Title of Regulation: 16VAC25-85. Recording and Reporting Occupational Injuries and Illnesses (amending 16VAC25-85-1904.0, 16VAC25-85-1904.4, 16VAC25-85-1904.29, 16VAC25-85-1904.32, 16VAC25-85-1904.33, 16VAC25-85-1904.34, 16VAC25-85-1904.35, 16VAC25-85-1904.40).

Statutory Authority: § 40.1-22 of the Code of Virginia.

Effective Date: September 15, 2018.

Agency Contact: Regina P. Cobb, Senior Agency Management Analyst, Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, VA 23219, telephone (804) 786-0610, FAX (804) 786-8418, or email regina.cobb@doli.virginia.gov.

Summary:

In a final rule, federal Occupational Safety and Health Administration (OSHA) removed clarifying amendments to OSHA's recordkeeping regulations that (i) referenced an employer's continuing obligation to make and maintain an accurate record of each recordable injury and illness and (ii) gave OSHA the ability to issue citations to employers for failing to record work-related injuries and illnesses during the five-year retention period. These amendments became effective nationally on January 18, 2017, and in Virginia on May 15, 2017. Public Law 115-21 invalidated the amendments through a resolution of disapproval of OSHA's final rule entitled, "Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness," informally referred to as the "Volks" rule. Removing the amendments restores the regulations to the preclarification rule, that is prior to the December 19, 2016, final rule.

The amendments in this regulatory action restore regulations of the Safety and Health Codes Board regarding Employers' Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness to the form in effect prior to the OSHA adoption of the "Volks" rule.

Note on Incorporation by Reference: Pursuant to § 2.2-4103 of the Code of Virginia, 29 CFR 1904 (Recording and Reporting Occupational Injuries and Illnesses) is declared a document generally available to the public and appropriate for incorporation by reference. For this reason, this document will not be printed in the Virginia Register of Regulations. A copy of this document is available for inspection at the Department of Labor and Industry, Main Street Centre, 600 East Main Street, Richmond, Virginia 23219, and in the office of the Registrar of Regulations, 900 East Main Street, 11th Floor, Richmond, Virginia 23219.

Statement of Final Agency Action: On June 14, 2018, the Safety and Health Codes Board adopted federal OSHA's Final Rule on the Clarification of Employers' Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, as published in 82 FR 20548 on May 3, 2017, with an effective date of September 15, 2018.

Federal Terms and State Equivalents: When the regulations as set forth in the revised final rule for Recording and Reporting Occupational Injuries and Illnesses are applied to the Commissioner of the Department of Labor and Industry or to Virginia employers, the following federal terms shall be considered to read as follows: