The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording and Reporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerpts represent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).
Section 1904.37 State recordkeeping regulations Section 1904.37 addresses the consistency of the recordkeeping and reporting requirements between Federal OSHA and those States where occupational safety and health enforcement is provided by an OSHA-approved State Plan. Currently, in 21 States and 2 territories, the State government has been granted authority to operate a State OSHA Plan cov- ering both the private and public (State and local government) sectors under section 18 of the OSH Act (see the State Plan section of this preamble for a list- ing of these States). Two additional States currently operate programs limited in scope to State and local government employees only. State Plans, once
approved, operate under authority of State law and provide programs of standards, regulations and enforcement which must be “at least as effective” as the Federal program. (State Plans must extend their coverage to State and local government employees, workers not otherwise covered by Federal OSHA reg- ulations.) Section 1904.37 of the final rule describes what State Plan recordkeeping requirements must be identical to the Federal requirements, which State regulations may be different, and provides cross ref- erences to the State Plan regulations codified in Section 1902.3(k), 1952.4, and 1956.10(i). The provi- sions of Subpart A of 29 CFR part 1952 specify the regulatory discretion of the State Plans in general,
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and section 1952.4 spells out the regulatory discre- tion of the State Plans specifically for the recordkeep- ing regulation.
In the final rule, OSHA has rewritten the text of the corresponding proposed section and moved it into Subpart D of the final rule. Under Section 18 of the OSH Act, a State Plan must require employers in the State to make reports to the Secretary in the same manner and to the same extent as if the Plan were not in effect. Final section 1904.37 makes clear that States with approved State Plans must promul- gate new regulations that are substantially identical to the final Federal rule. State Plans must have recording and reporting regulations that impose identical requirements for the recordability of occu- pational injuries and illnesses and the manner in which they are entered. These requirements must be the same for employers in all the States, whether under Federal or State Plan jurisdiction, and for State and local government employers covered only through State Plans, to ensure that the occupational injury and illness data for the entire nation are uni- form and consistent so that statistics that allow com- parisons between the States and between employers located in different States are created.
For all of the other requirements of the Part 1904 regulations, the regulations adopted by the State Plans may be more stringent than or supplemental to the Federal regulations, pursuant to paragraph 1952.4(b). This means that the States’ recording and reporting regulations could differ in several ways from their Federal Part 1904 counterparts. For exam- ple, a State Plan could require employers to keep records for the State, even though those employers
are within an industry exempted by the Federal rule. A State Plan could also require employers to keep additional supplementary injury and illness informa- tion, require employers to report fatality and multiple hospitalization incidents within a shorter timeframe than Federal OSHA does, require other types of inci- dents to be reported as they occur, or impose other requirements. While a State Plan must assure that all employee participation and access rights are assured, the State may provide broader access to records by employees and their representatives. However, because of the unique nature of the nation- al recordkeeping program, States must secure Federal OSHA approval for these enhancements....
Because Federal OSHA does not provide coverage to State and local government employees, the State- Plan States may grant State recordkeeping variances to the State and local governments under their juris- diction. However, the State must obtain concurrence from Federal OSHA prior to issuing any such vari- ances. In addition, the State-Plan States may not grant variances to any other employers and must re- cognize all 1904 variances granted by Federal OSHA. These steps are necessary to ensure that the injury and illness data requirements are consistent from State to State....
Accordingly, the Part 1904 rules impose identical requirements where they are needed to create con- sistent injury and illness statistics for the nation and allows the States to impose supplemental or more stringent requirements where doing so will not inter- fere with the maintenance of comprehensive and uni- form national statistics on workplace fatalities, injuries and illnesses.
FREQUENTLY ASKED QUESTIONS: Section 1904.37
(OSHA Instruction, CPL 2-0.135, Chap. 5) Section 1904.37 State recordkeeping regulationsQuestion 37-1. Do I have to follow these rules if my State has an OSHA-approved State Plan?
If your workplace is located in a State that operates an OSHA-approved State Plan, you must follow the regulations of the State. However, these States must adopt occupational injury and illness recording and reporting requirements that are substantially identical to the requirements in Part 1904. State Plan States must have the same requirements as Federal OSHA for determining which injuries and illnesses are recordable and how they are recorded.
Question 37-2. How may state regulations differ from the Federal requirements?
For Part 1904 provisions other than recording and reporting, State requirements may be more stringent than or supplemental to the Federal requirements. For example, a State Plan could require employers to keep records for the State, even though those employers have 10 or fewer employees (1904.1) or are within an industry exempted by the Federal rule. A State Plan could also require employers to keep additional supplementary injury and illness informa-
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tion, require employers to report fatality and multiple hospitalization incidents within a shorter time frame than Federal OSHA does (1904.39), require other types of incidents to be reported as they occur, require hearing loss to be recorded at a lower thresh- old level or impose other requirements.
Question 37-3. Are State and local government employers covered by this rule?
No, but they are covered under the equivalent State rule in States that operate OSHA-approved State Plans. State rules must cover these workplaces and require the recording and reporting of work-related
injuries and illnesses.
Question 37-4. How can I find out if my State has an OSHA-approved plan?
The following States have OSHA-approved plans: 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. Connecticut, New Jersey, New York and the Virgin Islands have plans that cover State and local government employees only.