"This document was published prior to the publication of OSHA's final rule on Ergonomics Program (29 CFR 1910.900, November 14, 2000), and therefore does not necessarily address or reflect the provisions set forth in the final standard."

March 9, 1999

Stuart Flatow
Director of Occupational Safety and Health
American Trucking Associations
2200 Mill Road
Alexandria, Virginia 22314-4677

Dear Mr. Flatow:

Thank you for your letter dated June 29, 1998, requesting guidance on OSHA's jurisdictional position on requiring motor carriers to record DOT-defined accidents on the OSHA 200 form.

1. The OSHA recordkeeping regulations are not subject to preemption under Section 4(b)(1) of the OSH Act.

OSHA's longstanding position is that OSHA's general recording and reporting requirements, found in OSHA's regulation at 29 CFR Part 1904, are not subject to preemption because Section 4(b)(1) of the OSH Act applies to "working conditions of employees" and recording and reporting requirements do not regulate any "working conditions". The United States Court of Appeals recently affirmed OSHA's position: "Section 4(b)(1) has no bearing on . . . the Secretary's authority to require recordkeeping . . . The Secretary's recordkeeping requirements do not regulate working conditions; rather, they merely serve to gather information." Herman v. Tidewater Pacific, Inc., 160 F. 3d 1239 (9th Cir. 1998).

The Department of Labor has consistently maintained this position. The current guidelines, Recordkeeping Guidelines for Occupational Injuries and Illnesses, issued in 1986 by the Department of Labor's Bureau of Statistics, states that "Motor carriers must maintain injury and illness records in conformance with or equivalent to the OSHA records required by 29 CFR 1904" (see page 8, Q&A F-1, copy enclosed). The earlier guidelines, What Every Employer Needs to Know about OSHA Recordkeeping - Report 412 revised, issued in 1973, contained similar advice. While employers subject to injury and illness recordkeeping requirements of other Federal safety and health regulations are not exempt from OSHA recordkeeping, records used to comply with other Federal recordkeeping obligations sometimes may also be used to satisfy the OSHA recordkeeping requirements. The forms and definitions used must be equivalent to the OSHA forms and definitions.

The OSH Act, as well as its legislative history, shows that Congress clearly meant for the Department of Labor to have a comprehensive program for the collection of information concerning the occupational safety and health of employees. To allow preemption as a result of another agency's assertion of jurisdiction over regulatory matters is inconsistent with the Congressional scheme. Such preemption would totally undermine the Department of Labor's ability to provide a centralized statistical function for information about the occupational hazards that employees face.

2. Compliance with the DOT regulations cited in your letter is not an adequate substitution for compliance with OSHA's recordkeeping regulations.

Section 390.15 requires that motor carriers maintain for a period of one year after an accident occurs, an accident register containing a list of accidents, and for each accident listed: the date of the accident, the geographical location of the accident, the driver's name, the number of injuries and fatalities, whether hazardous materials other than fuel were released and copies of all accident reports required by "state or other governmental entities or insurers." Section 390.5 narrowly defines the term "accident." An "accident" is an "occurrence involving a commercial motor vehicle operating on a highway in interstate or intrastate commerce which results in" a fatality, or bodily injury to a person who immediately receives medical treatment away from the scene of the accident, or "disabling damage" to one or more of the vehicles "requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle." The term "accident" does not include an occurrence "involving only boarding and alighting from a stationary motor vehicle" or "involving only the loading or unloading of cargo."

In contrast, 29 CFR Part 1904 requires that employers keep in each establishment an annual "log" and summary of all recordable occupational injuries and illnesses, as well as a detailed incident report on each. These records must be retained for a period of five years. "Recordable occupational injuries and illnesses" is broadly defined to include fatalities, lost workday cases, and "[n]onfatal cases without lost workdays which result in transfer to another job or termination of employment, or require medical treatment (other than first aid) or involve: loss of consciousness or restriction of work or motion." Diagnosed occupational illnesses are also recordable (see 29 CFR 1904.12). Part 1904 also provides for employee access to records, annual posting of the summary by the employer, reporting (as opposed to recording) of fatalities or multiple hospitalization incidents, and the collection of information by OSHA in the annual survey.

In short, the DOT regulations require the recording of "accidents" involving a commercial motor vehicle, while the OSHA regulations require the recording and reporting of occupational injuries and illnesses of employees. The recordkeeping requirements promulgated pursuant to the OSH Act and the Motor Carrier Safety Act, respectively, serve totally different purposes, and because of that, require the collection of totally different information. Important data about health and safety of employees in the trucking industry -- that would be captured pursuant to 29 CFR Part 1904 -- would be lost if the only information collected was that required by DOT's Section 390.15.

In sum, records used to comply with the Federal Motor Carrier Safety Regulations requiring the maintenance of an accident register do not satisfy OSHA's Part 1904 recordkeeping requirements. All recordable occupational injuries and illnesses, as defined by 29 CFR Part 1904, must be recorded on the OSHA 200 form. Injuries which result from DOT defined accidents which meet the OSHA definition of "recordable" must be recorded on the OSHA 200 form in the level of detail required by the OSHA regulation. All other recordable injuries and illness, as defined in 29 CFR Part 1904, also must be recorded.

I hope you find this information useful. If you have any other questions, please contact the Division of Recordkeeping Requirements on (202) 693-1702.

Sincerely,

Cheryle Greenaugh
Director
Directorate of Information Technology