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NRCA issues comments on the OSHA notice of proposed rule regarding making and maintaining a record of each recordable injury and illness

August 21, 2015
OSHA Docket Office
Docket No. OSHA-2015-0006
RIN No. 1218-AC84
U.S. Department of Labor
200 Constitution Ave., N.W.
Washington, D.C. 20210

Comments of the National Roofing Contractors Association on the OSHA notice of proposed rule regarding "Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness"

Established in 1886, the National Roofing Contractors Association (NRCA) is one of the construction industry's oldest and most respected trade associations and the voice of professional roofing contractors worldwide. NRCA proudly claims nearly 3,500 worldwide industry members who are manufacturers, distributors, architects, consultants, government agency and academic representatives in addition to U.S. roofing contractors.

One of NRCA's core objectives is to promote worker health and safety in the roofing industry. NRCA has developed more than 50 roofing safety-related publications, programs and training materials on diverse topics including asbestos abatement, hazard communication, fall protection and crane and hoist operation. In addition, OSHA has awarded NRCA numerous Susan Harwood grants to develop programs designed to improve workplace safety in the roofing industry.

NRCA has been a sitting member of and represents the roofing industry in proceedings before OSHA's Advisory Committee for Construction Safety and Health, is a member of the American National Standards Institute's A10 Committee on Construction and Demolition Operations and the ISO 45001 standard's Technical Advisory Group for Occupational Health and Safety Management Systems. NRCA appreciates the opportunity to comment on OSHA's proposed rule seeking to clarify an employer's obligation to make and maintain accurate records of recordable injuries and illnesses.

OSHA notes that it is issuing the subject proposed rulemaking in response to a decision of the U.S. Court of Appeals for the DC Circuit in AKM LLC, dba Volks Constructors v. Secretary of Labor, No. 11-1106, April 6, 2012 (hereinafter Volks). In Volks, the court held the requirement found in the Occupational Safety and Health (OSH) Act for an employer to make, keep and preserve records of occupational injuries and illnesses which OSHA deems necessary does not authorize the agency to cite an employer for a record-making violation more than 6 months after the recording failure.

Under the OSHA regulations, employers must record on Form 300 and 301 any work-related injury or illness within 7 days of receiving information of the occurrence. Additionally, employers must save OSHA forms 300, 300A and 301 for 5 years following the end of the calendar year that the forms cover. The OSH Act provides "No citation may be issued under this section after the expiration of six months following the occurrence of any violation." The court noted OSHA's argument in the Volks case was because the agency had authority to create a record-retention regulation (a 5-year retention requirement was established) that authorization creates a continuing violation of record-making requirements at all times during the 5-year retention period. So that, a citation for failing to make a record does not need to be issued within 6 months of the occurrence of that failure (a record not made within 7 days of the incident) but may be issued anytime within 6 months of the end of the 5-year retention period that would otherwise apply to that record.

NRCA acknowledges the importance of injury and illness records being made and maintained by employers in ensuring a safe and healthful workforce. All employers understand the significance as well since worker injuries and illnesses will be managed under a workers compensation insurance system and accurate data must be kept since it has a critical impact on the employer's experience modification rate or EMR. EMR is calculated by insurance carriers by accumulating injury and illness claims records of an employer effectively looking back four years. Failure of an employer to comply with strict recordkeeping requirements of its insurance carrier could lead to increased premiums, transfer to expensive state-run insurance pools and loss of coverage with preferred carriers—sanctions far more severe than OSHA could impose. It appears OSHA's intent, then, for extending the current regulation's statute of limitations for recordkeeping requirements is purely to duplicate paperwork and levy citations and fines.

However, our comments with regard to this proposed rule are founded primarily in the process and approach that OSHA has taken subsequent to the decision of the U.S. Court of Appeals. This notice of proposed rulemaking is unique in that it reads like an appellate brief submitted to a court to influence a ruling and therein lies the fundamental flaw in this action by OSHA. The precise issues the agency argues in 30 pages of this proposed rule have been decided by the U.S. Court of Appeals for the DC Circuit against the agency. The arguments that OSHA makes under this notice with respect to the meaning and application of principles such as "occurrence" of a violation and "continuing violations" have been rejected by the court in its main opinion and in the concurring opinions of two justices of the court. NRCA would not presume to attempt to add to the eloquence of the court's reasoning by a duplicative supplement presented here. Simply stated, in NRCA's view, OSHA now attempts to accomplish by a flawed proposed rulemaking that which it could not by way of the appellate process.

Instead, OSHA has proposed to modify the language of the recordkeeping rule in an effort to pound its square peg of continuing violation into the round hole of the statute of limitations with clear congressional intent and an adverse appellate court decision of little matter. For purposes of occupational safety and health enforcement, OSHA's approach is clearly inconsistent with the plain language of the OSH Act with respect to the 6-month limitations period. Additionally, in the release of the final recordkeeping rule retaining the 5-year retention requirement of the original rule (Federal Register, Volume 66, Number 13, January 19, 2001), the agency never even remotely suggested that the 5-year retention period set out in the rule would support a continuing violation as the agency argued in the Volks case. It is clear from the agency's reasoning for the 5-year rule that OSHA never considered the provision anything more than a data collection tool and not a surreptitious method of extending the limitations period of the OSH Act. To make that argument now conflicts with the history of the rule and OSHA's long-standing explanations for it.

OSHA attempts this illogical change through a contortion of proposed language modifying the current recordkeeping regulation. For example, in §1904.29 an employer "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" concerning the incident (this has been the long-standing requirement). New language proposed by OSHA amending this section reflects its own confusion with the conflict the agency now creates: "A failure to meet this deadline does not extinguish your continuing obligation to make a record … throughout the entire record retention period …" (Emphasis added). So that the 7-day deadline in the original regulation is not a deadline at all since the real deadline is a 5-year retention period—contrary to the decision of the U. S. Court of Appeals that stated the failure to make a record once 7 days have expired is the "occurrence" that starts the running of the 6-month statute of limitations.

OSHA has ignored the standard rule enunciated by the court that a limitations period "is triggered by the existence of a complete cause of action" unless Congress has stated otherwise, as here it has failed to do under the OSH Act. According to the U.S. Court of Appeals, OSHA's attempt to make the record retention period an effective extension of the statute of limitations also ignores a principle that the U.S. Supreme Court has made clear that application of a continuing violations doctrine is the exception rather than the rule.

The proposed rulemaking offered by OSHA here is an example of agency overreach that reflects an unfortunate lack of respect for the decision of the U.S. Court of Appeals in the Volks case. It seems abundantly clear based on our system of government that the proper protocol for OSHA to follow in this instance is to appeal the decision of the US Court of Appeals or ask Congress to modify specific requirements in the OSH Act clarified by the court. NRCA therefore urges OSHA to withdraw this proposed rule.

Respectfully submitted,

William A. Good, CAE
Chief Executive Officer
National Roofing Contractors Association



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