHA-required
  records makes employers more aware of the kinds of injuries and
  illnesses occurring and the hazards that cause or contribute to them.
  When employers analyze and review the information in their records,
  they can identify and correct hazardous workplace conditions. Injury
  and illness records are essential for employers to manage their safety
  and health programs effectively; these records permit employers to
  track injuries and illnesses over time so they can evaluate the
  effectiveness of protective measures implemented in response to
  identified hazards.
      Similarly, employees--who have access to OSHA injury and illness
  records throughout the five-year retention period (see 29 CFR
  1904.35)--can use information about the occupational injuries and
  illnesses occurring in their workplaces to become better informed
  about, and more alert to, the hazards they face. Employees who



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

  C. An Employer's Failure To Record a Recordable Illness or Injury Is a
  Failure To Maintain Accurate Injury and Illness Records and Is a
  Continuing Violation

      A continuing violation exists when there is noncompliance with
  ``the text of . . . [a] pertinent law [that] imposes a continuing
  obligation to act or refrain from acting.'' Earle v. Dist. of Columbia,
  707 F.3d 299, 307 (D.C. Cir. 2012). Where there is an ongoing
  obligation to act, each day the action is not taken results in a
  continuing, ongoing violation. In other words, ``a new claim accrues
  each day the violation is extant.'' Interamericas Inv., Ltd. v. Fed.
  Reserve Sys., 111 F.3d 376, 382 (5th Cir. 1997). For example, in United
  States v. Edelkind, 525 F.3d 388 (5th Cir. 2008), the Fifth Circuit
  found that willfully failing to pay child support as required by
  federal law was a continuing offense because ``each day's acts . . .
  [brought] a renewed threat of the substantive evil Congress sought to
  prevent.'' Id. at 394-95 (internal quotation marks and citations
  omitted). And in Postow v. OBA Federal Savings & Loan Association, 627
  F.2d 1370 (D.C. Cir. 1980), the D.C. Circuit held that a lender's
  failure to provide required disclosures to borrowers was a continuing
  violation of the Truth-in-Lending Act because the violation subverted
  the goals of the statute every day the borrowers did not have the
  information. Id. at 1379-80. See also, e.g., United States v. Bailey,
  444 U.S. 394, 413 (1980) (escape from federal custody is a continuing
  offense in light of ``the continuing threat to society posed by an
  escaped prisoner''); United States v. George, 625 F.3d 1124 (9th Cir.
  2010) (failure to comply with statute requiring registration as a sex
  offender is a continuing offense), vacated on other grounds, 672 F.3d
  1126 (9th Cir. 2012); United States v. Franklin, 188 F.2d 182 (7th Cir.
  1951) (Alien Registration Act imposes ongoing registration obligation;
  failure to register is a continuing violation).
      OSHA has long treated recordkeeping violations under the OSH Act as
  continuing violations--and, as explained below in Section II.B.1 of
  this preamble--this view is consistent with section 8(c) of the Act, in
  which Congress instructed the Secretary to require employers to make
  and maintain accurate records of workplace injuries and illnesses.
  OSHA's longstanding position is that an employer's duty to record an
  injury or illness continues for the full duration of the record-
  retention-and-access period, i.e., for five years after the end of the
  calendar year in which the injury or illness became recordable. This
  means that if an employer initially fails to record a recordable injury
  or illness, the employer still has an ongoing duty to record that case;
  the recording obligation does not expire simply because the employer
  failed to record the case when it was first required to do so. As long
  as an employer fails to comply with its ongoing duty to record an
  injury or illness, and therefore with its obligation to maintain
  accurate records, there is an ongoing violation of OSHA's recordkeeping
  requirements that continues to occur every day employees work at the
  site. Therefore, OSHA can cite employers for such recordkeeping
  violations for up to six months after the five-year retention period
  expires without running afoul of the OSH Act's statute of
  limitations.\1\ OSHA has consistently issued such citations since it
  enacted its first recordkeeping regulations, as evidenced by the case
  law in the following paragraph. The purpose of this final rule is
  simply to clarify what has always been OSHA's interpretation of its
  recordkeeping regulations.
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      \1\ Of course, OSHA may not issue a citation more than six
  months after the employer corrects the violation. See, e.g., Sec'y
  of Labor v. Manganas Painting Co., 21 BNA OSHC 2043, 2048 (Rev.
  Comm'n 2007) (citation was time-barred where the employer abated the
  violation more than six months prior to the issuance date).
  ---------------------------------------------------------------------------

      The Occupational Safety and Health Review Commission has upheld
  OSHA's position on the continuing nature of recordkeeping violations.
  See, e.g., Sec'y of Labor v. Gen. Dynamics, 15 BNA OSHC 2122 (Rev.
  Comm'n 1993) (recordkeeping violations ``occur'' at any point during
  the retention period when records are inaccurate, so citations for
  those violations are not barred simply because they are issued more
  than six months after the obligation to record first arose); Sec'y of
  Labor v. Johnson Controls, Inc., 15 BNA OSHC 2132 (Rev. Comm'n 1993)
  (recordkeeping violations continue until correction or expiration of
  the retention period). The Commission addressed this issue most
  recently in Secretary of Labor v. AKM LLC, 23 BNA OSHC 1414 (Rev.
  Comm'n 2011) (Volks I), confirming that an employer's failure to make a
  required OSHA record is a continuing violation, and that an uncorrected
  violation continues until the employer is no longer required to keep
  OSHA records for the year at issue.\2\
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      \2\ Although the Coalition for Workplace Safety stated that OSHA
  has never expressed a policy of treating recordkeeping violations as
  ongoing, Ex. 0013, OSHA's citation history--and the Commission
  decisions upholding those citations--make clear that OSHA took this
  approach for many years. See Martin v. OSHRC, 499 U.S. 144, 157
  (1991) (OSHA citations embody the Secretary's interpretation of
  regulations). See discussion in Section I.C, Background, above.
  Throughout this preamble, exhibit numbers are referred to in the
  form Ex. XXXX, where XXXX reflects the last four digits of the full
  document number (OSHA-2015-006-XXXX).
  ---------------------------------------------------------------------------

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

      A panel of the D.C. Circuit reviewed the Commission's Volks I
  decision, and on April 6, 2012, issued a decision--



  Volks II--reversing the Commission. AKM LLC v. Sec'y of Labor, 675 F.3d
  752 (D.C. Cir. 2012) (Volks II). The majority opinion in Volks II,
  without discussion of Commission precedent to the contrary, held that
  the OSH Act does not provide authority for the Secretary to impose a
  continuing recordkeeping obligation on employers, explaining that ``the
  . . . language in [the OSH Act] . . . which deals with record-keeping
  is not authorization for OSHA to cite the employer for a record-making
  violation more than six months after the recording failure.'' Id. at
  758; see also id. at 756-57. The majority stated that OSHA must cite an
  employer for failing to record an injury or illness within six months
  of the first day on which the regulations require the recording; a
  citation issued later than that, according to the Volks II majority, is
  barred by the OSH Act's statute of limitations. Id. at 753-59.
      In a separate opinion concurring in the judgment in Volks II, Judge
  Garland disagreed with the majority's conclusion that the OSH Act did
  not permit continuing record-making obligations. Judge Garland agreed
  with the Secretary that the OSH Act does allow for continuing
  violations of recordkeeping requirements. He concluded, however, that
  the specific language in the recordkeeping regulations reviewed by the
  panel did not implement this statutory authority and did not create
  continuing recordkeeping obligations. Id. at 759-64. Under the analysis
  in Judge Garland's concurring opinion, OSHA in fact has statutory
  authority to create a continuing obligation for employers to make and
  maintain accurate records of work-related illnesses and injuries, and
  can revise its recordkeeping regulations to more clearly implement that
  statutory authority.
      Thus, because of the Volks II decision, OSHA has decided to clarify
  employers' obligations under its recordkeeping regulations and to
  elaborate on its understanding of the statutory basis for those
  obligations. OSHA disagrees with the legal holding in the majority
  opinion in Volks II, but agrees with Judge Garland that, while the OSH
  Act gives the Secretary authority to impose continuing recordkeeping
  obligations, the text of the recordkeeping regulations did not make
  clear OSHA's longstanding intention to fully implement that authority.
  Therefore, OSHA is changing its recordkeeping regulations to clarify
  that the duty to make and maintain an accurate record of a work-related
  illness or injury is an ongoing obligation that continues until the
  required record is made or until the end of the record-retention-and-
  access period prescribed by the regulations. To that end, OSHA is
  revising the titles of some sections and subparts in part 1904 and
  changing the text of some of the recordkeeping requirements. OSHA
  describes the changes in SUPPLEMENTARY INFORMATION, Section III, later
  in this preamble.

  E. Events Preceding This Final Rule

      On July 29, 2015, OSHA issued a proposed rule entitled
  ``Clarification of Employer's Continuing Obligation to Make and
  Maintain an Accurate Record of Each Recordable Injury and Illness.'' 80
  FR 45116. Before issuing the proposal, OSHA consulted with the Advisory
  Committee on Construction Safety and Health (ACCSH). OSHA provided
  ACCSH with a summary and explanation of the proposal and a statement
  regarding the need for the proposed revisions to 29 CFR part 1904. On
  December 4, 2014, ACCSH voted to recommend that OSHA proceed with the
  proposal.\3\
  ---------------------------------------------------------------------------

      \3\ The National Federation of Independent Businesses has
  requested that the transcript of ACCSH's meeting be added to the
  docket of this rulemaking. Ex. 0014. The transcript can now be found
  at Ex. 0030.
  ---------------------------------------------------------------------------

      OSHA provided 60 days for public comment and eventually extended
  the comment period for an additional 30 days. 80 FR 57765. OSHA
  received a total of 30 comments. The comments are addressed elsewhere
  in this preamble.

  II. Legal Authority

  A. Overview

      As explained previously, in SUPPLEMENTARY INFORMATION, Section I.A,
  the OSH Act authorizes the Secretary of Labor to issue ``standards''
  and other ``regulations.'' See, e.g., 29 U.S.C. 655, 657. An
  occupational safety and health standard, issued pursuant to section 6
  of the Act, prescribes measures to be taken to remedy an identified
  occupational hazard. Other regulations, issued pursuant to general
  rulemaking authority found, inter alia, in section 8 of the Act,
  establish enforcement or detection procedures designed to further the
  goals of the Act generally. 29 U.S.C. 657(c); Workplace Health and
  Safety Council v. Reich, 56 F.3d 1465, 1468 (D.C. Cir. 1995). This
  final rule amends OSHA's recordkeeping regulations issued pursuant to
  authority expressly granted by sections 8 and 24 of the Act. 29 U.S.C.
  657, 673. It simply clarifies existing duties under part 1904, and does
  not impose any new substantive recordkeeping requirements.
      Many commenters suggested that OSHA does not have legal authority
  to promulgate this rule. Exs. 0003, 0008, 0009, 0010, 0011, 0012, 0013,
  0014, 0016, 0017, 0020, 0021, 0023, 0026. OSHA disagrees. As recognized
  by Judge Garland in his concurring opinion in Volks II, and explained
  in more detail in SUPPLEMENTARY INFORMATION, Section II.B, later in
  this preamble, the OSH Act plainly authorizes this regulatory action.
  Numerous provisions of the OSH Act both underscore Congress'
  acknowledgement that accurate injury and illness records are a critical
  component of the national occupational safety and health program and
  give the Secretary broad authority to enact recordkeeping regulations
  that create a continuing obligation for employers to make and maintain
  accurate records of work-related illnesses and injuries. Section
  2(b)(12) of the Act states that one of the purposes of the OSH Act is
  to assure, so far as possible, safe and healthful working conditions by
  providing for appropriate reporting procedures that will help achieve
  the objectives of the Act and ``accurately describe'' the nature of the
  occupational safety and health problem. See 29 U.S.C. 651(b)(12).
  Section 8(c)(1) requires each employer to ``make, keep and preserve''
  and to ``make available'' to the Secretary such records prescribed by
  regulation as necessary or appropriate for the enforcement of the Act
  or for developing information regarding the causes and prevention of
  occupational accidents and illnesses. See 29 U.S.C. 657(c)(1). Section
  8(c)(2) requires the Secretary to prescribe regulations requiring
  employers to ``maintain accurate records'' of, and to make periodic
  reports on, work-related deaths, injuries and illnesses. See 29 U.S.C.
  657(c)(2). Section 8(g)(2) of the Act generally empowers the Secretary
  to prescribe such rules and regulations as he may deem necessary to
  carry out his responsibilities under the Act. See 29 U.S.C. 657(g)(2).
  Section 24(a) requires the Secretary to develop and maintain an
  effective program of collection, compilation, and analysis of
  occupational safety and health statistics and to compile accurate
  statistics on work injuries and illnesses. See 29 U.S.C. 673(a). And
  Section 24(e) provides that on the basis of the records made and kept
  pursuant to section 8(c) of the Act, employers must file such reports
  with the Secretary as the Secretary prescribes by regulation as
  necessary to carry out his functions under the Act. See 29 U.S.C.
  673(e).



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

  1. Section 8(c) of the Act Governs Employers' Recordkeeping
  Obligations, and That Provision Authorizes the Imposition of Continuing
  Obligations on Employers To Make and Maintain Accurate Records of Work-
  Related Illnesses and Injuries
      ``Whether [an] . . . obligation is continuing is a question of
  statutory construction.'' Earle, 707 F.3d at 307. The express language
  of the OSH Act readily supports a continuing violation theory in
  recordkeeping cases. And section 8(c) grants the Secretary broad
  authority to impose requirements he considers ``necessary or
  appropriate,'' including recordkeeping regulations that provide that an
  employer's duty to make records of injuries and illnesses is an ongoing
  obligation. 29 U.S.C. 657(c).
      Section 8(c)(2) requires the Secretary to prescribe regulations
  requiring employers to ``maintain accurate records'' of work-related
  deaths, injuries and illnesses. See 29 U.S.C. 657(c)(2) (emphasis
  added). And section 8(c)(1) requires employers to ``make, keep and
  preserve'' and to ``make available'' records that the Secretary
  identifies as necessary or appropriate for the enforcement of the Act
  or for developing information regarding the causes and prevention of
  occupational accidents and illnesses. See 29 U.S.C. 657(c)(1) (emphasis
  added). The language Congress used in these provisions therefore
  authorizes the Secretary to require employers to have on hand and to
  make available records that accurately reflect all of the recordable
  injuries and illnesses that occurred during the designated time period.
  Moreover, this statutory language is inconsistent with any suggestion
  that Congress intended the duty to record an injury or illness to be a
  discrete obligation that expires if the employer fails to comply on the
  first day the Secretary's regulations require recording.
      This is because the words ``accurate'' and ``maintain'' in section
  8(c)(2) of the Act connote a continued course of conduct that includes
  an ongoing obligation to create records. The word ``maintain'' means to
  ``[c]ause or enable (a condition or state of affairs) to continue,'' an
  example being when one works to ensure that something stays ``in good
  condition or in working order by checking or repairing it regularly.''
  http://www.oxforddictionaries.com/us/definition/american_english/maintain?searchDictCode=all. Therefore, ``maintain'' plainly implies an
  ongoing action. See, e.g., Carey v. Shiley, Inc., 32 F.Supp.2d 1093,
  1103 (S.D. Iowa 1998) (``continuing duty to maintain records for'' the
  Food and Drug Administration). And ``accurate'' means ``conforming
  exactly to truth,'' and is synonymous with ``exact.'' http://www.merriam-webster.com/dictionary/accurate. See also, e.g., Huntington
  Sec. Corp. v. Busey, 112 F.2d 368, 370 (6th Cir. 1940) (noting that the
  term `` `accurately' . . . in its ordinary use[ ] means precisely,
  exactly correctly, without error or defect''). Therefore, the OSH Act's
  direction to enact regulations requiring employers to ``maintain
  accurate [injury and illness] records'' is a mandate for the Secretary
  to impose an ongoing or continuing duty on employers to have true or
  exact documentation of recordable incidents. An employer cannot be said
  to have (or to be keeping or maintaining) accurate (or true or exact)
  records of injuries and illnesses for a particular calendar year if
  there are recordable injuries or illnesses that occurred during that
  year that are missing from those records. Put simply, the Secretary
  cannot fulfill the statutory obligation of ensuring that employers
  ``maintain accurate records'' without imposing on employers an ongoing
  duty to create records for injuries and illnesses in the first place; a
  duty to maintain accurate records inherently implies an ongoing
  obligation to create the records that must be maintained.
      The Fourth Circuit recognized as much in Sierra Club v. Simkins
  Industries, 847 F.2d 1109, 1115 (4th Cir. 1988), a Clean Water Act
  case, when it refused to allow a company to defend against its failure
  to file and retain water sampling records on the ground that it never
  collected the data it needed to create the records in the first place.
  The court ruled that an ongoing duty to maintain records implies a
  corresponding, and continuing, duty to have those records, explaining
  that it would not allow the company ``to escape liability . . . by
  failing at the outset to sample and to create and retain the necessary
  . . . records.'' Id. See also, e.g., Big Bear Super Mkt. No. 3 v. INS,
  913 F.2d 754, 757 (9th Cir. 1990) (per curiam) (statutory and
  regulatory scheme described by the court as requiring companies to
  ``maintain'' documents is interpreted to impose a ``continuing duty''
  on those companies ``to prepare and make'' the documents in the first
  instance); Park v. Comm'r of Internal Revenue, 136 T.C. 569, 574 (U.S.
  Tax Ct. 2011) (noting that a party that did not create required records
  thereby failed to ``keep'' those records), rev'd and remanded on other
  grounds, 722 F.3d 384 (D.C. Cir. 2013).
      The ``make, keep, and preserve'' and ``make available'' language in
  section 8(c)(1) similarly envisions a continuing duty to record and
  provides additional support for the Secretary's interpretation of the
  ``maintain accurate records'' language in section 8(c)(2). ``Keep'' is
  a synonym for ``maintain,'' http://thesaurus.com/browse/maintain, and
  both words imply a continued course of conduct, as does ``preserve.''
  \4\ See, e.g., Powerstein v. Comm'r of Internal Revenue, T.C. Memo
  2011-271, 2011 WL 5572600, at *13 (U.S. Tax Ct. Nov. 16, 2011)
  (interpreting statutory and regulatory requirements to ``keep'' tax
  records to mean that taxpayers must ``maintain'' such records);
  Freedman v. Comm'r of Internal Revenue, T.C. Memo 2010-155, 2010 WL
  2942167, at *1 (U.S. Tax Ct. July 21, 2010) (same).
  ---------------------------------------------------------------------------

      \4\ The legislative history of the OSH Act shows that Congress
  used ``keep'' and ``maintain'' synonymously. In a Senate Report,
  Congress described section 8(c)(2)--which talks about
  ``maintaining'' records--as ``requiring employers to keep records of
  all work-related injuries and diseases.'' S. Rep. No. 91-1282, at 31
  (1970), reprinted in Subcomm. on Labor of the Comm. on Labor and
  Public Welfare, Legislative History of the Occupational Safety and
  Health Act of 1970, at 171 (1971) (emphasis added).
  ---------------------------------------------------------------------------

      The fact that Congress included the word ``make'' in a phrase with
  two other terms that both call for a continuing action suggests that
  ``make'' was also intended to signify a continuing course of conduct in
  the recordkeeping context. The most reasonable reading of section
  8(c)(1), particularly in light of the ``maintain accurate records''
  language in section 8(c)(2), is that the phrase ``make, keep, and
  preserve'' authorizes one continuous recordkeeping requirement that
  includes both the creation and the keeping of records. See, e.g., Davis
  v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989) (noting a
  ``fundamental canon of statutory construction that the words of a
  statute must be read in their context and with a view to their place in
  the overall statutory scheme''). The related authorization to the
  Secretary to prescribe such recordkeeping regulations as he considers
  ``necessary or appropriate'' further emphasizes the breadth of the
  Secretary's discretion in implementing the statute.
      Thus, the Secretary does not believe that section 8(c) authorizes
  two and only two discrete duties: A duty to create a record that can
  arise at only one moment in time, and a duty to preserve



  that record if it should be created. Such a view would be inconsistent
  with the most relevant provision of the Act, section 8(c)(2), which is
  the provision that specifically addresses the Secretary's authority to
  prescribe regulations for injury and illness recordkeeping, i.e., to
  prescribe regulations that require employers to ``maintain accurate
  records'' of workplace illnesses and injuries. Nothing about the
  Congressional direction to ``maintain accurate records'' is naturally
  read as creating two entirely discrete obligations, or as conveying
  Congressional intent to limit the duty to make a required record to a
  single point in time. Records that omit work-related injuries and
  illnesses are not accurate, and no purpose is served by maintaining
  inaccurate records. Instead, Congress intended employers, employees,
  and the Secretary to have access to accurate information about injuries
  and illnesses occurring in workplaces.
      The requirement in section 8(c)(1) that employers ``make
  available'' such records as the Secretary prescribes regarding injuries
  and illnesses further illustrates that section 9(c)'s statute of
  limitations does not limit the Secretary to acquiring only six months
  of accurate injury and illness data. A regulation requiring employers,
  if requested, to make available accurate records showing injuries and
  illnesses that have occurred within the past few years is on its face
  well within the OSH Act's grant of authority. Nothing in the statutory
  language suggests that the Secretary can only require employers to
  provide information regarding work-related injuries and illnesses that
  have occurred within the past six months. Such a limitation would
  cripple OSHA's ability to gather complete information and to improve
  understanding of safety and health issues, contrary to Congressional
  intent. Furthermore, the duty to make accurate multi-year records
  available upon request arises when the request is made, and the statute
  of limitations therefore does not begin to run until the request is
  made and the employer fails to comply.
      It therefore follows that section 8(c) of the Act authorizes the
  Secretary to enact regulations that impose a continuing obligation on
  employers to make and maintain accurate records of work-related
  illnesses and injuries. Not only are such recordkeeping regulations
  expressly called for by the language of section 8(c), but they are also
  consistent with Congressional intent and the purpose of the OSH Act.
  The Supreme Court recognizes a ``familiar canon of statutory
  construction that remedial legislation should be construed broadly to
  effectuate its purposes.'' Tcherepnin v. Knight, 389 U.S. 332, 336
  (1967). And reading the statute in light of its protective purposes
  further supports the Secretary's interpretation that the Act calls for
  treating the duty to record injuries and illnesses as a continuing
  obligation. See, e.g., United States v. Advance Mach. Co., 547 F. Supp.
  1085, 1090-91 (D. Minn. 1982) (requirement in Consumer Product Safety
  Act to ``immediately inform'' the government of product defects is read
  as creating a continuing obligation to report because any other reading
  would frustrate the statute's goal of protecting the public from
  hazards).
      The legislative history of the OSH Act also demonstrates that
  Congress wanted employers to have accurate injury and illness records
  both for the purpose of making workplaces safer and healthier and for
  the purpose of allowing the federal government to study the nation's
  occupational safety and health problems. As the House Committee on
  Education and Labor noted, before passage of the OSH Act it was
  impossible to know the extent of national occupational safety and
  health issues due to variability in state reporting measures; thus,
  Congress viewed it as an ``evident Federal responsibility'' to provide
  for ``[a]ccurate, uniform reporting standards.'' H.R. Rep. No. 91-1291,
  at 15 (1970), reprinted in Subcomm. on Labor of the Comm. on Labor and
  Public Welfare, Legislative History of the Occupational Safety and
  Health Act of 1970, at 845 (1971). See also 29 U.S.C. 673(a) (``The
  Secretary shall compile accurate statistics on work injuries and
  illnesses . . .''); Sec'y of Labor v. Gen. Motors Corp., 8 BNA OSHC
  2036, 2039 (Rev. Comm'n 1980) (``Examination of the legislative history
  of [sections 8(c)(1) and 8(c)(2)] . . . shows a clear congressional
  intent that th[e] reporting requirement be interpreted broadly in order
  to develop information for future scientific use.'').
      Some commenters, including the Coalition for Workplace Safety and
  the American Health Care Association, stated a concern that
  interpreting section 8(c) to authorize continuing violations means that
  OSHA is claiming unfettered discretion to essentially eliminate any
  statute of limitations for recordkeeping violations. Exs. 0011, 0013,
  0020. OSHA disagrees. OSHA's interpretation does not mean that the
  Secretary's authority is unconstrained. Under section 8(c)(1), the
  records the Secretary requires must be ``necessary or appropriate'' to
  enforcement of the Act or to gathering information regarding the causes
  or prevention of occupational accidents or illnesses. 29 U.S.C.
  657(c)(1). Under section 8(d), the Secretary must obtain information
  with a minimum burden on employers, especially small businesses, and
  reduce unnecessary duplication to the maximum extent feasible. 29
  U.S.C. 657(d). Moreover, under the Paperwork Reduction Act, the
  Secretary and the Office of Management and Budget must determine that a
  recordkeeping requirement will have practical utility and will not be
  unduly burdensome. 44 U.S.C. 3506(c)(3).
  2. The OSH Act's Statute of Limitations Does Not Define OSHA Violations
  or Address When Violations Occur, Nor Does the Language in Section 9(c)
  Preclude Continuing Recordkeeping Violations
      As explained previously, it is section 8(c) of the OSH Act that
  authorizes the Secretary to establish the nature and scope of
  employers' recordkeeping obligations. The OSH Act's statute of
  limitations in section 9(c) deals only with the question of when OSHA
  can cite a violation; it says nothing about what constitutes a
  violation, or when a violation occurs. A violation is a breach of a
  duty, and the question of what duties the Secretary may prescribe must
  logically be dealt with prior to addressing the statute of limitations.
  Section 9(c) cannot be read as prohibiting the Secretary from imposing
  continuing recordkeeping obligations on employers covered by the OSH
  Act when the text and legislative history of the Act show that section
  8(c) authorizes the Secretary to create such obligations. Thus, the OSH
  Act's statute of limitations simply sets the period within which legal
  action must be taken after the obligation ceases or the employer comes
  into compliance. See, e.g., Inst. For Wildlife Prot. v. United States
  Fish & Wildlife Serv., No. 07-CV-358-PK, 2007 WL 4117978, at *6 (D. Or.
  Nov. 16, 2007) (declining to apply applicable statute of limitations to
  ``nullify . . . [the government's] ongoing duty to designate critical
  habitat'' for an endangered species ``and . . . insulate the agency
  from challenges to any continued inaction'').
      Moreover, ``statutes of limitation in the civil context are to be
  strictly construed in favor of the Government against repose,''
  Interamericas, 111 F.3d at 382 (citing Badaracco v. Comm'r of Internal
  Revenue, 464 U.S. 386 (1984) and E.I. Dupont De Nemours & Co. v. Davis,
  264 U.S. 456 (1924)), and nothing in section 9(c) precludes continuing
  violations in recordkeeping cases. To the contrary, the language in
  section 9(c)



  is very general, providing only that ``[n]o citation may be issued . .
  . after the expiration of six months following the occurrence of any
  violation.'' 29 U.S.C. 658(c). The ``occurrence'' of something is not
  necessarily a discrete event; it can encompass actions or events that
  continue over time. For example, one dictionary defines ``occurrence''
  as ``the existence or presence of something.'' http://dictionary.cambridge.org/dictionary/american-english/occurrence_2. See
  also, e.g., PECO Energy Co. v. Boden, 64 F.3d 852, 856-57 (3d Cir.
  1995) (scheme of repeated thefts over the span of six years constituted
  a single ``occurrence'' such that only one insurance deductible applied
  to the resulting loss). Similarly, the term ``occurrence of any
  violation'' in section 9(c) does not mean that an OSHA violation is
  necessarily a discrete event that takes place at one, and only one,
  point in time.
      Had Congress wanted the statute of limitations to run from the time
  a violation first occurred, it could have used language so stating.
  Indeed, Congress has used language more readily susceptible to that
  interpretation in other statutes. See, e.g., the Multiemployer Pension
  Plans Amendments Act, 29 U.S.C. 1451(f)(1) (statute of limitations runs
  from ``the date on which the cause of action arose''); the Federal
  Employers' Liability Act, 45 U.S.C. 56 (statute of limitations runs
  from ``the day the cause of action accrued''); the general statute of
  limitations governing civil actions against the United States, 28
  U.S.C. 2401(a) (claims barred unless ``filed within six years after the
  right of action first accrues'').
      This new rule is intended to clarify that if an employer fails to
  record an injury or illness within seven days, the obligation to record
  continues on past the seventh day, such that each successive day where
  the injury or illness remains unrecorded constitutes a continuing
  ``occurrence'' of the ongoing violation. If the employer records the
  injury on the twentieth, thirtieth, or some later day, the violation
  ceases to occur at that point, and any citation would need to be issued
  within six months of the cessation of the violation. This position is
  entirely consistent with section 9(c). Neither OSHA nor the Commission
  nor any court has ever treated section 9(c) as precluding all
  continuing violations. Indeed, continuing violations are common in the
  OSHA context, with the Commission taking the position that violations
  of OSHA requirements, including recordkeeping violations, generally
  continue as long as employees are exposed to the non-complying
  conditions. See, e.g., Sec'y of Labor v. Arcadian Corp., 20 BNA OSHC
  2001 (Rev. Comm'n 2004) (violation of the OSH Act's general duty clause
  stemming from the unsafe operation of a urea reactor); Johnson
  Controls, 15 BNA OSHC 2132 (recordkeeping); Sec'y of Labor v. Safeway
  Store No. 914, 16 BNA OSHC 1504 (Rev. Comm'n 1993) (hazard
  communication program and material safety data sheets); Sec'y of Labor
  v. Yelvington Welding Serv., 6 BNA OSHC 2013 (Rev. Comm'n 1978)
  (fatality reporting); Cent. of Georgia R.R., 5 BNA OSHC 1209
  (housekeeping).\5\ Indeed, the Volks II panel also acknowledged that
  the duties to preserve records, to train employees, and to correct
  unsafe machines may continue. 675 F.3d at 756, 758. The OSH Act simply
  would not achieve Congress' fundamental objectives if basic employer
  obligations were not continuing.
  ---------------------------------------------------------------------------

      \5\ The American Petroleum Institute stated that the OSH Act
  limits continuing obligations only to ``physical hazards.'' Ex.
  0020. This assertion finds no basis in the statute or case law. In
  any event, access to accurate injury and illness records helps
  employers and employees address and avoid physical hazards. See
  Section II.B.3, Legal Authority.
  ---------------------------------------------------------------------------

      These cases reflect fundamental OSH Act principles. Safety and
  health standards are rules that require, inter alia, ``conditions.'' 29
  U.S.C. 652(8). The absence of a required condition violates the
  standard. It does not matter when the absence first arose or how long
  it has persisted. If a condition is required and is not present (e.g.,
  a machine is not guarded or a hazardous materials container is not
  labeled), a violation occurs and a citation requiring abatement may be
  issued within six months of the observed noncompliance. This
  construction follows from the language of the Act and is essential to
  the Secretary's ability to enforce compliance. Accordingly, continuing
  obligations and violations are a regular occurrence under the OSH Act.
  Nothing in section 9(c), which applies equally to standards and
  regulations such as recordkeeping requirements, bars them.
      In addition, continuing violations have been found to exist under
  other laws with statutes of limitations that contain language similar
  to that in section 9(c) of the OSH Act. For example, in National
  Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the
  Supreme Court addressed the statute of limitations in Title VII of the
  Civil Rights Act of 1964, which precludes the filing of claims a
  certain number of days after the alleged unlawful employment practice
  ``occurred.'' See 42 U.S.C. 2000e-5(e)(1). The Court concluded that the
  statute authorized application of a continuing violations doctrine in
  hostile work environment cases, holding that in such cases, an unlawful
  employment action can ``occur'' over a series of days or even years.
  Morgan, 536 U.S. at 116-20. Similarly, in Havens Realty Corporation v.
  Coleman, 455 U.S. 363 (1982), the Supreme Court found continuing
  violations of the Fair Housing Act, which at the time required the
  commencement of civil actions within 180 days ``after the alleged
  discriminatory housing practice occurred.'' And in Postow, 627 F.2d
  1370, the D.C. Circuit found a continuing violation of the Truth-in-
  Lending Act, which, at 15 U.S.C. 1640(e), provides that actions must be
  brought within one year from the date of the ``occurrence'' of the
  violation. The language of section 9(c) of the OSH Act is at least
  equally receptive to continuing violations, since it allows citation
  within six months of ``the occurrence of any violation.''
  ``Occurrence'' of ``any'' violation is open-ended language that does
  not suggest that a violation can exist at only one moment in time.
      Notably, even the Volks II majority appeared to recognize that the
  word ``occurrence'' does not necessarily have a single fixed meaning,
  stating that ``[o]f course, where . . . a company continues to subject
  its employees to unsafe machines . . . or continues to send its
  employees into dangerous situations without appropriate training . . .
  OSHA may be able to toll the statute of limitations on a continuing
  violations theory since the dangers created by the violations
  persist.'' 675 F.3d at 758. The court also acknowledged that a
  violation of the record-retention requirement--through the loss or
  destruction of a previously-created record--is a violation that
  continues from the time of the loss or destruction until the conclusion
  of the five-year retention period. Id. at 756; see id. at 763
  (concurring opinion).
      Moreover, continuing violations have been found even under statutes
  of limitations that contain language that is arguably less receptive to
  continuing violations than section 9(c); courts implicitly recognize
  that the underlying legal requirement, not the statute of limitations,
  determines whether there is a continuing legal obligation. For example,
  courts have found continuing violations of various laws that are
  governed by the general five-year statute of limitations for criminal
  cases in 18 U.S.C. 3282(a), which requires initiation of an action
  ``within five years . . . after



  . . . [the] offense shall have been committed.'' See, e.g., United
  States v. Bell, 598 F.3d 366, 368-69 (7th Cir. 2010) (continuing
  violation of child support payment requirements), overruled on other
  grounds, United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012);
  Edelkind, 525 F.3d 388 (same); United States v. Are, 498 F.3d 460 (7th
  Cir. 2007) (crime of being found in the United States after deportation
  is a continuing violation).
      The D.C. Circuit has suggested that suits alleging a continuing
  failure to act are permissible even under the general statute of
  limitations governing civil actions against the United States (28
  U.S.C. 2401(a)), which provides that claims are barred unless ``filed
  within six years after the right of action first accrues.'' Wilderness
  Soc'y v. Norton, 434 F.3d 584 (D.C. Cir. 2006). In Wilderness Society,
  the court intimated, but did not decide, that an agency's failure to
  act in accordance with a statutory deadline for action was a continuing
  violation, such that a lawsuit to compel agency action would not be
  time-barred just because it was filed more than six years after the
  agency first missed the statutory deadline. The court explained that
  because the suit `` `does not complain about what the agency has done
  but rather about what the agency has yet to do,' '' it likely would not
  be time-barred. Id. at 589 (quoting In re United Mine Workers of
  America Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999)). See also,
  e.g., Padres Hacia Una Vida Mejor v. Jackson, No. 1:11-CV-1094 AWI DLB,
  2012 WL 1158753 (E.D. Cal. April 6, 2012) (28 U.S.C. 2401(a) did not
  bar a claim based on EPA's ongoing failure to act on complaints of
  discrimination within regulatory deadlines). And the Fifth Circuit
  found continuing violations of the Bank Holding Company Act in a case
  governed by the general statute of limitations in 28 U.S.C. 2462, which
  requires actions to enforce civil fines, penalties, or forfeitures to
  be ``commenced within five years from the date when the claim first
  accrued.'' Interamericas, 111 F.3d 376. See also, e.g., Newell
  Recycling Co. v. EPA, 231 F.3d 204 (5th Cir. 2000) (finding a
  continuing violation of disposal requirements for polychlorinated
  biphenyls under the Toxic Substances Control Act in a case involving
  the general statute of limitations at 28 U.S.C. 2462); Advance Mach
  Co., 547 F.Supp. at 1085 (finding a continuing violation of the
  Consumer Product Safety Act in a case governed by 28 U.S.C. 2462); cf.
  Capital Tel. Co v. FCC, 777 F.2d 868, 871 (2d Cir. 1985) (per curiam)
  (deferring to FCC determination that company's ``actions constituted a
  `continuing violation' '' despite an applicable statute of limitations
  (47 U.S.C. 415(b)) requiring the filing of complaints ``within two
  years from the time the cause of action accrues'').
      Finally, concerns about stale claims have little bearing on OSHA
  recordkeeping cases. OSHA recognizes that statutes of limitations are
  designed to ``keep stale claims out of the courts.'' Havens Realty, 455
  U.S. at 380. They protect parties from having to defend against stale
  claims and ensure that courts are not faced with ``adjudicat[ing]
  claims that because of their staleness may be impossible to resolve
  with even minimum accuracy.'' Stephan v. Goldinger, 325 F.3d 874, 876
  (7th Cir. 2003). Claims generally are considered stale when so much
  time has passed that relevant evidence has been lost and witnesses are
  no longer available or do not have reliable memories of the relevant
  occurrence. Id. But ``[w]here the challenged violation is a continuing
  one, the staleness concern disappears.'' Havens Realty, 455 U.S. at
  380. And nothing about continuing violations in the context of OSHA
  recordkeeping violations undermines this general principle.
      The American Petroleum Institute cited an example of a case where
  the employer's recordkeeper had passed away by the time of the hearing.
  Ex. 0020. However, reliance on witness recollection is often not
  necessary in recordkeeping cases because one can ordinarily ascertain
  whether an injury or illness occurred, and what treatment was
  necessary, by looking at medical reports, workers' compensation
  documents, and other relevant records, even if the affected employee or
  other witnesses are no longer available. In fact, OSHA's Recordkeeping
  Policies and Procedure Manual, CPL 02-00-135 (Dec. 30, 2004), directs
  compliance officers to review medical records to determine whether an
  employer has failed to enter recordable injuries and illnesses on the
  OSHA forms. And with respect to whether the employer recorded the
  injury or illness, the only evidence the parties and the court will
  need are the employer's OSHA Log and Incident Report Forms, which
  existing regulations require employers to maintain for five years.
  Furthermore--and contrary to the comment by the American Petroleum
  Institute that staleness concerns primarily hurt employers (Ex. 0020)--
  OSHA ultimately bears the burden of proving that a recordable injury or
  illness occurred and the employer did not record it. Therefore, the
  absence of documents and witnesses generally will be more prejudicial
  to OSHA's case than to the employer's defense. See Secretary v. Home
  Depot #6512, 22 BNA OSHC 1863 (Rev. Comm'n 2009) (vacating citation for
  failure to report employee fatality because Secretary did not provide
  sufficient evidence to establish fatality was work-related). And any
  limited staleness concerns that exist are outweighed by the fact that
  ongoing recordkeeping requirements are essential to fulfilling the
  purposes of the OSH Act. See generally Connecticut Light & Power Co. v.
  Sec'y of Labor, 85 F.3d 89, 96 (2d Cir. 1996) (``Consideration of
  limitations periods requires a fair and reasonable weighing of the
  conflicting concerns of the remedial intent of the [statute] . . . and
  the desire to keep stale claims out of the courts.'').
      Moreover, under this final rule, an employer's obligation is the
  same as under the current rule: To record injuries and illnesses within
  seven days and maintain the records for five years. The new rule simply
  clarifies that an employer cannot avoid the five-year maintenance
  requirement by failing to make the record in the initial seven days;
  rather, the obligation to make the record continues throughout the
  five-year maintenance period even if the employer fails to meet its
  initial obligation. Therefore, employers who record injuries and
  illnesses promptly, as paragraph 1904.29(b)(3) requires, will not face
  staleness concerns.
  3. Incomplete or Otherwise Inaccurate Records of Work-Related Illnesses
  and Injuries Create an Ongoing Condition Detrimental to Full
  Enforcement of the Act
      OSHA records ``are a cornerstone of the Act and play a crucial role
  in providing the information necessary to make workplaces safer and
  healthier.'' Gen. Motors Corp., 8 BNA OSHC at 2041. As explained
  previously, in SUPPLEMENTARY INFORMATION, Section I.B, employers must
  give employees (as well as OSHA and BLS) access to injury and illness
  records. OSHA injury and illness records are designed to be used by
  employers, employees, the public health community, and the government
  to learn about the injuries and illnesses that are occurring in
  American workplaces. See ``Improve Tracking of Injuries and
  Illnesses,'' 81 FR 29623 (May 12, 2016). Accurate OSHA injury and
  illness records enable employers to identify, and correct, hazardous
  conditions, allow employees to learn about the hazards they face, and
  permit the government to determine where and why injuries are occurring
  so that



  appropriate regulatory or enforcement measures can be taken. (See
  SUPPLEMENTARY INFORMATION, Section I.B, earlier in this preamble, for a
  full discussion of the purposes served by OSHA injury and illness
  records.) Thus, Congress viewed accurate records as necessary for the
  enforcement of the Act. 29 U.S.C. 657(c). Inaccurate or incomplete
  injury and illness records will leave all of the relevant parties
  underinformed, and thereby create an ongoing hazardous condition
  detrimental to full enforcement of the Act. The Commission has
  recognized as much. See, e.g., Gen. Dynamics, 15 BNA OSHC at 2131 n. 17
  (recordkeeping regulations ``clearly are safety- and health-related'');
  Johnson Controls, 15 BNA OSHC at 2135-36 (``[A] failure to record an
  occupational injury or illness . . . does not differ in substance from
  any other condition that must be abated pursuant to . . . occupational
  safety and health standards . . .'').
      Nor is there any meaningful distinction to be drawn between cases
  involving inadequate training or unsafe machines (which may also be
  seen as involving repeated affirmative acts, for example, sending
  untrained employees to work in hazardous conditions) and recordkeeping
  cases (involving failures to create and maintain accurate records of
  workplace illnesses and injuries). The lack of access--by employers,
  employees and OSHA--to accurate records is as much an ongoing non-
  complying condition under the Act as is an untrained employee or an
  unguarded machine. Whether the condition was created by an act of
  omission or of commission, the condition is one that continues to
  violate the Act until it is abated.
      Moreover, under the system Congress established in the OSH Act, any
  distinction that can be drawn between action and inaction lacks legal
  significance. As the Commission recognizes, ``unlike other federal
  statutes in which an overt act is needed to show any violation, the OSH
  Act penalizes both overt acts and failures to act in the face of an
  ongoing, affirmative duty to perform prescribed obligations.'' Volks I,
  23 BNA OSHC at 1417 n.3 (emphasis in original). See also, e.g., Gen.
  Dynamics, 15 BNA OSHC at 2130 (``[T]he Act penalizes the occurrence of
  noncomplying conditions which are accessible to employees and of which
  the employer knew or reasonably could have known. That is the only
  `act' that the Secretary must show to prove a violation.''). That is
  why it is still a citable violation if an employer has left a hazardous
  machine unguarded for years--even though the employer has not done
  anything to the machine since first removing the guard. That is why it
  is a violation if an employer fails to label containers of hazardous
  chemicals or have safety data sheets on hand, regardless of how long
  the inaction persists or when it first occurred. And courts regularly
  find that a failure to act in accordance with an ongoing legal
  obligation constitutes a continuing violation. Such cases have included
  a lender's failure to make required disclosures to a borrower (Postow,
  627 F.2d 1370), a sex offender's failure to register with authorities
  (George, 625 F.3d 1124), a parent's failure to pay child support
  (Edelkind, 525 F.3d 388), an agency's failure to comply with statutory
  mandates and deadlines (Wilderness Soc'y, 434 F.3d 584), a company's
  failure to create and maintain water sampling records (Sierra Club, 847
  F.2d 1109), and a failure on the part of the government to act on
  complaints of discrimination (Padres Hacia Una Vida Mejor, 2012 WL
  1158753).
      Incomplete and inaccurate OSHA records therefore result in an
  ongoing non-complying condition--namely employers, employees, and the
  government being denied access to information necessary to full
  enforcement of the Act. This non-complying condition continues every
  day that the records are inaccurate.\6\
  ---------------------------------------------------------------------------

      \6\ For this reason, Gabelli v. SEC, 133 S.Ct. 1316 (2013),
  cited by Nabors Drilling USA and the National Association of
  Manufacturers, is inapposite. Exs. 0010, 0026. Gabelli deals with
  the discovery rule, which pertains to whether a claim's accrual date
  should be extended until the plaintiff learns of the unlawful
  conduct. The discovery rule is not needed where, as here, the
  unlawful conduct is ongoing. In Gabelli, which involved a civil
  enforcement action under the Investment Advisers Act, the Supreme
  Court held that the five-year statute of limitations in 28 U.S.C.
  2462 ran from the date a fraud was complete, not from the date the
  government discovered the fraud. Gabelli does not stand for the
  proposition that the language in 28 U.S.C. 2462 precludes
  application of a continuing violation theory. Indeed, in Gabelli the
  government agreed that the alleged illegal activity ended more than
  five years prior to the filing of the complaint, so there was no
  issue about the duration of the violative conduct.
  ---------------------------------------------------------------------------

      Additionally, the legislative history of the Act reflects Congress'
  concern about harm resulting to employees in workplaces with incomplete
  records of occupational injuries and illnesses. Most notably, a report
  of the Senate Committee on Labor and Public welfare stated that
  ``[f]ull and accurate information is a fundamental precondition for
  meaningful administration of an occupational safety and health
  program.'' S. Rep. No. 91-1282, at 16 (1970), reprinted in Subcomm. on
  Labor of the Comm. on Labor and Public Welfare, Legislative History of
  the Occupational Safety and Health Act of 1970, at 156 (1971) (emphasis
  added). Additionally, a report from the House of Representatives shows
  that Congress recognized ``comprehensive [injury and illness]
  reporting'' as playing a key role in ``effective safety programs.''
  H.R. Rep. No. 91-1291, at 15 (1970), reprinted in Subcomm. on Labor of
  the Comm. on Labor and Public Welfare, Legislative History of the
  Occupational Safety and Health Act of 1970, at 845 (1971).
      Some commenters, including Nabors Drilling USA and the North
  American Insulation Manufacturers' Association, expressed the opinion
  that this rule will do nothing to improve safety and health. Exs. 0010,
  0016, 0017, 0019, 0026. For the reasons already stated, OSHA disagrees,
  and evidence submitted by other commenters supports OSHA's conclusion.
  For example, North America's Building Trades Unions commented that
  records of workplace injuries and illnesses are valuable to help
  identify hazards and correct problems in the workplace, both
  immediately and over time, and that this information is of particular
  value in the construction industry where workers change jobsites often.
  Ex. 0025. The United Steelworkers (USW) provided an example of a
  company safety committee noticing that the employer was not accurately
  recording hand lacerations caused by certain equipment; later, an
  employee using the same equipment suffered an amputation. Ex. 0028.
  Properly maintained records could have helped alert the employer to the
  hazardous machine before the amputation occurred. The USW also provided
  several examples of workplace hazards that emerge as trends over time,
  including occupational hearing loss, exposure to hazardous chemicals,
  and musculoskeletal disorders. Injury and illness records are an
  important tool in the identification of these types of hazards. Ex.
  0028.
      Additionally, as noted by commenter ORCHSE Strategies, LLC,
  although most employers are diligent about recording injuries and
  illnesses as required, some are not.\7\ Ex. 0015. OSHA's ability to
  enforce the recordkeeping regulations is an important tool to ensure
  that accurate information about workplace safety is



  available and that conscientious employers are not placed at a
  disadvantage by employers who intentionally underreport and thus appear
  safer than they actually are. Ex. 0015; see Ex. 0024. Although OSHA's
  recordkeeping rules have always required employers to maintain records
  for five years, they did not previously expressly state that an
  employer cannot skirt this requirement by ignoring its obligation to
  record an injury or illness when first learning of it. This final rule
  clarifies the recordkeeping requirements and enables OSHA to ensure
  that employers make and keep an accurate, five-year record of workplace
  injuries and illnesses. Indeed, without this clarification, as the AFL-
  CIO noted, the rule would not achieve Congress' intent that the
  Secretary collect accurate data about workplace safety. Ex. 0024.
  ---------------------------------------------------------------------------

      \7\ The USW suggested that OSHA incorporate into this rule a
  prohibition on employer practices that discourage reporting of
  injuries and illnesses. Ex. 0028. Such a prohibition would be beyond
  the scope of this rulemaking, which is limited to clarifying
  existing obligations. However, such practices are addressed in
  OSHA's recent rulemaking, ``Improve Tracking of Injuries and
  Illnesses,'' 81 FR 29623 (May 12, 2016).
  ---------------------------------------------------------------------------

  4. OSHA Is Acting Within Its Regulatory Authority, and Consistently
  With the General Case Law, in Issuing This Clarifying Rule
      Several commenters expressed the view that the Volks II majority
  opinion prohibits the Secretary from imposing a continuing obligation
  on employers to record, and maintain records of, injuries and
  illnesses, with a few commenters stating that OSHA is improperly
  attempting to ``overturn'' the Volks II decision. Exs. 0003, 0008,
  0009, 0010, 0011, 0012, 0013, 0014, 0016, 0017, 0020, 0021, 0023, 0026.
  OSHA disagrees. For the reasons described below, OSHA does not believe
  it is improper to respond to the Volks II decision by clarifying the
  regulations before there is any additional litigation over OSHA's
  statutory authority to establish continuing recordkeeping obligations.
      Given that OSHA agrees with Judge Garland that the regulations as
  previously written did not clearly convey the intended continuing
  obligation, it would have been fruitless for OSHA to seek further
  appellate review of the Volks II decision, as some commenters
  suggested. See Exs. 0017, 0020, 0021. The executive branch of the
  federal government may elect not to appeal an adverse decision from the
  judiciary for a number of reasons unrelated to its views about the
  merits of the ruling, and, as the Supreme Court recognizes, the
  government's decision to forgo appeal in a particular case should not
  foreclose future review of relevant issues in other appropriate
  judicial forums. See United States v. Mendoza, 464 U.S. 154, 160-61
  (1984) (declining to apply non-mutual collateral estoppel against the
  federal government in part because doing so ``would force the . . .
  [government] to abandon prudential concerns and to appeal every adverse
  decision in order to avoid foreclosing further review''). Thus, OSHA
  has acted reasonably in deciding to clarify its regulations before
  there is any additional litigation over the issues of statutory
  interpretation addressed in Volks II.
      OSHA acknowledges that this clarification of its recordkeeping
  regulations to address the textual deficiencies identified by Judge
  Garland leaves unsettled the issue of OSHA's statutory authority to
  regulate in this manner. (Two of three judges on the Volks II panel
  found that the OSH Act did not permit OSHA to issue continuing
  recordkeeping regulations; however, Judge Garland disagreed with the
  majority's holding on this point.) When OSHA implements this rule, that
  issue will likely be the subject of future litigation in various
  federal courts, and potentially in the Supreme Court. Courts generally
  recognize the value of allowing the law to develop through litigation
  in multiple forums. See, e.g., Mendoza, 464 U.S. at 160 (noting
  ``benefit . . . from permitting several courts of appeals to explore a
  difficult question before this Court grants certiorari''); Califano v.
  Yamasaki, 442 U.S. 682, 702 (1979) (``It often will be preferable to
  allow several courts to pass on a given class claim in order to gain
  the benefit of adjudication by different courts in different factual
  contexts.''). See also Holland v. Nat'l Mining Ass'n, 309 F.3d 909, 815
  (D.C. Cir. 2002) (``Allowing one circuit's statutory interpretation to
  foreclose . . . review of the question in another circuit would squelch
  the circuit disagreements that can lead to Supreme Court review.'').
      OSHA has issued rules with a similar clarifying purpose following
  adverse court decisions before. For example, after the Fifth Circuit
  held that OSHA's respirator standard and the training provisions in the
  asbestos standard did not permit citing an employer for each individual
  employee who was not provided the required respirator or training, OSHA
  issued a final rule ``to make it unmistakably clear that each covered
  employee is required to receive PPE and training, and that each
  instance when an employee subject to a PPE or training requirement does
  not receive the required PPE or training may be considered a separate
  violation subject to a separate penalty.'' 73 FR 75568-01, 75569 (Dec.
  12, 2008); see Chao v. OSHRC and Erik K. Ho, 401 F.3d 355 (5th Cir.
  2005). See also 72 FR 64342-01, 64342-43 (Nov. 15, 2007) (final rule
  clarifying employers' responsibility to pay for PPE, issued in response
  to Commission decision vacating citation for employer's failure to
  pay).\8\
  ---------------------------------------------------------------------------

      \8\ Nor is it uncommon for federal agencies to engage in
  nonacquiescence when faced with what they believe are erroneous
  court decisions. See, e.g., Samuel Estreicher & Richard L. Revesz,
  Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679
  (1989).
  ---------------------------------------------------------------------------

      OSHA also disagrees with the commenters, including the Coalition
  for Workplace Safety and the National Association of Home Builders, who
  suggested that a Supreme Court case, National Cable and
  Telecommunications Association v. Brand X Internet Services, 545 U.S.
  967 (2005) (``Brand X''), precludes the Secretary from promulgating
  this final rule. Exs. 0011, 0013, 0017, 0020. In holding that the Ninth
  Circuit should have deferred to the FCC's interpretation of a statutory
  term instead of following the contrary interpretation the court had
  adopted in an earlier case, Brand X stated that ``[a] court's prior
  judicial construction of a statute trumps an agency construction
  otherwise entitled to Chevron deference only if the prior court
  decision holds that its construction follows from the unambiguous terms
  of the statute and thus leaves no room for agency discretion.'' 545
  U.S. at 982 (emphasis added). Brand X does not control here, however,
  because Volks II did not clearly hold that the OSH Act unambiguously
  forecloses continuing recordkeeping violations. Indeed, the court
  expressly acknowledged that the loss or destruction of a record
  previously made constitutes a continuing violation of the requirement
  to retain records for five years. 675 F.3d at 756; see id. at 763
  (concurring opinion). Moreover, although parts of the majority opinion
  suggest that the ``clear'' language in the OSH Act's statute of
  limitations precludes continuing record-making violations (because the
  majority said that the word ``occurrence'' requires a discrete action
  to have taken place within the six-month limitations period, 675 F.3d
  at 755-56), the court nevertheless acknowledged ambiguity in the
  meaning of ``occurrence'' when it agreed that training and machine
  guarding violations can continue, not because a discrete action occurs
  within the six-month window, but because ``the dangers created by
  th[ose] violations persist.'' Id. at 758.\9\ Notably, nothing in



  the OSH Act's statute of limitations distinguishes between standards
  (such as machine guarding requirements) and regulations (such as
  recordkeeping requirements). Finally, the fact that Judge Garland
  disagreed with the majority about what the statute says lends further
  support to OSHA's view that Volks II should not be read as holding that
  the OSH Act unambiguously forecloses this regulatory action.
  ---------------------------------------------------------------------------

      \9\ The Coalition for Workplace Safety also stated that the
  cases Local Lodge No. 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960)
  and Ledbetter v. Goodyear, 550 U.S. 618 (2007) prohibit this final
  rule. Ex. 0013. However, these cases do not control this rule
  because they involve causes of action that the Court found to accrue
  at one discrete moment in time--the illegal execution of a
  collective bargaining agreement and a particular instance of sex
  discrimination, respectively. In contrast, a failure to maintain an
  accurate record of workplace injuries and illnesses is a continuing
  violation that reoccurs each day it persists.
  ---------------------------------------------------------------------------

      As touched upon previously in this preamble, OSHA further believes
  that general case law on continuing violations clearly supports a
  continuing violation theory for OSHA recordkeeping violations. The
  Volks II majority stated that recordkeeping violations are not ``the
  sort of conduct we generally view as giving rise to a continuing
  violation[,]'' i.e., the kind of violation ``whose `character as a
  violation . . . [does] not become clear until . . . repeated during the
  limitations period . . . because it is . . . [the] cumulative impact .
  . . that reveals . . . illegality.' '' Volks II, 675 F.3d at 757
  (quoting Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997)). While the
  ``cumulative impact'' theory is one way to establish a continuing
  violation (see, e.g., Morgan, 536 U.S. 101 (hostile environment claims
  under Title VII)), established precedent recognizes a second type of
  continuing violation--a violation that continues to occur on a day-by-
  day (or act-by-act) basis and whose illegality was clear from the
  beginning. See, e.g., Edelkind, 525 F.3d 388 (failure to pay child
  support is a continuing offense); Sierra Club, 847 F.2d 1109 (finding
  continuing violations of the Clean Water Act where the company failed
  to comply with permit requirements for reporting and record retention);
  Postow, 627 F.2d 1370 (violation of Truth-in-Lending Act's disclosure
  requirements is a continuing violation). This is the type of continuing
  violation relevant here because all OSHA violations--including
  recordkeeping violations--``continue'' only insofar as non-compliant
  conditions exist.
      The D.C. Circuit explicitly recognized the existence of these two
  types of continuing violation cases in Earle, 707 F.3d 299, 1307--a
  post-Volks II case that made no reference to the Volks II majority
  opinion, but cited, with approval, Judge Garland's concurring
  opinion.\10\ In Earle, the court, quoting Judge Garland, explained that
  where a statute `` `imposes a continuing obligation to act, a party can
  continue to violate it until that obligation is satisfied and the
  statute of limitations will not begin to run until it does.' '' Id. at
  307. And ``[w]hether the obligation is continuing is a question of
  statutory construction.'' Earle, 707 F.3d at 307. The court explained
  that Postow had found a continuing violation of the Truth-in-Lending
  Act because the ``goals of the Act'' required construing the obligation
  to be continuing. Id. So too, the goals of the OSH Act require
  construing the recordkeeping obligation to be continuing. The purpose
  of recording injuries is to allow the recorded information to be used
  thereafter, throughout the retention and access period. Accurate and
  complete OSHA records enable employers, employees, and the government
  to understand the hazards present in the workplace so that corrective
  measures can be taken. Inaccurate and incomplete records, by contrast,
  are likely to be misleading.
  ---------------------------------------------------------------------------

      \10\ It is also noteworthy that Earle was written by Judge
  Henderson, who was part of the Volks II majority.
  ---------------------------------------------------------------------------

      The Secretary recognizes that one court has said that: ``The
  Supreme Court has made clear . . . that the application of the
  continuing violations doctrine should be the exception, rather than the
  rule.'' Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003) (not
  referring to any specific decision) (quoted in Volks II, 675 F.3d at
  757). Even so, the Secretary believes that the language and purposes of
  the OSH Act make it clear that the duty to maintain and make available
  records is a continuing obligation for all the reasons set forth
  previously.\11\
  ---------------------------------------------------------------------------

      \11\ In Toussie v. United States, 397 U.S. 112 (1970), the
  Supreme Court stated that ``the doctrine of continuing offenses
  should be applied in only limited circumstances since . . . `the
  tension between the purpose of a statute of limitations and the
  continuing offense doctrine is apparent.' '' Id. at 115 (citations
  omitted). But Toussie was a criminal case subject to the general
  principle that ``criminal limitations statutes are `to be liberally
  interpreted in favor of repose.' '' Id. (emphasis added and
  citations omitted). See also Diamond v. United States, 427 F.2d
  1246, 1247 (Ct. Cl. 1970) (per curiam) (``[T]he considerations
  moving the Court to decide [in Toussie] that the offense was not a
  continuing one were entwined with the criminal aspects of the
  matter, and the holding was limited to criminal statutes of
  limitations.''). In contrast, as noted previously, in Legal
  Authority, Section II.B.2, OSHA civil enforcement cases are subject
  to the opposing principle that ``statutes of limitation in the civil
  context are to be strictly construed in favor of the Government
  against repose.'' Interamericas, 111 F.3d at 382.
  ---------------------------------------------------------------------------

  III. Summary and Explanation of the Final Rule

      OSHA is amending its recordkeeping regulations, 29 CFR part 1904,
  to clarify that employers covered by the recordkeeping requirements
  have a continuing obligation to make and maintain accurate records of
  all recordable injuries and illnesses. This obligation continues for as
  long as the employer must maintain records for the year in which an
  injury or illness became recordable, and it does not expire if the
  employer fails to create a record when first required to do so.
      The continuing obligation to make and maintain accurate records of
  work-related illnesses and injuries is in accord with longstanding OSHA
  policy. Thus, this final rule does not impose new or additional
  obligations on employers covered by part 1904. Employers will not be
  required to make records of any injuries or illnesses for which records
  are not currently required; nor are the recording requirements
  themselves changing. Because the rule imposes no new burdens or
  obligations and changes no law, it is simply a clarification, not a
  substantive change (as a few commenters contended; see Exs. 0012, 0014,
  0020). As discussed at length previously, the amendments are meant
  simply to clarify employers' obligations in the wake of the Volks II
  decision. The amendments consist of revisions to various sections of
  the regulatory text as well as changes to the titles of some sections
  and subparts. (Titles are useful for clarity but do not change the
  legal meaning of the text itself. See Penn. Dept. of Corrections v.
  Yeskey, 524 U.S. 206, 212 (1998); INS v. Nat'l Ctr. for Immigrants'
  Rights, Inc., 502 U.S. 183, 189-90 (1991)).
      As discussed in more detail later in this preamble, the amendments
  clarify the following: (1) OSHA 300 Log. Employers must record every
  recordable injury or illness on the Log. This obligation continues
  through the five-year record retention-and-access period if employers
  do not create the record when first required to do so. During that
  period, employers must update the Log by adding cases not previously
  recorded and by noting changes to previously recorded cases. (2) OSHA
  301 Incident Report. Employers must prepare a Form 301 Incident Report
  for each recordable illness or injury. This obligation continues
  throughout the five-year retention-and-access period if employers do
  not prepare the report when first required to do so. Unlike with the
  Log, employers are not required to update the Incident Report



  to show changes to the case that occur after the form is initially
  prepared. (3) Year-end records review; preparation certification; and
  posting of the Form 300A annual summary. These ancillary tasks are
  intended to be performed at particular times during each year. They are
  not continuing obligations.
      Many commenters expressed concern that this rule increases
  recordkeeping obligations and thus will require employers to devote
  additional time and resources to recordkeeping. Exs. 0008, 0010, 0012,
  0013, 0014, 0020, 0021, 0026, 0027. For example, Nabors Drilling USA
  commented that the new rule will force it ``to hire one or more
  individuals whose sole job will be to police our volumes of OSHA 300,
  300A, and 301 logs for accuracy one-hundred percent of the time,'' and
  the National Federation of Independent Businesses stated its belief
  that the rule imposes on employers ``a duty of daily reconsideration''
  of each ``decision to not record or to not fully record an injury.''
  Exs. 0010, 0014. This concern is misplaced. An employer's obligation
  remains the same as it was before: To record workplace injuries and
  illnesses within seven days and to maintain the record for five years.
  There is no new requirement to review or reassess existing records over
  the course of the maintenance period (and, correspondingly, there are
  no additional costs involved). The new rule simply makes clear that if
  an employer fails to record an injury or illness within seven days, it
  is not relieved of the requirement to make and keep an accurate record
  of all recordable injuries and illnesses for the duration of five
  years. As explained above in Section I.C, this has long been OSHA's
  position. In response to the observation in Volks II that a record
  cannot be maintained if it was never made, 657 F.3d at 756, the new
  rule is meant to explain that the obligations to make and maintain
  records go hand-in-hand. An employer cannot skirt the requirement to
  maintain accurate injury and illness records by failing to make the
  records in the first place.
      The commenters' concern about needing to regularly reassess
  recordkeeping determinations applies to only one type of recordkeeping
  violation--the type in which a well-intentioned employer simply makes a
  mistake and fails to record a recordable case (e.g., due to
  administrative oversight or because of an erroneous belief that the
  case is not recordable). The commenters' concern has no relevance to
  cases in which employers simply decide not to record cases they know to
  be recordable or in which employers have known, pervasive shortcomings
  in their recordkeeping policies and systems. See Ex. 0019 (comment from
  American Society of Safety Engineers). While inadvertent mistakes are
  always a possibility with respect to any regulatory obligation--whether
  discrete or continuing--OSHA generally focuses its recordkeeping
  enforcement resources on systematic recording failures, not on one-time
  errors made in good-faith attempts at compliance.\12\ See, e g.,
  Secretary v. Pepperidge Farm, Inc., 17 BNA OSHC 1993 (Rev. Comm'n 1997)
  (affirming 176 willful recordkeeping violations where employer failed
  to train responsible employee on how to complete OSHA forms and failed
  to record dozens of injuries of a type that affected workers at ``an
  extraordinarily high rate''). And while employers are responsible for
  complying with the requirement to accurately record workplace injuries
  and illnesses and to maintain accurate records for five years, there is
  no separate requirement for daily (or regular) reconsideration of
  decisions not to record. Thus, even though OSHA may cite an employer
  for failing to record a recordable case, OSHA would have no basis for
  separately citing an employer for failing to reconsider prior
  recordkeeping determinations.
  ---------------------------------------------------------------------------

      \12\ OSHA notes, however, that an employer may be cited for an
  OSH Act violation as long as it has knowledge that the cited
  condition exists, whether or not the employer also has particular
  knowledge that the cited condition violates the Act. See, e.g.,
  Secretary v. Shaw Constr., Inc., 6 BNA OSHC 1341 (Rev. Comm'n 1978)
  (finding employer in violation of trenching standard where employer
  knew trench was not sloped, even though employer was unsure which
  OSHA standard applied to the trench). Recordkeeping violations are
  no different from other OSH Act violations in this respect.
  ---------------------------------------------------------------------------

  A. Description of Revisions

  1. Section 1904.0--Purpose
      OSHA received no comments on the proposed changes to Sec.  1904.0
  and has adopted the provision as proposed. OSHA has revised this
  section to clarify and emphasize employers' ongoing duties to make and
  maintain accurate records of each and every recordable injury and
  illness under part 1904. The revised language reflects the longstanding
  requirement for employers to provide their injury and illness records
  to certain government representatives and to employees and former
  employees and their representatives. The additions to the regulatory
  text include language reiterating that recordkeeping requirements are
  important in helping OSHA achieve its mission of providing safe and
  healthful working conditions for the nation's workers. OSHA also added
  a new sentence at the end of this section to explain that records will
  be considered ``accurate'' if correct and complete records are made and
  maintained for each and every recordable injury and illness in
  accordance with the provisions of part 1904. This concept is not new,
  as the requirement for employers to maintain accurate records is
  derived directly from the OSH Act, 29 U.S.C. 657(c)(2).
  2. Subpart C--Making and Maintaining Accurate Records, Recordkeeping
  Forms, and Recording Criteria
      OSHA proposed to amend the title of this Subpart to better reflect
  the content of revised Sec. Sec.  1904.4 and 1904.29, which address
  employers' duties to make and maintain accurate records, as well as
  recordkeeping forms and criteria. OSHA received no comments on this
  proposed change and has adopted the change as proposed.
  3. Paragraph (a) of Sec.  1904.4--Basic Requirement
      OSHA received no comments on the proposed changes to Sec.
  1904.4(a) and has adopted the changes as proposed. OSHA has revised
  this paragraph to reiterate the requirement that employers make and
  maintain accurate records of every injury and illness that meets the
  recording criteria in paragraphs (a)(1) through (3) of Sec.  1904.4.
  The prior version of paragraph (a), which required employers to
  ``record'' injuries and illnesses, was less explicit in expressing
  OSHA's intent that employers both create and keep accurate records. The
  revised language confirms that an employer's duty includes both
  creating and preserving accurate records of recordable injuries and
  illnesses. To be accurate, these records must be correct and complete.
  The revised language also reflects more closely the language of the OSH
  Act at 29 U.S.C. 657(c)(1) and (2). OSHA did not propose to change, and
  is not changing, the recording criteria in paragraphs (a)(1) through
  (3) of existing Sec.  1904.4.
  4. Note to Paragraph (a) of Sec.  1904.4
      OSHA proposed to add a note to Sec.  1904.4(a) to clarify the
  Secretary's longstanding position that the duty to make and maintain
  accurate injury and illness records continues throughout the entire
  record-retention period set out in Sec.  1904.33(a). This retention
  period runs for five years from the end of the calendar year that the
  records cover. An employer who fails to create a required record during
  the seven-day grace period provided for in Sec.  1904.29(b)(3) must
  still create the record so long as the retention period has not
  elapsed.



  Given this ongoing duty, OSHA may issue recordkeeping citations to
  employers that have incomplete or otherwise inaccurate records at any
  point during the retention period, and, under the six-month statute of
  limitations set out in 29 U.S.C. 658(c), for up to six months
  thereafter.
      OSHA received a number of comments about its proposal to specify
  that the recordkeeping duty is a continuing one. These comments are
  addressed in Section II.B, Legal Authority, above. For the reasons
  stated there, OSHA has adopted the changes as proposed.
  5. Paragraph (b)(3) of Sec.  1904.29--How quickly must each injury or
  illness be recorded?
      OSHA proposed to revise paragraph (b)(3) of Sec.  1904.29. The
  paragraph, as proposed and adopted in this final rule, states OSHA's
  longstanding requirement that each and every recordable injury and
  illness must be recorded on both the OSHA 300 Log for that year and a
  301 Incident Report within seven calendar days of when the employer
  receives information that the injury or illness occurred. OSHA is
  making minor wording changes to the first sentence of paragraph (b)(3),
  and the remainder of paragraph (b)(3), as proposed and adopted, is
  designed to make clear that employers who fail to record as required
  within seven days are not then relieved of the obligation to record.
  Thus, the obligation to record continues until the five-year retention
  period in Sec.  1904.33(a) has ended.
      North America's Building Trades Unions suggested that OSHA's use of
  the word ``deadline'' to refer to the end of the seven-day reporting
  period might cause confusion about whether the obligation continues
  after the ``deadline'' is missed. Ex. 0025. OSHA agrees and is removing
  this word in the final rule. OSHA has always interpreted the seven-day
  recording period as a grace period when an employer can gather
  information on an injury or illness without fear of being cited by OSHA
  for a failure to record. Similarly, OSHA has always interpreted the
  obligation to record as continuing throughout the record retention
  period. The amendments to this paragraph simply clarify OSHA's long-
  held positions.
      Other comments disagreeing with OSHA's proposal to specify that the
  recordkeeping duty is a continuing one are addressed in Section II.B,
  Legal Authority, above. For the reasons stated there, OSHA has adopted
  the remainder of the provision as proposed.
  6. Section 1904.32--Year-End Review and Annual Summary
      OSHA proposed to amend the title of this section to more accurately
  describe the topics covered by Sec.  1904.32, which include an
  employer's year-end review of records. OSHA received no comments on
  this proposed change and has adopted the change as proposed.
  7. Paragraph (a) of Sec.  1904.32--Basic Requirement
      OSHA received no comments on the proposed changes to Sec.
  1904.32(a) and has adopted the changes as proposed. OSHA has revised
  paragraph (a)(1) of Sec.  1904.32 to make clear that employers must
  examine each year's OSHA 300 Log at the end of the year to ensure that
  each and every recordable injury and illness is recorded on the Log,
  and that each entry is accurate. If an employer discovers, during this
  review, that an injury or illness is missing or that any aspect of an
  entry is inaccurate, the employer must correct the deficiency.
      OSHA has added a new paragraph (paragraph (a)(2)) to Sec.  1904.32.
  This paragraph provides that after reviewing and verifying the Log
  entries under Sec.  1904.32(a)(1), employers must verify that all
  entries on the Log are accurately recorded on OSHA 301 Incident
  Reports. Paragraph (a)(2) clarifies that if an employer discovers,
  during the Sec.  1904.32(a)(1) review, that an injury or illness was
  initially left off of the OSHA 300 Log, the employer must both add it
  to the log and create an accurate Incident Report for that injury or
  illness.
      OSHA is moving the language from paragraph (a)(2) in Sec.  1904.32
  to paragraph (a)(3) in the same section. OSHA is adding a clause to
  that paragraph to explain that the annual summary should be created
  only after an employer verifies the accuracy of the Log. This language
  is for clarification purposes only and does not add any new compliance
  requirements. OSHA is also renumbering paragraphs (a)(3) and (4) of
  Sec.  1904.32 as paragraphs (a)(4) and (5), respectively. OSHA did not
  propose to make, and is not making, any substantive changes to these
  provisions.
      The specific tasks required of employers under Sec.  1904.32(a)--to
  conduct a year-end review of the Log, and to prepare, certify, and post
  the annual summary--are in addition to the duties described elsewhere
  in part 1904, and do not supersede or modify them. These other duties
  include the fundamental continuing obligation for employers to ensure
  that Logs are accurate and complete and that all recordable cases are
  included on them. The specific steps required under Sec.  1904.32(a)
  are supplementary tasks designed to help ensure that employers are
  maintaining accurate records. These supplementary tasks are to be
  performed at specified times (at the end of each calendar year, and
  from February 1 to April 30 for posting). Failure to perform one of
  these supplementary tasks by the required date or during the required
  time period is a violation of Sec.  1904.32 that may be cited during
  the following six months. See Volks II, 675 F.3d at 761-62 (concurring
  opinion).
  8. Paragraph (b)(1) of Sec.  1904.32--How extensively do I have to
  review the OSHA 300 Log at the end of the year?
      OSHA received no comments on the proposed changes to paragraph
  (b)(1) of Sec.  1904.32 has adopted the changes as proposed. OSHA is
  amending paragraph (b)(1) of Sec.  1904.32 to reflect the revisions to
  Sec.  1904.32(a)(1). The changes to paragraph (b)(1) reiterate that
  employers must review the Log and its entries sufficiently to verify
  that all recordable injuries and illnesses for the relevant year are
  entered, and that those entries are accurate. In addition, OSHA is
  making one minor, non-substantive change to the heading of paragraph
  (b)(1).
  9. Section 1904.33--Retention and Maintenance of Accurate Records
      OSHA proposed to update the title of this section to more
  accurately reflect the obligations described in Sec.  1904.33. OSHA
  received no comments on this proposed change and has adopted the change
  as proposed.
  10. Paragraph (b)(1) of Sec.  1904.33--Other than the obligation
  identified in Sec.  1904.32, do I have further recording duties with
  respect to OSHA 300 Logs and 301 Incident Reports during the five-year
  retention period?
      OSHA proposed to amend the heading for this paragraph to reflect
  that employers have recording duties with respect to Incident Reports,
  as well as OSHA 300 Logs, during the five-year retention period. OSHA
  also proposed to amend the text of paragraph (b)(1) of Sec.  1904.33 to
  provide an introduction to the paragraphs that follow.
      OSHA proposed to add paragraphs (b)(1)(i) through (iii) to Sec.
  1904.33 to provide further guidance to employers on the duties to
  update Log entries and Incident Reports. Proposed paragraph (b)(1)(i)
  was designed to clarify employers' duties to make and keep OSHA 300 Log
  entries for each and every recordable injury and illness that occurs
  during the year to which the Log relates. There must also be an
  associated Incident Report for each illness and



  injury recorded on the Log. As the proposed language made explicit,
  these duties continue until the five-year retention period ends; thus,
  an employer may be required to make an entry on the OSHA Log or fill
  out an Incident Report for an illness or injury that occurred several
  years ago, if the employer either just learned of the incident or
  failed initially to record as required upon learning of the incident.
      Proposed paragraph (b)(1)(ii) addressed changes that must be made
  to OSHA Logs throughout the retention period. As emphasized throughout
  this rule, employers' OSHA 300 Logs must be accurate. This means that
  if an employer discovers that any aspect of a previously-recorded case
  (such as the classification, description, or outcome of the case) has
  changed, or that a case was recorded incorrectly at the outset, the
  employer must amend the entry to reflect the new or corrected
  information.
      Proposed paragraph (b)(1)(iii) reiterated the requirement in
  paragraph (b)(1)(i) that there must be an Incident Report for each and
  every recordable injury and illness. The primary purpose of proposed
  paragraph (b)(1)(iii) was to explain that employers are not required to
  update or correct existing Incident Reports during the retention
  period. This principle was previously stated in Sec.  1904.33(b)(3).
      OSHA received a number of comments questioning its assertion that
  the proposed changes to paragraph (b)(1) of Sec.  1904.33 would not
  require anything new of employers. These comments are addressed below
  and in Section II.B, Legal Authority, above. The proposed language was
  intended not to change, but rather to state more clearly, what was
  already required under the recordkeeping rules. The prior recordkeeping
  rules provided that during the five-year retention period, the employer
  must update the Logs to include newly discovered recordable injuries
  and illnesses and to show changes that occurred in previously recorded
  cases. They did not explicitly state the employer's continuing duty to
  record cases it initially failed to record as required. Judge Garland's
  concurring opinion in Volks II concluded that the regulation was not
  worded explicitly enough to create a continuing obligation to record
  all such cases, as compared with newly discovered cases. Volks II, 675
  F.3d at 760-61.
      At the time OSHA amended the recordkeeping rules in 2001, it was
  well-established law in the Commission that employers had a continuing
  duty to record these previously unrecorded injuries and illnesses on
  their Logs. See Gen. Dynamics, 15 BNA OSHC 2122; Johnson Controls, 15
  BNA OSHC 2132. Nothing in the 2001 rulemaking suggested that OSHA had
  any intention of changing this fundamental requirement. The 2001
  recordkeeping regulations required employers to promptly record cases
  on the 300 Log, and, throughout the five-year retention period, to add
  to the Log newly discovered cases even if they occurred some time ago.
  These rules did not assume noncompliance; in other words, the rules did
  not explicitly state what an employer must do if it failed to record a
  case that was recordable. But by stating in the 2001 regulations that
  newly discovered cases should be recorded, the Secretary did not intend
  to signify that other cases the employer had learned about need not be
  recorded.
      The 2001 regulations also stated that employers were not required
  to ``update'' Form 301 Incident Reports. In Volks II, Judge Garland
  read this to mean that employers do not have to create a form at all,
  once the initial seven-day recording period is over. See Volks II, 675
  F.3d at 760-61 (concurring opinion). That was not the Secretary's
  intention. The intent was to distinguish between the Log, which
  employers must update to reflect new and changed information, and the
  301 Form, which employers do not need to update. (The Secretary
  explained that although updating the Log would provide useful, accurate
  information, updating Incident Reports would not enhance the
  information in the employer's records sufficiently to warrant the
  additional burden that would be associated with such a requirement. See
  66 FR at 6050, January 19, 2001.) That OSHA did not require employers
  to update Incident Reports did not mean employers were not required to
  create the forms in the first place. The language in the final rule
  clarifies this.
      For the reasons stated above and in Section II.B, Legal Authority,
  OSHA has adopted the proposed revisions to Sec.  1904.33(b)(1) without
  change.
  11. Paragraph (b)(2) of Sec.  1904.33--Do I have to make additions or
  corrections to the annual summary during the five-year retention
  period?
      OSHA proposed minor changes to paragraph (b)(2) of Sec.  1904.33.
  These proposed changes were not substantive. The recordkeeping rules do
  not require employers to update or make changes to annual summaries
  during the five-year retention period. OSHA received no comments on the
  proposed changes to Sec.  1904.33(b)(2) and has adopted the changes as
  proposed.
  12. Paragraph (b)(3) of Sec.  1904.33
      OSHA proposed to delete paragraph (b)(3) from Sec.  1904.33 and
  move it, in slightly modified form, to paragraph (b)(1)(iii) in Sec.
  1904.33. OSHA received no comments on this proposed change to the
  regulatory text and has adopted the change as proposed.
  13. Section 1904.34--Change in Business Ownership
      Commenter Nabors Drilling USA observed that the language in the
  proposed rule might create confusion about the obligations of a new
  owner regarding the accuracy of the previous owner's injury logs. Ex.
  0010. To eliminate any potential confusion, OSHA is adding a sentence
  at the end of Sec.  1904.34 to clarify that when a business changes
  ownership, the new owner is not responsible for recording work-related
  injuries and illnesses that occurred before the change in ownership.
  14. Paragraph (b)(2) of Sec.  1904.35--Do I have to give my employees
  and their representatives access to the OSHA injury and illness
  records?
      Paragraph (b)(2) of Sec.  1904.35 addresses employee access to
  records created under part 1904. OSHA proposed only one minor change to
  this paragraph--the addition of the word ``accurate'' to describe the
  records to which employees, former employees, and their representatives
  must be given access. Accurate records are described in Sec.  1904.0.
  OSHA received no comments on this proposed change to the regulatory
  text and has adopted the change as proposed.
  15. Paragraph (b)(2)(iii) of Sec.  1904.35--If an employee or
  representative asks for access to the OSHA 300 Log, when do I have to
  provide it?
      In paragraph (b)(2)(iii) of Sec.  1904.35, OSHA proposed to add the
  term ``accurate'' to describe the OSHA 300 Logs to which employees,
  former employees, and their representatives must be given access.
  Accurate records are described in Sec.  1904.0. Records are required so
  they can be used, and records must be accurate if they are to serve
  this purpose. The duty to provide an accurate record upon request
  arises when the request is made, not before, so the six-month statute
  of limitations does not begin to run until the request is made.
      Nabors Drilling USA asked whether the change to Sec.  1904.35
  creates a private right of action by employees, former employees, and
  their representatives to pursue claims over recordkeeping. Ex. 0010. It
  does not. OSHA received no



  other comments on the proposed change to Sec.  1904.35 and has adopted
  the change as proposed.
  16. Subpart E--Reporting Accurate Fatality, Injury, and Illness
  Information to the Government
      OSHA proposed to revise the title of Subpart E to more precisely
  reflect the requirement in the Subpart that government representatives
  be given access to accurate fatality, injury, and illness information.
  OSHA received no comments on this proposed change and has adopted the
  change as proposed.
  17. Section 1904.40--Providing Accurate Records to Government
  Representatives
      OSHA proposed to revise the title of Sec.  1904.40 to reflect the
  changes to paragraph (a) of that section. OSHA received no comments on
  this proposed change and has adopted the change as proposed.
  18. Paragraph (a) of Sec.  1904.40--Basic Requirement
      OSHA proposed to add the term ``accurate'' to paragraph (a) of
  Sec.  1904.40 to reflect OSHA's longstanding expectation that employers
  provide government representatives with accurate records upon request.
  OSHA also proposed some non-substantive wording changes to this
  paragraph.
      Nabors Drilling USA suggested that OSHA revisit the four-business-
  hour timeframe in which employers must provide requested records to
  government representatives. Ex. 0010. This suggestion is beyond the
  scope of this rulemaking because this final rule only clarifies, and
  does not change, existing obligations. OSHA received no other comments
  on its proposed changes to Sec.  1904.40(a) and has adopted the changes
  as proposed.

  IV. State Plans

      The 28 States and U.S. Territories with their own OSHA-approved
  occupational safety and health plans must adopt a rule comparable to
  the amendments that Federal OSHA is promulgating to 29 CFR part 1904 in
  this final rule. The States and U.S. Territories with OSHA-approved
  occupational safety and health plans covering private employers and
  State and local government employees are: Alaska, Arizona, California,
  Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada,
  New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina,
  Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. In
  addition, six States and U.S. Territories have OSHA-approved State
  plans that apply to State and local government employees only:
  Connecticut, Illinois, Maine, New Jersey, New York, and the Virgin
  Islands.
      Under 29 CFR 1952.4(a), States with approved occupational safety
  and health plans under section 18 of the OSH Act (29 U.S.C. 667) must
  adopt recordkeeping and reporting regulations that are ``substantially
  identical'' to those set forth in 29 CFR part 1904. State plans'
  recording and reporting requirements for determining which injuries and
  illnesses must be recorded, and how they will be recorded, must be the
  same as the Federal requirements. 29 CFR 1952.4(a). State plans may
  promulgate injury or illness recording and reporting requirements that
  are more stringent than, or supplemental to, 29 CFR part 1904, after
  consulting with, and obtaining approval from, Federal OSHA. Id.
      State plans may not grant variances from injury and illness
  recording and reporting requirements for private sector employers; any
  such variances must be granted by Federal OSHA. 29 CFR 1952.4(b). And a
  State may grant such a variance for a State or local government entity
  only after obtaining Federal OSHA approval. Id.

  V. Final Economic Analysis

      These revisions to OSHA's recordkeeping rules do not constitute an
  economically significant regulatory action under Executive Order 12866.
  (See 58 FR 51735, September 30, 1993). Executive Order 12866 requires
  regulatory agencies to conduct an economic analysis for significant
  rules. A rule is economically significant under Executive Order 12866
  if it will have an annual effect on the economy of $100 million or
  more. This rule does not satisfy that criterion; as explained later in
  this preamble, neither the benefits nor the costs of the rule equal or
  exceed $100 million. OSHA has also determined that this rule does not
  meet the definition of a major rule under the Congressional Review
  provisions of the Small Business Regulatory Enforcement Fairness Act
  (SBREFA). See 5 U.S.C. 804(2).\13\
  ---------------------------------------------------------------------------

      \13\ Nor does this rule present a ``novel legal issue''
  rendering it a significant regulatory action, as the Coalition for
  Workplace Safety suggests. Ex. 0013. The commenter states that the
  final rule presents such a novel legal issue because OSHA is
  ``us[ing] a rule to overturn a U.S. Court of Appeals decision.'' As
  explained above in Legal Authority, Section II.B.4, OSHA does not
  agree with this characterization of the rulemaking. This rule is
  intended simply to clarify the meaning of the recordkeeping
  regulations following the Volks II decision, and the decision does
  not deprive OSHA of authority to promulgate this rule.
  ---------------------------------------------------------------------------

      The Regulatory Flexibility Act of 1980, as amended by SBREFA in
  1996, requires OSHA to determine whether its regulatory actions will
  have a significant impact on a substantial number of small entities.
  See 5 U.S.C. 601 et seq. OSHA's analysis indicates that the final rule
  will not have such an impact.
      This final rule simply reiterates and clarifies employers' existing
  obligations to record work-related injuries and illnesses. This rule
  does not require employers to make records of any injuries or illnesses
  for which records were not already required. Nor does the rule impose
  any new requirement that employers reconsider or reassess records once
  they have been made; employers remain subject to the existing
  requirement that they ensure the accuracy and completeness of their 300
  Logs. OSHA estimated the costs of these requirements as part of the
  final recordkeeping rule issued in January of 2001, see 66 FR 6081-
  6120, January 19, 2001. The revisions contained in this final rule
  impose no new cost burden because they do not require employers to do
  anything new.
      A number of commenters stated their belief that the final rule will
  impose additional costs because it requires employers to reassess, or
  ``think about,'' each record of a workplace injury or illness
  repeatedly over the course of five full years. Exs. 0008, 0010, 0012,
  0013, 0020, 0021, 0026, 0027. The National Federation of Independent
  Businesses estimated, ``conservatively,'' that this rule will cost the
  economy $1,933,710,222 over five years, assuming each employer has one
  ``unrecorded or partially-recorded injury.'' \14\ Ex. 0014. This
  concern is misplaced. An employer's obligations remain the same as they
  have always been under the recordkeeping rules: To record workplace
  injuries and illnesses within seven days of when it learns of them and
  to maintain the records for five years. The final rule does not contain
  any new requirement to review or reassess existing records over the
  course of the maintenance period (see Section III, SUMMARY AND
  EXPLANATION, above); it simply



  makes clear that if an employer fails to record an injury or illness
  within seven days of learning about it, it is not relieved of the
  requirement to have and keep an accurate record of all recordable
  injuries and illnesses for the duration of five years. Because the
  final rule imposes no new requirement for review of records, there are
  no additional costs involved for the time it would take to conduct such
  review. Moreover, there is no evidence in the record that employers
  have ever incurred meaningful costs (let alone costs on the level of
  those described by the National Federation of Independent Businesses)
  for regularly reassessing or ``thinking about'' their records--either
  in the many years before the Volks II decision when OSHA was enforcing
  recordkeeping requirements in a manner consistent with the
  clarification contained in this final rule, or after the decision, when
  it is undisputed that the Secretary may cite an employer for a failure-
  to-record at any time within the six-month period following a
  violation. Therefore, there is no reason to think employers will incur
  such costs now.
  ---------------------------------------------------------------------------

      \14\ To arrive at this number, the commenter assumed that
  ``daily reconsideration'' would take one minute per day per
  unrecorded or partially recorded injury or illness, and then
  multiplied one minute per day by 365 days per year by five years
  (minus seven days for the regulatory grace period) by an estimated
  1,365,985 covered businesses by $46.72 per hour. Ex. 0014. In
  addition to assuming a requirement for daily reconsideration that
  the rule does not impose, this calculation does not account for the
  fact that concerns about reassessment will apply to only a subset of
  all recordkeeping cases. See discussion in Section III, SUMMARY AND
  EXPLANATION, above.
  ---------------------------------------------------------------------------

      Even if these revisions to OSHA's recordkeeping rules would result
  in some costs beyond those OSHA estimated in 2001, any such costs would
  be nominal. According to OSHA's 2016 request to the Office of
  Management and Budget for an extension of the approval of the
  information collection requirements in the recordkeeping rules, an
  estimated 1.99 million injuries and illnesses must be recorded on OSHA
  logs each year. See http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1218-002.\15\ Although OSHA accounted for the
  costs associated with full recordkeeping compliance as part of the 2001
  rulemaking, and finds that this rulemaking will impose no additional
  costs on employers, OSHA will assume, for the sake of this analysis,
  that this rule will lead to the recording of a small number of
  recordable cases (one percent of all recordable cases) that would not
  have been recorded previously. In other words, OSHA will calculate the
  costs that would be imposed even if an additional 19,900 injuries and
  illnesses will be recorded as a result of the final rule. (OSHA took
  the same approach in its preliminary economic analysis, although there
  OSHA referred to this as an assumption involving a one-percent rate of
  noncompliance. OSHA believes the terminology it used in the proposal
  led to some confusion, so it has clarified its approach for purposes of
  this final rule.) \16\ OSHA also will examine a sensitivity analysis of
  the results assuming that this rule will lead to the recording of an
  even larger number of cases (5 percent of recordable injuries and
  illnesses).
  ---------------------------------------------------------------------------

      \15\ The National Association of Manufacturers objected that BLS
  estimates of recordable injuries are larger than OSHA's estimate of
  the total injuries that must be recorded. Ex. 0026. This is correct,
  but not all employers are required to record their injuries. See 29
  CFR 1904.1, 2 (describing exemptions for employers with 10 or fewer
  employees and those in certain industries). OSHA only uses BLS
  recordable injury estimates for those industries required to record
  injuries.
      \16\ Nabors Drilling USA commented that if OSHA is correct that
  99% of employers already fully comply with the recordkeeping
  requirements, this final rule serves no purpose. Ex. 0010. As
  explained above, however, OSHA is not suggesting that 99% of
  employers are in full compliance with OSHA recordkeeping
  requirements. In any event, unlike most OSHA rulemakings, this final
  rule is not intended to change employers' behavior, but rather is
  designed to clarify OSHA's requirements. Thus, the current rate of
  recordkeeping compliance is unrelated to the need for this final
  rule.
  ---------------------------------------------------------------------------

      The National Association of Manufacturers questioned OSHA's
  preliminary economic analysis, suggesting that OSHA's one-percent and
  five-percent assumptions were too low. Ex. 0026. OSHA believes,
  however, that the true costs associated with this final rule are zero,
  and is using the one-percent and five-percent assumptions simply to
  demonstrate that even if this rule leads to the recording of some
  additional injuries and illnesses, any costs incurred by employers as a
  result will be minimal.
      In 2014, OSHA prepared a Final Economic Analysis for a final rule
  addressing the industries entitled to a partial exemption from
  recordkeeping requirements and the reporting of injuries and fatalities
  to OSHA. In that analysis, OSHA estimated that it takes .38 of an hour
  to record an injury or illness on all required OSHA forms, taking into
  account requirements for providing access to records. See 79 FR 56130,
  56165 (September 18, 2014). And according to the 2016 Information
  Collection Request (ICR), the average hourly rate for an Occupational
  Health and Safety Specialist (Standard Occupational Classification code
  29-9011) is estimated to be $48.78 (which includes a 43% addition for
  benefits). See http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201604-1218-002. This means that the total estimated
  cost of preparing OSHA records is $18.54 per injury or illness. The
  American Society of Safety Engineers and the National Association of
  Manufacturers questioned these estimates of time and cost as too low.
  Exs. 0019, 0026. OSHA stands by these estimates, however, as they have
  been developed carefully through multiple notice and comment
  rulemakings and Paperwork Reduction Act notices. Those who believe OSHA
  underestimated these values are failing to recognize that not all costs
  of investigating an accident are attributable to OSHA's recordkeeping
  requirements. Much of the same information has to be collected for
  workers' compensation purposes. To avoid overlapping paperwork, OSHA
  allows, and many employers take advantage of, the option to use
  equivalent workers' compensation forms in place of OSHA's recordkeeping
  forms. See 29 CFR 1904.29(a), (b)(4).
      Thus, if 19,900 cases will be recorded as a result of the final
  rule, the total cost associated with this regulatory action will be
  19,900 times $18.54, or approximately $368,946 per year. And if OSHA
  makes the even more conservative assumption that 5 percent of 1.99
  million injuries and illnesses (99,500) would be recorded as a result
  of the final rule, the total estimated cost of the rule, across all
  affected employers, would be under $1.85 million per year. Even this
  hypothetical cost would only exist if employers are not currently
  complying fully with the existing rule, but increase their compliance
  as a result of this clarification.
      Just as there are no (or minimal) new costs associated with this
  rule, the rule will result in no new economic benefits. OSHA believes
  the revisions to the recordkeeping rules are technologically feasible
  because they do not require employers to perform any actions that they
  were not already performing under existing requirements. And because
  the rule does not impose any significant new compliance costs, OSHA
  deems it economically feasible.

  VI. Regulatory Flexibility Certification

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

  VII. Environmental Impact Assessment

      OSHA has reviewed the final rule in accordance with the
  requirements of the National Environmental Policy Act



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

  VIII. Federalism

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

  IX. Unfunded Mandates

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

  X. Consultation and Coordination With Indian Tribal Governments

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

  XI. Office of Management and Budget Review Under the Paperwork
  Reduction Act of 1995

      The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
  and OMB regulations (5 CFR part 1320) require agencies to obtain
  approval from OMB before conducting any collection of information. The
  PRA defines a ``collection of information'' as ``the obtaining, causing
  to be obtained, soliciting, or requiring the disclosure to third
  parties or the public of facts or opinions by or for an agency
  regardless of form or format'' (44 U.S.C. 3502(3)(A)).
      OSHA's existing recordkeeping forms consist of the OSHA 300 Log,
  the 300A Summary, and the 301 Incident Report. These forms are
  contained in the Information Collection Request (ICR) titled 29 CFR
  part 1904, Recording and Reporting Occupational Injuries and Illnesses,
  which OMB approved under OMB Control Number 1218-0176 (expiration date
  01/31/2018).
      In accordance with the PRA, OSHA solicited public comments on the
  July 29, 2015 proposed rule. The proposed rule also invited the public
  to submit comments to OMB and OSHA on the proposed collections of
  information with regard to the following:
       Whether the proposed collections of information are
  necessary for the proper performance of the Agency's functions,
  including whether the information is useful;
       The accuracy of OSHA's estimate of the burden (time and
  cost) of the collections of information, including the validity of the
  methodology and assumptions used;
       The quality, utility, and clarity of the information
  collected; and
       Ways to minimize the compliance burden on employers, for
  example, by using automated or other technological techniques for
  collecting and transmitting information.
      Because the proposal simply reiterated and clarified employers'
  existing obligations to record and maintain work-related injuries and
  illnesses and did not add any new collection of information, the Agency
  maintained the existing burden hour and cost estimates in the Recording
  and Reporting Occupational Injuries and Illnesses Information
  Collection Request. The Department also submitted this ICR to OMB for
  review in accordance with 44 U.S.C. 3507(d) on July 29, 2015. On
  October 7, 2015, OMB withheld approval of the revised ICR and issued a
  Notice of Action (NOA) stating that prior to publication of the final
  rule, the agency should provide a summary of any comments related to
  the information collection and their response, including any changes
  made to the ICR as a result of comments. In addition, the agency must
  enter the correct burden estimates (see http://www.reginfo.gov/public/do/DownloadNOA?requestID=266192).
      The final rule adds no new compliance obligations. The rule simply
  reiterates and clarifies employers' existing obligations to record
  work-related injuries and illnesses; it does not require employers to
  make records of any injuries or illnesses for which records were not
  already required. Nor does the rule impose any new requirement that
  employers reconsider or reassess records once they have been made;
  employers remain subject to the existing requirement that they ensure
  the accuracy and completeness of their 300 Logs. These revisions impose
  no new cost burden because they do not require employers to do anything
  new. The Department of Labor has submitted a final ICR to OMB
  maintaining the existing burden hours and cost estimates. A copy of
  this ICR is available at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201610-1218-003. OSHA will publish a separate notice
  in the Federal Register that will announce OMB results of that review.
  OSHA notes that a Federal agency cannot conduct or sponsor a collection
  of information unless it is approved by OMB under the PRA, and the
  collection of information notice displays a currently valid OMB control
  number (44 U.S.C. 3507(a)(3)). Also, notwithstanding any other
  provision of law, no employer shall be subject to penalty for failing
  to comply with a collection of information if the collection of
  information does not display a currently valid OMB control number (44
  U.S.C. 3512).
      OSHA received comments relating to the estimated time necessary to
  meet the paperwork requirements of the proposed changes published in
  the July



  29, 2015 proposed rule. A number of commenters stated their belief that
  the rule will impose additional costs because it requires employers to
  reassess, or ``think about,'' each record of a workplace injury or
  illness repeatedly over the course of five full years. Ex. 0008, 0010,
  0012, 0013, 0020, 0021, 0026, 0027. This concern is misplaced. An
  employer's obligations remain the same as they are under the existing
  rule: To record workplace injuries and illnesses within seven days of
  when it learns of them and to maintain accurate records for five years.
  The final rule does not contain any new requirement to review or
  reassess existing records over the course of the maintenance period; it
  simply makes clear that if an employer fails to record an injury or
  illness within seven days of learning about it, it is not relieved of
  the requirement to have and keep an accurate record of all recordable
  injuries and illnesses for the duration of five years. Because the
  final rule imposes no new requirement for review of records, there are
  no additional costs involved for the time it would take to conduct such
  review.
      OSHA estimates that it takes .38 of an hour to record an injury or
  illness on all required OSHA forms, taking into account requirements
  for providing access to records. The average hourly rate for an
  Occupational Health and Safety Specialist (Standard Occupational
  Classification code 29-9011) is estimated to be $48.78 (which includes
  a 43% addition for benefits). This means that the total estimated cost
  of preparing OSHA records is $18.54 per injury or illness. The American
  Society of Safety Engineers and the National Association of
  Manufacturers questioned these estimates of time and cost as too low.
  Exs. 0019, 0026. OSHA stands by these estimates, however, as they have
  been developed carefully through multiple notice and comment
  rulemakings and Paperwork Reduction Act notices. Not all costs of
  investigating an accident are attributable to OSHA's recordkeeping
  requirements. Much of the same information has to be collected for
  workers' compensation purposes. To avoid overlapping paperwork, OSHA
  allows, and many employers take advantage of, the option to use
  equivalent workers' compensation forms in place of OSHA's recordkeeping
  forms. See 29 CFR 1904.29(a), (b)(4).
      As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
  following paragraphs provide information about this ICR.
      1. Title: 29 CFR part 1904 Recording and Reporting Occupational
  Injuries and Illnesses.
      2. Number of respondents: Approximately 640,000 employers with
  1,300,000 establishments are regularly required to maintain the forms.
      3. Frequency of responses: Annually.
      4. Number of responses: Approximately 1.99 million injury and
  illness cases are recorded on the OSHA forms.
      5. Average time per response: Time required completing and
  maintaining an entry (other than a needlestick) on the OSHA Form 300
  ranges from 5 minutes to 30 minutes and averages 14 minutes. Time
  required completing an entry on the OSHA 301 averages 22 minutes. OSHA
  estimates 40% of recordable cases are recorded on form 301.
      6. Estimated total burden hours: The final rule adds no new
  compliance obligations and does not require employers to make records
  of any injuries or illnesses for which records are not currently
  required to be made. The current total burden hours for the
  recordkeeping (part 1904) ICR are 2,525,458.
      7. Estimated costs (capital-operation and maintenance): There are
  no capital costs for the proposed information collection.

  List of Subjects in 29 CFR Part 1904

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

  Authority and Signature

      This document was prepared under the direction of David Michaels,
  Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and
  Health, U.S. Department of Labor. It is issued pursuant to 29 U.S.C.
  657, 673; 5 U.S.C. 553; and Secretary of Labor's Order No. 1-2012 (77
  FR 3912, January 25, 2012).

  David Michaels,
  Assistant Secretary of Labor for Occupational Safety and Health.

      Accordingly, the Occupational Safety and Health Administration
  amends part 1904 of title 29 of the Code of Federal Regulations as
  follows:

  PART 1904--RECORDING AND REPORTING OCCUPATIONAL INJURIES AND
  ILLNESSES

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

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


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


  Sec.  1904.0   Purpose.

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

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

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

  0
  3. Revise the heading of subpart C to read as set forth above.

  0
  4. In Sec.  1904.4, revise paragraph (a) introductory text and add a
  note to Sec.  1904.4(a) to read as follows:


  Sec.  1904.4   Recording criteria.

      (a) Basic requirement. Each employer required by this part to keep
  records of fatalities, injuries, and illnesses must, in accordance with
  the requirements of this part, make and maintain an accurate record of
  each and every fatality, injury, and illness that:
  * * * * *

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

  * * * * *

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


  Sec.  1904.29   Forms.

  * * * * *
      (b) * * *
      (3) How quickly must each injury or illness be recorded? You must
  enter each and every recordable injury or illness on the OSHA 300 Log
  and on a 301 Incident Report within seven (7) calendar days of
  receiving information that the recordable injury or illness occurred. A
  failure to record within seven days does not extinguish your continuing
  obligation to make a record of the injury or illness and to maintain
  accurate records of all recordable injuries and illnesses in accordance



  with the requirements of this part. This obligation continues
  throughout the entire record retention period described in Sec.
  1904.33. See Sec. Sec.  1904.4(a); 1904.32(a)(1); 1904.33(b)(1); and
  1904.40(a).
  * * * * *

  0
  6. Revise the heading and paragraphs (a) and (b)(1) of Sec.  1904.32 to
  read as follows:


  Sec.  1904.32   Year-end review and annual summary.

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

  0
  7. Revise the heading and paragraph (b) of Sec.  1904.33 to read as
  follows:


  Sec.  1904.33   Retention and maintenance of accurate records.

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

  0
  8. Revise Sec.  1904.34 to read as follows:


  Sec.  1904.34   Change in business ownership.

      If your business changes ownership, you are responsible for
  recording and reporting work-related injuries and illnesses only for
  that period of the year during which you owned the establishment. You
  must transfer the Part 1904 records to the new owner. The new owner
  must save all records of the establishment kept by the prior owner, as
  required by Sec.  1904.33, but need not update or correct the records
  of the prior owner. The new owner is not responsible for recording and
  reporting work-related injuries and illnesses that occurred before the
  new owner took ownership of the establishment.

  0
  9. Revise paragraphs (b)(2) introductory text and (b)(2)(iii) of Sec.
  1904.35 to read as follows:


  Sec.  1904.35   Employee involvement.

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

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

  0
  10. Revise the heading of subpart E to read as set forth above.

  0
  11. Revise the heading and paragraph (a) of Sec.  1904.40 to read as
  follows:


  Sec.  1904.40   Providing accurate records to government
  representatives.

      (a) Basic requirement. When an authorized government representative
  requests the records you keep under part 1904, you must provide
  accurate records, or copies thereof, within four (4) business hours of
  the request.
  * * * * *
  [FR Doc. 2016-30410 Filed 12-16-16; 8:45 am]
   BILLING CODE 4510-26-P




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