September 21, 2015

OSHA Allows 30 More Days To Comment On ‘Volks’ Rule, Agreeing In Part To Industry Request

OSHA has decided to extend by 30 days the time period to comment on a planned rule designed to overcome a court decision holding that OSHA’s statute of limitations applies to the discrete occurrence of an injury or illness not being properly recorded, even if the log remains inaccurate within the five-year retention period.

An agency official told Inside OSHA Online on Monday that OSHA decided to grant additional time based on an industry request, making the new submission deadline Oct. 28. Otherwise stakeholders would have had to get their comments in by next Monday, a date they argued was difficult to meet because of the proposed rule’s impact.

Industry had, in fact, sought an extension of 60 days.

OSHA commenced the rulemaking after the D.C. Circuit Court of Appeals ruled in the Volks case essentially that an occurrence of an employer failing to maintain a complete, accurate record represents a singular event that starts the six-month limitation period within which OSHA can issue citations, even if the log remains inaccurate during the five-year recordkeeping retention period.

Agency officials strongly disagreed, and began crafting a rule to overcome the decision. OSHA put the issue on its regulatory plan in a rare agency attempt to overcome an appeals court ruling through new regulation — a separate legal question in itself, and perhaps the subject of future litigation over an eventual rule.

Industry representatives, led by a major construction group, contended that the Sept. 28 deadline to submit comments did not offer enough time to sufficiently analyze and offer feedback on the regulatory proposal, which OSHA announced in July.

The National Association of Home Builders (NAHB) in a Sept. 9 letter to OSHA requested a 60-day extension, pointing to what the group says are ripple effects of the proposal.

“As an interested stakeholder in this regulatory activity, NAHB is concerned that OSHA’s recordkeeping proposal will have an impact on regulated employers and small businesses, including home builders and specialty trade contractors,” the organization said. “Because of its broad impact, the [proposed rule] requires extensive legal analysis, as well as careful review and discussion by home builders, specialty trade contractors, and others to ensure they fully understand the possible ramifications and are given ample opportunity to respond.”

“NAHB does not request the 60-days of additional time lightly, considering the significant legal issues surrounding the proposed rule, we believe that an additional 60 days is a reasonable request that would not unduly delay the rulemaking process,” the group said, also noting that the agency previously granted a 30-day extension for responding to a planned electronic reporting rule.

 — Christopher Cole ()


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