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