[Federal Register Volume 66, Number 248 (Thursday, December 27, 2001)]
[Notices]
[Pages 66943-66944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31808]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration


Settlement Agreement: Occupational Injury and Illness Recording 
and Reporting

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

ACTION: Notice of settlement agreement.

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SUMMARY: The Occupational Safety and Health Administration (OSHA) has 
entered into a settlement agreement with the National Association of 
Manufacturers (NAM) to resolve NAM's legal challenge to OSHA's revised 
regulations in 29 CFR part 1904, Recording and Reporting Occupational 
Injuries and Illnesses. As part of the agreement, OSHA agreed to 
publish a copy of the OSHA-NAM settlement agreement in the Federal 
Register within 30 days.

DATES: The settlement agreement was completed on November 16, 2001.

FOR FURTHER INFORMATION CONTACT: Jim Maddux, Occupational Safety and 
Health Administration, U.S. Department of Labor, Directorate of Safety 
Standards Programs, Room N-3609, 200 Constitution Avenue, NW., 
Washington, DC 20210. Telephone (202) 693-2222.

SUPPLEMENTARY INFORMATION:

Background

    On January 19, 2001, (66 FR 5916), OSHA published a final rule, 
revising its Occupational Injury and Illness Recording and Reporting 
Requirements in 29 CFR Part 1904. The Agency subsequently published an 
amendment to the final rule on October 12, 2001 (66 FR 35113). After 
the final rule was published in January, NAM filed a legal challenge to 
the final rule in the United States District Court for the District of 
Columbia. On November 16, 2001, OSHA and NAM entered into a settlement 
agreement to resolve NAM's legal challenge. The parties entered into a 
revised settlement agreement on November 29, 2001. As part of this 
revised agreement, OSHA agreed to publish a copy of the revised 
settlement agreement in the Federal Register within 30 days.
    Accordingly, the following section of this notice contains the text 
of the OSHA-NAM revised settlement agreement:

Settlement Agreement

United States District Court for the District of Columbia

    National Association of Manufacturers, Plaintiff, v. Elaine L. 
Chao, Secretary, U.S. Department of Labor, and John Henshaw, 
Assistant Secretary of Labor for Occupational Safety and Health, 
Defendants.

[Case No: 1:01CV00575 (GK)]

Revised Settlement Agreement

    The Federal Defendants and the National Association of 
Manufacturers, by and through counsel, hereby agree as follows:
    1. On January 19, 2001, the Occupational Safety and Health 
Administration issued a Final Rule on Occupational Injury and Illness 
Recording and Reporting Requirements, 29 CFR parts 1904 and 1952 (the 
Final Rule). 66 FR 5916-6135 (January 19, 2001). On March 23, 2001, the 
National Association of Manufacturers filed a First Amended Complaint 
in this Court challenging portions of the Final Rule. The Federal 
Defendants and the National Association of Manufacturers have settled 
their differences as provided herein.
    2. Secretary of Labor will include the following language in the 
initial Compliance Directive to be issued on the Final Rule.
    A. During the initial period the new recordkeeping rule is in 
effect, OSHA compliance officers conducting inspections will focus on 
assisting employers to comply with the new rule rather than on 
enforcement. OSHA will not issue citations for violations of the 
recordkeeping rule during the first 120 days after January 1, 2002, 
provided the employer is attempting in good faith to meet its 
recordkeeping obligation and agrees to make corrections necessary to 
bring the records into compliance.
    B. Section 1904.5(a) states that ``[the employer] must consider an 
injury or illness to be work-related if an event or exposure in the 
work environment either caused or contributed to resulting condition or 
significantly aggravated a pre-existing condition. Work-relatedness is 
presumed for injuries and

[[Page 66944]]

illnesses resulting from events or exposures occurring in the work 
environment * * *'' Under this language, a case is presumed work-
related if, and only if, an event or exposure in the work environment 
is a discernable cause of the injury or illness or of a significant 
aggravation to pre-existing condition. The work event or exposure need 
only be one of the discernable causes; it need not be the sole or 
predominant cause.
    Section 1904.5(b)(2) states that a case is not recordable if it 
``involves signs or symptoms that surface at work but result solely 
from a non-work-related event or exposure that occurs outside the work 
environment.'' This language is intended as a restatement of the 
principle expressed in 1904.5(a), described above. Regardless of where 
signs or symptoms surface, a case is recordable only if a work event or 
exposure is a discernable cause of the injury or illness or of a 
significant aggravation to a pre-existing condition.
    Section 1904.5(b)(3) states that if it is not obvious whether the 
precipitating event or exposure occurred in the work environment or 
elsewhere, the employer ``must evaluate the employee's work duties and 
environment to decide whether or not one or more events or exposures in 
the work environment caused or contributed to the resulting condition 
or significantly aggravated a pre-existing condition.'' This means that 
the employer must make a determination whether it is more likely than 
not that work events or exposures were a cause of the injury or 
illness, or a significant aggravation to a pre-existing condition. If 
the employer decides the case is not work-related, and OSHA 
subsequently issues a citation for failure to record, the Government 
would have the burden of proving that the injury or illness was work-
related.
    C. A case is not recordable under 1904.7(b)(4) as a restricted work 
case if the employee experiences minor musculoskeletal discomfort, a 
health care professional determines that the employee is fully able to 
perform all of his or her routine job functions, and the employer 
assigns a work restriction to that employee for the purpose of 
preventing a more serious condition from developing.
    D. Question. Is the employer subject to a citation for violating 
section 1904.7(b)(4)(viii) if an employee fails to follow a recommended 
work restriction?
    Answer: Section 1904.7(b)(4)(viii) deals with the recordability of 
cases in which a physician or other health care professional has 
recommended a work restriction. The section also states that the 
employer ``should ensure that the employee complies with [the 
recommended] restriction.'' This language is purely advisory and does 
not impose an enforceable duty upon employers to ensure that employees 
comply with the recommended restriction. [Note: in the absence of 
conflicting opinions from two or more health care professionals, the 
employer ordinarily must record the case if a health professional 
recommends a work restriction involving the employee's routine job 
functions].
    E. Question. Does an employee report of an injury or illness 
establish the existence of the injury or illness for recordkeeping 
purposes?
    Answer: No. In determining whether a case is recordable, the 
employer must first decide whether an injury or illness, as defined by 
the rule, has occurred. If the employer is uncertain about whether an 
injury or illness has occurred, the employer may refer the employee to 
a physician or other health care professional for evaluation and may 
consider the health care professional's opinion in determining whether 
an injury or illness exists. [Note: if a physician or other licensed 
health care professional diagnoses a significant injury or illness 
within the meaning of section 1904.7(b)(7) and the employer determines 
that the case is work-related, the case must be recorded.]
    F. Question. If an employee is exposed to chlorine or some other 
substance at work and oxygen is administered as a purely precautionary 
measure, is the case recordable?
    Answer: If oxygen is administered as a purely precautionary measure 
to an employee who does not exhibit any symptoms of an injury or 
illness, the case is not recordable. If an employee exposed to a 
substance at work exhibits symptoms of an injury or illness, the 
administration of oxygen makes the case recordable.
    3. Within 3 business days following issuance of the Compliance 
Directive containing the language in Paragraph 2 of this agreement, the 
National Association of Manufacturers (NAM) will file a notice of 
dismissal of its lawsuit under Fed. R. Civ. P. 41(a)(1)(ii). The notice 
of dismissal shall state that dismissal is with prejudice, except only 
that NAM may re-file its complaint if a court of competent jurisdiction 
determines that any of the provisions of this agreement or of the 
Department of Labor's October 12, 2001 Federal Register Notice (66 FF 
52031) are invalid or if any of the provisions of this agreement are 
withdrawn or revised in a manner inconsistent with the language in this 
agreement. The Federal Defendants shall not object to the timeliness of 
such a complaint by NAM on statute of limitations, laches, or other 
grounds, provided that the complaint is filed within 90 days of the 
occurrence of an event listed in the preceding sentence. Nothing 
contained herein shall be construed as affecting Federal Defendants' 
right to modify or interpret its regulations in the future.
    4. The Federal Defendants and the National Association of 
Manufacturers agree to bear their own fees and expenses incurred at any 
stage in this litigation.
    5. The Federal Defendants agree to publish a copy of this revised 
settlement agreement, in lieu of the settlement agreement signed on 
November 16, in the Federal Register within thirty days of its 
effective date.
    6. This revised settlement agreement is effective on November 29, 
2001.

    Respectfully submitted,
    Of Counsel:
Jan S. Amundson,
General Counsel,
Quentin Riegel,
Deputy General Counsel, National Association of Manufacturers, 1331 
Pennsylvania Avenue, NW., Washington, DC 20004.
Baruch A. Fellner,
D.C. Bar No. 061630,
Jason C. Schwartz,
D.C. Bar No. 465837, Gibson, Dunn & Crutcher, LLP, 1050 Connecticut 
Avenue, NW., Washington, DC 20036. Counsel for Plaintiff National 
Association of Manufacturers.
Roscoe C. Howard, Jr.,
D.C. Bar No. 246470, United States Attorney.
Mark E. Nagle,
D.C. Bar. No. 416364, Assistant United States Attorney.
Brian J. Sonfield,
D.C. Bar No. 449098, Assistant United States Attorney, Judiciary 
Center Bldg. Civil Division, 555 Fourth Street, NW., Washington, 
D.C. 20001, (202) 514-7143. Counsel for Defendants Elaine L. Chao 
and John Henshaw.

Authority

    This document was prepared under the direction of John L. Henshaw, 
Assistant Secretary for Occupational Safety and Health, U.S. Department 
of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. It is 
issued pursuant to section 8 of the Occupational Safety and Health Act 
of 1970 (29 U.S.C. 657).

    Signed at Washington, D.C., this 20th day of December, 2001.
John L. Henshaw,
Assistant Secretary of Labor.
[FR Doc. 01-31808 Filed 12-26-01; 8:45 am]
BILLING CODE 4510-26-M