Improve Tracking of Workplace Injuries and Illnesses, 47605-47610 [2014-19083]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)]
[Proposed Rules]
[Pages 47605-47610]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19083]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1952

[Docket No. OSHA-2013-0023]
RIN 1218-AC49


Improve Tracking of Workplace Injuries and Illnesses

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

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: On November 08, 2013, OSHA published a notice of proposed 
rulemaking to amend the agency's regulation on the annual OSHA injury 
and illness reporting requirements to add three new electronic 
reporting obligations. At a public meeting on the proposal, many 
stakeholders expressed concern that the proposal could motivate 
employers to under-record their employees' injuries and illnesses. They 
expressed concern that the proposal could promote an increase in 
workplace policies and procedures that deter or discourage employees 
from reporting work related injuries and illnesses. These include 
adopting unreasonable requirements for reporting injuries and illnesses 
and retaliating against employees who report injuries and illnesses. In 
order to protect the integrity of the injury and illness data, OSHA is 
considering adding provisions that will make it a violation for an 
employer to discourage employee reporting in these ways. To facilitate 
further evaluation of this issue, OSHA is extending the comment period 
for 60 days for public comment on this issue. In promulgating a final 
rule, OSHA will consider the comments already received as well as the 
information it receives in response to this notice.

DATES: The comment period for the proposed rule published November 8, 
2013 (78 FR 67254) is extended. Comments must be submitted by October 
14, 2014.

ADDRESSES:
    Electronically: You may submit comments electronically at https://www.regulations.gov, which is the federal e-rulemaking portal. Follow 
the

[[Page 47606]]

instructions on the Web site for making electronic submissions;
    Fax: If your submission, including attachments, does not exceed 10 
pages, you may fax it to the OSHA docket office at (202) 693-1648;
    Mail, Hand Delivery, Express Mail, Messenger, or Courier Service: 
You may submit your comments and attachments to the OSHA Docket Office, 
Docket Number OSHA-2013-0023, U.S. Department of Labor, Room N-2625, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
2350 (OSHA's TTY number is (877) 889-5627). Deliveries (hand, express 
mail, messenger, and courier service) are accepted during the 
Department of Labor's and docket office's normal business hours, 8:15 
a.m.-4:45 p.m.
    Instructions for Submitting Comments: All submissions must include 
the docket number (Docket No. OSHA-2013-0023) or the RIN (RIN 1218-
AC49) for this rulemaking. Because of security-related procedures, 
submission by regular mail may result in significant delay. Please 
contact the OSHA docket office for information about security 
procedures for making submissions by hand delivery, express delivery, 
and messenger or courier service.
    All comments, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at https://www.regulations.gov. Therefore, OSHA cautions you 
about submitting personal information such as Social Security numbers 
and birthdates.
    Docket: To read or download submissions in response to this Federal 
Register document, go to docket number OSHA-2013-0023, at https://regulations.gov. All submissions are listed in the https://regulations.gov index. However, some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA docket office.
    Electronic copies of this Federal Register document are available 
at https://www.regulations.gov. This document, as well as news releases 
and other relevant information, is available at OSHA's Web site at 
https://www.osha.gov.

FOR FURTHER INFORMATION, CONTACT: For press inquiries: Frank Meilinger, 
OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email: meilinger.francis2@dol.gov.
    For general and technical information on the proposed rule: Miriam 
Schoenbaum, OSHA Office of Statistical Analysis, Room N-3507, U.S. 
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; 
telephone (202) 693-1841; email: schoenbaum.miriam@dol.gov.

SUPPLEMENTARY INFORMATION: By notice published November 08, 2013, OSHA 
proposed to amend its recordkeeping regulations to add requirements for 
the electronic submission of injury and illness information that 
employers are already required to keep. (78 FR 67254). The proposal 
would require certain establishments that are already required to keep 
injury and illness records under OSHA's regulations for recording and 
reporting occupational injuries and illnesses to electronically submit 
information from these records to OSHA. OSHA plans to post the 
establishment-specific injury and illness data on its Web site.
    On January 09-10, 2014, OSHA held a public meeting on the proposal. 
A prevalent concern expressed by many meeting participants was that the 
proposal might create motivations for employers to under-record 
injuries and illnesses, since each covered establishment's injury and 
illness data would become publically available on OSHA's Web site. Some 
participants also commented that some employers already discourage 
employees from making injury and illness reports by disciplining or 
taking other adverse action against employees who file injury and 
illness reports. These participants expressed concern that the 
increased visibility of establishment injury and illness data under the 
proposal would lead to an increase in the number of employers who adopt 
practices that have the effect of discouraging employees from reporting 
recordable injuries and illnesses. OSHA is concerned that the accuracy 
of the data collected under the new proposal could be compromised if 
employers adopt these practices. In addition, OSHA wants to ensure that 
employers, employees, and the public have access to the most accurate 
data about injuries and illnesses in their workplaces so that they can 
take the most appropriate steps to protect worker safety and health.
    Therefore, the Agency is seeking comment on whether to amend the 
proposed rule to (1) require that employers inform their employees of 
their right to report injuries and illnesses; (2) require that any 
injury and illness reporting requirements established by the employer 
be reasonable and not unduly burdensome; and (3) prohibit employers 
from taking adverse action against employees for reporting injuries and 
illnesses.
    OSHA is particularly interested in the answers to the following 
questions:
    (1) What are the costs and benefits of OSHA using this rulemaking 
to address the issue of employers who discourage employees from 
reporting injuries and illnesses?
    (2) Are the cost estimates in this document accurate?
    (3) What other actions can OSHA take to address the issue of 
employers who discourage employees from reporting injuries and 
illnesses?
    (4) How should OSHA clarify the requirement that injury and illness 
reporting requirements established by the employer are reasonable and 
not unduly burdensome?

I. Legal Authority

    OSHA is issuing this proposal pursuant to authority expressly 
granted by sections 8 and 24 of the Occupational Safety and Health Act 
(the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(2) of 
the Act directs the Secretary to prescribe regulations ``requiring 
employers to maintain accurate records of . . . work-related deaths, 
injuries and illnesses,'' (29 U.S.C. 657(c)(2)), and section 8(g)(2) 
broadly empowers the Secretary to ``prescribe such rules and 
regulations as he may deem necessary to carry out [his] 
responsibilities under this Act'' (29 U.S.C. 657(g)(2)). Similarly, 
section 24 requires the Secretary to ``develop and maintain an 
effective program of collection, compilation, and analysis of 
occupational safety and health statistics'' and to ``compile accurate 
statistics on work injuries and illnesses which shall include all 
disabling, serious, or significant injuries and illnesses . . .'' (29 
U.S.C. 673(a)).
    Rules that prohibit employers from discouraging employee reports of 
injury and illness fit comfortably within these various statutory 
grants of authority. If employers may not discipline or take adverse 
action against workers for reporting injuries and illnesses, workers 
will feel less hesitant to report their injuries and illnesses, and 
their employers' records and reports will be more ``accurate'', as 
required by sections 8 and 24 of the Act. Further, given testimony that 
some employers already engage in such practices, and the possibility 
that the proposed rule could provide additional motivation for 
employers to do so, prohibiting employers from taking adverse actions 
against their employees for reporting injuries and illnesses in this 
rulemaking is ``necessary to carry out'' the

[[Page 47607]]

recordkeeping requirements of the Act. (See 29 U.S.C. 657(g)(2).).
    Section 11(c) of the Act prohibits any person from discharging or 
discriminating against any employee because that employee has exercised 
any right under the Act. (29 U.S.C. 660(c)(1).) Under this provision, 
an employee who believes he or she has been discriminated against may 
file a complaint with OSHA, and if, after investigation, the Secretary 
determines that Section 11(c) has been violated, then the Secretary can 
file suit against the employer in U.S. District Court seeking ``all 
appropriate relief'' including reinstatement and back pay. (29 U.S.C. 
660(c)(2).) Taking adverse action against an employee who reports a 
fatality, injury, or illness is a violation of 11(c), (see 29 CFR 
1904.36); therefore, much of the primary conduct that would be 
prohibited by the new provision is likely already proscribed by 11(c).
    The advantage of this provision is that it would provide OSHA with 
additional enforcement tools to promote the accuracy and integrity of 
the injury and illness records employers are required to keep under 
Part 1904. For example, under 11(c), OSHA may not act against an 
employer unless an employee files a complaint. Under the additions to 
the proposed rule under consideration, OSHA would be able to cite an 
employer for taking adverse action against an employee for reporting an 
injury or illness, even if the employee did not file a complaint. 
Moreover, an abatement order can be a more efficient tool to correct 
employer policies and practices than the injunctions authorized under 
11(c).
    The fact that Section 11(c) already provides a remedy for 
retaliation does not preclude the Secretary from implementing 
alternative remedies under the OSH Act. Where retaliation threatens to 
undermine a program that Congress required the Secretary to adopt, the 
Secretary may proscribe that retaliation through a regulatory provision 
unrelated to 11(c). For example, under the medical removal protection 
(MRP) provision of the lead standard, employers are required to pay the 
salaries of workers who cannot work due to high blood lead levels. 29 
CFR 1910.1025(k); see United Steelworkers, AFL-CIO v. Marshall, 647 
F.2d 1189, 1238 (D.C. Cir. 1980). And it is well established that OSHRC 
may order employers to pay back pay as abatement for violations of the 
MRP requirements. See United Steelworkers, AFL-CIO v. St. Joe 
Resources, 916 F.2d 294, 299 (5th Cir. 1990); Dole v. East Penn 
Manufacturing Co., 894 F.2d 640, 646 (3d Cir. 1990). If the reason that 
an employer decided not to pay MRP benefits was to retaliate for an 
employee's exercise of some right under the Act, OSHA can still cite 
the employer and seek the benefits as abatement, because payment of the 
benefits is important to vindicate the health interests underlying MRP. 
The mere fact that that the employer might have a retaliatory motive 
does not require that OSHA treat the matter as an 11(c) case. See St. 
Joe Resources, 916 F.2d at 298 (stating that that 11(c) was not an 
exclusive remedy, because otherwise the remedial purposes of MRP would 
be undermined). This would also be the case here. If employers reduce 
the accuracy of their injury and illness records by retaliating against 
employees who report an injury or illness, then OSHA may use its 
authority to collect accurate injury and illness records to proscribe 
such conduct even if the conduct would also be covered by 11(c).

II. Questions for Comment and Provisions under Consideration

    In light of the comments and the testimony at the public meeting, 
OSHA is concerned that, in at least some workplaces, injury reporting 
may be inaccurate because employers adopt practices or policies that 
discourage employees from reporting their injuries. OSHA seeks any 
information stakeholders might have about such practices and policies, 
and their effect on injury and illness records, including answers to 
the following questions:
    1. Are you aware of situations where employers have discouraged the 
reporting of injuries and illnesses? If so, describe any techniques, 
practices, or procedures used by employers that you are aware of. If 
such techniques, practices, or procedures are in writing, please 
provide a copy.
    2. Will the fact that employer injury and illness statistics will 
be publically available on the internet cause some employers to 
discourage their employees from reporting injuries and illnesses? Why 
or why not? If so, what practices or policies do you expect such 
employers to adopt?
    3. Are you aware of any studies or reports on practices that 
discourage injury and illness reporting? If so, please provide them.
    Under 29 CFR 1904.35(a)(1) and (b)(1), employers are already 
required to set up a way for employees to report work-related injuries 
and illnesses to the employer promptly and to inform each employee how 
to report work-related injuries and illnesses to the employer. OSHA is 
considering adding three provisions to this section: (1) A requirement 
that employers inform their employees of their right to report injuries 
and illnesses free from discrimination or retaliation; (2) a provision 
requiring that any injury and illness reporting requirements 
established by the employer be reasonable and not unduly burdensome; 
and (3) a prohibition against disciplining employees for reporting 
injuries and illnesses. Each of these three provisions under 
consideration is discussed below. OSHA seeks comment information, data, 
and studies that shed light on the appropriateness of each provision as 
a way to improve the accuracy of injury and illness records by 
prohibiting employers from taking adverse actions against employees for 
reporting injuries and illnesses. OSHA also seeks comment on ways to 
improve each of the three possible provisions discussed below, as well 
as any additional information on employer practices that may discourage 
employees from reporting injuries or and illnesses. Requiring employers 
to inform their employees that the employees have a right to report 
injuries and illnesses. Several participants at the public meeting 
described situations where workers did not report injuries or illnesses 
for fear of retaliation from their employers. (Day 1 Tr. 200, 203; Day 
2 Tr. 124-25.) If employees do not know that the OSH Act protects their 
right to report an injury or illness, they might be less likely to 
report an injury or illness to their employer. OSHA is therefore 
considering amending 29 CFR 1904.35 to require employers to inform each 
employee that employees have a right to report injuries and illnesses, 
and that it is unlawful for an employer to take adverse action against 
an employee for reporting an injury or illness. This requirement would 
have the additional benefit of reminding the employer that such adverse 
actions are illegal, which should also reduce the incidence of such 
retaliation. OSHA seeks comment on this provision, including answers to 
the following questions:
    4. Do you or does your employer currently inform employees of their 
right to report injuries and illnesses? If so, please describe how and 
when this information is provided.
    5. Are there any difficulties or barriers an employer might face in 
trying to provide such information to its employees? If so, please 
describe them.
    6. How might an employer best provide this information: orally to 
the employee, through a written notice, posting, or in some other 
manner?
    Requiring the injury and illness reporting procedures established 
by the employer under 29 CFR 1904.35(a)(1)

[[Page 47608]]

and (b)(1) to be reasonable and not unduly burdensome. 29 CFR 
1904.35(b)(1) requires employers to provide a way for employees to 
report injuries and illnesses promptly. However, if employers adopt 
reporting procedures that are unreasonably burdensome, they may 
discourage reporting. For example, an employee might be discouraged 
from reporting an injury or illness if the employer required the 
employee to report in person at a location distant from the employee's 
workplace, or if the employer penalized employees for failing to report 
an injury within a specific time period (e.g., within 24 hours of an 
incident), even if the employees did not realize that they were injured 
or made ill until after that time. One participant at the public 
meeting, for example, said that he knew of health care facilities where 
employees often did not report incidents of workplace violence, even 
though those incidents happened routinely, because the reporting 
procedures were too cumbersome (Day 2 Tr. 91-92.) While OSHA believes 
that onerous and unreasonable reporting requirements are already in 
effect prohibited by the regulation (i.e. one has not created a ``way 
to report'' injuries if the ``way'' is too difficult to use), this 
proposal would add additional text to communicate that point more 
clearly. OSHA seeks comment on this provision, including answers to the 
following questions:
    7. What procedures do you or does your employer have about the time 
and manner of reporting injuries and illnesses? How do these procedures 
assist in the collection and maintenance of accurate records? May an 
employee be disciplined for failing to observe these procedures? If so, 
what kind of discipline may be imposed?
    8. Are you aware of any examples of reporting requirements that you 
consider to be unreasonably burdensome and could discourage reporting? 
What are they?
    9. How should OSHA clarify the requirement that reporting 
requirements are ``reasonable and not unduly burdensome''?
    Prohibiting employers from disciplining employees for reporting 
injuries and illnesses. If an employer disciplines or takes adverse 
action against an employee for reporting an injury or illness, this may 
discourage employees from reporting injuries and illnesses. These 
adverse actions could include termination, reduction in pay, 
reassignment to a less desirable position, or any other action that 
might dissuade a reasonable employee from reporting an injury. See 
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 
(2006). Adverse actions mentioned by participants in the public meeting 
included requiring employees who reported an injury to wear fluorescent 
orange vests, disqualifying employees who reported two injuries or 
illnesses from their current job, requiring an employee who reported an 
injury to undergo drug testing where there was no reason to suspect 
drug use, automatically disciplining those who seek medical attention, 
and enrolling employees who report an injury in an ``Accident Repeater 
Program'' that included mandatory counseling on workplace safety and 
progressively more serious sanctions for additional reports, ending in 
termination. (See Day 1 Tr. 36, 39-40, 203; Day 2 Tr. 58, 126-27, 142-
143.) Likewise, an employer rule to take adverse action against all 
employees who are injured or made ill, regardless of fault, would 
discourage reporting and would be prohibited by this rulemaking.
    Also falling under this prohibition would be pre-textual 
disciplinary actions--that is, where an employer disciplines an 
employee for violating a safety rule, but the real reason for the 
action is the employee's injury or illness report. This can be the case 
when the safety rule is only enforced against workers who report, or 
enforced more severely against those employees. Public meeting 
participants noted particular situations where employers selectively 
enforced vague rules, such as maintain ``situational awareness'' and 
``work carefully,'' only against employees who reported injuries or 
illnesses (See Day 2 Tr. 143-44, 150-151.)
    As noted above, these retaliatory actions would likely be 
actionable under 11(c), as well as under the provisions that OSHA is 
considering as amendments to 1904.35. The remedy, however, would be 
different. Under this provision, OSHA could issue citations to 
employers under Section 9 of the OSH Act for violating the provision, 
and the employer could challenge the citations before the Occupational 
Safety and Health Review Commission. The citations would carry civil 
penalties in accordance with Section 17 of the OSH Act, as well as a 
requirement to abate the violation; the abatement could include 
reinstatement and back pay. See United Steelworkers of America, AFL-CIO 
v. St. Joe Resources, 916 F.2d 294, 299 (5th Cir. 1990) (holding that 
the Commission has authority to issue an abatement order mandating the 
payment of back pay required under the lead standard's medical removal 
protection (MRP) requirement); Dole v. East Penn Manufacturing Co., 894 
F.2d 640, 646 (3d Cir. 1990) (ordering employer to abate MRP violation 
by paying owed overtime pay). A further discussion of the legal 
interplay between 11(c) and this provision is covered in the Legal 
Authority section above. OSHA seeks comment on this provision, 
including responses to the following questions:
    10. Are you aware of employer practices or policies to take adverse 
action against persons who report injuries or illnesses? Please 
describe them.
    11. Are you aware of any particular situations where an employee 
decided not to report an injury or illness to his or her employer 
because of a fear that the employer would take adverse action against 
the employee? If so, please describe the situation, including the 
nature of the injury or illness and the reasons the employee had for 
believing he or she would be retaliated against.
    12. What kinds of adverse actions might lead an employee to decide 
not to report an injury or illness? Are there other employer actions 
that would not dissuade a reasonable employee from reporting an injury 
or illness?
    13. OSHA encourages employers to enforce safety rules as part of a 
well-functioning workplace safety program. Are there any employer 
practices that OSHA should explicitly exclude under this provision to 
ensure that employers are able to run an effective workplace safety 
program?
    14. What other actions can OSHA take to address the issue of 
employers who discourage employees from reporting injuries and 
illnesses?

Economic Issues

    This reopening is for the purpose of discussing a modification of 
the recordkeeping rules to provide several clarifications of OSHA's 
current recordkeeping rules with respect to the rights of employees to 
report injuries and illnesses without discrimination. These provisions 
do not require employers to provide any new or additional records not 
already required in existing standards. (When the existing standards 
were promulgated, OSHA estimated the costs to employers of the records 
that would be required.) These provisions add no new rights to 
employees, but are instead designed to assure that employers recognize 
the existing right of employees to report work-related injuries and 
illnesses. OSHA considered that such a reinforcement of the importance 
of these rights might be valuable because of concerns that providing 
public access to a wider range of injury and illness information from a 
greater number of employers might cause some employers

[[Page 47609]]

to put greater pressure on employees to not report injuries and 
illnesses. These provisions represent a clarification of the existing 
rule, add minor additional expenses, and may generate cost savings. To 
show this, OSHA will examine the possible additions on a provision by 
provision basis.
    OSHA is considering a potential provision to require employers to 
inform their employees that the employees have a right to report 
injuries and illnesses. Under 1905.35(a) employers are already required 
to inform each employee about how he or she is to report an injury or 
illness to the employer. For new and future employees, this possible 
new requirement to inform employees of their right to report injuries 
and illnesses could be met at no additional cost by informing employees 
of their rights at the same time that they are informed of how to 
report. Employers who meet this requirement through annual training, or 
the posting of procedures, or as part of an employee handbook might 
incur a small one-time cost to change these materials. If employers use 
materials that cannot be inexpensively changed or updated, or if 
employers who meet the existing requirement to provide information on 
reporting procedures do so solely by informing new employees of their 
procedures, those employers would need to incur a small one-time cost 
to inform all existing employees of their rights. This could be done 
through a sign. OSHA estimates that posting a sign would typically 
require 3 to 5 minutes of time. OSHA believes that many employers 
already have in place programs and systems (such as illness and injury 
prevention programs or IIPPs) for either encouraging or requiring 
employees to report all workplace injuries and illnesses. OSHA welcomes 
comment on the possible costs of this potential requirement.
    15. Is the fact that retaliation for reporting workplace injuries 
and illnesses is illegal communicated in your workplace? How? What 
costs are associated with communicating this information?
    OSHA is also considering a potential provision to require that the 
injury and illness reporting procedures established by the employer 
under 29 CFR 1904.35(a)(1), and (b)(1), be reasonable and not unduly 
burdensome. OSHA is concerned both about unusually burdensome methods 
and also about reporting requirements that may punish employees for 
failure to report at the exact time and place required by procedures. 
This provision could be considered a clarification of the existing 
requirements in 1904.35 that employers provide a way for employees to 
report work-related injuries and illnesses promptly and in 1904.36 that 
employers are prohibited from discriminating against employees for 
reporting. It is possible that this clarification may cause some 
employers to incur costs to change their reporting policies and 
announce the change to their employees. Given that even for remote 
workers there are many ways of facilitating the reporting of injuries 
and illnesses that are not burdensome to either the employer or the 
employee, such as permitting telephonic reporting, the provision could 
be cost-saving in the aggregate in terms of reduced employee time for 
reporting injuries and illnesses. Indeed the one strong piece of 
evidence that a reporting procedure is unreasonable would be that it 
causes costs to the employee in excess of any cost savings for the 
employer. For example, a procedure requiring in person rather than 
telephonic reporting at a location an hour from the employee's typical 
workplace would save an hour of employee time at no measurable expense 
to the employer. OSHA welcomes comment on the costs and benefits 
associated with this provision.
    16. What kinds of existing reporting procedures might be prohibited 
by this requirement? What costs or other detrimental effects might 
employers incur if they are prevented from requiring these procedures?
    Finally, OSHA is considering a potential provision prohibiting 
employers from disciplining employees for reporting injuries and 
illnesses. This provision would simply make more explicit the existing 
requirement in 1904.36 that states that ``Section 11(c) of the Act 
prohibits you from discriminating against an employee for reporting a 
work-related fatality, injury or illness. That provision of the Act 
also protects the employee who files a safety and health complaint, 
asks for access to the Part 1904 records, or otherwise exercises any 
rights afforded by the OSH Act.'' There is no new requirement here. The 
additional explicitness is necessary because many stakeholders were 
concerned that the new requirements to publicize recordkeeping data 
might provide employers new motivation for disciplining employees for 
reporting. This provision may help counter such motivation. This 
provision would be enforced as the existing 1904 requirements are 
enforced, which would also allow OSHA and employers a way to resolve 
these issues without either the lengthy delays or the high costs 
associated with enforcement under Section 11(c) of the Act.
    17. Do you anticipate any additional costs associated with the 
enforcement of the prohibition against discrimination through the 
citation and penalty provisions of the OSH Act that would not be 
incurred if OSHA instead used its authority under section 11(c) of the 
Act? If so, please describe them.
    OSHA also expects that, because these three potential provisions 
will only clarify existing requirements, there are also no new economic 
benefits. The provisions will at most serve to counter the additional 
motivations for employers to discriminate against employees attempting 
to report injuries and illnesses.
    OSHA believes these potential provisions are technologically 
feasible because they do not require employers to do anything not 
already implicitly or explicitly required in existing standards. OSHA 
also believes that these potential requirements would be economically 
feasible, since they require no more than posting a sign, and in some 
cases, reviewing and changing procedures.
    18. OSHA welcomes any information you have on the costs, benefits, 
and feasibility of the three provisions discussed in this supplemental 
notice. What are the costs and benefits of using this rulemaking to 
address the issue of employers who discourage employees from reporting 
injuries and illnesses? Are the cost estimates in this document 
accurate?

Regulatory Flexibility Analysis

    OSHA also examined the regulatory requirements of these potential 
requirements to determine if they could have a significant economic 
impact on a substantial number of small entities. As noted above, the 
maximum indicated costs to any firm of these potential requirements is 
an additional three to five minutes of time to post a sign. There may 
be some circumstances where the clarification would make it easier to 
assess fines, but the costs of any fines can easily be avoided by 
meeting the relatively low costs of compliance with the record keeping 
rule.

Environmental Impact Assessment

    OSHA has also reviewed these potential requirement in accordance 
with the requirements of the National Environmental Policy Act (NEPA) 
of 1969 (42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (40 U.S.C. 1500), and the Department of Labor's 
NEPA procedures (29 CFR part 11). The Agency finds that the revisions 
included

[[Page 47610]]

in the proposal would have no major negative impact on air, water or 
soil quality, plant or animal life, the use of land or other aspects of 
the environment.
    Finally, OSHA has reviewed these potential requirements in 
accordance with E.O. 13132 regarding Federalism. E.O. 13132 requires 
that agencies, to the extent possible, refrain from limiting State 
policy options, consult with States prior to taking any actions that 
would restrict State policy options, and take such actions only when 
there is clear constitutional authority and the presence of a problem 
of national scope. Additionally, E.O. 13132 provides for preemption of 
State law only if there is a clear Congressional intent for the Agency 
to do so. Any such preemption is to be limited to the extent possible.
    Section 18 of the OSH Act, 29 U.S.C. 667, expresses Congress' clear 
intent to preempt State laws relating to issues on which Federal OSHA 
has promulgated occupational safety and health standards. A state can 
avoid preemption by obtaining Federal approval of a State plan for the 
development of such standards and their enforcement. Occupational 
safety and health standards developed by such State Plan States must, 
among other things, be at least as effective in providing safe and 
healthful employment and places of employment as the Federal standards.
    The Agency concludes that these potential requirements comply with 
E.O. 13132. In States without State Plans, Congress has expressly 
provided for Federal preemption on issues addressed by an occupational 
safety and health standard. The final rule would preempt State law in 
the same manner as any OSHA standard. States with State Plans are free 
to develop their own policy options on the issues addressed by this 
proposed rule, provided their standards are at least as effective as 
the final rule. State comments are invited on this proposal and will be 
fully considered prior to promulgation of a final rule.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under Sections 8 and 24 of the Occupational Safety 
and Health Act (29 U.S.C. 657, 673), Section 553 of the Administrative 
Procedure Act (5 U.S.C. 553), and Secretary of Labor's Order No. 41-
2012 (77 FR 3912 (Jan. 25, 2012)).

    Signed at Washington, DC, on August 6, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2014-19083 Filed 8-13-14; 8:45 am]
BILLING CODE 4510-26-P