[Federal Register Volume 79, Number 181 (Thursday, September 18, 2014)][Rules and Regulations][Pages 56129-56188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21514]
Vol. 79
Thursday,
No. 181
September 18, 2014
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1904
Occupational Injury and Illness Recording and Reporting Requirements--
NAICS Update and Reporting Revisions; Final Rule
Federal Register / Vol. 79 , No. 181 / Thursday, September 18, 2014 /
Rules and Regulations
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. OSHA-2010-0019]
RIN 1218-AC50
Occupational Injury and Illness Recording and Reporting
Requirements--NAICS Update and Reporting Revisions
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is issuing a final rule to update the appendix to its
Injury and Illness Recording and Reporting regulation. The appendix
contains a list of industries that are partially exempt from
requirements to keep records of work-related injuries and illnesses due
to relatively low occupational injury and illness rates. The updated
appendix is based on more recent injury and illness data and lists
industry groups classified by the North American Industry
Classification System (NAICS). The current appendix lists industries
classified by Standard Industrial Classification (SIC).
The final rule also revises the requirements for reporting work-
related fatality, injury, and illness information to OSHA. The current
regulation requires employers to report work-related fatalities and in-
patient hospitalizations of three or more employees within eight hours
of the event. The final rule retains the requirement for employers to
report work-related fatalities to OSHA within eight hours of the event
but amends the regulation to require employers to report all work-
related in-patient hospitalizations, as well as amputations and losses
of an eye, to OSHA within 24 hours of the event.
DATES: The final rule becomes effective January 1, 2015.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ann
Rosenthal, Acting Associate Solicitor of Labor for Occupational Safety
and Health, Office of the Solicitor, Room S-4004, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210, to receive
petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Frank Meilinger, OSHA, Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone (202)-693-1999; email:
meilinger.francis2@dol.gov
For general and technical information: Miriam Schoenbaum, OSHA,
Office of Statistical Analysis, Room N-3507, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1841; email: schoenbaum.miriam@dol.gov
SUPPLEMENTARY INFORMATION:
1. Background
A. Table of Contents
The following table of contents identifies the major sections of
the preamble to the final rule revising OSHA's Occupational Injury and
Illness Recording and Reporting Requirements regulation (NAICS update
and reporting revisions):
I. Background
A. Table of Contents
B. References and Exhibits
C. Introduction
D. Regulatory History
II. Legal Authority
III. Section 1904.2--Partial Exemption for Certain Industries
A. Background
B. The Proposed Rule
C. Comments on the Proposed Rule
D. The Final Rule
IV. Section 1904.39 Reporting Requirements for Fatalities, In-
Patient Hospitalizations, Amputations, and Losses of an Eye
A. Background
B. The Proposed Rule
C. Comments on the Proposed Rule
D. The Final Rule
V. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
B. Industrial Profile
C. Costs of the Final Regulation
D. Benefits
E. Technological Feasibility
F. Economic Feasibility and Impacts
G. Regulatory Flexibility Certification
H. Appendix
VI. Environmental Impact Assessment
VII. Federalism
VIII. Unfunded Mandates
IX. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
X. State Plan Requirements
XI. Consultation and Coordination With Indian Tribal Governments
B. References and Exhibits
In this preamble, OSHA references documents in Docket No. OSHA-
2010-0019, the docket for this rulemaking. The docket is available at
https://www.regulations.gov, the Federal eRulemaking Portal.
References to documents in this rulemaking docket are given as
"Ex." followed by the document number. The document number is the
last sequence of numbers in the Document ID Number on
https://www.regulations.gov.
For example, Ex. 1, the proposed rule, is Document ID Number
OSHA-2010-0019-0001.
The exhibits in the docket, including public comments, supporting
materials, meeting transcripts, and other documents, are listed on
https://www.regulations.gov. All exhibits are listed in the docket index
on https://www.regulations.gov. However, some exhibits (e.g.,
copyrighted material) are not available to read or download from that
Web page. All materials in the docket are available for inspection and
copying at the OSHA Docket Office, Room N-2625, U.S. Department of
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone
(202) 693-2350.
C. Introduction
OSHA's regulation at 29 CFR part 1904 requires employers with more
than 10 employees in most industries to keep records of occupational
injuries and illnesses at their establishments. Employers covered by
these rules must record each recordable employee injury and illness on
an OSHA Form 300, which is the "Log of Work-Related Injuries and
Illnesses", or equivalent. Employers must also prepare a supplementary
OSHA Form 301 "Injury and Illness Incident Report" or equivalent that
provides additional details about each case recorded on the 300 Log.
Finally, at the end of each year, employers are required to prepare a
summary report of all injuries and illnesses on the OSHA Form 300A,
which is the "Summary of Work-Related Injuries and Illnesses", and
post the form in a visible location in the workplace.
OSHA's current regulation at Section 1904.2 partially exempts
establishments in certain lower-hazard industry groups from the
requirement for keeping injury and illness records. Lower-hazard
industries are currently those industries that are classified within
SIC major industry groups 52-89 and that have an average Lost Workday
Injury and Illness (LWDII) rate at or below 75 percent of the three-
year-average national LWDII rate for private industry.
The LWDII rate is an incidence rate that represents the number of
non-fatal injuries and illnesses resulting in days away from work or
job restriction per 100 full-time-equivalent employees per year. The
LWDII data used to compile the current list of partially-exempt
industry groups were taken from the Bureau of Labor Statistics (BLS)
Survey of Occupational Injuries and Illnesses (SOII) for the years
1996, 1997, and 1998. Establishments in the industry groups listed in
Appendix A to Subpart B do not need to keep OSHA injury and illness
records unless they are asked to do so in writing by OSHA, BLS, or a
state agency operating under the authority of OSHA or BLS.
This final rule replaces the list of partially-exempt industry
groups in SIC 52-89, based on 1996-1998 injury/illness data, with a
list of partially-exempt industry groups in NAICS 44-81, based on 2007-
2009 injury/illness data. Because overall injury and illness rates have
been declining, the threshold Days Away, Restriction, or Transfer
(DART) rate for partial exemption is 1.5 (75% of the 2007-2009 average
private industry DART rate of 2.0), down from the previous 2.325 (75%
of the 1998 average private industry LWDII rate of 3.1).
Additionally, OSHA's current regulation at 29 CFR 1904.39(a)
requires employers to report all work-related fatalities and all in-
patient hospitalizations of three or more employees to OSHA within
eight hours. This final rule leaves in place the current requirement
that employers report all work-related fatalities to OSHA within eight
hours. However, the final rule amends the current regulation by
requiring employers to report all work-related in-patient
hospitalizations that require care or treatment, all amputations, and
all losses of an eye to OSHA within 24 hours.
All employers covered by the OSH Act, including employers who are
partially exempt from maintaining injury and illness records, are
required to comply with OSHA's reporting requirements at 29 CFR
1904.39.
This rulemaking has net annualized costs of $7.7 million, with
total annualized new costs of $19.2 million to employers and total
annualized cost savings of $11.5 million for employers who no longer
have to meet certain recordkeeping requirements. The Agency believes
that the rulemaking will improve access to information about workplace
safety and health, with potential benefits that could include:
Allowing OSHA to use its resources more effectively by
enabling the Agency to identify the workplaces where workers are at
greatest risk, in general and/or from specific hazards, and target its
compliance assistance and enforcement efforts accordingly.
Increasing the ability of employers, employees, and
employee representatives to identify and abate hazards that pose
serious risks to workers at their workplaces.
D. Regulatory History
OSHA's regulations on recording and reporting occupational injuries
and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR
12612, July 2, 1971). On December 28, 1982, OSHA amended these
regulations to partially exempt establishments in certain lower-hazard
industries from the requirement to record occupational injuries and
illnesses (47 FR 57699). In 1994, the Agency issued a final rule
revising the requirements for employers to report work-related
fatalities and certain work-related hospitalizations to OSHA (59 FR
15594, April 1, 1994). On January 19, 2001, OSHA issued a final rule
that comprehensively revised its Part 1904 recordkeeping regulations
(66 FR 5915). As part of this revision, OSHA updated the list of
industries eligible for partial exemption (Section 1904.2, 66 FR 5939-
5945) and amended the requirements for reporting work-related
fatalities and certain hospitalizations to OSHA (Section 1904.39, 66 FR
6062-6065).
In this rulemaking, OSHA issued the proposed rule on June 22, 2011
(75 FR 36414). No public hearings were held for this rulemaking. OSHA
received 125 comments on the proposed rule. These comments are
addressed below.
II. Legal Authority
Section 24 of the OSH Act requires the Secretary to "develop and
maintain an effective program of collection, compilation, and analysis
of occupational safety and health statistics" and "compile accurate
statistics on work injuries and illnesses which shall include all
disabling, serious, or significant injuries and illnesses, whether or
not involving loss of time from work, other than minor injuries
requiring only first aid treatment and which do not involve medical
treatment, loss of consciousness, restriction of work or motion, or
transfer to another job" (29 U.S.C. 673(a)). Section 24 also requires
employers to "file such reports [of work injuries and illnesses] with
the Secretary" as the Secretary may prescribe by regulation (29 U.S.C.
673(e)).
In addition, the Secretary's responsibilities under the OSH Act are
defined largely by its enumerated purposes, which include "[p]roviding
appropriate reporting procedures that will help achieve the objectives
of this Act and accurately describe the nature of the occupational
safety and health problem" (29 U.S.C. 651(b)(12)).
The OSH Act authorizes the Secretary to issue two types of
occupational safety and health rules; standards and regulations.
Standards, which are authorized by section 6 of the OSH Act, specify
remedial measures to be taken to prevent and control employee exposure
to identified occupational hazards; while regulations are the means to
effectuate other statutory purposes, including the collection and
dissemination of records of occupational injuries and illnesses. Courts
of appeal have held that OSHA recordkeeping rules are regulations and
not standards (Louisiana Chemical Ass'n v. Bingham, 657 F.2d 777, 782-
785 (5th Cir. 1981); Workplace Health & Safety Council v. Reich, 56
F.3d 1465, 1467-1469 (D.C. Cir. 1995).
III. Section 1904.2--Partial Exemption for Certain Industries
A. Background
Although the OSH Act gives OSHA the authority to require all
employers covered by the Act to keep records of employee injuries and
illnesses, two classes of employers are partially exempted from the
recordkeeping requirements in Part 1904. First, as provided in Section
1904.1, employers with 10 or fewer employees at all times during the
previous calendar year are partially exempt from keeping OSHA injury
and illness records. Second, as provided in Section 1904.2,
establishments in certain lower-hazard industries are also partially
exempt. Partially-exempt employers are not required to maintain OSHA
injury and illness records unless required to do so by OSHA under
Section 1904.41 (OSHA Data Initiative) or by BLS under Section 1904.42
(Annual Survey).
The partial exemption based on industry has been part of the OSHA
recordkeeping regulation since 1982. OSHA established the 1982 list of
partially-exempt industries by identifying major industry groups with
relatively low rates of occupational injuries and illnesses in the
divisions for retail trade; finance, insurance and real estate; and the
service industries (SICs G, H, and I). Establishments were partially
exempted from routinely keeping injury and illness records if the
three-year-average lost workday case injury rate (LWCIR) for their
major industry group was 75 percent or less of the overall three-year
average LWCIR for private industry, using BLS data from 1978, 1979, and
1980. Major industry groups in the divisions for agriculture, forestry
and fishing; mining; construction; manufacturing; transportation and
utilities; and wholesale trade (SIC Divisions A-F) were not eligible
for the industry partial exemption. Although the 1982 Federal
Register notice discussed the possibility of revising the list of
partially-exempt industries, the list remained unchanged until 2001.
On January 19, 2001, OSHA published a final rule (66 FR 5916) that
comprehensively revised the Part 1904 recordkeeping regulations. As
part of this revision, OSHA updated the list of industries that are
partially exempt from the recordkeeping requirements. The list in the
current regulation at Appendix A to Subpart B is the list of industries
established in the 2001 final rule.
The 2001 final rule revised the 1982 list by using a similar method
for identifying eligible industries. As in 1982, only industries in the
major divisions for retail trade; finance, insurance and real estate;
and the service industries (SICs G, H, and I) were eligible for
inclusion, and the injury/illness rate threshold was 75 percent or less
of the three-year-average rate for private industry. However, the 2001
list differed from the 1982 list in two respects. First, OSHA used BLS
injury/illness data from 1996, 1997, and 1998, rather than data from
1978, 1979, and 1980. As a result, the threshold injury/illness rate
for industries eligible for partial exemption was 2.325 in the 2001
rule, compared to 3.0 in the 1982 rule. Second, the revised list showed
industry groups (three-digit SIC), rather than major industry groups
(two-digit SIC).
OSHA currently lists the partially-exempt industries as follows:
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SIC code Industry description
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525............................ Hardware Stores.
542............................ Meat and Fish Markets.
544............................ Candy, Nut, and Confectionery Stores.
545............................ Dairy Products Stores.
546............................ Retail Bakeries.
549............................ Miscellaneous Food Stores.
551............................ New and Used Car Dealers.
552............................ Used Car Dealers.
554............................ Gasoline Service Stations.
557............................ Motorcycle Dealers.
56............................. Apparel and Accessory Stores.
573............................ Radio, Television, & Computer Stores.
58............................. Eating and Drinking Places.
591............................ Drug Stores and Proprietary Stores.
592............................ Liquor Stores.
594............................ Miscellaneous Shopping Goods Stores.
599............................ Retail Stores, Not Elsewhere
Classified.
60............................. Depository Institutions (banks &
savings institutions).
61............................. Nondepository Credit Institutions.
62............................. Security and Commodity Brokers.
63............................. Insurance Carriers.
64............................. Insurance Agents, Brokers & Services.
653............................ Real Estate Agents and Managers.
654............................ Title Abstract Offices.
67............................. Holding and Other Investment Offices.
722............................ Photographic Studios, Portrait.
723............................ Beauty Shops.
724............................ Barber Shops.
725............................ Shoe Repair and Shoeshine Parlors.
726............................ Funeral Service and Crematories.
729............................ Miscellaneous Personal Services.
731............................ Advertising Services.
732............................ Credit Reporting and Collection
Services.
733............................ Mailing, Reproduction, & Stenographic
Services.
737............................ Computer and Data Processing Services.
738............................ Miscellaneous Business Services.
764............................ Reupholstery and Furniture Repair.
78............................. Motion Picture.
791............................ Dance Studios, Schools, and Halls.
792............................ Producers, Orchestras, Entertainers.
793............................ Bowling Centers.
801............................ Offices & Clinics Of Medical Doctors.
802............................ Offices and Clinics Of Dentists.
803............................ Offices Of Osteopathic.
804............................ Offices Of Other Health Practitioners.
807............................ Medical and Dental Laboratories.
809............................ Health and Allied Services, Not
Elsewhere Classified.
81............................. Legal Services.
82............................. Educational Services (schools,
colleges, universities and libraries).
832............................ Individual and Family Services.
835............................ Child Day Care Services.
839............................ Social Services, Not Elsewhere
Classified.
841............................ Museums and Art Galleries.
86............................. Membership Organizations.
87............................. Engineering, Accounting, Research,
Management, and Related Services.
899............................ Services, not elsewhere classified.
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The 2001 rulemaking also addressed the issue of converting from SIC
to NAICS (66 FR 5916). Although the first version of NAICS was adopted
in 1997, BLS had not yet converted to NAICS for the collection of
occupational injury and illness data when the 2001 final rule was
issued. OSHA therefore based the partially-exempt industry groups on
the SIC system. However, in the preamble to the 2001 final rule, OSHA
stated its intention to conduct a future rulemaking to update the
industry classifications to NAICS when BLS had published the injury and
illness data required for making appropriate industry-by-industry
decisions (66 FR 5944).
Updating to NAICS also fulfills a commitment OSHA made to the
Government Accountability Office (GAO). In October 2009, GAO published
a report entitled "Enhancing OSHA's Records Audit Process Could
Improve the Accuracy of Worker Injury and Illness Data" (GAO-10-10).
GAO recommended that OSHA update the list of industries OSHA uses to
select worksites for records audits. In its response to GAO, OSHA
agreed to pursue rulemaking to update the industry coverage of the
recordkeeping rule from SIC to NAICS. This allows the Agency to use
current BLS data to redefine the coverage of the recordkeeping rule.
B. The Proposed Rule
OSHA proposed to update Appendix A to Subpart B in two ways. First,
industries would be classified by NAICS instead of SIC. Second, the
injury/illness threshold would be based on more recent BLS data (2007,
2008, and 2009).
As in the current regulation, the agriculture, forestry, fishing,
and hunting; mining; construction; manufacturing; and wholesale trade
sectors were ineligible for partial exemption in the proposed rule. The
following sectors were eligible: Retail trade; transportation and
warehousing; information; finance and insurance; real estate and rental
and leasing; professional, scientific, and technical services;
management of companies and enterprises; administrative and support and
waste management and remediation services; educational services; health
care and social assistance; arts, entertainment, and recreation;
accommodation and food services; and other services (except public
administration) (NAICS 44-81). With one exception, industry groups
(classified by four-digit NAICS) in these sectors would have been
partially exempt from the recordkeeping requirements in Part 1904 if
their three-year-average DART rate were 75 percent or less of the
overall three-year-average DART rate for private industry, using BLS
data from 2007, 2008, and 2009. Since the three-year-average private-
sector DART rate for 2007, 2008, and 2009 was 2.0, the threshold for
partial exemption for eligible industry groups (classified by four-
digit NAICS) would have been a DART rate of 1.5 or less (see 76 FR
3641).
The one exception in eligibility due to three-year-average DART
rate would have been for establishments in Employment Services (NAICS
5613). This industry includes employment placement agencies, temporary
help services, and professional employer organizations. In the 2001
rulemaking, the corresponding industry group (Personnel Supply Services
(SIC 736)) was ineligible for partial exemption based on its three-
year-average DART rate (using data from 1996, 1997 and 1998). In the
preamble to the proposed rule, OSHA explained that the Employment
Services industry was below the 75 percent threshold, based on 2007,
2008, and 2009 data. However, OSHA nonetheless proposed non-exemption
of this industry on grounds that, for many employees in this industry,
their actual place of work may be in an establishment that is part of a
different, possibly higher-hazard industry. Therefore, NAICS 5613
Employment Services was not included in proposed Appendix A to Subpart
B.
In the preamble to the proposed rule, OSHA estimated that 199,000
establishments that had previously been partially exempt would have
become non-exempt. These establishments employed 5.3 million employees
and accounted for an estimated 173,000 injuries and illnesses per year.
In addition, 119,000 establishments that were previously non-exempt
would have become partially exempt. These establishments employed 4.0
million employees and accounted for an estimated 76,000 injuries and
illnesses per year.
C. Comments on the Proposed Rule
In general, OSHA's decision to convert the listing of partially-
exempt employers from SIC to NAICS drew widespread support from
commenters on the proposed rule (Exs. 24, 52, 59, 69, 77, 78, 81, 85,
86, 90, 93, 99, 100, 112, 119, 120, 122, 124). OSHA received only one
comment expressing concern about the conversion, and stating it would
not be possible to compare data between the years covered by SIC and
the years covered by NAICS (Ex. 29).
OSHA notes that continued use of the SIC system would make injury
and illness data incomparable with other types of contemporary industry
data, and would make the use of injury and illness information in
coordination with other economic data extremely difficult. Further,
OSHA agrees with commenters whose expectation is that switching to
NAICS from the seldom-used SIC system will decrease uncertainty in
classification, save time, reduce confusion and lower the opportunity
for errors in reporting the industry to which an employer belongs (Ex.
24, 59, 85). Moreover, OSHA believes that the change to NAICS will
improve the quality of injury and illness data because NAICS represents
a more modern industry classification than the SIC system.
OSHA received multiple comments on whether Part 1904 should include
a partial exemption for lower-hazard industries. On the side of support
for including a partial exemption, the National Association of Home
Builders (NAHB) commented that, during the course of multiple
rulemakings, OSHA has consistently found that the partial exemption for
low-hazard industries (as well as for employer size) is consistent with
the OSH Act, OSHA recordkeeping requirements, and national injury and
illness statistics (Ex. 113).
On the other hand, several comments generally opposed the partial
exemption for lower-hazard industries and recommended that all
industries should be subject to recordkeeping requirements (Exs. 69,
74, 77, 81, 85, 86, 112). The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW) opposed
the exemption of any industries from the Part 1904 requirement on the
basis of comparatively low injury and illness rates. The UAW commented
that "no industries whatsoever should be exempt from any of the
recordkeeping requirements in Part 1904," because "[s]o-called
'lower-hazard' industries are not free from serious hazards that can
kill or disable workers." As examples, the UAW cited four industries--
gasoline stations (NAICS 4471) jewelry, luggage, and leather goods
stores (NAICS 4483), investigation and security services (NAICS 5616),
and drinking places (NAICS 7224)--that were on the partially-exempt
list in the proposed rule but had fatality rates higher than the
national average (Ex. 77).
In addition, Dow Chemical commented that "this practice of partial
exemption has questionable value, may be counterproductive or even
unworkable, and should perhaps be discontinued." For the partial
exemption for low-hazard industries, Dow Chemical stated that "[a]n
injury is an injury, regardless of the industry in which it occurs";
even establishments with comparatively low injury/illness rates can
benefit from recordkeeping data to guide safety programs; "[m]oving
industries into and out of partially exempt status may be unworkable"
due to the need for expertise and procedures for correct recordkeeping;
and OSHA recordkeeping data are "a useful tool in efforts to reduce
injuries" (Ex. 64).
In the final rule, OSHA has maintained its longstanding practice of
partially exempting certain lower-hazard industry groups from the
recordkeeping requirements in Part 1904. This partial exemption allows
OSHA to concentrate recordkeeping requirements in sectors and industry
groups that will provide the most useful data. The partial exemption
also reduces the paperwork burden for employers in establishments in
lower-hazard industries.
OSHA acknowledges that the partial exemption by industry group
inevitably means that some high-hazard establishments will be partially
exempt from recordkeeping, while other, low-hazard establishments will
be required to keep records. However, OSHA notes that the partial
exemption only applies to industry groups whose injury/illness rates
are 75 percent or less of the private-sector average, as well as only
to industry groups in comparatively lower-hazard sectors (NAICS 52-88).
The approach taken in this final rule regarding partial exemption
is consistent with OSHA's current regulation. Although employers in
partially-exempt industry groups are not required to routinely keep
injury and illness records, they must keep such records if requested to
do so by BLS for the BLS Annual Survey of Occupational Injuries and
Illnesses (Section 1904.42), or by OSHA for the OSHA Data Initiative
(Section 1904.41). Finally, in accordance with Section 1904.39, all
employers covered by the OSH Act, regardless of partial exemptions due
to industry group or company size, must report all work-related
fatalities, in-patient hospitalizations, amputations, and losses of an
eye to OSHA.
The preamble to the proposed rule listed eight questions to the
public about the partial-exemption part of this rulemaking. Each
question is repeated below, followed by public comments and OSHA's
response to the comments.
1. Exemption of Additional Industries From the Recordkeeping
Requirements in Part 1904
In the preamble to the proposed rule, OSHA asked, "Should any
additional industries be exempt from any of the recordkeeping
requirements in Part 1904?"
The American Road and Transportation Builders Association (ARTBA)
commented that, as a result of the 75 percent threshold, there were
previously partially-exempt industries, such as construction and
planning design firms, that would now be "penalized with new
recordkeeping and reporting burdens" despite declining injury and
illness rates. ARTBA stated that these industries should remain exempt
(Ex. 114).
OSHA disagrees with this comment for two reasons. First,
eligibility should be based on a threshold for partial exemption using
timely data. The list in the current regulation is based on data from
1996-1998. The list in the final rule is based on data from 2007-2009,
which were the most recent data available at the time of the proposed
rule. Second, while OSHA recognizes that injury and illness
recordkeeping creates a paperwork burden for employers, OSHA believes
that the benefits of keeping such records are substantial. Informed
employers can use the injury and illness records to discover and
prevent occupational hazards in their workplaces, thereby reducing the
numbers of injuries and illnesses. Thus, the purpose of requiring
previously partially-exempt industries to keep records is not to
"penalize" these industries, but rather to ensure that OSHA's
recordkeeping requirements apply to the industries where the
requirements have the greatest potential benefit, according to
objective standards and timely data.
2. Detail and Aggregation of NAICS Codes for Partial Exemptions
In the preamble to the proposed rule, OSHA asked, "Should OSHA
base partial exemptions on more detailed or more aggregated industry
classifications, such as two-digit, three-digit, or six-digit NAICS
codes?"
Many commenters supported the use of industry classification by
four-digit NAICS code (Exs. 29, 62, 68, 69, 70, 74, 75, 81, 86, 112,
119). For example, Safety Compliance Services commented that four-digit
NAICS codes represent "the best compromise between data integrity and
usefulness" (Ex. 29). Mercer ORC HSE Networks commented that four-
digit NAICS codes "provide sufficient granularity" (Ex. 68). The
National Council for Occupational Safety and Health (NCOSH) commented
that four-digit NAICS codes "allow for more accurate assessment of the
degree of hazards in a given industry sector than if broader categories
were used" (Ex. 75).
There were also commenters recommending the use of industry
classifications by six-digit NAICS code (Exs. 24, 45, 52, 107). For
example, Printing Industries of America commented that, because an
industry "has multiple segments and levels of operations . . . partial
exemptions should be based on the more detailed industry
classifications indicated by the six-digit NAICS codes" (Ex. 45). The
Kentucky Labor Cabinet's Department of Workplace Standards commented
that six-digit NAICS codes would allow "precise identification of the
specific industries to be exempted" (Ex. 52).
The final rule, like the proposed rule, bases partial exemption for
industry on industry group (four-digit NAICS code). The Agency finds
that classification at this level has three advantages over the
industry level (five-digit or six-digit NAICS code), which is more
detailed. First, occupational injury and illness data are available
from BLS for most industry groups (four-digit NAICS), while there are
many industries (five-digit or six-digit NAICS) for which BLS data are
not available. Second, establishments are more likely to remain in the
same industry group (four-digit NAICS) over time than in the same
industry (six-digit NAICS), reducing the chance that an establishment
will go back and forth between non-exempt and partially-exempt status.
Third, because industry group (four-digit NAICS) is more general than
industry (six-digit NAICS), employers are less likely to encounter
confusion when trying to determine whether or not their establishments
are partially exempt due to industry.
3. Industry Sectors Ineligible for Partial Exemption
In the preamble to the proposed rule, OSHA asked, "Which industry
sectors, if any, should be ineligible for partial exemption?"
For specific industry sectors that should be ineligible for partial
exemption, the AFL-CIO, NCOSH, the UAW, the USW, and Worksafe supported
the continued ineligibility of the agriculture, manufacturing,
construction, utilities, and wholesale trade sectors (Exs. 69, 75, 77,
86, 112). The Association of Flight Attendants-CWA, AFL-CIO (AFA)
commented that the transportation sector should not be eligible for
partial exemption (Ex. 85).
In addition, for specific industry groups or industries, NCOSH
recommended that the newspapers, periodical, book, and directory
publishers industry group (NAICS 5111) should be ineligible for partial
exemption because the newspaper publishing industry (NAICS 51111) had
high fatality rates between 2003 and 2008 (Ex. 66). (The overall hours-
based fatality rate for private industry, published by the Census of
Fatal Occupational Injuries (CFOI) at BLS, ranged from 3.7 to 4.3
deaths per 100,000 full-time equivalent workers during 2006-2008; the
rate for the newspaper publishing industry ranged from 5.1 to 10.0.
CFOI did not publish a rate for this industry in 2009.)
UNITE HERE commented that contracted food services (NAICS 72231)
and caterers (NAICS 72232) should be ineligible because "injury and
illness prevention and hazard reduction . . . requires regular
maintenance of OSHA logs and OSHA log data by the employer" (Ex. 70).
The UAW commented that gas stations (NAICS 4471), jewelry, luggage,
and leather stores (NAICS 4483), investigation and security services
(NAICS 5616), and drinking places (NAICS 7224) should be ineligible
because of high fatality rates (Ex. 77). According to published data
from 2009 from CFOI, the fatality rate for private industry was 3.7
deaths per 100,000 full-time equivalent workers, while the fatality
rates for gas stations, investigation and security services, and
drinking places were 8.3, 5.1, and 15.5, respectively. CFOI did not
publish a fatality rate for jewelry, luggage, and leather stores.
The UFCW commented that clothing stores (NAICS 4481) should be
ineligible because the BLS total case rate (TCR) in that industry group
increased by 25 percent from 2008 to 2009 (Ex. 81). The TCRs were 2.9
and 3.2, respectively, for 2008 and 2009. The 2010 and 2011 TCRs were
both 3.0.
The AFA commented that industries that include one or more
occupational classifications at high risk for injuries or illnesses,
such as flight attendants in nonscheduled air transportation (NAICS
4812), should be ineligible (Ex. 85).
Consistent with the proposed rule and OSHA's longstanding policy,
the final rule designates certain industry sectors as ineligible for
partial exemption. Since 1982, it has been OSHA policy not to partially
exempt certain industry divisions generally considered to involve
greater occupational hazards. In the final rule, as in the proposed
rule, agriculture, forestry, fishing and hunting (NAICS 11); mining,
quarrying, and oil and gas extraction (NAICS 12); utilities (NAICS 22);
construction (NAICS 23); manufacturing (NAICS 31-33); and wholesale
trade (NAICS 42) are ineligible for partial exemption.
In addition, in the final rule, as in the proposed rule, industry
groups (by four-digit NAICS) in the transportation sector (NAICS 48)
are eligible for partial exemption. This is a change from the current
regulation, in which industry groups (by three-digit SIC) in the
division that includes transportation (SIC E--Transportation,
Communications, Electric, Gas, and Sanitary Services) were ineligible
for partial exemption due to industry. The reason for this change is
the different structure of NAICS versus the SIC system.
In the final rule, Appendix A lists six partially-exempt industry
groups in the transportation sector: non-scheduled air transportation
(NAICS 4812); pipeline transportation of crude oil (NAICS 4861);
pipeline transportation of natural gas (NAICS 4862); other pipeline
transportation (NAICS 4869); scenic and sightseeing transportation,
other (NAICS 4879); and freight transportation arrangement (NAICS
4885).
According to 2010 County Business Patterns data from the U.S.
Census, there were 208,474 establishments with 4,011,989 employees in
the transportation and warehousing sector (NAICS 48-49). The six
partially-exempt industry groups in the transportation sector accounted
for 26,013 establishments (12%) and 299,165 employees (7%), with
freight transportation arrangement (NAICS 4885) as the single biggest
industry group. Thus, although the transportation sector (NAICS 48) is
eligible for partial exemption under the final rule, most
establishments and employees in the transportation and warehousing
sector (NAICS 48-49) will not be partially exempt due to industry. In
addition, in non-scheduled air transportation (NAICS 4812), 72 percent
of establishments had 1-9 employees, suggesting that many employers in
this industry group will be partially exempt anyway due to size,
regardless of the transportation sector's eligibility for partial
exemption.
Also under the final rule, as in the proposed rule, establishments
in the employment services industry group (NAICS 5613) are ineligible
for partial exemption due to industry. Under the current regulation,
establishments in the corresponding SIC industry group (Personnel
Supply Services (SIC 513)) were required to keep OSHA injury and
illness records. OSHA has decided to continue this policy on grounds
that, for many employees in this industry, their actual place of work
may be in an establishment that is part of a different, possibly
higher-hazard, industry. No comments were submitted to the docket on
this issue.
There were also several comments on OSHA's current partial
exemption in Section 1904.1 for employers with 10 or fewer employees.
Unions (the AFL-CIO, the UAW, the USW, and Worksafe), a safety
professional firm (Safety Compliance Services), and Dow Chemical
Company all commented that employers should not be partially exempt on
this basis (Exs. 29, 59, 64, 69, 86, 77, 112).
In particular, Dow Chemical commented that "[t]he partial
exemption is especially unlikely to work for small employers," who may
wrongly conclude that they are completely exempt from all OSHA
regulations, rather than partially exempt from OSHA recordkeeping
regulations (Ex. 64).
The AFL-CIO commented that employees at small workplaces get
injured/ill, as do employees in industries with comparatively low
injury/illness rates (Ex. 69), and that the small-employer exclusion
especially affects the high-risk construction industry, since 80% of
construction employers are partially exempt due to small employment
size (Ex. 59). According to the AFL-CIO, "The purpose of recording
[injuries and illnesses] is to permit workers and employers to gather
worksite data that will enhance the identification and elimination of
hazards that pose serious risks to workers. As a consequence, there is
great value in requiring the recording of these incidents" (Ex. 69).
The partial exemption for employers with 10 or fewer employees is
beyond the scope of this rulemaking. However, OSHA continues to believe
that its longstanding practice of partially exempting employers with 10
or fewer employees is appropriate because it minimizes the paperwork
burden on small employers. This is consistent with the direction
provided in Section 8(d) of the OSH Act to minimize the burden of
information collection upon employers, "especially those operating
small businesses."
4. Alternatives To Using an Average DART Rate of 75 Percent of the Most
Recent Three-Year-Average National DART Rate
In the NPRM, OSHA asked, "Instead of using an average DART rate of
75 percent of the most recent national DART rate, is there a better way
to determine which industries should be included in Appendix A?"
Multiple commenters recommended using the total case rate (TCR) as
well as the DART rate. The TCR includes all recordable cases, while the
DART rate includes only cases that result in days away from work,
restriction, or job transfer. Seth Turner proposed a partial exemption
for industries with both a TCR and a DART rate at or below 85% of the
most recent three-year national averages for private industry (Ex. 23).
The UFCW proposed using the TCR and/or total number of cases (Ex. 81).
The USW proposed using the TCR as well as the DART rate, because
"[a]ll injuries are important to note that a hazard is present" (Ex.
86). Change to Win proposed using the TCR as well as the DART rate in
order to "reduce any unintended incentives to manipulate the treatment
of workers after injuries (such as inappropriate assignment to the same
tasks) in order to avoid the 'restricted activity' . . ." (Ex. 90).
NIOSH commented that the severity of injuries and illnesses should
also factor into the method for determining partial exemption. NIOSH
stated that severity could be measured by using the number of injury/
illness cases involving three or more days away from work, since
"three days . . . is the most common waiting period . . . necessary
for injuries and illnesses to become sufficiently recognized and thus
qualify injured workers to file claims which impose costs on private
employers . . ." In addition, NIOSH commented that "OSHA might also
consider which industries account for a disproportionate number of work
loss days and not just work loss cases" (Ex. 66).
The AFL-CIO commented that, according to 2009 BLS data, 18% of
total cases of injuries and illnesses (594,000 cases) and 13% of DART
cases (217,000 cases) occurred in industry groups that were partially
exempt under the criteria in the proposed rule (Exs. 69, 74). According
to the AFL-CIO, "[a]s a consequence, the 75% DART rate threshold
exempts far too many injuries and illnesses, as well as industries,
from OSHA's recording requirements." The AFL-CIO proposed three
alternatives:
1. Lowering the threshold to 50 percent, using both DART and total
case data. This method would reduce the number of partially-exempt
industries listed in the proposed rule by one-third, from 82 industries
to 55.
2. raising the threshold to 85 percent of the overall average DART
rate, and setting an upper limit for number of total cases at 10,000 or
fewer. This method would reduce the number of partially-exempt
industries listed in the proposed rule by 21 percent, from 82
industries to 65.
3. lowering the threshold to 50 percent, using both DART and total
case data, plus setting a limit for number of total cases at 10,000 or
fewer. This method would reduce the number of partially-exempt
industries listed in the proposed rule by 37 percent, from 82
industries to 52.
The AFL-CIO recommended the third alternative.
The Small Business Administration's Office of Advocacy (SBA-OA)
recommended raising the threshold from 75 percent to 80 percent, 85
percent, or 90 percent of the overall average DART rate, as well as
making more industry sectors eligible for partial exemption, or
increasing the number of employees an employer could have and still be
partially exempt under Section 1904.1. The SBA-OA noted that "[s]mall
business representatives have complained that industries that have had
declining injury and illness rates over many years will essentially be
penalized with new recordkeeping . . . burdens because their injury and
illness rates have declined, but not as fast as other industries" (Ex. 94).
OSHA disagrees with this recommendation for two reasons. First,
although the Agency recognizes that injury and illness recordkeeping
creates a paperwork burden for employers, the Agency does not agree
that the requirement to keep records "penalizes" industries. Rather,
OSHA agrees with the AFL-CIO's comment that "[t]he purpose of
recording [injuries and illnesses] is to permit workers and employers
to gather worksite data that will enhance the identification and
elimination of hazards that pose serious risks to workers" (Ex. 69).
Second, the purpose of the industry partial exemption is to balance
the benefits of injury and illness recordkeeping, on the one hand, and
the paperwork burden associated with injury and illness recordkeeping,
on the other. OSHA believes that the potential benefits of injury and
illness recordkeeping for workplace safety and health are greater in
industries that are comparatively more hazardous than in industries
that are comparatively less hazardous. Although it is true that injury
and illness rates have been declining since 1992, both overall and in
most industry sectors and groups, the rates in some industries have
declined faster than the rates in other industries. As a result, some
industries that used to have lower rates, relative to other industries
and rates overall, now have higher rates, relative to other industries
and rates overall. This shifts the balance for these industries towards
greater relative benefits from recordkeeping. Conversely, industries
that used to have higher relative rates and now have lower relative
rates now have relatively fewer benefits from recordkeeping than other
industries. OSHA therefore believes that raising the threshold for
partial exemption from 75% would not properly balance the benefits and
burden of recordkeeping. With a higher threshold, a class of industries
that would potentially benefit greatly from recordkeeping would remain
partially exempt from recordkeeping--namely, industries whose efforts
to lower injury and illness rates have been relatively less successful,
compared to other industries where rates have declined more.
The National Federation of Independent Business (NFIB) made a
comment similar to the SBA-OA's, noting that some industries had higher
injury/illness rates when they qualified for partial exemption under
the 2001 final rule than when they were proposed for non-exemption
under this rulemaking. As a result, they proposed maintaining the
partial exemption for any industry that was partially exempt in the
2001 rulemaking and had declining DART rates. Alternatively, they
proposed raising the threshold higher than 75 percent, "to a level
that captures only the most dangerous industries" (Ex. 117).
The ARTBA added to this point, commenting that, given the decline
in overall injury and illness rates and the Administration's charge
"to federal agencies to reduce unneeded regulatory burden," the
number of partially-exempt establishments should have been higher,
rather than lower, under this rulemaking (Ex. 114).
Also noting the decline in overall injury and illness rates, the
National Automobile Dealers Association (NADA) proposed that the
threshold "should be increased incrementally to compensate" as "the
overall average DART rate for private employers continues to trend
down." For example, raising the threshold to 80 percent would have put
automobile dealers (NAICS 4411) on the list of partially-exempt
industry groups. Alternatively, the Agency could raise the threshold to
100 percent, which would still result in a threshold DART rate lower
than the rates in the 1982 and 2001 final rules. (Note that a 100
percent threshold, using the 2007-2009 BLS data in the final rule,
would be 2.0 cases per 100 full-time workers. The 75 percent thresholds
in the 2001 and 1981 rulemakings were 2.2 and 3.1, respectively.) The
Agency could also "backstop" the increased threshold by removing the
partial exemption for an industry group if an OSHA review of injury/
illness data showed that the industry group's DART rate had increased
over the most recent three years of data (Ex. 119).
Spurlock & Higgins and Safety Compliance Services proposed a survey
of the hazards present in a particular industry, followed by "a risk
analysis process utilizing a risk matrix to score various NAICS codes
on likelihood and severity of injury from the identified hazards",
with industries "scoring below a pre-determined threshold . . . deemed
partially exempt." This method would "largely alleviate the need for
periodic updates to the list of partially exempt industries because of
fluctuations in injury statistics" (Exs. 24, 29).
Finally, Mercer ORC HSE Networks commented that "applying a three-
year average and using the DART rate . . . make sense. Setting the cut
off at or below 75 percent . . . and limiting eligibility to sectors
that have historically experienced lower injury and illness rates also
seem reasonable" (Ex. 68).
Finding the appropriate balance between the need for injury and
illness information, on the one hand, and the paperwork burden created
by recording obligations, on the other, is central to this rulemaking.
OSHA believes that the use of the same criteria over the past 30 years
of coverage demonstrates that these criteria achieve the desired
balance. Therefore, OSHA has decided to use the selection criteria in
the proposed rule, which are consistent with the criteria used in the
2001 and 1982 rulemakings. In the final rule, with one exception,
industry groups meeting the following two criteria are included in the
list of partially-exempt industry groups in Appendix A: A sector
classification of NAICS 44-81, and a DART rate of 75 percent or less of
the overall three-year-average DART rate for private industry, using
the most recent BLS data available at the time of the proposed rule
(2007, 2008, and 2009). As noted earlier, the sole exception is for
Employment Services (NAICS 5613), which is not partially exempt under
the final rule. OSHA acknowledges that injuries and illnesses will also
occur in industries that are partially exempt from recordkeeping.
However, continuing OSHA's longstanding practice of using a threshold
of 75 percent of the DART rate for private industry ensures that only
industries with relatively low injury/illness rates will be partially
exempt.
5. Using Numbers of Workers Injured or Made Ill in Each Industry in
Addition to Industry Injury/Illness Rates
In the NPRM, OSHA asked, "Should OSHA consider numbers of workers
injured or made ill in each industry in addition to industry injury/
illness rates in determining eligibility for partial exemption?"
NIOSH, the AFL-CIO, the UAW, the UFCW, and the USW answered yes to
this question (Exs. 66, 69, 74, 77, 81, 86). NIOSH commented that
"[c]onsideration should be given to potential uses for site-specific
targets (e.g., silicosis, other pneumoconiosis, dermatitis, cancers),
as well as the potential use of these data by NIOSH . . . in sentinel
case follow-up and evaluation" (Ex. 66). The AFL-CIO commented that
BLS data from 2009 show that 594,000 total cases (18% of total) and
217,000 DART cases (13% of total) occurred in industries proposed for
partial exemption (Ex. 69). The UAW commented that "OSHA should require
recording by employers in all industries in which at least one worker has
been injured or made ill" (Ex. 77).
For the final rule, OSHA has decided to use the same selection
criteria as in the proposed rule. These criteria are consistent with
the criteria used in the 2001 and 1982 rulemakings. This decision
balances the need for injury and illness data with the paperwork burden
on the regulated community. OSHA believes the incidence rate is the
appropriate criterion to use because it shows the relative level of
injuries and illnesses among different industries. Incidence rates
allow for comparisons of industries that are vastly different in size
and demographic make-up. Relying on the numbers of injuries and
illnesses would bias the decision towards including industries that are
very large but at the time relatively safe. As discussed elsewhere, in
the final rule, with one exception, industry groups meeting the
following two criteria are included in the list of partially-exempt
industry groups in Appendix A: A sector classification of NAICS 44-81,
and a DART rate of 75 percent or less of the overall three-year-average
DART rate for private industry, using the most recent BLS data
available at the time of the proposed rule (2007, 2008, and 2009). The
one exception is for employment services (NAICS 5613), which is not
partially exempt.
6. Additional or Alternative Criteria for Determining Eligibility for
Partial Exemption?
In the preamble to the proposed rule, OSHA asked, "Are there any
other data that should be applied as additional or alternative criteria
for purposes of determining eligibility for partial exemption?"
Multiple commenters proposed additional criteria not addressed in
previous questions. The Marshfield Clinic proposed that establishments
with less than a specified number of employees be partially exempt
regardless of NAICS (Ex. 15). The Building and Construction Trades
Department of the AFL-CIO suggested that OSHA consider fatality rates;
they commented that "fatality rates provide useful and, for the
construction industry, better criteria because of problems associated
with the underreporting of non-fatal injuries" (Ex. 59). (Note that
the construction industry is not eligible for partial exemption.)
NIOSH suggested three additional data types. The first was work-
related fatalities, because "a sudden increase in the number of
fatalities in a particular industry may suggest a growing problem that
needs further investigation and/or potential failures in prevention."
The second was current labor force estimates for the industry, because
"establishments within small industry subsectors have a very low
probability of experiencing the necessary number of cases to satisfy
BLS statistical reporting guidelines." The third was establishment
size, which is "an important factor in aspects of management, health
and safety education, prevention, and workers' compensation services"
(Ex. 66). (Note that OSHA's regulation at Section 1904.39 requires all
employers covered by the OSH Act, regardless of their partial-exemption
status under Section 1904.2, to report all fatalities, in-patient
hospitalizations, amputations, and losses of an eye to OSHA.)
In the final rule, OSHA has decided to use the selection criteria
in the proposed rule, which are consistent with the criteria used in
the 2001 and 1982 rulemakings. OSHA reviewed BLS fatality rate data
from the Census of Fatal Occupational Injuries. The majority of
industries with fatality rates greater than the private industry
fatality rate are not exempted under the final rule. As discussed
above, all work-related fatalities are required to be reported to OSHA,
and these data are captured in the OSHA Information System (OIS). OSHA
concludes that the use of fatality data as a criterion is not warranted
because it identifies the same industries as the DART rate distribution
and because the site-specific fatality data are captured through the
fatality reporting requirements.
OSHA also concludes that labor force estimates are not a necessary
criterion. BLS DART rate data were available for all industries because
OSHA conducted the analysis at the 4-digit NAICS level.
As noted above, in the final rule, with one exception, industry
groups meeting the following two criteria are included in the list of
partially-exempt industry groups in Appendix A: A sector classification
of NAICS 44-81, and a DART rate of 75 percent or less of the overall
three-year-average DART rate for private industry, using the most
recent BLS data available at the time of the proposed rule (2007, 2008,
and 2009). The sole exception is for employment services (NAICS 5613),
which is not partially exempt.
7. Regular Updates of the List of Lower-Hazard Exempted Industries
In the preamble to the proposed rule, OSHA asked, "Should OSHA
regularly update the list of lower-hazard exempted industries? If so,
how frequently should the list be updated?"
Multiple commenters supported regular updates of the list of lower-
hazard partially-exempt industries. Worksafe recommended that "the
Agency [be] required to review BLS injury rate data at least every two
years, to re-determine exempt industries" (Ex. 112). The Occupational
Health Section of the American Public Health Association (APHA), the
AFL-CIO, UNITE HERE, the TWU, the UAW, the UFCW, and the USW
recommended updating the list every three years (Exs. 62, 69, 70, 74,
77, 81, 86). Mercer ORC HSE Networks commented that "the list could be
renewed every five years or so to maintain its relevance and insure a
sense of fairness" (Ex. 68). NADA commented that "OSHA should
initiate a review of the [list of partially-exempt industries] soon
after the results of a new economic census become available" (Ex.
119). NCOSH commented that OSHA should update the list "regularly"
because "[i]ndustry conditions and work environments change over time
and it is important that this list reflect current conditions to the
greatest extent possible" (Ex. 75).
In contrast, the Dow Chemical Company commented that "moving
industries into and out of partially exempt status may be unworkable",
because "considerable expertise is necessary in order to correctly
make determinations under OSHA's recordkeeping regulations",
"[d]etailed procedures must also be created, taught, and practiced . .
.", and "[p]artially exempt industries must still be able to record
injuries accurately if BLS or OSHA make a request" (Ex. 64).
OSHA has decided not to provide for regular updates of the list of
lower-hazard partially-exempt industries in the final rule. First,
historically, the list of industries meeting the criteria for partial
exemption has changed very little from year to year. Second, OSHA
agrees with Dow Chemical Company (Ex. 64) that moving industries in and
out of partially-exempt status would be confusing. An analysis of
NAICS-based BLS injury and illness data shows that exemption status
tends to remain relatively constant over time. The analysis grouped the
eight years of annual data from 2003 to 2010 into six groups of three-
year averages (2003-2005, 2004-2006, 2005-2007, 2006-2008, 2007-2009,
2008-2010). There were 155 industry groups (classified by four-digit
NAICS) in the analysis. For 135 of these groups (87%), the exemption
status remained constant; partially-exempt industry groups remained
partially exempt throughout the period, and non-exempt industry groups
remained non-exempt. Of the remaining 20 industry groups, 10 (6%) changed
status once, either from non-exempt to partially-exempt or from partially-
exempt to non-exempt; seven (5%) changed status twice; and three (2%)
changed status three times. Although this final rule does not include a
regularly-scheduled update of the partial exemption list, the Agency is
planning a retrospective review of OSHA's recordkeeping regulations.
The Occupational Safety and Health Act itself requires the Secretary to
"develop and maintain an effective program of collection, compilation,
and analysis of occupational safety and health statistics" and
specifies the underlying criteria for defining recordability. After the
passage of the Act, OSHA issued Part 1904, Recording and Reporting
Occupational Injuries and Illnesses. These regulations included
provisions on the industry and size of establishments exempted from the
recordkeeping requirements. Part 1904 was modified in 2001, following a
national process in which a large group of stakeholder representatives
and experts conducted a year-long dialogue on occupational injury and
illness recordkeeping. Among the recommendations that came out of this
dialogue that were incorporated into Part 1904 in the 2001 rulemaking
were the elimination of the requirement to record injuries and
illnesses that were viewed as irrelevant for evaluating the safety and
health environment of the work-place, and the addition of criteria to
capture newly recognized occupational safety and health conditions.
OSHA believes there is value in a new re-examination of the
Agency's recordkeeping regulations. First, there is extensive evidence
that many work-related injuries and illnesses are currently not being
recorded on the Injury and Illness Logs maintained by employers. It has
long been recognized that most work-related illnesses, particularly
those chronic diseases which do not appear until years after first
exposure, are not recorded on these logs. In recent years, academic
researchers have performed numerous studies, comparing work-related
injuries recorded on employer-maintained logs with work-related
injuries identified through workers' compensation or hospital records.
These studies have demonstrated that a sizable proportion of work-
related injuries are not being recorded on employer-maintained logs.
Further, changes in the structure of employment, exemplified by the
increased presence of temporary and contractor workers in many
establishments, raise important questions about the effectiveness of
the current requirements and suggest that new approaches to injury
tracking may be warranted. Finally, in recent years there has been
little evaluation of the benefits and costs of the rule. With these
issues in mind, OSHA plans to undertake a retrospective review of the
effectiveness of the Agency's injury and illness recordkeeping
regulations.
This retrospective study will be conducted in accordance with the
Department of Labor's Plan for Retrospective Analysis of Existing Rules
which complies with Executive Order (E.O.) 13563 "Improving Regulation
and Regulatory Review" (76 FR 3821). E.O. 13563 requires agencies to
develop and submit to the Office of Information and Regulatory Affairs
a preliminary plan, consistent with law and its resources and
regulatory priorities, under which the agency will periodically review
its existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving the regulatory objectives. [76 FR 3822].
In addition to the retrospective review, OSHA will engage the
public to assess the impact of the changes implemented under this
rulemaking. The Agency will conduct a stakeholder meeting to discuss
the burdens associated with the new coverage and reporting requirements
and the utility and use of the new information collected. We anticipate
conducting such a meeting after the new requirements have been in place
for two years to allow for a sufficient impact to be considered.
8. Training, Education, and Compliance Assistance to Facilitate
Compliance With the Recordkeeping Requirements
In the NPRM, OSHA asked, "Are there any specific types of
training, education, and compliance assistance OSHA could provide that
would be particularly helpful in facilitating compliance with the
recordkeeping requirements?"
The UAW commented that "OSHA should do more training and
dissemination of information about employee rights and employer
obligations related to recordkeeping, especially for small employers
and their employees" (Ex. 77).
OSHA has recently put two tools on its public Web site to help
employers comply with recordkeeping requirements: A 15-minute on-line
tutorial (training module) on completing the recordkeeping forms, and
an interactive e-tool (Recordkeeping Advisor) that uses employer
responses to questions to help employers determine whether or not (and
how) they need to record/report specific injuries and illnesses. Both
are available on OSHA's recordkeeping Web page at
https://www.osha.gov/recordkeeping/index.html. In addition, the
recordkeeping forms booklet includes general instructions, instructions
for each OSHA recordkeeping form, and contact information for recordkeeping
assistance from Regional and State Plan offices.
Other Issues Raised by Comments
The National Association of Real Estate Investment Trusts (NAREIT)
"encourage[d] OSHA to recalculate its [Preliminary Economic Analysis
(PEA)] of the proposed rule utilizing 2007 NAICS codes, rather than
pre-2007 NAICS codes" (Ex. 41).
The PEA in the NPRM was based on the 1997 Economic Census Bridge
between SIC and NAICS tables (http://www.census.gov/epcd/naics02/S87TON02.HTM),
2006 data from County Business Patterns (CBP) on number of establishments
(http://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls), and 2006
data from BLS on numbers of injuries and illnesses.
Bridges between SIC and NAICS are available for 1987 SIC-1997 NAICS
and 1987 SIC-2002 NAICS. No bridge is available for 1987 SIC-2007
NAICS, although a bridge is available for 2002 NAICS -2007 NAICS.
In the final rule, the Final Economic Analysis (FEA) is based on
2010 data from CBP and 2007-2009 data from BLS. 2010 CBP data were
based on the 2007 NAICS. 2007 and 2008 BLS data were based on the 2002
NAICS; 2009 BLS data were based on the 2007 NAICS.
For industry sectors (two-digit NAICS) eligible for partial
exemption under both the proposed rule and the final rule, the 2002
NAICS differs from the 2007 NAICS as follows (see
http://www.census.gov/eos/www/naics/faqs/faqs.html):
Sector 51, Information--Major changes were made in the Information
sector. Telecommunications Resellers and Cable and Other Program
Distribution were moved, Internet Service Providers and Web Search
Portals industries were restructured, and a new six-digit industry was
created in the Other Information Services subsector.
Sector 53, Real Estate and Rental and Leasing--2002 NAICS code
525390- Real Estate Investment Trusts (REIT), was deleted and portions
of it were reclassified as follows: (1) Equity REITs is classified in
the Real Estate subsector in NAICS Industry Group 5311- Lessors of Real
Estate, under individual national industries based on the content of
the portfolio of real estate operated by a particular REIT; and (2)
Mortgage REITs is moved to NAICS 525990, Other Financial Vehicles.
Sector 54, Professional, Scientific, and Technical Services--
Research and Development in Biotechnology was added as a 6-digit
industry.
Sector 56, Administrative & Support and Waste Management &
Remediation Services--Establishments that primarily provide executive
search consulting services were moved to a new 6-digit industry,
Executive Search Services.
OSHA finds that the differences between the 2002 NAICS and the 2007
NAICS are not significant to the rulemaking. This is further discussed
in Section V Final Economic Analysis of this preamble.
OSHA also received comments about the estimates in the PEA for
recordkeeping costs at establishments in industry groups that are
partially exempt under the current regulation but will no longer be
partially exempt under this final rule. The Dow Chemical Company
commented that the PEA underestimates the cost of the proposed rule at
these establishments for three reasons. First, "decisions on
recordability . . . may involve physicians, industrial hygienists,
personnel in the supervisory chain of the injured individual, safety
professionals, attorneys, and recordkeeping subject-matter experts, all
of whom are salaried, degreed professionals at salaries considerably
higher" than the $56,000 annual salary for a human resources
specialist that the PEA used to estimate costs. Second, the PEA does
not include the cost of "set[ting] up the procedures and systems that
are utilized for implementation of [OSHA recordkeeping] regulations."
Third, "the process of developing a competent OSHA recordkeeper is far
more time-intensive than" the time for training and re-training
estimated in the PEA (Ex. 64).
The SBA-OA commented that OSHA should "consider whether its wage
rate assumption is valid for many small businesses." The PEA uses the
assumption that recordkeeping will be performed by a human resources
specialist with a compensation cost of $40.04 per hour, but "many
small businesses do not employ such personnel and it is often the small
business owner or other senior person who conducts these activities"
(Ex. 94).
NADA commented that the PEA "significantly underestimates" the
cost to establishments in the automobile dealer industry group (NAICS
4411), which was partially exempt under the 2001 rulemaking but would
not have been partially exempt under the proposed rule. (Note that the
industry group will also not be partially exempt under the final rule.)
According to NADA, each automobile dealer will "hav[e] to train at
least one person on Form 300 injury and illness recordkeeping/" For
training costs, NADA cites the $300 cost of the National Safety
Council's one-day course on OSHA recordkeeping, in addition to
"travel, lost income, and other related expenses." There are also
ongoing costs due to employee turnover and "compliance
responsibilities", including "monitoring for workplace related
injuries and illnesses, and completing, certifying, and posting the
log" (Ex. 119).
OSHA's response to these comments is in Section V of this
supplementary information.
Four commenters (the NAHB, the Associated General Contractors of
America, the National Federation of Independent Business (NFIB), and
the US Chamber of Commerce) stated that it would have been a good idea
for OSHA to convene a Small Business Regulatory Enforcement Fairness
Act (SBREFA) panel (Exs. 113, 115, 117, 120). The NFIB also commented
that "OSHA did not do enough outreach to the small-business community
in developing this rule" (Ex. 120).
OSHA did not convene a SBREFA panel because the Agency determined
this rule will not have a significant economic impact on a substantial
number of small entities. For a more thorough discussion of this issue,
please refer to Section V of this supplementary information.
The NAHB commented that "OSHA's proposal is not consistent with
Executive Order 13563, 'Improving Regulation and Regulatory Review',"
because "[n]othing in OSHA's proposal indicates how the rule is
intended to streamline regulatory requirements and reduced burdens on
industry" and because the Agency "should consider the impacts of this
proposal on small businesses and consider conducting additional
outreach before moving forward" (Ex. 113). The SBA-OA and the ARTBA
made similar comments (Exs. 94, 114). OSHA's response to these comments
is in Section V of this supplementary information.
Executive Order 13563 requires regulatory agencies to consider the
effect of new regulations on economic growth, competitiveness, and job
creation. OSHA notes that, as discussed below in Section V-E, Economic
Impacts, the compliance costs for each affected firm are too small to
have any significant economic impacts, including impacts on economic
growth, competitiveness, and job creation. In addition, OSHA's use of a
partial exemption from recordkeeping requirements for specified
industries embodies the principle that asks agencies to identify and
use the best and least burdensome tools for achieving regulatory ends.
The exemption both reduces the impact of regulatory requirements on
industry overall and minimizes paperwork burden for many small
employers. Also, as noted above, switching from the outdated SIC system
to NAICS will reduce uncertainty, confusion, and errors, as well as
save time. Therefore, the Agency believes that the approach taken in
this rulemaking to update the list of partially-exempt industries is
consistent with, and promotes the primary objectives of, Executive
Order 13563.
United Support and Memorial for Workplace Fatalities commented that
"employers should be required to include on their injury, illness and
fatality incident and reports and logs, the BLS standard occupational
classification code for the affected worker's job title" (Ex. 93).
This is beyond the scope of this rulemaking.
The US Chamber of Commerce commented that OSHA's use of BLS injury
and illness data in the criteria for partial exemption for low-hazard
industry groups "is at odds with other OSHA efforts and comments that
indicate a lack of faith in the credibility of this data since it is
generated by employers self reporting" (Ex. 120). OSHA's response is
that, while academic researchers, OSHA, and BLS are studying the
comprehensiveness and accuracy of BLS data, the BLS data are still the
most comprehensive body of occupational injury and illness data
available.
D. The Final Rule
The final rule is the same as the proposed rule. With one
exception, industry groups (classified by four-digit NAICS) that meet
the following two criteria are partially exempt from the recordkeeping
requirements in Part 1904:
1. Sector classification of NAICS 44-81.
2. a DART rate of 75 percent or less of the overall three-year-
average DART rate for private industry, using BLS data from 2007, 2008,
and 2009. The average national DART rate for private industry for 2007-
2009 was 2.0. Thus, the threshold for partial exemption for eligible
industry groups (classified by four-digit NAICS) was a DART rate of 1.5
or less.
Like the proposed rule, the one exception is for Employment
Services (NAICS 5613), which is not partially exempt. The three-year-
average DART rate for the Employment Services industry group, using BLS
data from 2007, 2008, and 2009, was 1.1, which is below the 75 percent
threshold of 1.5. However, this industry group is nonetheless
ineligible for partial exemption on grounds that, for many employees in
this industry, their actual place of work may be in an establishment
that is in a different, non-partially-exempt industry group or sector,
such as manufacturing. Therefore, NAICS 5613 Employment Services is not
included in the final Appendix A to Subpart B. OSHA received no
comments from the public about this exception.
In the issues section of the preamble to the proposed rule, OSHA
asked the public to comment on the appropriateness of the proposed
exemption procedure; whether alternative procedures for determining
partial exemption should be used; and whether specific industries
should be included or excluded from the list of partially-exempt
industries. OSHA notes that the final rule, like the proposed rule, is
based on the most recent BLS injury and illness data available at the
time of the proposed rule (2007-2009). Because OSHA is using the same
criteria and same injury/illness data to establish the list of
partially-exempt industry groups, the industry groups in the proposed
Appendix A to Subpart B and the final Appendix A to Subpart B are the
same.
Under the final rule, employers are not required to keep OSHA
injury and illness records for any establishment classified in an
industry group listed in Appendix A to Subpart B, unless they are asked
in writing to do so by OSHA, BLS, or a state agency operating under the
authority of OSHA or BLS. All employers covered by the OSH Act,
including employers who are partially exempt from recordkeeping based
on size or industry classification, must report all work-related
fatalities, in-patient hospitalizations, amputations, or losses of an
eye to OSHA, as required by Section 1904.39.
For a more thorough discussion of the specific industry groups that
are newly partially exempted or newly covered by the final rule, please
refer to Section V of this supplementary information.
Because the final rule will require some establishments that had
been partially exempt from OSHA recordkeeping requirements to now
comply completely with these requirements, OSHA will offer compliance
assistance, including outreach and training, to help these
establishments keep complete and accurate records and comply with the
recordkeeping regulation.
The partially-exempt industry groups are:
------------------------------------------------------------------------
NAICS code Industry
------------------------------------------------------------------------
4412........................... Other Motor Vehicle Dealers.
4431........................... Electronics and Appliance Stores.
4461........................... Health and Personal Care Stores.
4471........................... Gasoline Stations.
4481........................... Clothing Stores.
4482........................... Shoe Stores.
4483........................... Jewelry, Luggage, and Leather Goods
Stores.
4511........................... Sporting Goods, Hobby, and Musical
Instrument Stores.
4512........................... Book, Periodical, and Music Stores.
4531........................... Florists.
4532........................... Office Supplies, Stationery, and Gift
Stores.
4812........................... Nonscheduled Air Transportation.
4861........................... Pipeline Transportation of Crude Oil.
4862........................... Pipeline Transportation of Natural Gas.
4869........................... Other Pipeline Transportation.
4879........................... Scenic and Sightseeing Transportation,
Other.
4885........................... Freight Transportation Arrangement.
5111........................... Newspaper, Periodical, Book, and
Directory Publishers.
5112........................... Software Publishers.
5121........................... Motion Picture and Video Industries.
5122........................... Sound Recording Industries.
5151........................... Radio and Television Broadcasting.
5172........................... Wireless Telecommunications Carriers
(except Satellite).
5173........................... Telecommunications Resellers.
5179........................... Other Telecommunications.
5181........................... Internet Service Providers and Web
Search Portals.
5182........................... Data Processing, Hosting, and Related
Services.
5191........................... Other Information Services.
5211........................... Monetary Authorities--Central Bank.
5221........................... Depository Credit Intermediation.
5222........................... Nondepository Credit Intermediation.
5223........................... Activities Related to Credit
Intermediation.
5231........................... Securities and Commodity Contracts
Intermediation and Brokerage.
5232........................... Securities and Commodity Exchanges.
5239........................... Other Financial Investment Activities.
5241........................... Insurance Carriers.
5242........................... Agencies, Brokerages, and Other
Insurance Related Activities.
5251........................... Insurance and Employee Benefit Funds.
5259........................... Other Investment Pools and Funds.
5312........................... Offices of Real Estate Agents and
Brokers.
5331........................... Lessors of Nonfinancial Intangible
Assets (except Copyrighted Works).
5411........................... Legal Services.
5412........................... Accounting, Tax Preparation,
Bookkeeping, and Payroll Services.
5413........................... Architectural, Engineering, and Related
Services.
5414........................... Specialized Design Services.
5415........................... Computer Systems Design and Related
Services.
5416........................... Management, Scientific, and Technical
Consulting Services.
5417........................... Scientific Research and Development
Services.
5418........................... Advertising and Related Services.
5511........................... Management of Companies and
Enterprises.
5611........................... Office Administrative Services.
5614........................... Business Support Services.
5615........................... Travel Arrangement and Reservation
Services.
5616........................... Investigation and Security Services.
6111........................... Elementary and Secondary Schools.
6112........................... Junior Colleges.
6113........................... Colleges, Universities, and
Professional Schools.
6114........................... Business Schools and Computer and
Management Training.
6115........................... Technical and Trade Schools.
6116........................... Other Schools and Instruction.
6117........................... Educational Support Services.
6211........................... Offices of Physicians.
6212........................... Offices of Dentists.
6213........................... Offices of Other Health Practitioners.
6214........................... Outpatient Care Centers.
6215........................... Medical and Diagnostic Laboratories.
6244........................... Child Day Care Services.
7114........................... Agents and Managers for Artists,
Athletes, Entertainers, and Other
Public Figures.
7115........................... Independent Artists, Writers, and
Performers.
7213........................... Rooming and Boarding Houses.
7221........................... Full-Service Restaurants.
7222........................... Limited-Service Eating Places.
7224........................... Drinking Places (Alcoholic Beverages).
8112........................... Electronic and Precision Equipment
Repair and Maintenance.
8114........................... Personal and Household Goods Repair and
Maintenance.
8121........................... Personal Care Services.
8122........................... Death Care Services.
8131........................... Religious Organizations.
8132........................... Grantmaking and Giving Services.
8133........................... Social Advocacy Organizations.
8134........................... Civic and Social Organizations.
8139........................... Business, Professional, Labor,
Political, and Similar Organizations.
------------------------------------------------------------------------
IV. Section 1904.39 Reporting Requirements for Fatalities, In-Patient
Hospitalizations, Amputations, and Losses of an Eye
A. Background
OSHA has required employers to report work-related fatalities and
certain work-related hospitalizations since 1971, the year the OSH Act
went into effect. The initial regulation in 29 CFR 1904.8 required
employers to report, within 48 hours, an employment incident resulting
in the fatality of one or more employees or the hospitalization of five
or more employees. Employers were required to report by telephone or
telegraph to the nearest OSHA Area Office.
In 1994, the Agency revised the regulation to require reporting,
within eight hours, of any work-related fatality or hospitalization of
three or more employees (59 FR 15594, April 1, 1994). OSHA explained in
the preamble to the final rule that "[r]educing the reporting period
from 48 hours to 8 hours enables OSHA to inspect the site of the
incident and interview personnel while their recollections are more
immediate, fresh and untainted by other events, thus providing more
timely and accurate information." In addition, OSHA stated that
reducing the reporting time increased the chances that the site of the
incident would remain undisturbed and also "coincided with a 'standard
work shift' for most employers."
The 1994 rulemaking also addressed several other issues. First,
OSHA explained that hospitalization meant in-patient admission and
excluded admission solely for observation. Second, OSHA added
regulatory language stating that if employers did not learn of a
reportable incident when it occurred, they were required to report
within eight hours of learning of the incident. Third, OSHA specified
that employers were required to report any fatality or in-patient
hospitalization of three or more people occurring within 30 days of the
incident. Fourth, OSHA added the option of reporting via OSHA's
centralized toll-free telephone number.
The requirements from the 1994 rulemaking have remained
substantially unchanged and are currently codified at 29 CFR 1904.39.
B. The Proposed Rule
The proposed rule would have made two major changes to OSHA's
reporting requirements. First, the proposed rule would have required
employers to report the work-related in-patient hospitalization of one
or more employees to OSHA. The current regulation requires reporting
only if three or more employees are hospitalized. The reporting time
would have been eight hours, the same as the current regulation.
Second, the proposed rule would have required employers to report all
work-related amputations to OSHA, within 24 hours. The current
regulation does not specifically require the reporting of amputations.
For the reporting of in-patient hospitalizations of fewer than
three employees, OSHA explained that "[t]he hospitalization of a
worker due to a work-related incident is a serious and significant
event" (76 FR 36419). The preamble to the proposed rule explained
that, for OSHA recordkeeping purposes, in-patient hospitalization
occurs when a person is "formally admitted" to a hospital or clinic
for at least one overnight stay.
For the reporting of amputations, OSHA explained that
"[a]mputations include some of the most serious types of injuries and
tend to result in a greater number of lost workdays than most other
injuries . . . Furthermore, amputations differ from other types of
serious injuries because they have long-term or permanent
consequences" (76 FR 36419). The proposed rule defined amputations in
proposed Section 1904.39(b)(8) according to the definition in the 2007
release of the Occupational Injury and Illness Classification (OIICS)
Manual of the Bureau of Labor Statistics (BLS). This definition of
amputations excluded traumatic injuries without bone loss, as well as
losses of an eye.
In the NPRM, OSHA explained that the changes in the proposed rule
would have made OSHA's reporting requirements more similar to the
requirements of other agencies, as well as to the requirements of some
states that administer their own occupational safety and health
programs.
C. Comments to the Proposed Rule
Many comments supported the reporting requirements included in
OSHA's proposed rule. Letitia Davis, ScD, EdM, the Director of the
Occupational Health Surveillance Program at the Massachusetts
Department of Public Health, noted: "Case reporting of health events
is a well-established approach to public health surveillance and
intervention. Serious occupational injuries are urgent sentinel health
events indicating that prevention efforts have failed and that
intervention to remediate hazards may be warranted" (Ex. 84). However,
OSHA also received multiple comments that the proposed rule would not
prevent injuries and illnesses and is redundant, premature, and not
supported by data.
The Steel Manufacturers Association commented that "[d]ata in
itself has never prevented any type of occurrence [of injuries]" and
that "[t]he information required to be provided . . . while good at
identifying basic information, does not collect any data that will
serve in preventing future injuries or illnesses. The only possible
preventative action that can be taken is for OSHA to conduct an
inspection. The results are citations and press releases that provide
little preventative effect beyond the employer involved" (Ex. 36).
Mercer ORC HSE Networks commented that "merely establishing [a
'comprehensive database' of information about the reportable events]
may not be the best way, or even a very good way, to better determine
how to better focus OSHA's resources on high-hazard workplaces. Put
another way, it is not at all clear that employers experiencing the new
case categories identified in the rulemaking . . . pose increased
future risk to workers, or are any more likely than other employers to
experience future serious cases. OSHA makes that implicit assumption
without support. For example, a study conducted by Rand several years
ago for the Duke Energy Foundation found that sites experiencing
fatalities usually posed less risk to workers for future serious
injury, not more" (Ex. 68).
In response, OSHA notes that the OSHA recordkeeping regulation has
included requirements for employers to report certain work-related
events to OSHA since 1971. These requirements have always been an
important part of the Agency's statutory mission to assure safe and
healthful working conditions for working men and women. Timely
reporting of work-related fatalities, as well as certain other serious
work-related events, allows OSHA to assess whether an intervention is
necessary and to target hazardous workplaces for inspection.
In addition, OSHA is able to use information gained from the
investigations of work-related fatalities and other serious work-related
events to identify workplace hazards and prevent similar incidents, both
at the inspected workplace and at other workplaces. This information also
can also be used to support the issuance of new safety and health standards
and regulations, as well as the revision of existing OSHA standards and
regulations.
The Tree Care Industry Association commented, "Why would OSHA not
work with State Workers Compensation programs and/or the State Plan
OSHA's that already collect hospitalization data before it imposes
redundant reporting requirements on employers under federal OSHA
jurisdiction?" (Ex. 37).
In response, OSHA notes that one of the reasons for the reporting
requirement in Section 1904.39 is to allow the Agency to conduct, if
necessary, a prompt investigation of the incident leading to the
serious occupational injury and illness event. OSHA also notes that six
states with OSHA-approved State Plans currently require employers to
report the in-patient hospitalization of fewer than three employees. As
a result, OSHA concludes that the requirement to report in-patient
hospitalizations of fewer than three employees would not be redundant
even if OSHA had systematic access to hospitalization data from state
workers' compensation programs.
Gruber Hurst Johansen Hail Shank commented, "If amputations and
most incidents that require hospitalization are already recordable,
then why is there a compelling need for additional reporting? . . .
OSHA is already informed about these instances through recordkeeping"
(Ex. 60). Similarly, the Joint Poultry Industry Safety and Health
Council commented that "[t]he DART rate, calculated from existing
injury and illness data, already identifies those workplaces with
frequent, severe injuries. We fail to see why this currently available
data is not sufficient to meet the goal of identifying 'the most
dangerous workplaces' and why OSHA needs this type of additional injury
data" (Ex. 61).
Likewise, Mercer ORC HSE Networks commented that "[a]ll of the
cases that would be reported under the new OSHA criteria should already
be captured on the OSHA log. To target inspections, OSHA already
collects summary data that includes these cases from a census of sites
in portions of the private sector that the Agency feels tend to involve
higher risk. BLS also captures the same information in more detailed
form in a parallel . . . data collection effort. In addition to its
annual survey that produces incidence rates and detailed case
characteristics across industry, BLS also conducts a Census of Fatal
Occupational Injuries (CFOI) that produces accurate counts and very
detailed descriptive data on fatal work related injuries. So data on
fatalities and amputations should clearly be accessible from existing
data collections. Granted it might be harder to capture data on some
in-patient hospitalizations. But some of that information could be
obtained from existing OSHA supplementary records. Data that could not
be extracted from existing OSHA records could be obtained by less
burdensome means than proposed, such as conducting follow-back studies
of a small sample of employers" (Ex. 68).
In response, OSHA notes the distinction between the employer's
obligation to record an injury or illness and the employer's obligation
to report. Since OSHA's founding, the reporting requirement has been
separate from the recording requirement. As a rule, OSHA obtains the
detailed, case-specific information recorded by employers under Part
1904 only when OSHA conducts an on-site inspection. And OSHA inspects
only a small percentage of all establishments subject to OSHA authority
each year. For example, in 2010, OSHA and its state partners inspected
approximately 1 percent of establishments subject to OSHA authority
(approximately 98,000 inspections, out of 7.5 million total
establishments).
On November 8, 2013, OSHA also published a notice of proposed
rulemaking (NPRM) on Improve Tracking of Workplace Injuries and
Illnesses, which would expand its collection of injury and illness data
(FR 78 67254-67283). In that NPRM, OSHA proposed collecting case-
specific information from approximately 38,000 establishments with 250
or more employees in industries subject to the recordkeeping
requirements in Part 1904. Again, this is only a small percentage of
all establishments subject to OSHA authority. OSHA notes the proposed
rule on improving tracking of workplace injuries and illnesses would
not add to or change any employer's obligation to complete and retain
injury and illness records under OSHA's regulations for recording and
reporting occupational injuries and illnesses. The proposed rule also
would not add to or change the recording criteria or definitions for
these records. The proposed rule would only modify employers'
obligations to transmit information from these records to OSHA or
OSHA's designee.
In addition, although all employers are subject to the requirement
to report fatalities and specified non-fatal injury/illness events,
many employers are partially exempt from the Part 1904 requirement to
record injuries and illnesses. As a result, it is incorrect to assume
that all amputations and most hospitalization incidents are captured in
employer injury and illness records. As noted by the AFL-CIO, BLS data
from 2009 show that 217,000 DART cases (13% of total) occurred in
industries that would have been partially exempt from recordkeeping due
to industry classification under the NAICS update part of this proposed
rule (Ex. 69). Work-related amputations and hospitalizations suffered
by employees of employers with ten or fewer employees are also not
required to be recorded.
OSHA further notes that injury and illness summary information
collected by OSHA for inspection targeting purposes through the OSHA
Data Initiative (ODI) does not enable the Agency to identify specific
hazards or problems at individual workplaces. Further, the ODI data are
not timely because inspection targeting is based on injury/illness data
from the previous year's ODI, which is collected from the prior year.
As a result, OSHA's targeting is typically based on injury/illness data
that are two or three years old. In addition, the group of 80,000
establishments in each year's ODI is not a statistically-representative
sample, either of establishments eligible to be included in the ODI, or
of establishments overall.
Finally, for data collected by BLS, OSHA notes that, while the BLS
Survey of Occupational Injuries and Illnesses (SOII) provides
information about industries with frequent, severe injuries and
illnesses, it does not identify specific workplaces with frequent,
severe injuries and illnesses. Industries with frequent, severe
injuries and illnesses may include workplaces where injuries and
illnesses are rare and minor, just as industries with rare, minor
injuries and illnesses may include workplaces where injuries and
illnesses are frequent and severe. In any event, the Confidential
Information Protection and Statistical Efficiency Act of 2002 (Pub. L.
107-347, Dec. 17, 2002) (CIPSEA) prohibits BLS from releasing
establishment-specific data to the general public or to OSHA. As a
result, for employer-specific, workplace-specific information about
fatalities, OSHA relies on its own information, obtained through the
current Part 1904 requirement for employers to report fatalities to
OSHA.
The American Chemistry Council commented that "[s]everal ongoing
OSHA programs, such as the National Emphasis Program on Recordkeeping
(NEP-R), target data reporting, including amputations . . . For
example, NEP-R is relatively new (September 10) and was intended to
address inaccuracies in recording of occupational illness and injury.
The analysis of the results of this program would be useful in
assessing whether continuation of NEP-R satisfies the intent of the
[proposed rule]" (Ex. 76). They added, "OSHA currently has two
programs, the National Emphasis Program on Amputations (NEP-A), and the
Severe Violator Enforcement Program (SVEP), which specifically target
amputations . . . The overall intent of both NEP-A and SVEP are
identical to that of the [proposed rule]: 'to target scarce resources
to the most dangerous workplaces and prevent future injuries at these
workplaces' (76 FR 36419). Until a holistic evaluation of these
existing amputation-focused programs is conducted, we recommend that
OSHA exclude reporting of amputations [in the proposed rule] . . ."
In response, OSHA notes, as above, the distinction between
recording and reporting; the recordkeeping NEP was about recording
injuries and illnesses, while this final rule in Section 1904.39 is
about reporting. OSHA also notes that there are multiple OSHA programs,
including the amputations NEP and the SVEP, whose intent is to target
scarce resources to the most dangerous workplaces and prevent future
injuries at these workplaces. (Similarly, OSHA has multiple programs
whose purpose is to assure safe and healthful working conditions for
working men and women.) Neither the amputations NEP, nor the SVEP,
provide the case reporting of sentinel occupational safety and health
events that this final rule will provide. As a result, OSHA does not
agree that the recordkeeping NEP, the amputations NEP, and/or the SVEP
make this rulemaking premature.
Mercer ORC HSE Networks commented that "[w]ith 40 years of rich
agency 'fat-cat' investigation experience and data, it would have been
reasonable to expect OSHA to have provided some (any) demonstration of
how those investigations and the information gleaned from them have
resulted in safer workplaces and how, with some specificity, the
collection of the proposed substantially increased reports of incidents
is expected to improve the agency's effectiveness. As the proposal
stands, there is almost no evidence (or data) in the record to support
OSHA's 'belief' that collecting this new information will make a
positive difference in Agency efficiency or in serious injury
reduction" (Ex. 68).
The National Roofing Contractors Association commented that "OSHA
offers no evidence, data or research that shows a beneficial effect on
workplace safety based on either the arbitrary timeframes it suggests
or other timeframes it may have considered or analyzed" (Ex. 118).
They added, "The history of reporting requirements . . . could be
valuable for the agency to investigate further to determine the
potential effectiveness of its proposed revisions. In 1971, employers
were required to report, within 48 hours, any worker fatality or in-
patient hospitalization of 5 or more workers. This reporting
requirement was revised 23 years later in 1994 to require reporting,
within 8 hours, of any workplace fatality or in-patient hospitalization
of three or more workers . . . What methodologies and metrics were
employed to assess the impact on worker safety of the regulatory
requirements immediately after those two reporting revisions became
effective? Analysis of prior history of similar action taken by the
agency should provide a better answer as to how this action will
enhance worker safety than the cryptic OSHA statement that benefits are
not quantified but are 'significantly in excess of annual costs'."
In response, OSHA notes that the Agency did not have metrics and
methodologies when these regulations were implemented to allow OSHA to
evaluate the effects of the revisions. It was therefore not possible
within the timeframe of this rulemaking to provide an analysis singling
out the effect of the 1971 reporting requirement and the 1994
rulemaking from among the enormous number of variables related to the
decrease in number and rate of injuries, illnesses, and fatalities
since OSHA's founding. Further, OSHA notes that case reporting of
health events is a well-established approach to public health
surveillance and intervention. Serious occupational injuries and
illnesses are urgent sentinel health events indicating that prevention
efforts have failed and that intervention to remediate hazards may be
warranted. OSHA further discusses the benefits of the rule in the Final
Economic Analysis in Section V of this supplementary information.
Specific Questions Asked in the Proposed Rule
The preamble to the proposed rule included eight questions relevant
to the reporting part of this rulemaking. Each question is repeated
below, followed by public comments and OSHA's response to the comments.
1. Types of Incidents and/or Injuries and Illnesses for Required
Reporting
In the preamble to the proposed rule, OSHA asked, "What types of
incidents and/or injuries and illnesses should be reported to OSHA and
why?"
Comments responding to this question primarily focused on three
main topics:
1. The seriousness and significance of the in-patient
hospitalization of a single worker.
2. The definition of in-patient hospitalization.
3. The potential complications resulting from a requirement to
report the in-patient hospitalizations of fewer than three employees.
There were many comments about the seriousness and significance of
the in-patient hospitalization of a single worker. Many commenters
stated that it is not necessarily a serious or significant event (Exs.
19, 24, 26, 27, 29, 31, 35, 51, 55, 60, 72, 82, 94, 100, 102, 104, 110,
111, 114, 115, 125). Many other commenters stated that it is (Exs. 59,
62, 69, 74, 75, 77, 86, 93, 112).
Spurlock and Higgins commented that "there are numerous
circumstances surrounding a decision to hospitalize a single employee .
. . that do not necessarily stem from an employer's failure to identify
and/or control a particular hazard" (Ex. 24). Safety Compliance
Services commented that "[w]hether a person is hospitalized is not
related to whether there are hazards in the workplace or poor employer
controls" (Ex. 29). Similarly, the International Fragrance Association
North America (IFRA-NA) commented that "the decision to hospitalize a
single employee can be influenced by factors that are not connected to
work place hazards" (Ex. 51). The Healthcare Distribution Management
Association (HDMA) commented that "[a] single [non-fatal] injury does
not indicate a major workplace issue" (Ex. 55). Gruber Hurst Johansen
Hail Shank commented that "the hospitalization of one employee may or
may not be considered significant, depending on the circumstances"
(Ex. 60). Ameren commented that "[single in-patient hospitalizations]
do not always represent a serious injury or illness" (Ex. 72).
Stericycle commented that "single hospitalizations may not be a good
indicator of serious hazards in the workplace" and that ". . . many
workplace hospitalizations occur due to non work-related events" (Ex.
82). The Small Business Administration Office of Advocacy (SBA-OA)
commented that ". . . single employee hospitalizations
often do not signify an emergency situation . . ." (Ex. 94). The
Pacific Maritime Association commented that "th[e] injury could be
purely accidental" or be an "isolated [incident] that may have
nothing to do with workplace safety . . ." (Ex. 100). The Retail
Industry Leaders Association (RILA) commented that in-patient
hospitalizations "potentially would include a wide variety of
situations, ranging from minor incident to a significant workplace
accident" (Ex. 102); the Shipbuilders Council of America made a
similar comment (Ex. 104). The National Utility Contractors Association
(NUCA) commented that "[e]mployees are commonly hospitalized for
evaluation of injuries including chest pain or mild concussions which
are often not serious" (Ex. 110). The American Supply Association
commented that "[e]ach and every day, workers have mishaps such as
joint dislocations or concussions which may result in a
hospitalization, perhaps solely because of the injury or possibly
secondary to underlying medical conditions. These injuries may not even
be related to workplace conditions but rather to something as simple as
a lapse in concentration" (Ex. 111). The American Road and
Transportation Builders Association (ARTBA) commented that "a single
injury or illness often does not indicate an unsafe workplace" (Ex.
114); the Associated General Contractors of America (AGC) made a
similar comment (Ex. 115).
Commenters arguing that the in-patient hospitalization of a single
worker is a serious and significant event for occupational safety and
health included the Department of Workplace Standards in the Kentucky
Labor Cabinet (Kentucky), stating that "Kentucky believes, for several
reasons, the hospitalization of any employee or any number of employees
due to a work-related injury or illness . . . are significant events
that must be reported. Most importantly, reporting allows for prompt
investigation, if needed, to ensure the prevention of additional injury
or illness" (Ex. 52). The AFL-CIO commented that "the need to
hospitalize a single worker after a workplace incident is a clear
indication that it was a serious event" (Ex. 59) and that
"[c]ollecting this information . . . will greatly assist OSHA in
developing data and understanding about the causes of injuries and
illnesses responsible for the incident, provide the agency with an
opportunity to conduct an inspection if it chooses, and help in
assessing the adequacy of the standards" (Ex. 69). The Transport
Workers Union (TWU) commented that "work-related incidents resulting
in in-patient hospitalizations . . . are extremely serious events
resulting in significant burden, and often subsequent impairment, to
employees who suffer them. Understanding the root causes and workplace
factors which contributed to these events' occurrence is a prerequisite
to eliminating hazards and preventing workers from encountering further
illness and injury" (Ex. 74). The National Council for Occupational
Safety and Health (NCOSH) commented that "[g]iven that even fairly
serious work-related injuries may not result in a hospital admission,
OSHA should be notified promptly of all incidents requiring the
hospitalization of any worker" (Ex. 75). The United Automobile,
Aerospace, and Agricultural Implement Workers of America (UAW)
commented that the requirement for reporting single in-patient
hospitalizations "is an improvement over the current requirement"
that will "provid[e] a significant increase in vitally useful
information available to OSHA" (Ex. 77); the United Steelworkers (USW)
made a similar comment (Ex. 86). Letitia Davis commented that "[c]ase
reporting of health events is a well-established approach to public
health surveillance and intervention. Serious occupational injuries are
urgent sentinel health events indicating that prevention efforts have
failed and that intervention to remediate hazards may be warranted"
(Ex. 84). United Support and Memorial for Workplace Fatalities (USMWF)
commented that "OSHA needs to be informed about every work-related
hospitalization to decide whether other workers are at-risk" (Ex. 93).
OSHA agrees with the commenters who stated that the in-patient
hospitalization of an employee after a work-related incident is a
serious and significant event. The hospitalization indicates that
serious hazards may exist in the workplace and that an intervention to
abate these hazards and prevent further injury or illness may be
warranted. OSHA will develop internal guidance for determining which
incidents to inspect and which to handle using other interventions.
Even when OSHA determines that an inspection is not warranted, OSHA
will follow up with the employer about the hospitalization event. OSHA
may follow up via email, phone, or fax, with regular reminders and
deadlines.
In addition, employers' reports the event help OSHA gather
information about serious workplaces injuries and illnesses to help
focus agency resources and assess the adequacy of its safety and health
standards. For example, the reports on amputations will provide the
Agency with information it currently does not have to further focus the
scope of its Amputation NEP and to evaluate any deficiencies of its
machine guarding standards. As a result, like the proposed rule,
Section 1904.39(a)(2) of the final rule requires employers to report
the work-related in-patient hospitalization of one or more employees.
There were also many comments about the definition of an in-patient
hospitalization. The preamble to the proposed rule explained that, for
OSHA recordkeeping purposes, an in-patient hospitalization occurs when
a person is "formally admitted" to a hospital or clinic for at least
one overnight stay. Some commenters recommended excluding
hospitalization for observation or diagnostic testing only from the
reporting requirement for in-patient hospitalization (Ex. 15, 38). They
also asked OSHA to clarify the meanings of "formal admission" and
"overnight stay" (Ex. 17, 38, 51, 76, 79, 100, 103, 115, 120). In
addition, some commenters recommended excluding scheduled
hospitalization admissions for the treatment of chronic conditions (for
a discussion of this issue, see Question 6).
In response to these comments, the final rule includes both a
definition of in-patient hospitalization and a clarification about
hospitalization for observation and diagnostic testing. OSHA will
define in-patient hospitalization as a formal admission to the in-
patient service of a hospital or clinic for care or treatment (see
sections 1904.39(b)(9) and (b)(10) of the final rule).
There were also comments about the complications that might result
from a requirement to report the in-patient hospitalizations of fewer
than three employees. For example, the American Iron and Steel
Institute commented that the "requirement to make notification of an
isolated case within 8 hours, particularly for these ambiguous cases,
will be burdensome to both the employer and OSHA" (Ex. 108); the
International Association of Drilling Contractors (IADC) and Stericycle
made similar comments (Exs. 39, 82). The HDMA commented that the "vast
majority of states do not have this type of requirement, and it would
be a significant shift in policy for them to adopt it" (Ex. 55).
Verizon commented that the requirement will result in over-reporting of
non-work-related hospital admissions by compliant employers,
"caus[ing] these employers to incur unnecessary costs and burdens
associated with over-reporting" (Ex 78); similarly, Ingalls
Shipbuilding warned of the risk that "the data may disproportionately
'point the finger' toward major manufacturers who aggressively
implement programs to control safety and health hazards while leading
OSHA to bypass smaller entities who demonstrate 'plain indifference to
employee safety and health"' (Ex. 103). The Pacific Maritime
Association commented that employers may not be able to acquire the
necessary information in time: "Has OSHA ever tried to contact a
hospital to gather information on an employee? . . . The reply that we
often receive is that we cannot provide you with any information due to
privacy concerns. Despite being entitled to know if an employee has
been 'admitted' to the hospital, this does not always occur" (Ex.
100); Stericycle and the RILA made similar comments (Exs. 82, 102).
Other commenters, however, pointed out that requirements similar to
the proposed rule already exist, without causing undue burdens or
complications. The State of Kentucky commented that their "regulation
has served the employers and employees very effectively. The Kentucky
OSH program believes its requirements support the prevention of
additional injuries or illnesses, effectively direct OSH Program
resources, and reduce the state's occupational injury and illness
rates. Experience has established that Kentucky's requirements do not
exert an increase in the burden of regulatory compliance" (Ex. 52).
The AFL-CIO commented that the "existence of similar reporting
requirements in state-administered occupational safety and health plans
in Alaska, California and Washington demonstrates that the proposed
change is feasible to comply with and to administer" (Ex. 59). The UAW
made a similar comment, adding that Oregon also requires reporting of
hospitalizations of one or two employees, within 24 hours (Ex. 77). The
Occupational Health Section of the American Public Health Association
(APHA) commented that "[i]n an era of electronic recordkeeping, which
in the occupational health arena includes workers compensation reports
to and from insurers as well as BLS/OSHA logs, it should be a minor
cost to enable broad and prompt reporting across a range of
industries" (Ex. 62). Worksafe commented that their experience with
reporting requirements in California, as well as "that of other states
with similar requirements (as well as those of other countries) is one
indication of how feasible they are to implement" (Ex. 112).
OSHA finds that many employers are already subject to the
requirement to report in-patient hospitalizations of fewer than three
employees. Alaska, California, Kentucky, Oregon, Utah, and Washington
currently require reporting of single in-patient hospitalizations.
According to 2009 data from County Business Patterns at the U.S. Census
Bureau, these states accounted for over 1.3 million establishments (18
percent of the national total) and 19.4 million paid employees (17
percent of the national total). One of these states, Kentucky,
specifically commented that "[e]xperience has established that
Kentucky's requirements do not exert an increase in the burden of
regulatory compliance" (Ex. 52).
OSHA therefore concludes that the requirement to report in-patient
hospitalizations of fewer than three employees is feasible and
practicable and will not impose an undue burden on employers.
In addition, as explained elsewhere in this document, this final
rule at Section 1904.39(a)(2) requires employers to report all work-
related in-patient hospitalizations to OSHA within 24 hours, rather
than within 8 hours, as in the proposed rule. This change gives
employers more time to determine whether the employee has been formally
admitted for in-patient hospitalization and whether the hospitalization
results from a work-related event.
This final rule requires employers to report to OSHA, within 24
hours, all work-related in-patient hospitalizations within 24 hours of
the incident (Sec. 1904.39(a)(2) and (b)(6)).
2. Non-Hospitalization Injuries, Illnesses, or Conditions for Required
Reporting
In the preamble to the proposed rule, OSHA asked: "Are there any
injuries, illnesses, or conditions that should be reported to OSHA and
are not included among in-patient hospitalizations?"
The UAW commented that Legionnaires' disease and hypersensitivity
pneumonia "are potentially indicative of serious and correctible
hazards in the workplace and should be reported to OSHA upon physician
diagnosis regardless of whether or not they result in inpatient
hospitalization" (Ex. 77).
OSHA does not agree that the final rule should include a specific
requirement for employers to report work-related cases of Legionnaires'
disease and hypersensitivity pneumonitis. The work relationship of
Legionnaires' is generally established by a cluster of cases. When
clusters do occur, they are reported to state and local public health
departments, which conduct investigations of the problem. Severe cases
of work-related Legionnaires' disease would result in hospital
admission and therefore would trigger the reporting requirement in
Section 1904.39.
OSHA believes a specific diagnosis of hypersensitivity pneumonitis
does not necessarily indicate work-relatedness or an emergency
situation that requires immediate OSHA intervention. Clusters of this
condition (captured on the OSHA Log) would indicate intervention is
needed, but a single reported case would be considered a sentinel
health event. Again, it should be noted that a severe work-related case
would likely result in in-patient hospitalization and therefore would
trigger the reporting requirement.
3. Non-Hospitalization Amputations for Required Reporting
In the preamble to the proposed rule, OSHA asked: "Should
amputations that do not result in in-patient hospitalizations be
reported to OSHA?"
Some commenters stated that OSHA should not require employers to
report amputations that do not involve in-patient hospitalization. The
Printing Industries of America (PIA) commented that "it is not known
what sort of amputation could be experienced without an in-patient
hospitalization. However, if such an amputation would occur and did not
require an in-patient hospitalization it would be reasonable to assume
that such an incident was not severe enough to require hospitalization
and therefore should not be subject to a reporting requirement" (Ex.
45). The IADC commented that "this only adds burdensome reporting for
the employer. It is confusing and will result in employers spending
valuable early incident investigation time attempting to determine the
reportability of an incident" (Ex 39). The American Chemistry Council
commented that "OSHA could avoid ambiguity by eliminating independent
reporting of amputations (i.e., separate from in-patient
hospitalizations), as severe amputations would be captured in in-
patient hospitalization statistics" (Ex. 76). Ameren commented that
"[c]ases of amputation . . . that do not result in hospitalization of
the employee would not likely warrant OSHA's examination" (Ex 72). The
National Petrochemical and Refiners Association (NPRA) commented that
". . . reporting all work-related amputations is redundant if the
requirement for reporting all hospitalizations is adopted.
It is not likely that an amputation would occur that would not result
in a hospitalization and if it didn't, it would not be a serious enough
injury to warrant a follow-up by OSHA" (Ex. 80). The National Grain
and Feed Association (NGFA) commented that '. . . minor incidents that
do not require hospitalization--including loss of the fingertip to the
bone--should not be [reportable]. However, we do agree that significant
incidents such as loss of a limb, which would require hospitalization,
should be reportable" (Ex. 96). The RILA recommended requiring the
reporting only of amputations "necessitating in-patient hospital
treatment" and not of "incidents in which the injury necessitates
minor treatment in an emergency room or out-patient facility" (Ex.
102).
Other commenters, however, supported the requirement to report all
amputations, regardless of whether they resulted in in-patient
hospitalizations. Most of these commenters provided data showing the
prevalence and significance of amputations that did not involve in-
patient hospitalization.
NIOSH commented that "[o]f the 2.6 million [emergency department
(ED)] visits for work-related injuries and illnesses in 2009 [in the
NIOSH-NEISS-Work dataset], approximately 15,000 workers were diagnosed
as having sustained an amputation (includes injuries with bone loss,
possibly without bone loss, severe avulsions, and near amputations). Of
these, 78% were treated and released while 22% were admitted to the
hospital or transferred to another facility." NIOSH continued, ". . .
given that over \3/4\ of ED treated work-related injuries and illnesses
were treated and released, collecting the less severe injuries that are
simply treated and released may identify areas that need further
investigation." NIOSH recommended that employers be required to report
all amputations to OSHA (Ex. 66).
The UAW commented that "[n]inety six percent of amputations
involve a finger. These amputations may have a permanently disabling
impact on their victims' lives, but may, in some cases be treated by
outpatient surgery and not lead to inpatient hospitalization. They
should nevertheless be reported to OSHA" (Ex. 77). The United Food and
Commercial Workers International Union (UFCW) made a similar comment
(Ex. 81).
Finally, Letitia Davis cited data collected by the Massachusetts
Department of Public Health (MDPH) showing that "there were 696 work-
related amputations treated in Massachusetts hospitals during 2007-
2008, an average of 348 amputations per year. The majority of these
cases were treated in the emergency department only (N = 501; 71%); a
small number (N = 28; 4%) were first treated in emergency departments
and hospitalized at a later date; 22% (N = 156) were first treated as
inpatients. These findings suggest that restricting reporting to
amputations treated only an inpatient basis would substantially reduce
number of cases identified and miss important opportunities for
intervention" (Ex. 84).
OSHA finds that amputations are significant workplace injuries and
that the data show that the majority of amputations do not involve in-
patient hospitalizations. As a result, like the proposed rule, the
final rule will require employers to report all amputations to OSHA,
whether or not they involve in-patient hospitalization (see Sec.
1904.39(a)(2)). (Note that, for amputations involving in-patient
hospitalization, employers will only have to make a single report.)
4. Required Reporting of Amputations
In the preamble to the proposed rule, OSHA asked: "Should OSHA
require the reporting of all amputations?"
Commenters responding to this question primarily focused on two
main topics:
1. The seriousness and significance of amputations.
2. The definition of amputations.
On the topic of the seriousness and significance of amputations,
many commenters opposed the requirement in the proposed rule to report
all amputations. Spurlock and Higgins commented that "the mere
occurrence of an amputation can often be attributed to numerous hazards
for which OSHA has no standard, or there are few, practical hazard
controls at an employer's disposal" (Ex. 24); Safety Compliance
Services made a similar comment (Ex. 29). The IADC commented that
"[r]eporting amputations, such as the tip of a finger, is overly
burdensome and again offers little value in protecting workers from
occupational hazards" (Ex. 39). The PIA commented that "in most
cases, especially in the printing industry, singular cases [of
amputations] are not associated with a significant event or a high
gravity situation" (Ex. 45). The American Society of Safety Engineers
(ASSE) commented that "[w]hile not underestimating the serious nature
of any amputation, it must be noted that an amputation of a part of a
finger may, in the reasonable person's mind, is not as serious or
traumatic an event as the amputation of an arm, hand, leg or foot.
Further, other injuries like multiple broken bones, crushed vertebra,
head injuries can be more serious and life-altering than an amputation.
From that viewpoint, singling out amputations makes little sense other
than the perception that they are more easily recordable. However, even
that is questioned by our members" (Ex. 46); Newport News Shipbuilding
made a similar comment (Ex. 125). The American Foundry Society
commented that the reporting requirement should be limited to
amputations involving at least one joint (Ex. 101). NUCA commented that
"[w]ith respect to all amputations as severe injuries, . . .
amputations . . . do not amount to a fatality or catastrophic event"
(Ex. 110).
In addition, the American Chemistry Council commented that
rulemaking on the reporting of amputations be postponed "[u]ntil a
holistic evaluation of [the National Emphasis Program (NEP) on
amputations and the Severe Violator Enforcement Program (SVEP)] is
conducted" (Ex. 76). Similarly, the Associated General Contractors of
America (AGC) commented that the reporting requirement for amputations
is "unnecessary" because "[o]ver the past five years since the
effective date of the [amputations NEP] the agency has had an
opportunity to collect the necessary data to enforce and evaluate the
effectiveness of existing standards" (Ex. 115).
However, many other commenters supported the requirement in the
proposed rule to report all work-related amputations (Exs. 34, 112).
The Phylmar Regulatory Roundtable (PRR) commented that "an amputation
as defined in the proposal [to include loss of bone] indicates a
serious traumatic injury and is thus properly included under the
reporting regulation" (Ex. 38). NIOSH commented, "Given the high
probability that most amputations require some form of medical care
through hospitals or emergency departments, OSHA should require the
reporting of all amputation cases" (Ex. 66). NCOSH commented that
"[a]mputations are serious injuries with permanent consequences; thus,
it is important all of these cases be reported to OSHA" (Ex. 75). The
USW commented that "[l]essons can be learned from this amputation
while the events leading up to the incident are clear to the witnesses.
Amputees don't just happen, there were unsafe condition(s), change in
procedure, equipment or a number of other factors. This person's life
is changed forever" (Ex. 86).
The AFL-CIO referred to BLS data to support their statement that an
"amputation is a serious, severe, and significant event that can
result in some permanent impairment." According to BLS data from 2009,
the median number of days away from work (DAFW) for an amputation was
21 days, compared to a median of 8 days for all work-related injuries
and illnesses. The AFL-CIO added that the number of amputations
involving days away from work was 5,930, representing 0.6% of all DAFW
injuries/illnesses. The AFL-CIO commented that the proportion of
amputations among total injuries/illnesses is "similar to, or less
than, 0.6% reported for injuries involving [DAFW] (given that most
amputations are likely to involve some number of [days away from
work]" and concluded that "[t]hus, it's evident to us that, given the
numbers of amputations that occur annually in the U.S., reporting all
amputations to OSHA would pose nothing more than a minimal burden on
employers" (Ex. 69). In addition, the AFL-CIO stated that "California
and Kentucky already require the reporting of amputations as part of
their state-administered plans, proving that such a requirement is
feasible" (Ex. 59); the UAW made a similar comment (Ex. 77).
Finally, Letitia Davis's comments also included data on
amputations, specifically the results of the referral of work-related
amputations to OSHA in Massachusetts (Ex. 84). "In July 2010, the
Massachusetts Public Health Department initiated a protocol referring
work-related amputations with logically consistent body part codes to
OSHA for follow-up. In 2010, 22 private employers were referred to one
of three OSHA area offices. The 22 referrals resulted in 13 on-site
inspections and additional phone/fax initiatives. Among the 13
inspections, OSHA had already been notified about two of the injuries
(from city police or fire departments that responded to the site) and
had already initiated inspections at the time of the referrals. Nine of
the referrals leading to onsite inspections resulted in citations,
indicating shortcomings or failures of occupational health and safety
programming. These included citations related to lockout/tagout, lack
of machine guarding, failure to conduct a hazard assessment and the
general duty clause . . . Notably amputations were verified in nine of
the 13 onsite investigations. Four were found to be other injuries.
Even when amputations did not occur, OSHA found hazardous conditions
that were associated with other serious injuries. These findings
indicate that OSHA investigations prompted by case reports of
amputations are productive, and well-targeted, leading to
identification of serious workplace hazards and concrete steps to
eliminate hazards that cause or contribute to injuries. They suggest
that direct reporting of amputations to OSHA by employers would be an
effective means of targeting limited enforcement resources to high
priority problems."
Although these results are limited to the experience of OSHA's area
offices in Massachusetts, OSHA believes it is reasonable to expect
comparable findings and results in its other area offices across the
country. OSHA area offices operate using standardized procedures.
Reviews of OSHA inspection data have shown that inspections conducted
by area offices under national programs routinely have similar results
across the country.
OSHA agrees with commenters who stated that amputations are serious
events. OSHA refers to BLS data showing that in 2010, half of fingertip
amputations involved 18 or more days away from work. OSHA finds that
all amputations are severe and significant workplace injuries,
including amputations of fingertips and fingers as well as amputations
of large body parts, such as hands, arms, and feet, and that reports of
amputations to OSHA can be an effective way of targeting workplace
hazards. In addition, the requirement to report work-related
amputations will help OSHA determine the causes of these injuries and
develop enforcement strategies and guidance to help prevent them.
In addition, OSHA notes the existing California and Kentucky state
requirements to report work-related amputations, which are similar to
the requirements under this final rule, show that such requirements are
feasible.
Finally, OSHA believes that comments such as those by Spurlock and
Higgins (Ex. 24), saying that amputations can often be attributed to
numerous hazards for which OSHA has no standard, or there are few,
practical hazard controls at an employer's disposal, actually support
OSHA's decision to require the reporting of work-related amputations.
Section 5(a)(1) of the OSH Act requires employers to ". . . furnish to
each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees." Section 5(a)(1) does
not make exceptions for hazards for which OSHA has no standards or
employers have few practical controls. In addition, reports of
amputations will provide OSHA with data to identify hazards and support
the development of further standards and practical controls. Thus,
employer reports of amputations, and OSHA intervention in workplaces
where amputations occurred, are both critical for complying with
Section 5(a)(1) of the OSH Act and preventing further serious injury or
death.
The final rule requires employers to report to OSHA, within 24
hours, all amputations that result from a work-related incident within
24 hours of the incident (see Sec. 1904.39(a)(2) and (b)(6)).
On the topic of the definition of an amputation, there were
comments on the definition in the proposed rule, as well as requests
for clarification. The proposed rule defined amputations according to
the 2007 release of the OIICS Manual published by BLS, as follows: "An
amputation is the traumatic loss of a limb or other external body part,
including a fingertip. In order for an injury to be classified as an
amputation, bone must be lost. Amputations include loss of a body part
due to a traumatic incident, a gunshot wound, and medical amputations
due to irreparable traumatic injuries. Amputations exclude traumatic
injuries without bone loss and exclude enucleation (eye removal)."
Nonetheless, several commenters requested a definition of
"amputation" (Ex. 14, 17, 60, 101, 108).
There were also comments about both the wording of the definition
and the implementation of the definition. Colony Tire Corporation asked
about reporting a finger that had been amputated, reattached, and then
later removed (Ex. 35). Dow Chemical Company commented that "[t]he
proposed wording of Section 1904.39(b)(8) defines 'amputation' in a
manner that is extremely unclear" (Ex. 64). The American Chemistry
Council recommended that OSHA use the definition of amputations in the
2010 release of the OIICS Manual "and clarify whether avulsions are
included, to avoid ambiguity" (Ex. 76). IPC-Association Connecting
Electronics Industries (IPC) "encourage[d] OSHA to amend the Field
Operations Manual (FOM) to include the definition" in the proposed
rule (Ex. 47), and Kentucky "recommend[ed] and respectfully
request[ed] that OSHA include a definition of amputation in 29 CFR
1904.46", the definitions subpart of Part 1904 (Ex. 52).
Finally, there were comments about whether the definition of
"amputation" should require bone loss. The American Trucking
Associations (ATA) commented that "the definition of an
'amputation' should require 'loss of bone' (Ex. 65); NPRA made a
similar comment (Ex. 80). However, both David Bonauto M.D. M.P.H. (Ex.
56) and Letitia Davis Sc.D. Ed.M. (Ex. 84) provided data to support
their comments that the definition of amputations should not require
loss of bone because of the difficulties of identifying bone loss.
David Bonauto's data (Ex. 56) consisted of 3,000 claims with
suspected amputation injuries in the Washington state fund workers
compensation claims data for the period 2006-2008; medical record
review validated 1,885 of these claims as amputations. Bonauto is the
occupational medicine physician and interim research director with the
Safety and Health Research Assessment Program in the Washington State
Department of Labor and Industries. He commented that ". . . about 90%
had loss of the protruding body part from the injury. We could
determine bone loss in nearly 3 of 4 cases; however, this could only be
done retrospectively based on review of the medical records.
Determination of the injury resulting in bone loss could not be done
based on the initial report of injury. Most lower extremity amputations
resulted from surgical treatment of the injury (e.g., surgical removal
of a crushed foot) which often occurred after the initial injury event.
More than two thirds of the injuries resulting in the loss of a
protruding body part were not characterized as an 'amputation' on the
initial report of accident by the health care provider. These cases
were often characterized as contusions, lacerations, and fractures but
ultimately resulted in the loss of a protruding body part . . . From
these data, the proposed rule might benefit by defining amputations as
'any injury resulting in the temporary or permanent loss of a
protruding body part'. Due to the poor initial documentation of the
injury, a requirement for bone loss in reports will lead to significant
underreporting."
Similarly, Letitia Davis's comments were based on amputation data
collected by the Massachusetts Department of Public Health, with 696
work-related amputations treated in Massachusetts hospitals in 2007-
2008 (Ex. 84). She commented that "[s]some amputations by definition
include bone loss, e.g. amputation of finger, foot, hand, but if only
the tip of a finger or toe is amputated, involvement of bone loss at
time of injury is not necessarily apparent and involves determination
by clinical review. Even upon clinical review, bone loss can be
ambiguous. In our experience reviewing amputation cases reported by
employers on OSHA logs and in workers' compensation claim reports for
amputations, bone loss is most often not specified. Thus we advise
against bone loss as a criterion for reporting or at least specifying
that cases with uncertain bone loss should be reported."
After careful consideration, OSHA finds that using the definition
of amputation in the 2010 release (OIICS Version 2.0) of the BLS OIICS
Manual will provide the greatest possible clarity and consistency. This
change from the proposed rule responds to commenters who recommended
that OSHA use the 2010 release of the OIICS manual, as well as to
commenters who recommended that the definition not include bone loss.
Thus, Section 1904.39(b)(11) of this final rule defines amputations as
the traumatic loss of a limb or other external body part (see Section
1904.39(b)(11) of this final rule). According to this definition, an
amputations include a part, such as a limb or appendage, that has been
severed, cut off, amputated (either completely or partially); fingertip
amputations with or without bone loss; medical amputations resulting
from irreparable damage; and amputations of body parts that have since
been reattached. Amputations do not include avulsions, enucleations,
deglovings, scalpings, severed ears, or broken or chipped teeth.
5. Required Reporting of Enucleations
In the preamble to the proposed rule, OSHA asked: "Should OSHA
require the reporting of enucleations?"
Several commenters responded that OSHA should not specifically
require the reporting of enucleations (i.e., losses of an eye). The PRR
commented that an enucleation "indicates a severe and traumatic injury
has occurred to the employee" but that "[t]here is some question
whether a severe injury leading to an enucleation would ever not fit
under the definition of in-patient hospitalization . . . and thus it
may be unnecessary to explicitly include this procedure" (Ex. 38). The
PIA commented that "[PIA] does not feel that the reporting of
enucleations would be appropriate . . . as the cause and circumstances
surrounding these types of incidents are vast and may or may not be
work related and in most cases within the printing industry would not
be the result of a work related" event (Ex. 45). Ameren commented that
"Cases of . . . enucleation that do not result in hospitalization of
the employee would not likely warrant OSHA's examination" (Ex. 72).
Other commenters responded that OSHA should specifically require
the reporting of enucleations. NIOSH commented that "[a]lthough
enucleations of the eye are an infrequent occurrence, reporting would
serve as a sentinel event for identifying workplaces at risk for other
preventable injuries including intraocular foreign bodies, penetrating
eye injuries, and other eye injuries where eye protective equipment may
not be used" (Ex. 66). The AFL-CIO commented that "the loss of an eye
is an extremely serious injury that can have significant impact on a
worker and leave him or her with a substantial impairment . . .[T]o the
extent that an enucleation event does not result in an in-patient
hospitalization, we believe OSHA should require employers to report all
work-related enucleations to ensure that every enucleation incident is
captured" (Ex. 69). The Building and Construction Trades Department
(BTCD) of the AFL-CIO (Ex. 59), the UAW (Ex. 77), and the USW (Ex. 86)
made similar comments, as did the TWU, which added that "adding
enucleations to the events requiring report would likely not result in
greater burden to employers since one would anticipate most of these
injuries to require, and be accounted for by requirements related to,
in-patient hospitalizations" (Ex. 74).
OSHA finds that the loss of an eye is a severe and significant
injury and that a requirement to report such injuries, irrespective of
in-patient hospitalization, can help identify workplaces where serious
eye hazards are present. Based on comments submitted to the proposed
rule, Section 1904.39(a)(2) of this rule includes a new requirement for
employers to report, within 24 hours, all losses of an eye resulting
from a work-related incident. Section 1904.39(b)(6) provides that this
reporting requirement applies only when the loss of the eye occurs
within 24 hours of the work-related incident.
6. Number of Work-Related Incidents Involving In-Patient
Hospitalizations, Including More Than 30 Days Afterwards
In the preamble to the proposed rule, OSHA asked: "Are there
additional data or estimates available regarding the number of work-
related incidents involving in-patient hospitalizations? Is there
information available on how many work-related hospitalizations occur
more than 30 days after the report of an injury or illness?"
Comments on this question addressed three main topics.
1. Work-related incidents involving in-patient hospitalization.
2. Hospitalizations occurring more than 30 days after the report of
the injury/illness.
3. Amputations occurring more than 30 days after a work-related
incident. The third issue arises from the requirement in Section
1904.39(b)(6) of the proposed rule for requiring employers to report
amputations that occurred up to 30 days after the work-related
incident.
On work-related incidents involving in-patient hospitalizations,
commenters provided comments, as well as data and suggestions for data
sources.
The U.S. Chamber of Commerce commented that even within a thirty-
day limit, "the employee may be hospitalized after he or she is no
longer employed by the employer which would significantly complicate an
employer's ability to know about the hospitalization" (Ex. 120).
Stericycle commented that "[r]ather than use data from OSHA logs
or Workers Compensation data to estimate single hospitalization
reports, OSHA should have collected data from emergency responders to
determine how many emergency calls were to the workplace" (Ex. 82).
NIOSH provided data on the patients with occupational injuries or
illnesses who were seen in the ED (Ex. 66): "The NIOSH NEISS-Work data
provide national estimates of the number of patients treated in an ED
and released, treated and transferred, treated and admitted, held for
observation, and an estimate of patients that left without being seen
or left against medical advice . . . For 2009, it is estimated that
approximately 81,500 (3%) patients with occupational injuries or
illnesses seen in the ED were either admitted or transferred and
another 5,600 (0.2%) were held for observation. It is not known if
those held for observation were admitted or released. These data do not
include the length of time that passed between the injury or onset of
illness and ED treatment."
Letitia Davis provided data on work-related in-patient
hospitalizations in Massachusetts in FY 2008 (Ex. 84): "There were
3,448 work-related hospitalizations in Massachusetts during October
2007-September 2008. The largest number was for injuries and poisonings
(N=1595; 46%) followed by musculoskeletal disorders (N=1184; 34%).
Information about time between workplace incident and hospitalization
was not available but information about admission type is informative.
Notably, 59% of work-related hospitalizations were for emergent or
urgent care; 1,337 (39%) were for elective procedures, most of which
(N-935; 70%) were for musculoskeletal disorders."
On work-related hospitalizations occurring more than 30 days after
the report of an injury or illness, David Bonauto provided data on
9,262 claims to the Washington State Fund workers compensation program
that resulted in in-patient hospitalization from 2006-2008 (Ex. 56). He
commented, "Of these hospitalizations, 36% occurred within one day
following the occupational injury or illness event and nearly 50%
occurred greater than 31 days following the occupational injury or
illness. When differentiating the type of injury or illness using the
primary ICD-9 code on the hospital bill, nearly 90% of all inpatient
hospitalizations occurring within one day of the injury or illness
event were billed with an injury or poisoning diagnosis as opposed to a
disease diagnosis. Conversely, nearly 93% of all hospitalizations
occurring 31 days after the injury or illness event had a disease
diagnosis listed as the primary diagnosis on the bill."
In addition, there were comments about the proposed requirement to
report in-patient hospitalizations occurring within 30 days of the
incident. The Marshfield Clinic commented that '[t]he proposed changes
also give a 30 day period where hospitalization needs to be reported.
Since some surgeries require inpatient hospitalization; this will
require that surgeries be reported that . . . are not related to an
acute work injury. It would not appear that OSHA is interested in
getting notified of every employee that may be hospitalized due to a
need for a routine surgery that may be related to a work injury" (Ex.
15). The American Chemistry Council commented that the reporting
requirement for in-patient hospitalization should "exclude
hospitalization for chronic cases (such as carpal tunnel)" if "OSHA's
intent is to obtain information about acute injuries resulting from
serious, incident-specific hazards"; in addition, the final rule
"should clarify how in-patient hospitalizations for treatment of acute
injuries for which rehabilitation was unsuccessful (for example, a
tendon injury in the hand or knee that ultimately requires surgery to
repair, or back injuries that require later surgery) will be reported"
(Ex. 76). Stericycle commented that "[the 30-day] timeframe may be too
long as with strains and sprains, 2-4 weeks of physical therapy or
other conservative treatment may be administered before an injured
worker may determine surgery is the best option. Then if surgery and
hospitalization occurs within the 30 days, the reporting requirement is
triggered . . . After 30 days, OSHA's quick response may be too late
and the employer may have already abated the hazard" (Ex. 82).
On the other hand, the UAW commented that "[s]everal states,
including Alaska, Oregon, and Washington have established a 30 day
reporting period" (Ex. 77).
For the third issue, related to the requirement in the proposed
rule for reporting amputations occurring up to 30 days after the work-
related incident, the PIA commented that "if amputations are to be
included as a reporting requirement, a reasonable scope should only
require reporting if the amputation occurs at the time of the incident
or at most, at the initial diagnosis of the attending medical
provider" (Ex. 45).
Both David Bonauto (Ex. 56) and Letitia Davis (Ex. 84) provided
data on this issue. David Bonauto provided data on 1,885 validated
amputations among Washington State Fund workers compensation claims
with medical record review in 2006-2008 (Ex. 56). He found that 89% of
amputations occurred at the time of injury, while 11% of the
amputations resulted from surgery after the injury (including on the
same day). However, while 92% of the 1,796 amputations to upper
extremities occurred at the time of injury, only 38% of the 91
amputations of lower extremities occurred at the time of injury. He
commented that "specific provisions requiring reporting of late
amputations will more effectively capture lower extremity
amputations."
Letitia Davis provided data on work-related amputations treated in
Massachusetts hospitals in 2007-2008 (Ex. 84). She commented that "the
great majority (92%) of work-related amputations involving hospital
treatment were treated within one day of injury incident. Only 4.1%
were treated more than 30 days after the injury incident. Again, OSHA
might consider limiting reporting to amputations that occur within 24
hours of the precipitating incidents. These data suggest that in doing
so, they would capture the great majority of the cases."
OSHA finds that limiting the reporting requirement to the
hospitalizations, amputations, and losses of an eye most likely to
require urgent or emergent care best serves OSHA's purposes of
surveillance and appropriate timely investigations of these events,
while limiting the burden on employers. The final rule requires
employers to report work-related in-patient hospitalizations,
amputations, and losses of an eye only if the event occurs within
twenty-four hours of the work-related incident (see Sec. 1904.39(b)(6)).
7. Non-Telephone Methods of Reporting (Email, Fax, or Web-Based System)
In the preamble to the proposed rule, OSHA asked: "Should OSHA
allow reports to be made by means other than a telephone, such as by
email, fax, or a Web-based system?"
Many commenters supported additional options for reporting. For
example, the Marshfield Clinic supported "[a] system that allows
computer notification (either email or on-line)" (Ex. 15). Safety
Compliance Services commented that "OSHA should allow for computerized
reporting of incidents. However this capability needs to be
standardized so that systems can report the information directly
without requiring additional work or effort on the part of those
reporting" (Ex. 29). Justin Barnes supported "means such as email,
fax, and a web-based system" (Ex. 34). The PIA commented that "OSHA
should allow and make considerations of all means available with
today's technology including telephone, text, email, fax, or through a
web-based system" (Ex. 45). The HDMA supported "alternative methods
of reporting, such email, fax or Internet" (Ex. 55). Gruber Horst
Johansen Hail Shank commented that "it would be a great idea for OSHA
to add the ability to report fatalities and applicable incidents
through their Web site. Any system should include a verification and
email confirmation of the report for employers to save and/or print
out, so that they can demonstrate compliance. Development of smartphone
apps by OSHA . . . would also assist employers to quickly report
fatalities and applicable incidents" (Ex. 60). The ATA commented that
"employers need flexibility in the method of reporting (i.e., phone
calls, emails, faxes, and web based systems)" (Ex. 65). NIOSH
recommended that OSHA "allow reports to be made by means other than
telephone, such as by email, fax, or a web-based system" (Ex. 66).
Ameren commented that "a web-based system would allow employers to
report while at the same time give OSHA an opportunity to capture data
for automatic analysis and trending" (Ex. 72). The American Chemistry
Council commented that "a mobile application, web or email based
reporting system would be appropriate, including the application of
formal controls to prevent false reporting" (Ex. 76). The UAW
commented that "OSHA should permit reporting by any communication
method that exists now or may exist in the future, provided that the
content of the report meets all existing OSHA requirements" (Ex. 77).
Verizon supported "the addition of electronic means as an option for
serious incident notification to OSHA, including email, facsimile and
web-based reporting tools" (Ex. 78). NPRA recommended "electronic
reporting in addition to phone, fax, and email" (Ex. 80). Letitia
Davis commented that "OSHA should allow employers to report by means
other than a telephone as long as confidentially of personal
identifiable health information can be maintained, e.g. by confidential
fax or secure electronic transmission" (Ex. 84). The Pacific Maritime
Association commented that "[i]n addition to the 800 number, an email,
Web site reporting tool or similar application would create a time
stamped record that both the employer and OSHA could find of use" (Ex.
100). The RILA suggested that "employers should be allowed flexibility
to report whether it is via phone, email or fax" (Ex. 102). Ingalls
Shipbuilding "urge[d] OSHA to expand reporting options to permit
electronic transmissions, including fax, email or a web-based system"
(Ex. 103); Newport News Shipbuilding made a similar comment (Ex. 125).
The U.S. Chamber of Commerce commented that "OSHA should allow for
reporting via email, interactive Web site, texting and faxing to
provide maximum flexibility for employers and give them a record they
can use to demonstrate compliance" (Ex. 120).
On the other hand, a few commenters opposed additional options for
reporting. The AFL-CIO commented that "the current requirement that
permits reporting . . . only by reporting the incident via a telephone
or in person should be retained in the final rule . . . We have
concerns that passive approaches such as email, fax or a Web-based
system, as opposed to an active oral reporting requirement, would not
assure the agency that all of the required information is obtained from
an employer and thus would result in incomplete reports" (Ex. 69). The
USW "strongly urge[d] OSHA to maintain the requirement that a phone
call is necessary to that the information is reported as soon as
possible to OSHA" (Ex. 86). USMWF commented that, for hospitalizations
for acute, traumatic injuries and illnesses, "notifications should be
made by telephone to ensure that OSHA receives all the key pieces of
information regarding the incident" (Ex. 93).
OSHA agrees with the comments supporting additional options for
reporting. However, OSHA also agrees with the comments on the
importance of obtaining all of the required information from the
employer. Therefore, Section 1904.39(a)(3) of this final rule provides
flexibility by allowing employers to choose among three options for
reporting a work-related fatality, in-patient hospitalization,
amputation, or loss of an eye to OSHA.
First, as in the current regulation, an employer may report by
telephone or in person to the OSHA Area Office that is nearest to the
site of the incident.
Second, as in the current regulation, an employer may report by
telephone to the OSHA toll-free central telephone number, 1-800-321-
OSHA (1-800-321-6742).
Third, as a new option, an employer may report by electronic
submission using a fatality/injury/illness reporting application that
will be located on OSHA's public Web site at www.osha.gov. The
reporting application will include mandatory fields for the required
information. If the report does not include the required information in
the mandatory fields, the reporting application will not accept the
report. The mandatory fields, as specified in Section 1904.39(b)(2),
are the establishment name; the location of the work-related incident;
the time of the work-related incident; the type of reportable event
(i.e., fatality, in-patient hospitalization, amputation, or loss of an
eye); the number of injured employees; the names of the injured
employees; the employer's contact person and his or her phone number;
and a brief description of the work-related incident. The public will
be given the opportunity to comment on this new electronic submission
option through the Paperwork Reduction Act (PRA) approval process when
OSHA applies to reauthorize the information collection.
Section 1904.39(b)(1) makes clear that if the Area Office is
closed, the employer must report the work-related event by using either
the OSHA toll-free central telephone number or the reporting
application on OSHA's public Web site.
The final rule does not include options for reporting by email,
fax, or text, because OSHA would not be able to ensure that employers
who reported using these options provided all of the required
information.
8. Time Periods for Required Reporting
In the NPRM, OSHA asked: "Are the reporting times of eight hours
for fatalities, eight hours for in-patient hospitalizations, and 24
hours for amputations generally appropriate time periods for requiring
reporting? What advantages or disadvantages would be associated with
these or any alternative time periods?"
Comments primarily focused on four topics:
1. The circumstances under which OSHA would consider that the
employer knew, or should have known, about the reportable event;
2. When the reporting clock would start--with the occurrence of the
work-related incident, or with the occurrence of the reportable event;
3. The appropriate reporting time period for in-patient
hospitalizations;
4. The appropriate reporting time period for other events employers
would be required to report.
For the circumstances under which OSHA would consider that the
employer knew, or should have known, about the reportable event,
Section 1904.39(b)(7) of the proposed rule provided that if employers
did not learn about a fatality, in-patient hospitalization, or
amputation right away, they would have been required to report it
within the specified time period after the fatality, in-patient
hospitalization, or amputation was reported to "[the employer] or to
any of [the employer's] agent(s) or employee(s)". Commenters on this
topic had two concerns. First, that OSHA might require employers to
report events they did not know about. Second, that OSHA might unfairly
penalize employers for not reporting events they did not know about.
Related to an employer being required to report an event the
employer did not know about, Morganite Industries commented that "[i]t
is not clear that an appropriate member of management would have the
information, allowing the required reporting to OSHA, just because any
individual employee has that information. For example, the injured
employee himself might know that he has been hospitalized, but his
knowing it does not mean that anyone with authority or ability to make
the report has that information" (Ex. 20). Ingalls Shipbuilding made a
similar comment (Ex. 103), as did Dow Chemical (Ex. 64) and the Pacific
Maritime Association (Ex. 100). Dow Chemical commented that "the
'clock' [should] start only when the incident, and the fact the worker
was hospitalized, have been communicated to the employee's supervisor
or to other employees whose responsibilities and position qualify them
to recognize the reporting requirement" (Ex. 64). The Pacific Maritime
Association commented in addition that "[i]njuries should be reported
to a direct supervisor or management. This is the only means in which
an employer can be in knowledge of the injury" (Ex. 100).
Related to an employer being penalized for not reporting an event
the employer did not know about, the Joint Poultry Industry Safety and
Health Council commented, "While we recognize the 8 hour provision is
from the time the incident is reported to the employer, its agents or
employees, we believe the interpretation of what constitutes notice,
particularly notice to "any of your agent(s) or employee(s)" will
simply generate another cause of litigation if OSHA chooses to cite an
employer for failing to meet the 8 hour time requirement" (Ex. 61).
The ATA commented that "there is no provision for the Agency to NOT
impute knowledge of an injury to an employer--i.e., "should have been
aware"--as in other OSHA rules. Companies may find themselves in a
position of being expected to know about an employee's private medical
information or a hospitalization outside of the purview of the
employer" (Ex. 65); Fed Ex made a similar comment (Ex. 67). The
National Association of Manufacturers (NAM) commented, "The employer
may never know of the hospitalization until days or weeks later. Would
the employer be in violation for not reporting this incident to OSHA
when there was no knowledge of when the hospitalization took place?
Additionally, a worker could be injured on a weekend or overnight shift
and the employer is not notified of the worker's hospitalization until
the next business day. Would that employer be in violation for not
reporting the incident within eight hours?" (Ex. 71). The Pacific
Maritime Association (Ex. 100) and the Shipbuilders Council of America
(Ex. 104) made similar comments. To address this concern, Verallia
suggested that the rule be amended to require notification "within
[the specified time period] of the employer becoming aware" of the
reportable event (Ex. 91).
OSHA acknowledges commenters' concern about defining employer
notification to include reporting to "any of [the employer's]
employee(s)". Therefore, this rule removes this provision. Under
Section 1904.39(b)(7) of the final rule, employers are required to
report within the specified time period after the fatality, in-patient
hospitalization, amputation, or loss of an eye is reported to the
employer or to any of the employer's agent(s).
OSHA does not agree with the comments about employers being
unfairly penalized for not reporting hospitalizations that they did not
know about.
First, the current regulation, the proposed rule, and the final
rule all have a specific provision for employers who do not know about
an in-patient hospitalization or other reportable event. Under the
current regulation, if an employer does not learn about a reportable
incident right away, the employer must make the report within eight
hours of the time the incident is reported to the employer (see Section
1904.39(b)(7)). Under the proposed rule, if the employer did not learn
about a reportable incident right away, the employer would have to make
the report within eight hours for a fatality or in-patient
hospitalization, or twenty-four hours for an amputation, of the time
the incident was reported to the employer (see proposed Section
1904.39(b)(7)).
Under the final rule, if the employer does not learn about a
reportable event (fatality, in-patient hospitalization, amputation, or
loss of an eye) right away, the employer must make the report within
eight hours for a fatality, or twenty-four hours for an in-patient
hospitalization, amputation, or loss of an eye, of the time the event
is reported to the employer (see Section 1904.39(b)(7) of the final
rule).
Second, as discussed above, employers at over 1.3 million
establishments in six states are already subject to the requirement to
report in-patient hospitalizations of fewer than three employees. If
these employers were being penalized for not reporting events they did
not know about, it seems likely that at least a few of them, or their
industry organizations, would have submitted comments on this issue
during this rulemaking. Instead, the only non-hypothetical comment
received by OSHA on this issue came from one of these six states, which
specifically commented that "[e]xperience has established that
Kentucky's requirements do not exert an increase in the burden of
regulatory compliance" (Ex. 52).
OSHA therefore concludes that the requirement in the final rule to
report in-patient hospitalizations will not result in an unfair penalty
for employers. Under the final rule, as in the current regulation,
employers are only required to report work-related events that have
been reported to them or their agent(s).
For the issue in the proposed rule of whether the reporting clock
would start with the occurrence of the work-related incident or with
the occurrence of the reportable event (fatality, in-patient
hospitalization, or amputation), the PRR, the IADC, Gruber Hurst
Johansen Hail Shank, NAM, and Verizon requested clarification (Exs. 38,
39, 60, 71, and 78). To address this issue, OSHA has revised the text in
Section 1904.39(a)(1) and (a)(2) of the final rule to make clear that,
consistent with OSHA's current reporting regulation in Section 1904.39,
the reporting clock starts with the occurrence of the reportable event.
Section 1904.39(b)(7) also provides instruction on when the reporting
clock starts to run in situations where the employer or the employer's
agent(s) does not learn about the reportable event (fatality, in-
patient hospitalization, amputation, or loss of an eye) right away.
For example, if an employee suffers a work-related injury (the
work-related incident) at 9:00 a.m., and dies from that injury at 10:00
a.m., and the employer or the employer's agent(s) learn of the fatality
(the reportable event) at 10:00 a.m., then the employer would be
required to report the fatality (the reportable event) to OSHA within
eight hours of the fatality (the reportable event)--i.e., 6:00 p.m.
Similarly, if an employee is fatally injured as the result of a work-
related incident at 8:30 p.m. on Monday, but the employer or employer's
agent(s) do not learn of the fatality (the reportable event) until 9:00
a.m. the next day (Tuesday), then the employer would be required to
report the fatality (the reportable event) to OSHA within eight hours
of learning of the fatality (the reportable event)--i.e., by 5:00 p.m.
on Tuesday. Also, if an employee suffers a work-related injury (the
work-related incident) at 11:00 a.m. on Thursday and is hospitalized as
an in-patient, as a result of that injury, at 3:00 p.m., and the
employer or the employer's agent(s) learn of the in-patient
hospitalization for the injury at 3:00 p.m., then the employer would be
required to report the in-patient hospitalization (the reportable
event) within 24 hours of the in-patient hospitalization (the
reportable event)--i.e., by 3:00 p.m. on Friday.
This would also be the case if the employer needs time to determine
whether a specific incident is work-related. For example, if an
incident leads to an employee's death at 9:00 a.m. on Monday, but the
employer does not have enough information to make a work-relatedness
determination until 11:00 a.m. on Monday, then the employer would be
required to report the fatality (the reportable event) within 8 hours
of learning that the fatality was due to a work-related incident--i.e.,
by 7:00 p.m. on Monday). The final rule states that if the employer
does not learn right away that the reportable event (fatality, in-
patient hospitalization, amputation, or loss of an eye) was the result
of a work-related incident, then the employer must make the report to
OSHA within the following time period after the employer or any of the
employer's agent(s) learn that the reportable event was the result of a
work-related incident: Eight (8) hours for a fatality, and twenty-four
(24) hours for an in-patient hospitalization, an amputation, or a loss
of an eye. (see Section 1904.39(b)(8))
For the issue of the appropriate reporting time period for in-
patient hospitalizations, OSHA received many comments that the proposed
eight-hour reporting period for in-patient hospitalizations was too
short. The Marshfield Clinic commented that "an employer is normally
going to know immediately" about a fatality and "probably would also
know" about the hospitalization of three or more employees", but that
"[t]his is not necessarily the case for the hospitalization of an
individual employee" (Ex. 15). IBM commented that "[i]t would be
difficult for us to be compliant with reporting any in-patient
hospitalizations within eight hours, especially with the travelling
employee, time zone issues, language barriers, communication issues"
(Ex. 22). Apogee Enterprises commented that eight hours may not be
enough time for an employer to determine work-relatedness, that an
employer may not find out about the hospitalization if the employee
does not go to the hospital from work, and that the privacy of medical
information "can make it very difficult for the employer to find out
the cause of a hospitalization, especially in the proposed timeframe"
(Ex. 40). The HDMA commented that ". . . many circumstances will arise
where . . . the full determination of the employee's condition has not
been determined within eight hours because the employee was admitted to
the hospital for a variety of reasons some of which may or may not be
work-related" (Ex. 55). Ameren commented that "[t]he determination of
work-relationship for a case involving a single hospitalization may not
be immediately obvious and could take more than 8 hours to be
resolved" (Ex. 72). Verizon commented that "[i]t is not practical to
expect all employers to be able to notify OSHA within eight hours of an
employee's admission into a hospital with a work-related condition",
especially for employers "whose employees often work alone or with a
co-worker at off-site locations and at hours other than normal business
hours" (Ex. 78). The Pacific Maritime Association commented that "the
employer may not have all of the necessary facts within eight hours . .
. this is too tight a deadline and is a recipe for false or misleading
information to OSHA" (Ex. 100). The American Foundry Society commented
that "the proposed 8-hour time frame does not offer a realistic time
frame," due to "circumstances including patient privacy and
communication delays between a patient and employer or medical provider
and employer" (Ex. 101). The American Supply Association commented
that "the shift to an 8-hour reporting requirement . . . may interfere
with an employer who is also tending to the employee's injury during
this time. The uncertainties placed on the employer, in particular,
during a period when they are addressing employee safety is overly
burdensome" (Ex. 111); the Sheet Metal and Air Conditioning
Contractors National Association (SMACNA) made a similar comment (Ex.
122). The ARTBA commented that "eight hours is unrealistic as it may
be difficult to quickly ascertain the root cause of the injury" (Ex.
114).
OSHA also received comments proposing alternate time periods,
including 24 hours, 48 hours, 72 hours, and five days. Morganite
Industries commented that "it is reasonable to expect that within 24
hours management will be made aware that an in-patient hospitalization
has occurred. It is then reasonable to believe that reporting to OSHA
is feasible within that same 24 hours" (Ex. 20). Whirlpool
Corporation, the IADC, the HDMA, the American Chemistry Council,
Verizon, the Pennsylvania Independent Oil and Gas Association (PIOGA),
RILA, and Ingalls Shipbuilding made similar comments (Exs. 31, 39, 55,
76, 78, 89, 102, and 103).
NPRA recommended "that OSHA at a minimum increase the reporting
time to 48 hours to allow the medical facility time to treat the
injured, if necessary, determine the need for hospitalization and
advise the employer" (Ex. 80). Kentucky commented that "[e]xperience
has proven that the reporting of a hospitalization after eight (8)
hours has passed . . . but before seventy-two (72) hours have elapsed,
is not detrimental to ensuring that a prompt investigation is
initiated, if needed, to ensure the prevention of additional injury or
illness" (Ex. 52). Fed Ex similarly supported a 72-hour time period,
commenting that "[s]eventy-two hours would give an employer adequate
time to gather and verify the information necessary to make an accurate
report to OSHA, and it is soon enough after an accident for OSHA to
make a meaningful investigation" (Ex. 67).
Dow Chemical recommended that "if the Agency decides to require
reporting of every hospitalization, the deadline for reporting should
be (preferably) three business days, or (at the very tightest) the
following business day after the employer learns both that there was a
hospitalization, and that the injury was work-related" (Ex. 64). The
Duke University Health System recommended "a reporting period of five
days if OSHA is to achieve its goal of this regulation presenting only
a 'relatively minor burden' for employers" (Ex. 63).
On the other hand, USMWF commented that "8 hours is far too long a
time period. OSHA should change its regulation to require an employer
to immediately notify federal or State OSHA of a fatality or serious
incidents. The Mine Safety and Health Administration's (MSHA)
regulations require employers to notify the agency of serious incidents
within 15 minutes. OSHA should adopt equivalent requirements. We
believe that California OSHA requires immediate reporting and Utah OSHA
has a 1-hour reporting requirement" (Ex. 93).
In addition, multiple commenters recommended requiring the same
reporting time period of eight hours for non-fatal reportable events
(in-patient hospitalizations, amputations, and losses of an eye) as for
fatalities. The Building and Construction Trades Department of the AFL-
CIO commented that "[t]he move to a single reporting time frame would
also benefit OSHA and employers. In the case of OSHA, the move to 8
hours for all serious incidents would provide the agency with more
timely information on which to base decisions. For employers, the use
of one reporting timeframe would simplify the reporting process" (Ex.
59). The AFL-CIO, the TWU, the UAW, and the UFCW made similar comments
(Exs. 69, 74, 77, and 81).
OSHA acknowledges the commenters' concern about the eight-hour
reporting time for in-patient hospitalizations in the proposed rule.
Accordingly, Section 1904.39(a)(2) of the final rule requires employers
to report in-patient hospitalizations within 24 hours of learning of
the in-patient hospitalization due to a work-related incident. Note
that, as discussed below, this will simplify the reporting process by
requiring a single reporting period (24 hours) for all of the non-fatal
events that employers are required to report. Note also that, because
the reporting time period for in-patient hospitalizations does not
begin until the employee has been formally admitted to the in-patient
service of a hospital or clinic for care or treatment (see Sec.
1904.39(b)(8)), the reporting requirement will not interfere with the
employer's efforts to provide the proper care for the employee whose
eventual in-patient hospitalization the employer will be required to
report.
For the appropriate reporting time periods for other events
employers would be required to report, many of the same comments about
reporting time periods for in-patient hospitalizations applied.
However, OSHA did receive some specific comments as well. For
amputations, Dow Chemical commented that "if notification for
amputations is ultimately required, the deadline should be the end of
the next business day after the injury is classified as an amputation,
rather than within 24 hours. This would facilitate compliance, because
there would be greater certainty that the expert personnel who
understand the reporting requirement would be available. In addition,
it would allow for an accurate determination that the injury is, in
fact, an amputation" (Ex. 64). The NPRA recommended a reporting time
period of 48 hours (Ex. 80).
For amputations and losses of an eye, the USMWF commented that
"[t]he reporting should be made by the employer no later than 24 hours
after the employer learns that the amputation or eye loss occurred"
(Ex. 93).
OSHA finds that a reporting time period of 24 hours for amputations
and losses of an eye will simplify the reporting process by requiring a
single reporting period (24 hours) for all of the non-fatal events that
employers are required to report. Section 1904.39(a)(2)) of this rule
requires employers to report amputations and losses of an eye to OSHA
within 24 hours.
Other Issues Raised by Commenters
OSHA received multiple comments that the Agency does not have
enough resources to be able to collect, track, and use the additional
data from the new reporting requirements for in-patient
hospitalizations of one or two employees, amputations, and losses of an
eye. For example, Rexnord Industries commented that "[t]here are
concerns with the ongoing budget debates and whether or not OSHA will
be able to give the appropriate attention that is needed to the new
information to drive the needed results" (Ex. 28). The Tree Care
Industry Association commented that "we do not understand how OSHA
would handle the additional workload . . . How would OSHA handle the
call volume when it increases from 4,600 to 210,000 calls per year?"
(Ex. 37). The National Safety Council commented that "[s]ome members
have also expressed concerns regarding OSHA staffing constraints and
the ability of the agency to process and utilize the increased number
of submissions to the agency . . ." (Ex. 58). Gruber Hurst Johansen
Hail Shank commented that "[t]he proposed rule would require OSHA to
spend 52,682.25 hours to simply receive and record the reports . . .
This does not factor in the countless hours that would also be added by
the increased amount of inspections OSHA would presumably initiate
under the proposed rule" (Ex. 60).
Mercer ORC HSE Networks commented that they have "serious
reservations about whether OSHA has the capacity or resources to
evaluate and utilize the new collected data on an ongoing basis in a
way that would significantly improve the targeting of its resources or,
at the end of the day, would result in improved worker safety and
health" (Ex. 68). The American Chemistry Council commented that "OSHA
has not demonstrated . . . how the Administration will utilize these
new data with its finite resources to target unsafe workplaces" (Ex.
76). Verizon commented on its concern "that the simple number of
notifications will overwhelm OSHA's resources . . ." (Ex. 78). The
National Grain and Feed Association commented that "this will not be a
prudent use of OSHA's existing resources since it will add another
time-consuming task to OSHA staff and prevent them from dealing with
the Agency's three core functions that include: 1) programmed
inspections; 2) investigation of fatalities; and 3) responding to
employee complaints" (Ex. 96); the Shipbuilders Council of America and
the Corn Refiners Association made similar comments (Exs. 104, 109).
The NAHB commented that it "does not seem feasible for OSHA staff
to investigate each and every in-patient hospitalization given the
Agency's limited resources" (Ex. 113). The ARTBA commented that they
"question whether OSHA is prepared to receive the additional
information stream that will be generated from the proposed changes"
(Ex. 114). The U.S. Chamber of Commerce commented that "there is every
reason to believe that the significantly increased level of reporting
[the expansion of the hospitalization reporting requirement] will
generate will overwhelm OSHA's limited resources . . ." (Ex. 120).
OSHA agrees that it would overwhelm the resources of Federal OSHA
and the State Plan programs if the Agency conducted an inspection of
every workplace reporting a serious occupational event under this rule.
However, OSHA does not intend to do this. Rather, OSHA will conduct
report-related inspections only at workplaces where reports indicate
that an Agency inspection to remediate hazards may be warranted. OSHA
will conduct other interventions at workplaces where reports indicate
that an Agency inspection to remediate hazards is not warranted. In either
case, the overall objective is for the reports to trigger activities that
lead to hazard abatement. OSHA will develop internal guidance for determining
whether to inspect or to conduct a different kind of intervention after
receiving a report of an in-patient hospitalization of one or two
workers, an amputation, or a loss of an eye. In either case, OSHA
follow-up with the employer is essential. Follow-up may be done via
email, phone, or fax, with regular reminders and deadlines. These
interventions will require OSHA to reallocate some of its inspection
resources. However, OSHA believes that ensuring the abatement of
hazards that resulted in serious injury or illness justifies these
changes.
This approach is similar to OSHA's current approach for
investigating fatalities and hospitalizations of three or more
employees, as well as OSHA's approach for targeting inspections to the
highest-hazard workplaces. At present, OSHA does not inspect each
workplace with a report, per Section 1904.39 of the current regulation,
of a fatality or the hospitalization of three or more employees.
Rather, OSHA uses the information in the initial report to decide
whether or not the Agency should investigate the event. OSHA will
continue to use this approach under this final rule.
Similarly, OSHA does not currently try to inspect all 7.5 million
establishments in the country. Rather, OSHA has a priority system
designed to allocate available OSHA inspection resources as effectively
as possible to ensure that the maximum feasible protection is provided
to working men and women. Case reports of sentinel safety and health
events, such as fatalities and hospitalizations, support OSHA's
application of this priority system and will continue to do so under
this final rule.
Further, OSHA notes that six states, accounting for over 1.3
million establishments (18% of the national total) and 19.4 million
paid employees (17% of the national total), already require employers
to report in-patient hospitalizations of fewer than three employees,
evidently without overwhelming the resources of their programs or
compromising their abilities to conduct targeted inspections, respond
to worker complaints, and investigate fatalities. Indeed, one of these
states, Kentucky, specifically commented that "[t]he Kentucky OSH
program believes its requirements support the prevention of additional
injuries or illnesses, effectively direct OSH program resources, and
reduce the state's occupational injury and illness rates" (Ex. 52). In
addition, Kentucky also commented that "[i]t is important to note that
neither OSHA's present reporting requirements or proposed rule, nor
Kentucky's state specific reporting requirements, compel OSHA or
Kentucky to investigate every reported hospitalization or amputation .
. . Not all hospitalizations or amputations reported to [Kentucky's]
Division of Compliance are investigated" (Ex. 52).
OSHA also received multiple comments about the Preliminary Economic
Analysis (PEA).
The SBA-OA commented that OSHA should "consider whether its wage
rate assumption is valid for many small businesses." The PEA uses the
assumption that reporting will be performed by a human resources
specialist with a compensation cost of $40.04 per hour, but "many
small businesses do not employ such personnel and it is often the small
business owner or other senior person who conducts these activities"
(Ex. 94).
The Pacific Maritime Association commented that "private sector
workers . . . already work 40-hour weeks . . . [Unless] OSHA intends on
removing another set of duties imposed by regulations to free time and
make it available to perform these new recordkeeping tasks[, w]hen
imposing new regulations, OSHA should always estimate that the work
performed will have to be completed at the overtime rate of pay (of
time and a half)" (Ex. 100).
OSHA's response to these comments is in Section V of this
supplementary information.
OSHA received multiple comments about the PEA's estimate of the
time required to report single in-patient hospitalizations and
amputations. Dow Chemical Company commented that the 15 minutes "may
perhaps account for the time spent on the telephone, but it does not
include all the people who need to participate in, or be notified of,
the incident and the upcoming notification to OSHA" (Ex. 64). The ATA
commented that "[t]he [time] multiplier should, according to our
members, be 0.5 [hours] instead of 0.25, to accurately reflect current
time spent on this task" (Ex. 65); Fed Ex made a similar comment (Ex.
67). Mercer ORC HSE Networks commented that "OSHA focuses strictly on
the amount of time it takes an individual to 'pick up a phone' and make
the report to OSHA. This is an unduly narrow view of the impact of the
proposal on employers" (Ex. 68). NUCA commented that "OSHA has
significantly underestimated the economic impact of obtaining injury
information on a construction site which does not necessarily have an
office. First, field personnel must stop what they are doing to collect
information, which must then be transmitted to the company office where
it must be reviewed and recorded. Along with the proposed additional
requirements to report to OSHA, which could require hours of
investigation to prepare for, the total time would easily exceed a mere
15 minutes" (Ex. 110).
In addition, OSHA received several comments that the PEA's time
assumption did not include the time required to adjust data systems to
the new reporting requirements. For example, the American Trucking
Association commented that "[t]aking into consideration the
sophisticated internal systems that larger motor carries may use to
report inpatient hospitalization and amputations . . . ATA estimates--
again, based on member experience--that an additional 150-175 hours may
be required per employer, something that is not reflected in the Agency
cost estimate" (Ex. 65). Fed Ex made a similar comment (Ex. 67).
Finally, OSHA received several comments that the PEA's time
assumption did not include employer responses to the inspections that
might follow the reports. For example, the Tree Care Industry
Association commented that "OSHA claims that the additional data-
gathering would be restricted to phone interviews, with a relatively
minor additional reporting burden estimated to be an average of 15
minutes per reported incident. However, with the proposed rule in place
there would be nothing to prevent the Agency from performing on-site
investigations of reported accidents . . . Obviously to superimpose an
OSHA on-site investigation on to the post-accident investigations that
companies already perform as part of their safety procedure creates a
significant additional burden for employers" (Ex. 37); the Dow
Chemical Company and Fed Ex made similar comments (Exs. 64, 67).
OSHA's responses to these comments are in Section V of this
supplementary information.
The HDMA commented that OSHA should "make allowance for
outstanding circumstances--for instance, the proposed rule does not provide
any information on what allowances can be made for a disaster type of
situation where other issues arise that need to be addressed that would
impede the employer's ability to report to OSHA, due to natural
disasters such as snow storms, hurricanes, tornadoes, flooding, etc. or
manmade such as electrical failures, fires, etc. that the employer must
immediately focus on the disaster and its implications for public
safety reasons" (Ex. 55).
The Agency notes that previous OSHA rulemakings on reporting of
fatalities and in-patient hospitalizations have not explicitly made
allowance for emergencies and disasters, but that OSHA has nonetheless
taken such circumstances into account when they occurred. OSHA will
continue to do so under the final rule.
The NAHB commented that "OSHA's proposal is not consistent with
Executive Order 13563, 'Improving Regulation and Regulatory Review,"'
because "[n]othing in OSHA's proposal indicates how the rule is
intended to streamline regulatory requirements and reduced burdens on
industry" and because the Agency "should consider the impacts of this
proposal on small businesses and consider conducting additional
outreach before moving forward" (Ex. 113). The SBA-OA (Ex. 94), RILA
(Ex. 102), and the ARTBA (Ex. 114) made similar comments.
Executive Order 13563 requires regulatory agencies to consider the
effect of new regulations on economic growth, competitiveness, and job
creation. OSHA notes that, as discussed below in Section V-E, Economic
Impacts, the compliance costs for each affected firm are too small to
have any significant economic impacts, including impacts on economic
growth, competitiveness, and job creation. Additionally, the final rule
includes a new option for employers to report fatalities and other
reportable events through OSHA's public Web site, which should make it
easier for employers to fulfill their reporting obligations. Also,
under the final rule, the time for reporting all non-fatality
reportable events (i.e., in-patient hospitalizations, amputations, and
losses of an eye) to OSHA is 24 hours. For in-patient hospitalizations,
this is a change from the proposed rule, and it should reduce the
reporting burden on small employers. Therefore, the Agency believes the
reporting requirements in this rulemaking are consistent with Executive
Order 13563.
Mercer ORC HSE Networks commented that they "believe that [the
proposed rule] is emblematic of a larger problem; that the national
system for collecting and compiling data on occupational injuries and
illnesses is really a hodge-podge of disparate data requirements
developed by different Agencies to meet their own particular needs . .
. Consequently . . . we have no real handle on the occurrence (or
prevalence) of occupational illness in the United States, and many even
question the accuracy of the data we use to track injuries and acute
health conditions . . . The last study of the national injury and
illness data system was conducted over two decades ago by the National
Academy of Sciences. Although all of the findings were not implemented,
the 1987 report, Counting Injuries and Illnesses in the Workplace,
served as the basis for a major overhaul of the BLS safety and health
statistical programs. Mercer ORC Networks believes that we are overdue
for another systems-wide review . . . The initial cost for such a
review might seem high given the current budget climate. However, we
are convinced that the investment would be 'drop in the bucket'
compared to the potential savings in program efficiencies and
improvements in prevention effectiveness" (Ex. 68).
OSHA agrees with Mercer ORC's assessment that improvement can and
should be made to the current occupational injury and illness
collecting and reporting system. OSHA believes this rulemaking
addresses some of the system shortfalls by expanding the data that are
collected (e.g., in-patient hospitalizations, amputations, and losses
of an eye) and by readjusting the scope of the regulation to cover
industries that will benefit from the availability and use of the
injury and illness information captured on the recordkeeping forms. In
addition to this rulemaking, the Agency has taken other steps to
address system shortfalls including increased enforcement and outreach
activities. BLS and NIOSH have also taken positive steps to identify
and address gaps in collecting and reporting on occupational injury and
illness data. Finally, as stated above, OSHA is planning a new re-
examination of the Agency's recordkeeping regulations. Improvement of
the system is an ongoing effort, and OSHA will consider Mercer ORC's
recommendation.
D. The Final Rule
The final rule is similar to the proposed rule in requiring
employers to report all work-related fatalities, in-patient
hospitalizations, and amputations. However, there are also several
differences from the proposed rule. The differences include the time
periods for reporting the event, the time periods between the work-
related incident and the reportable event, definitions, and reporting
options. In addition, the final rule adds work-related losses of an eye
to the list of events that employers are required to report to OSHA.
Under the final rule, employers must report the following events:
1. Each fatality resulting from a work-related incident, within 8
hours of the death. This requirement applies to all fatalities
occurring within 30 days of a work-related incident. See Sec.
1904.39(a)(1) and (b)(6). This is the same as the current regulation
and the proposed rule.
2. Each in-patient hospitalization resulting from a work-related
incident, within 24 hours of the hospitalization. This requirement
applies to all in-patient hospitalizations occurring within 24 hours of
a work-related incident. See Sec. 1904.39(a)(2) and (b)(6). Under the
proposed rule, employers would have been required to report all in-
patient hospitalizations within 8 hours, for hospitalizations occurring
within 30 days of a work-related incident. Under the current
regulation, employers are required to report, within 8 hours, in-
patient hospitalizations of three or more employees, for
hospitalizations occurring within 30 days of a work-related incident.
3. Each amputation resulting from a work-related incident, within
24 hours of the amputation. This requirement applies to all amputations
occurring within 24 hours of a work-related incident. See Sec.
1904.39(a)(2) and (b)(6). Under the proposed rule, employers would have
been required to report all amputations within 24 hours, for
amputations occurring within 30 days of a work-related incident. Under
the current regulation, employers are not required to report
amputations.
4. Each loss of an eye resulting from a work-related incident,
within 24 hours of the loss of an eye. This requirement applies to all
losses of an eye occurring within 24 hours of a work-related incident.
See Sec. 1904.39(a)(2) and (b)(6). The proposed rule would not have
required employers to report losses of an eye, and the current
regulation also does not require them to do so.
Other major differences between the final rule and the proposed
rule include the following:
1. In the final rule, the regulatory text provides an explicit
definition of in-patient hospitalization (see Sec. 1904.39(b)(9) and
(b)(10)). In the proposed rule, the regulatory text did
not include a definition. The final rule defines in-patient
hospitalization as a formal admission to the in-patient service of a
hospital or clinic for care or treatment. Employers do not have to
report in-patient hospitalizations that involve only observation and/or
diagnostic testing.
2. In the final rule, the definition of amputations comes from the
2010 release (OIICS Version 2.0) of the BLS OIICS Manual (see Sec.
1904.39(b)(11)). In the proposed rule, the definition of amputations
came from the 2007 release of the BLS OIICS Manual. The final rule
defines amputations as the traumatic loss of a limb or other external
body part. Amputations include a part, such as a limb or appendage,
that has been severed, cut off, amputated (either completely or
partially); fingertip amputations with or without bone loss; medical
amputations resulting from irreparable damage; amputations of body
parts that have since been reattached. Amputations do not include
avulsions, enucleations, deglovings, scalpings, severed ears, or broken
or chipped teeth.
3. In the final rule, employers have three options for reporting
the fatality, in-patient hospitalization, amputation, or loss of an eye
(see Sec. 1904.39(a)(3) and (b)(1)): (1) by telephone or in person to
the OSHA Area Office that is nearest to the site of the incident; (2)
by telephone to the OSHA toll-free central telephone number, 1-800-321-
OSHA (1-800-321-6742); (3) by electronic submission using the fatality/
injury/illness reporting application located on OSHA's public Web site
at www.osha.gov. Under both the proposed rule and the current
regulation, only the first two options were available. The electronic
submission option is new for the final rule.
4. In the final rule, if employers do not learn about a reportable
fatality, in-patient hospitalization, amputation, or loss of an eye
when the event happens, they must report to OSHA within a specified
time period after the event has been reported to the employer or to any
of the employer's agent(s) (see Sec. 1904.39(b)(7)). Under both the
proposed rule and the current regulation, the specified time period
began after a report to the employer or to any of the employer's
agent(s) or employee(s).
Overall, the final rule will provide OSHA with more information
about serious workplace injuries and illnesses. This information will
allow OSHA to carry out timely investigations of these events as
appropriate, leading to the mitigation of related hazards and the
prevention of further events at the workplaces where the events
occurred. This information will also help OSHA establish a
comprehensive database that the Agency, researchers, and the public can
use to identify hazards related to reportable events and to identify
industries and processes where these hazards are prevalent. Finally,
this information will be obtained cost-effectively, with a relatively
minimal estimated average burden on employers of 30 minutes per
reported incident.
In addition, the final rule will make OSHA's reporting requirements
more similar to the requirements of other agencies. For example, the
National Transportation Safety Board (NTSB) requires aircraft pilots or
operators to report aviation accidents involving death, serious injury,
or substantial damage to an aircraft, as well as non-accidents that
affect or could affect the safety of operations. The Federal Railroad
Administration (FRA) requires railroads to complete reports and records
of accidents and incidents. These accidents and incidents include
significant injuries to or significant illnesses of railroad employees
diagnosed by a physician or other licensed health care professional.
They also include collisions, derailments, fires, explosions, acts of
God, or other events involving the operation of railroad on-track
equipment and causing reportable damages greater than the reporting
threshold for the year ($9,200 in 2010).
Finally, the changes will make OSHA's reporting requirements more
similar to the current requirements in some states that administer
their own occupational safety and health program, as follows:
Alaska requires employers to report, within 8 hours,
occupational accidents that result in the death or overnight
hospitalization of one or more employees (AS 18.60.058). This
requirement has been in effect since 1976.
California requires employers to "report immediately by
telephone or telegraph to the nearest District Office of the Division
of Occupational Safety and Health any serious injury or illness, or
death, of an employee occurring in a place of employment or in
connection with any employment." "Immediately" means "as soon as
practically possible but not longer than 8 hours after the employer
knows or with diligent inquiry would have known of the death or serious
injury or illness" (Title 8, California Code of Regulations, Section
342(a)). "Serious injury or illness" means "any injury or illness
occurring in a place of employment or in connection with any employment
which requires inpatient hospitalization for a period in excess of 24
hours for other than medical observation or in which an employee
suffers a loss of any member of the body or suffers any serious degree
of permanent disfigurement" (Title 8, California Code of Regulations,
Section 330(h)). This requirement has been in effect since 1979.
Kentucky requires employers to report workplace
fatalities, amputations, and hospitalizations. Employers must report
fatalities and hospitalizations of three or more employees within 8
hours, and amputations and hospitalizations of one or two employees
within 72 hours (803 KAR 2:180). This requirement has been in effect
since 2006.
Oregon requires employers to report work-related incidents
that cause overnight hospitalizations, catastrophes, or fatalities,
including heart attacks and motor vehicle accidents. Employers must
report fatalities and catastrophes (three or more employees admitted to
a hospital) within 8 hours of the incident, and overnight
hospitalization of at least one employee for medical treatment within
24 hours of the incident (OAR-437-001-0700). The single-hospitalization
requirement has been in effect since 1992.
Utah requires employers to report, within 8 hours of
occurrence, work-related fatalities, disabling, serious, or significant
injuries, and occupational disease incidents (Utah Occupational Safety
and Health Rule, R614-1-5.C). This requirement has been in effect since
2002.
Washington requires employers to report, within 8 hours,
the death, or probable death, of any employee, or the in-patient
hospitalization of any employee (WAC 296-800-32005). This requirement
has been in effect since 2009.
Note that, under the final rule, as under the proposed rule and the
current regulation, employers are not required to report events
resulting from motor vehicle accidents that occurred on a public street
or highway, but not in a construction work zone (see Section
1904.39(b)(3)). Employers are required to report events resulting from
motor vehicle accidents that occurred anywhere else, including in a
construction work zone on a public street or highway, or on other
roadways, or off-road.
A summary comparison of the proposed rule and the final rule is
below:
------------------------------------------------------------------------
Proposed rule Final rule
------------------------------------------------------------------------
Fatalities................. Employers required to Employers required
report each fatality to report each
within 8 hours of fatality within 8
the death, for all hours of the death,
fatalities occurring for all fatalities
within 30 days of occurring within 30
the work-related days of the
incident. incident.
Hospitalizations........... Employers required to Employers required
report each in- to report each in-
patient patient
hospitalization hospitalization
within 8 hours of within 24 hours of
the hospitalization, the
for all hospitalization,
hospitalizations for all
occurring within 30 hospitalizations
days of the work- occurring within 24
related incident. hours of the work-
related incident.
No definition of in- In-patient
patient hospitalization
hospitalization. defined as a formal
admission to the in-
patient service of
a hospital or
clinic for care or
treatment.
Amputations................ Employers required to Employers required
report each to report each
amputation within 24 amputation within
hours of the 24 hours of the
amputation, for all amputation, for all
amputations amputations
occurring within 30 occurring within 24
days of the work- hours of the work-
related incident. related incident.
Definition comes from Definition comes
BLS OIICS Manual from BLS OIICS
2007. Manual 2010.
Losses of an eye........... No requirement....... Employers required
to report each loss
of an eye within 24
hours of the loss
of an eye, for all
losses of an eye
occurring within 24
hours of the work-
related incident.
Reporting options.......... Two options: by Three options: by
telephone or in telephone or in
person to OSHA Area person to OSHA Area
Office; or by Office; or by
telephone to 1-800- telephone to 1-800-
321-OSHA. 321-OSHA; or by
electronic
submission on
OSHA.gov.
Knowledge of event......... Employer required to Employer required to
report if event report if event
(fatality, in- (fatality, in-
patient patient
hospitalization, hospitalization,
amputation) is amputation, loss of
reported to an eye) is reported
employer, employer's to employer or
agent(s), or employer's
employee(s). agent(s).
------------------------------------------------------------------------
V. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
OMB has determined that this rule is a "significant regulatory
action" within the context of Executive Order (E.O.) 12866. This
rulemaking has net annualized costs of $9 million, with total
annualized new costs of $20.6 million to employers, total annualized
cost savings of $11.5 million for employers who no longer have to meet
certain recordkeeping requirements, and average annualized costs of $82
per year for the most-affected firms (those newly required to keep
records every year). Thus, this rulemaking imposes far less than $100
million in annual costs on the economy, and does not meet the other
criteria specified for an unfunded mandate under the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1532(a) or a "major rule" under the
Congressional Review Act (5 U.S.C. 801 et seq.). Consequently, OMB has
determined that this rule is not "economically significant" within
the meaning of Section 3(f)(1) of E.O. 12866.
This Final Economic Analysis (FEA) addresses the costs, benefits,
economic impacts, and feasibility of the final rule as required by the
OSH Act as interpreted by the courts. This FEA is also designed to meet
the principles of E.O. 12866 and E.O. 13563. The final rule would make
two changes to the existing recording and reporting requirements in 29
CFR part 1904. It would change the industries that are partially
exempted from keeping records of occupationally-related injuries and
illnesses, and it would change the requirements for reporting certain
work-related injury and illness events. The affected establishments are
only partially exempt from keeping these records because, while they
are exempt from routine OSHA injury and illness recordkeeping
requirements, the Bureau of Labor Statistics (BLS) may require any
establishment to respond to its Survey of Occupational Injuries and
Illnesses (SOII), and OSHA may require any establishment to respond to
its annual injury and illness survey. The costs to those firms required
to respond to the SOII are covered in the BLS's information collection
request for the survey; costs to other establishments that OSHA may
require to respond to its annual injury and illness survey are subject
to future OSHA information collection requests and their approval by
the OMB's Office of Information and Regulatory Affairs (OIRA).
The existing OSHA regulation partially exempts all employers with
10 or fewer employees and all establishments in specific lower-hazard
industry sectors from routinely keeping OSHA records. The existing
industry partial exemptions were determined by identifying industries
with relatively low lost workday injury/illness (LWDII) rates at the 3-
digit Standard Industrial Classification (SIC) code level. This final
rule would retain the partial exemption for employers with 10 or fewer
employees. It also would update the list of partially-exempted
industries to reflect more recent data on days away from work, job
restriction, or job transfer (DART) rates and would convert the
industry classifications to the North American Industry Classification
System (NAICS). These changes would lead to new costs for employers who
would be newly required to keep records, but there would also be cost
savings for employers who would no longer be required to keep records.
The existing regulation requires employers to report all work-
related fatalities and work-related incidents involving three or more
hospitalizations to OSHA within eight hours. The final rule would
require employers to report any work-related fatality to OSHA within 8
hours and any in-patient hospitalization, amputation, or loss of an eye
occurring within 24 hours of a work-related incident to OSHA within 24
hours. The final rule would thus increase the number of events that
employers must report to OSHA.
The remaining sections of this FEA are: (B) the Industrial Profile;
(C) Costs of the Final Regulation; (D) Benefits; (E) Technological
Feasibility; (F) Economic Feasibility and Impacts; (G) Regulatory
Flexibility Certification; and (H) Appendix.
OSHA received a variety of comments in response to the Preliminary
Economic Analysis (PEA). The Agency responds to these comments in
detail in the relevant sections; this introduction summarizes the
nature of the comments. The SBA Office of Advocacy recommended that
OSHA carefully consider any small business comments it receives (Ex.
94). OSHA notes that it has carefully considered all comments. While
many commenters expressed views on OSHA's approach to deciding what
industries would be partially exempted, none objected to OSHA's
methodology for estimating the number of establishments, firms, employees,
and injuries or illnesses that would be partially exempted. There were
some comments that provide alternative approaches to estimating various
elements of the number of in-patient hospitalizations, amputations, and
losses of an eye. These are fully discussed in the industrial profile
section.
OSHA received many comments on the Agency's estimated compliance
costs. OSHA increased some cost estimates in response to these
comments, and responds to these comments in the cost section. However,
no commenters suggested that the change in reporting requirements would
be economically infeasible. Although one commenter suggested that this
rule would be "much more than a minor burden to industry" (Ex. 63),
no one suggested that it would impose a significant economic impact on
a substantial number of small entities. However, some commenters also
said that OSHA would have found it useful to conduct a Small Business
Advocacy Review Panel (Exs. 115, 120) pursuant to the Small Business
Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 609). This issue
is discussed further in Section V-F Regulatory Flexibility
Certification.
One commenter, the National Association of Home Builders (Ex. 113),
questioned whether OSHA was complying with E.O. 13563, which requires
that regulatory agencies take into consideration the effect of new
regulations on economic growth, competitiveness, and job creation. OSHA
notes that, as discussed below in Section V-E, Economic Impacts, the
compliance costs for each affected firm are too small to have any
significant economic impacts, including impacts on economic growth,
competitiveness, and job creation. The NAHB (Ex. 113) commented that
"OSHA's proposal is not consistent with Executive Order 13563,
'Improving Regulation and Regulatory Review"', because "[n]othing in
OSHA's proposal indicates how the rule is intended to streamline
regulatory requirements and reduced burdens on industry." E.O. 13563
does not require that all proposals indicate how the rule is intended
to streamline regulatory requirements and reduce burdens on industry.
This portion of the E.O. applies only to those proposals that result
from analyses chosen for the purpose of retrospective review.
ARTBA argued that OSHA had failed to adequately consider small
business burdens as required by E.O. 13563. This issue is further
discussed in Section V-F, which discusses OSHA's analysis of small
business burdens.
Some commenters questioned whether OSHA had adequately demonstrated
the benefits of this regulation. OSHA provides additional discussion of
the potential benefits of this rule in its revised benefits discussion.
There were no comments on the discussion of environmental impacts.
B. Industrial Profile
The purposes of this section are to provide information about the
industries that would be affected by the recordkeeping provisions of
the final rule, including the number of affected establishments and the
structure of employment within these industries, as well as to provide
estimates of the numbers of additional in-patient hospitalizations,
amputations, and losses of an eye that will be reported annually under
the reporting provisions of the final rule. Because current regulations
already require the reporting of work-related fatalities, OSHA has not
estimated the number of reportable fatalities for this FEA.
Partial Exemption
OSHA identified all of the affected establishments in industries
that would be newly required to keep records and all of the affected
establishments in industries that would be newly partially exempt from
keeping records. This identification was complicated by the fact that
the current regulation classifies employers by SIC codes, a
classification system dating back to the 1930s that is no longer used
in government statistics. There is not a simple one-to-one translation
for industry classification codes between SIC and its replacement,
NAICS. Some SIC industries were divided among several NAICS industries,
while other SIC industries were combined to form a single NAICS
industry. As a result, OSHA had to determine how employers previously
classified by 1987 SIC code would now be classified using the 2007
NAICS codes.
OSHA's decision to convert the listing of partially-exempt
employers from SIC codes to NAICS codes drew widespread support from
participants in the rulemaking. Winslow Sargeant, Chief Council for the
SBA Office of Advocacy, stated that he "applauds OSHA's proposed
transition from SIC to NAICS and believes this change will result in
improved data for OSHA programs" (Ex. 94). Mr. Sargeant's comments
were representative of the overwhelmingly positive comments OSHA
received concerning the transition from SIC to NAICS (Exs. 24, 52, 59,
69, 77, 78, 81, 85, 86, 90, 93, 99, 100, 112, 119, 120, 122, 124).
Nonetheless, one commenter expressed concern that it would not be
possible to compare data between the years covered by SIC and the years
covered by NAICS (Ex. 29). However, data comparisons for industries are
almost entirely based on SOII data, which are already collected on a
NAICS basis. Whether OSHA uses SIC or NAICS codes to define exemptions
will have no effect on industry time series data. OSHA's expectation is
that switching to NAICS codes from the seldom-used SIC code system will
decrease uncertainty in classification, save time, reduce confusion,
and lower the opportunity for errors in reporting the industry an
employer belongs to, a belief echoed by some commenters (Exs. 24, 59,
85). OSHA believes that the change to NAICS will improve the quality of
data, since the NAICS represents a more modern system of industry
classification.
In many cases, OSHA's process of converting classification systems
meant that a single SIC code was divided into several NAICS codes, and
conversely, a single NAICS code might contain establishments from
multiple SIC codes. For maximum accuracy, this analysis was conducted
at the six-digit NAICS level. The data resulting from this analysis are
presented in the Appendix to this FEA.
Because there were no objections to the methodology used in the PEA
for converting SIC codes to NAICS codes, OSHA has continued to use that
same methodology. OSHA first examined the 1997 Economic Census: Bridge
between SIC and NAICS Tables (Census Bureau, 1997). These tables show,
for 1997, the percentages of the establishments in each SIC code that
were transferred into each NAICS code. Next OSHA examined the 2002
Economic Census: Bridge between 2002 NAICS and 1997 NAICS Tables
(Census Bureau 2002). The bridge tables likewise show, for 2002, the
percentages of the establishments in 1997 NAICS codes that were
transferred into 2002 NAICS codes. Affected establishments in a SIC
code partially exempted under the existing rule but classified in a
non-partially-exempted NAICS code under the final rule would be newly
subject to the recordkeeping requirements. These establishments, not
partially exempted under the final rule, would incur new recordkeeping
costs.
After identifying by 6-digit NAICS code (2002) the portions of the
industries that would be newly required to keep records, OSHA used 2006
data from the Census Bureau's Statistics of U.S. Businesses (SUSB) to
determine the corresponding numbers of establishments and employees
(Census Bureau, 2008) in those NAICS industries. The SUSB provides not
only the total number of establishments and employees in an industry, but
also a breakdown of employees and establishments by the size of the firm
that owns the establishment. For this FEA, OSHA is updating the PEA to
incorporate the most recent 2010 SUSB data (Census Bureau, 2012). In the
interest of using the best available data, OSHA uses the 2007 NAICS codes
to be consistent with the Office of Management and Budget's (OMB) North
American Industry Classification System--Revision for 2007 (OMB, 2006).
The National Association of Real Estate Investment Trusts (Ex. 41)
recommended that OSHA update their analysis from the 2002 to the 2007
NAICS code system, which the Agency has done for this FEA. As a result
of the 2007 NAICS revision, there has been a significant change to
NAICS 525930, Real Estate Investment Trusts. The 2007 NAICS update
split NAICS 525930 into five different industries: 531110, Lessors of
Residential Buildings and Dwellings; 531120, Lessors of Nonresidential
Buildings (except Miniwarehouses); 531130, Lessors of Miniwarehouses
and Self-Storage Units; 531190, Lessors of Other Real Estate Property;
and 525990, Other Financial Vehicles. In the 2001 OSHA rulemaking, Real
Estate Investment Trusts were partially exempted from keeping records
by virtue of being classified under SIC 67, Holding and Other
Investment Offices. However, as indicated in Appendix A, the final rule
does not partially exempt NAICS 5311 Lessors of Real Estate, and
therefore NAICS industries 531110, 531120, 531130 and 531190 will be
newly required to keep injury and illness records. NAICS 525990 Other
Financial Vehicles continues to be partially exempt from recordkeeping
requirements under the final rule.
The 2007 NAICS revision also reclassified a few industries. To
assign these industries to the correct NAICS category, OSHA used the
2002 NAICS to 2007 NAICS Concordance (Census Bureau, 2007). NAICS
517211, Paging, and NAICS 517212, Cellular and Other Wireless
Telecommunications--both of which were required to keep records under
the 2001 rulemaking but were classified as newly partially exempt from
keeping records under the proposed rule--were merged into NAICS 517210,
Wireless telecommunications carriers (except satellite), and will
continue to be newly partially exempt from keeping records under the
final rule. NAICS 518112, Web Search Portals, has become NAICS 519130,
Internet Publishing and Broadcasting and Web Search Portals. NAICS
518112 was required to keep records under the 2001 rulemaking, was
newly partially exempt from keeping records under the proposed rule,
and (as NAICS 519130) will continue to be newly partially exempt from
keeping records under the final rule.
Satellite telecommunications was classified as NAICS 517310 in the
2002 NAICS but was classified as NAICS 517911 in the 2007 NAICS. Other
Telecommunications was classified as NAICS 517910 in the 2002 NAICS but
as NAICS 517919 in the 2007 NAICS. NAICS 517310 and NAICS 517910 were
both required to keep records under the 2001 rulemaking; were newly
partially exempt from keeping records in the proposed rule, and will
continue to be newly partially exempt from keeping records in the final
rule.
SUSB data report establishments by employment size classification,
with one class being all employers with 10 to 19 employees. However,
the current regulation, proposed rule, and final rules cover employers
with 11 or more employees. To deduct employers with exactly 10
employees, OSHA estimated that such employers represent one tenth of
all employers with 10 to 19 employees. This approach probably
overestimates the number of covered firms because there are more firms
in the lower end of a given size category.
OSHA then estimated the number of newly-affected establishments and
employees in each industry by multiplying the total number of
establishments and employees in the industry by the percentage of
affected establishments that were identified using the SIC--NAICS
bridge tables described above. Then, the Agency calculated the number
of newly-recordable injuries and illnesses for 2010 by dividing the
total number of injuries and illness reported per industry by the
Bureau of Labor Statistics (BLS, 2011a) by total employment in the
industry, and multiplying the resulting rate by the number of affected
employees in the industry. OSHA used BLS data at the most detailed
NAICS level for which data were available--at the six-digit NAICS level
where those data were available and the lowest level data available
otherwise.
Table V-1 presents data for the industries with establishments that
would be newly required to keep records. The table shows the four-digit
NAICS code, industry name, the number of affected establishments, the
number of affected employees, and an estimate of the number of
recordable injuries and illnesses, based on historical data, for newly-
affected employers. Table V-1 shows that OSHA estimates that the final
rule will require 220,000 establishments, employing 5.5 million
employees and having 153,000 injuries and illnesses per year, that were
previously partially exempted from recordkeeping requirements to now
keep records.
[GRAPHIC] [TIFF OMITTED] TR18SE14.000
Having used the bridge tables and other data sources described
above to identify the segment of the NAICS industries that would be
newly required to keep records, OSHA used a similar methodology to
determine the number of affected employees and recordable injuries and
illnesses for establishments that would no longer be required to
regularly keep records. Table V-2 shows, for each affected industry
that would no longer be required to keep records, the four-digit NAICS
code, industry name, number of affected establishments, number of
affected employees, and estimated number of injuries and illnesses that
would no longer be recorded. OSHA estimates that as a result of the
revision to the list of partially-exempt industries, 160,000
establishments, with 4.1 million employees and an estimated 56,000
injuries and illnesses per year, would no longer need to keep records
routinely.
Based on the ICR estimates (OSHA, 2011), OSHA currently requires
1,563,000 establishments to record injuries and illnesses. This total
represents approximately 54 percent of all establishments with more
than ten employees and 22 percent of all establishments. The change
from SIC to NAICS would increase the number of establishments required
to record injuries and illnesses to 1,592,000, a four percent increase
in the number of establishments recording, and an increase from 54 to
56 percent of all establishments with more than 10 employees.
[GRAPHIC] [TIFF OMITTED] TR18SE14.001
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and
Losses of an Eye
The final rule would require that employers report all work-related
fatalities, in-patient hospitalizations, amputations, and losses of an
eye to OSHA. This requirement would affect all industries, all
employers, and all 7.5 million establishments subject to OSHA
authority. Because OSHA already requires the reporting of work-related
fatalities, this economic analysis focuses on the new requirement for
reporting all work-related in-patient hospitalizations, all
amputations, and all losses of an eye. The current regulation requires
the reporting of work-related hospitalizations of three or more
workers. The number of such multiple hospitalizations represents a
trivial portion of all work-related in-patient hospitalizations. For
example, in Fiscal Year 2010, there were a total of 14 such reports to
OSHA (OSHA, 2010). OSHA therefore estimated the total number of work-
related in-patient hospitalizations without deducting the very small
number of multiple hospitalizations that are already reported.
In the PEA, OSHA noted that it is difficult to estimate the number
of in-patient hospitalizations that would need to be reported under the
final rule. One commenter asked that OSHA collect information from
emergency responders (Ex. 87). OSHA recognizes the value of emergency
responder data, but such data do not normally provide the distinctions
OSHA needs to determine if the injury or illness is work-related and if
the case meets OSHA's definition of an in-patient hospitalization.
In the PEA, OSHA examined a number of existing estimates and
approaches to making such estimates. First, OSHA noted that NIOSH
estimated that in 2004, a total of 68,000 work-related emergency
department (ED) visits resulted in hospitalization (CDC, 2007). In its
comments on the PEA, NIOSH estimates that for 2009, approximately
81,500 patients admitted to emergency rooms with occupational injuries
or illnesses were either admitted or transferred to hospitals and
another 5,600 patients were held for observation (Ex. 66). This
estimate (81,500) may be a high estimate of the number of
hospitalizations that will be required to be reported under this rule,
as it may include patients admitted only for diagnostic testing or
observation, or admitted more than 24 hours after the work-related
incident. On the other hand, the estimate may be too low because not
all hospital admissions occur through emergency rooms.
In the PEA, OSHA noted that Dembe et al. (Dembe, et al., 2003)
estimate that, based on 1997-1999 data from the Nationwide Inpatient
Sample (NIS), there were 210,000 in-patient hospital admissions per
year (or 630,000 over the three-year period) paid for by Workers'
Compensation insurance. OSHA also noted that studies in Massachusetts
(1996-2001) and Louisiana (1998-2007) came up with figures ranging from
150,000 to 275,000 workers'-compensation-related hospitalizations per
year when state-level data were extrapolated to the nation as a whole.
In the PEA, OSHA relied on an estimate of 210,000 hospitalizations but
noted this might be an overestimate, as it included elective
hospitalizations not covered by the proposed rule.
Statistics compiled by BLS indicate that 20.1 million occupational
injuries and illnesses were reported in 1997-1999 in the United States
(BLS, 2012). Dembe et al. recognize that there are significant
differences in data collection methodologies between the NIS and BLS,
and possible under-reporting or misclassification of occupational
injuries and illnesses in those databases (Murphy, et al., 1996; Leigh,
et al., 2000). The available statistics nevertheless allow for Dembe et
al. to infer that about 3 percent of workplace injuries and illnesses
result in the hospitalization of the affected worker. In the PEA, OSHA
failed to note that Dembe et al. also estimate that 46.8 percent of all
workers' compensation hospital admissions are classified as
"elective"; therefore the remaining 53.2 percent of all workers
compensation hospital admissions would then be classified as "non-
elective". Since the OSHA reporting requirement would only apply to
"non-elective" admissions, OSHA estimated for the proposed rule that
there would have been 107,000 \1\ hospitalizations in 2001 based on
Dembe and BLS data.
---------------------------------------------------------------------------
\1\ 20.1M BLS Injuries and Illnesses between 1997-1999/3 years =
6.7M.
6.7M Injuries and Illnesses x 3% of workplace injuries and
illnesses resulting in hospitalization = 0.2M.
0.2M Hospitalizations x 53.2% non-elective hospitalizations =
107,000.
---------------------------------------------------------------------------
One commenter thought that the hospitalizations estimate derived by
Dembe et al. was too low (Ex. 82). OSHA, recognizing the differences
between the NIS and BLS, determined that a range of inpatient
hospitalizations for non-elective procedures could be derived. Using
the NIS estimate of 210,000 in-patient hospital admissions and Dembe et
al.'s estimate of the percentage of non-elective workers' compensation-
related hospitalizations, OSHA now estimates that there were 112,000
non-elective hospitalizations \2\ for 2001. If OSHA instead applies
Dembe et al.'s estimate of the percentage of workplace injuries and
illnesses that result in hospitalization--3 percent--and the estimate
of "non-elective" procedures--53.2 percent--to the 4.1 million
injuries and illnesses reported by the BLS for 2009, OSHA estimates
that there were roughly 66,000 \3\ inpatient hospitalizations for non-
elective procedures, a value that may lie near the low end of the true
range.
---------------------------------------------------------------------------
\2\ Dembe's estimated hospitalizations: 210,000 x 53.2% non-
elective hospitalizations = 112,000.
\3\ 4.1M BLS Injuries and Illnesses for 2009 x 3% of workplace
injuries and illnesses resulting in hospitalization = 123,000.
123,000 Hospitalizations x 53.2% non-elective hospitalizations =
65,436.
---------------------------------------------------------------------------
Using Massachusetts data for FY 2008, Letitia Davis from the
Massachusetts Department of Public Health commented that 39 percent of
hospitalizations were for elective procedures (Ex. 84). Davis also
notes that Massachusetts studied inpatient hospitalizations during
1996-2000 and, using payments by workers' compensation as an indicator
of work-relatedness, identified an annual average of 4,091 work-related
inpatient hospitalizations (Ex. 84). Using employment data to
extrapolate the 4,091 hospitalizations in Massachusetts to the entire
United States, OSHA calculates that 157,843 \4\ work-related
hospitalizations would occur annually nationwide. Narrowing the total
to non-elective hospitalizations using Davis's alternative methodology
and her estimate of the percentage of hospitalizations in Massachusetts
that are non-elective (61 percent), OSHA calculates that 96,000 non-
elective work-related hospitalizations occur nationwide.
---------------------------------------------------------------------------
\4\ MA Employment = 2.97M; U.S. Employment = 114.51M; MA
Hospitalizations = 4,091.
Ratio MA Employment to U.S. Employment = 2.97M/114.51M = 2.59%.
Inflator MA to U.S. = 1/2.59% = 38.58.
U.S. Hospitalizations extrapolated from MA Hospitalizations =
4,901 x 38.58 = 157,843.
---------------------------------------------------------------------------
In summary, a variety of methodologies were examined to estimate
the number of non-elective hospitalization paid for by workers'
compensation. The resulting estimates range from 66,000 (extrapolation
of Dembe to 2009) to 96,000 (extrapolation from Massachusetts data) to
112,000 (Dembe estimate for 2001) non-elective, occupationally-related
hospitalizations annually.
It is also possible to make an estimate of the number of single in-
patient hospitalizations reported in states that currently require
reporting of single in-patient hospitalizations. There are six states
\5\ that currently require employers to report occupationally-related
single-patient hospitalizations. Employers in these states report a
hospitalization to the relevant State Plan Area Office, which then
completes an OSHA Form 36 based on that information. OSHA's Office of
Statistical Analysis reports that during 2002-2010, a total of 38,000
such forms were completed, for an average of 4,200 forms completed annually.
Assuming a consistent rate of occupationally-related single-patient
hospitalizations across all fifty states, the number of forms submitted
by these six states can be extrapolated to all fifty states in the U.S.
This yields an estimate of 25,000 \6\ annual, reportable, single-
patient hospitalizations. OSHA believes that this low estimate, as
compared to those developed above, may be the result of failure by
employers to report hospitalizations that should have been reported.
The result may be a realistic estimate of how many hospitalizations
will actually be reported to OSHA, but the Agency prefers to use, for
costing and economic feasibility purposes, an estimate based on what
the regulation would require if employers fully complied, such as the
estimates above based on non-elective hospitalizations paid for by
workers' compensation.
---------------------------------------------------------------------------
\5\ Alaska, California, Kentucky, Oregon, Utah and Washington
all require the reporting of single-patient hospitalizations.
\6\ 6 State Employment = 19,381,966. 50 State Employment =
114,509,626.
Ratio 6 State Employment to total U.S. Employment = 16.93%.
6 State inflator to 50 states = 1/16.93% = 5.91.
Average 6 State hospitalizations from 2002-2010 = 4,222.
Average 6 State hospitalizations extrapolated to U.S. = 4,222 x
5.91 = 24,946.
---------------------------------------------------------------------------
Under the final rule, employers would not have to report
hospitalizations that occur more than 24 hours after the work-related
incident. Therefore, scheduled or planned hospitalizations would not
normally be reportable. As discussed above, Davis (Ex. 84) estimates
that 39 percent of all hospitalizations are for elective procedures,
while Dembe et al. estimate that 46.8 percent of all hospitalizations
are for elective procedures. Whereas Davis is only examining
Massachusetts data, Dembe et al. are comparing data across 24 states.
OSHA believes that Dembe's sample of 24 states is likely to be more
representative of the U.S. than Davis's sample and has therefore
elected to use Dembe et al.'s estimate of 46.8 percent to derive the
number of work-related hospitalizations that are either scheduled or
elective. OSHA has opted to use the upper end of the range of estimated
work-related hospitalizations as its estimate of overall reported
hospitalizations, with the result that, based on Dembe's estimate of
the number of non-elective hospitalization paid for by workers'
compensation in 2001, an estimated 112,000 hospitalizations per year
will be reported to the Agency as a result of this final rule.
According to BLS, in 2009, there were 5,930 amputations that
involved days away from work (BLS, 2010). In its preliminary estimates,
OSHA assumed that all amputation and losses of an eye would result in
hospitalization. The more serious amputation cases will clearly require
in-patient hospitalization. Likewise, the loss of an eye usually
results in a hospitalization. OSHA estimated this in the proposal, and
there were no objections. OSHA continues to estimate that the loss of
an eye normally involves a hospitalization. OSHA notes (but, for the
basis of the analysis, does not rely on) Moshfeghi's support of this in
his 2000 article: A Review of Enucleation (Moshfeghi, et al., 2000).
However, in a comment on the proposed rule, Letitia Davis reported
that, for FY 2008 in Massachusetts, only 22 percent of all amputations
resulted in in-patient hospitalizations and that 4 percent of all
amputations resulted in hospitalization more than 24 hours after the
injury (Ex. 84). Based on Davis's results for Massachusetts, OSHA has
adjusted its preliminary nationwide estimate of in-patient
hospitalizations and amputations.
Amputations that result in in-patient hospitalizations (22 percent
of all amputations) have been accounted for in the estimate of 112,000
total in-patient hospitalizations above, and therefore affected
employers will not incur an additional reporting burden for amputations
resulting in in-patient hospitalizations as a result of the requirement
to report amputations. Amputations that occur more than 24 hours after
the work-related incident that leads to the amputation (4 percent) will
not be reportable under the final rule because they occur outside of
the required time for amputations to be reported; therefore affected
employers will not incur an additional reporting burden. The remaining
4,389 amputations (74 percent of 5,930 BLS-reported amputations) will
require additional reporting to OSHA. For this FEA, OSHA has
conservatively rounded up this figure to 5,000 amputations and has
included that estimate in the total number of events that will need to
be reported annually.
To summarize, OSHA estimates that a total of 112,000 single in-
patient hospitalizations (including 1,300 amputations that require
hospitalization, as well as all losses of an eye) and 5,000 amputations
not involving hospitalization will need to be reported to OSHA annually
as a result of this final rule. OSHA suspects that the resulting total
of 117,000 in-patient hospitalizations and amputations is an
overestimate of the actual number of events that would require
reporting under the final rule. OSHA could find no evidence to indicate
how many occupational injuries result in the loss of an eye in a year
and received no comments from stakeholders providing estimates of the
number of occupationally-related enucleation. Because the loss of an
eye is likely to require hospitalization, the estimated 117,000 single
in-patient hospitalizations and amputations should account for cases of
losses of an eye. OSHA is confident that an estimate of 117,000 reports
accounts for all reportable single in-patient hospitalizations, eye
losses, and amputations.
C. Costs of the Final Regulation
Overview
This section presents OSHA's estimate of the costs and cost savings
of the final rule. The time requirements for the activities associated
with the final rule have been developed through previous rulemakings
and information collection requests that have been subject to extensive
notice and comment. For the purpose of analyzing the costs of the
proposed rule, OSHA relied primarily on past estimates of the time
needed to complete recordkeeping activities; these past estimates of
unit time requirements have already been subject to multiple
opportunities for public comment, as they have been used in ICRs
multiple times. OSHA is continuing to rely primarily on these estimates
where they seem appropriate in light of the record. Past ICRs provide
estimates of the costs of all aspects of recordkeeping for new firms,
and these estimates were adopted in the preliminary analysis. Past ICRs
also provided estimates of the costs of reporting fatalities. For its
preliminary analysis, OSHA assumed that the costs of reporting
hospitalizations and amputations would have the same time requirements
as fatalities. (The specific past estimates on which OSHA relied are
cited for each time estimate.)
During the comment period of the proposed rule, OSHA received three
general comments on the overall costs. One commenter, Marshfield
Clinic, argued that being on the list of industries partially exempt from
keeping records wasn't a time savings for establishments that have been
selected by the Bureau of Labor Statistics (BLS) to keep records for the
BLS Survey of Occupational Injuries and Illnesses (SOII) (Ex. 15).
Marshfield Clinic asked that OSHA develop a trigger mechanism for determining
the ideal number of employers responsible for keeping the records, regardless
of their NAICS classification. The concept of an ideal number of employers
responsible for maintaining the OSHA injury and illness records would
only be valid if OSHA were compiling injury and illness data for
statistical purposes and were striving for a representative sample.
However, OSHA's data collection efforts serve a different purpose, and
therefore developing an ideal number of responsible employers is not in
keeping with OSHA's data collection purposes. OSHA asks for injury and
illness records to help OSHA, employees, and employers determine an
employer's past experience with worker health and safety. BLS selects
different businesses to keep records for the SOII each year, so that,
for example, reporting this year doesn't require an employer to report
in future years. BLS incurs the paperwork burden for their survey
requirements. OSHA is aware that some businesses will not realize a
full cost savings during the years when they are required to keep
records for BLS or other federal agencies. OSHA recognizes that (1)
there will be some cost savings in years when they report to BLS,
because of differences in the specific reporting requirements (such as
the need to certify OSHA but not BLS records), and (2) there will be a
cost savings in the years when they are not required to keep records.
For this FEA, OSHA has not assessed employer burden for BLS or any
other type of recordkeeping, nor does OSHA believe that such an
assessment is necessary in order to demonstrate the feasibility of the
final rule. Because OSHA and BLS do not account for any overlap in
their requirements, the combined estimated burdens of the two agencies
for recording injuries and illnesses almost certainly exceed the actual
burdens.
Some commenters (Exs. 64, 65, 67) suggested specific kinds of costs
that might have been overlooked in OSHA's preliminary cost estimates.
The Dow Chemical Company (Dow) was concerned that "one legal opinion
as to whether an injury is recordable could cost far more than [what
OSHA has estimated]." (Ex. 64). OSHA's experience is that borderline
cases that require a legal opinion on recordability are extremely rare.
In the overwhelming majority of recordkeeping cases, the recordability
is clear-cut. For those cases where it is not, the already necessary
determination of whether the case is compensable under workers'
compensation may help to resolve the issue. For the remaining cases,
most employers will find it less expensive to record an uncertain case
than to seek a legal opinion. Also, as stated elsewhere in this
document, OSHA has several resources available free of charge on its
Web site that can help employers determine recordability.
Another rulemaking participant, FedEx Corporation (FedEx),
commented that complying with the 8-hour reporting requirement for in-
patient hospitalizations would require new protocols and procedures
that would necessitate 150-175 hours annually (Ex. 67). The American
Trucking Association made a very similar comment (Ex. 65). OSHA
believes that extending the reporting deadline from 8 hours to 24
hours, and making clear that this deadline is from the time the
employer first learns of the reportable event (in-patient
hospitalization, amputation, loss of an eye) resulting from a work-
related incident, will relieve the need for the elaborate system for
tracking potential hospitalizations that these commenters envisioned.
The following subsection presents OSHA's estimate of the time
requirements and other unit values associated with the compliance
activities expected by OSHA following the effective date of the final
rule.
Unit Costs
Initial training of recordkeepers is expected to require one hour
per establishment and will apply only to current partially-exempt
establishments that would be newly required to keep records (OSHA,
2001). A commenter (Ex. 17) noted that this requirement would signify
the need for retraining of both human resource and safety
professionals. OSHA, based on its experience inspecting establishments
and discussing recordkeeping with stakeholders, believes that the
average establishment that employs 25 workers will only assign the task
of understanding of the details of recordkeeping to one employee per
establishment. This analytical assumption is consistent with OSHA's
Supporting Statement to the Information Collection Request (ICR)
transmitted to OMB in 2011 (OSHA, 2011). Some commenters argued that
much more extensive training would be needed. For example, Holman
Automotive Group (Ex. 124) and the National Association of Automobile
Dealers argued that training might involve a one-day course at a cost
of $300, plus the cost of employee time, travel expenses, etc. OSHA
believes this is an overestimate of potential training costs, as the
Agency's own Web site provides training on recordkeeping that can
easily be completed in less than one hour. It should be noted that
there is a trade-off between time spent on training and time spent on
individual records. A recordkeeper at a very large establishment with
many injuries and illnesses in the course of a year may find it more
efficient to have more extensive initial training in order to spend
less time on each individual record. On the other hand, a recordkeeper
who records only two or three injuries/illnesses a year will be better
off learning about the complexities of the system only if such
complexities ever actually arise in their establishment, resulting in
lower initial training costs but more time spent recording each case.
OSHA's estimates are designed to represent an average across large and
small firms and establishments, taking into account both situations
where more extensive initial training is provided as well as situations
where little or no initial training is done. OSHA also notes that
injury and illness recordkeeping development and training can account
for much more than just keeping records of injuries and illnesses under
29 CFR part 1904; in other words, these types of administrative
functions address not just other OSHA requirements but also
requirements for other agencies, such as BLS and workers' compensation
insurers. The one hour estimate presented in this FEA accounts for only
the incremental addition of training needed for OSHA-required recording
of injuries and illnesses.
Training of recordkeepers to account for turnover was estimated to
take one hour per establishment, and a turnover rate of 20 percent per
year was applied in the cost algorithm, resulting in an average of 0.2
hours per establishment per year to train newly-hired recordkeepers.
This estimate applies to costs for current partially-exempt
establishments that would be newly required to keep records and will
contribute to cost savings for establishments that would no longer be
required to keep records (OSHA, 2001). As discussed below, in the PEA,
OSHA estimated that this task would be performed by a Human Resource
Specialist, but for this FEA, OSHA has decided that it would be more
accurate to use the higher salary of an Occupational Health and Safety
Specialist (OHSS). A person with these higher qualifications will typically
be better able than a human resources specialist to carry out the required
duties in the estimated times.
The final rule will require the completing, posting, and certifying
of the OSHA Form 300A annually. OSHA estimates that 0.47 hours per
establishment, as calculated in the ICR, will be needed to complete and
post the form, and 0.5 hours will be needed to certify the log entries,
for a total of 0.97 hours per establishment. This estimate applies on a
per-establishment basis to costs for current partially-exempt
establishments that would be newly required to keep records and to cost
savings for establishments that would no longer be required to keep
records (OSHA, 2011).
In addition to the per-establishment costs incurred to complete,
post, and certify the OSHA Form 300A annually, there are also costs for
each injury and illness recorded. These costs include the costs for
completing the OSHA Form 301, entering each injury and illness on to
the OSHA Form 300, and responding to requests for copies of the OSHA
Form 301. OSHA estimated in the ICR that 0.38 hours per recordable
injury or illness will be expended to comply with these requirements
(OSHA, 2011). This estimate applies to costs for current partially-
exempt establishments that would be newly required to keep records and
to cost savings for establishments that would no longer be required to
keep records (OSHA, 2011).
OSHA received several comments on its time estimate of 15 minutes
for reporting in-patient hospitalizations and amputations to OSHA. OSHA
estimated that reporting in-patient hospitalizations or amputations is
an activity that is expected to require the same time as OSHA estimates
for reporting fatalities and multiple hospitalizations: 0.25 hours (15
minutes) of OHSS labor per fatality or hospitalization (OSHA, 2011).
Several commenters suggested that reporting to OSHA would take more
than 15 minutes (Exs. 46, 64. 65, 67, 68, 83, 110). These commenters
provided several different reasons for believing that more than fifteen
minutes would be required. Some commenters were concerned that the call
itself would require more than 15 minutes. The American Society of
Safety Engineers and others claimed that the telephone call to report
to OSHA is too complex to complete in 15 minutes. Mercer ORC HSE
Networks stated that it could take longer than 15 minutes to make a
connection over the telephone with OSHA, and that such a connection is
especially difficult outside of OSHA's normal operating hours (Ex. 68).
Other commenters were concerned with the possibility that the
required information would be difficult to obtain within the required
time frame. Some commenters (see Exs. 65 and 67) asserted that
elaborate procedures would need to be in place to assure that all
hospitalizations were reported within eight hours of admission. OSHA
has altered the final rule to require reporting within 24 hours of the
hospitalization, and to clarify that the 24 hours starts when the
employer learns of the reportable event resulting from a work-related
incident.
Other commenters were concerned that pre-call activities had not
been included in the time estimate. The Dow Chemical Company stated
that the telephone call to report the event would require the attention
of several different salaried professionals (Ex. 64). FedEx said that
the allotted time should also include the time required to enter the
information into their system and to allow for subsequent review by
management, and recommended that OSHA use 30 minutes as the estimate
for the reporting time (Ex. 67). The American Trucking Association
stated the view that 15 minutes is a "gross underestimation" of the
time required to report to OSHA and that, in their experience,
reporting takes, on average, 30 minutes (Ex. 65). NUCA, a trade
association representing utility construction and excavation
contractors, expressed a concern that OSHA's PEA "significantly
underestimated the economic impact of obtaining injury information on a
construction site which does not necessarily have an office." In
NUCA's estimation, the entire process of collecting, transmitting, and
recording the information would far exceed 15 minutes (Ex. 110). NUCA
was also concerned that field operations without offices would have
trouble complying with the rule (Ex 110).
In response, OSHA notes that employers are already required to
gather all of the information required for reporting the
hospitalization in order to record the injury or illness within seven
days of the occurrence of the injury or illness. The question is
therefore whether the need to report within 24 hours of finding out
about the hospitalization or the need to report directly to OSHA,
increases the time necessary to obtain the required information. OSHA
also notes that employers are routinely in touch with hospitals for
work-related incident in order to communicate necessary information
related to Workers' Compensation. (The HIPAA Privacy Rule has an
exemption for employers involved in the workers' compensation system:
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/workerscomp.html)
OSHA believes that 15 minutes is a reasonable approximation of the
time required for the telephone call alone. In response to the comment
from Mercer ORC HSE Networks (Ex. 68) about the difficulty of reaching
OSHA within 15 minutes, the Agency notes that OSHA has a toll-free
number for employers to call that is staffed 24 hours per day to allow
immediate reporting at any hour of the day. This final rule also
enables 24-hour electronic reporting using a web form that OSHA will
develop in conjunction with issuance of the final rule. OSHA
acknowledges that there might be times when an employer will have to
wait on hold to speak to an OSHA representative, but on the average,
even allowing for such delays, the phone call should not exceed 15
minutes.
Many, if not most, employers will need no additional time beyond
the time for the telephone call for the task of reporting a fatality,
hospitalization, amputation, or loss of an eye, given they are both
already required to obtain the information, and will frequently have
the necessary information as a result of communications related to
Workers' Compensation. However, OSHA recognizes that some firms,
particularly larger firms, may require additional review of reports
that are sent directly to OSHA and that may well trigger OSHA
enforcement activities. In addition, some firms may need to undertake
additional information-gathering efforts, such as calls to hospitals or
interviews with other employees, that would not have been necessary in
the current seven-day timeframe for recording cases. As a result of
these considerations, OSHA has adopted the suggestion of some
commenters (Exs. 65 and 67) to expand the total estimate of time
required to report a hospitalization from 15 minutes to 30 minutes.
Dow argued that OSHA should also take into consideration the time
spent following up with OSHA inspectors (Ex. 64). Other commenters made
similar points and were also concerned about the time spent with
follow-up inspections (Exs. 37, 67). In general, the requirements in
this final rule will not result in additional OSHA enforcement
activities. Instead, the provisions of the final rule should only
result in more letters from OSHA to employers. OSHA inspections may
increase at some facilities that report hospitalization, but may
decrease at other facilities. OSHA does not have the data to determine
which industries will be more or less affected, but believes that this will
be a shift in the cost of being inspected, as opposed to an increase in net
costs. To the extent that inspections targeted on reports of an in-patient
hospitalization result in more citations than other inspections, such
inspections may result in greater costs than other inspections. However,
OSHA lacks the data to make an estimate of such costs at this time. This
topic is discussed in more detail in the benefits section.
For the PEA, OSHA estimated that recordkeeping tasks would most
likely be performed by a Human Resource, Training, and Labor Relations
Specialist, not elsewhere classified (Human Resource Specialist),\7\ a
labor category defined by BLS's Occupational Employment Statistics
(OES) program. Some commenters noted that the people keeping records
would be likely to earn more than $28.00 per hour, or approximately
$56,000 per year, and that the required recordkeeping tasks would more
accurately be performed by an individual whose qualifications were
similar to those of an Industrial Hygienist (Exs. 64, 117). OSHA agrees
with that recommendation and, for this FEA, has assigned the
recordkeeping tasks to an Occupational Health and Safety Specialist \8\
(OHSS) earning $31.54 per hour on average, or approximately $66,000 per
year (BLS, 2011b). OSHA is aware that relatively few employers affected
by this rule actually employ an OHSS, but feels that the additional
cost per hour more accurately reflects the costs for recordkeepers. The
labor hours assigned in OSHA's updated Recordkeeping ICR (OSHA, 2011)
reflect this OES occupation category, and OSHA has applied the OHSS
wage in this FEA.
---------------------------------------------------------------------------
\7\ BLS Occupational Employment Statistics (OES) code 13-1078.
\8\ BLS Occupational Employment Statistics (OES) code 29-9011.
---------------------------------------------------------------------------
In December 2011, BLS reported that employer costs for employee
benefits (other than wage and salary) were 30.1 percent of total
compensation for management, professional, and related occupations
(BLS, 2011c). OSHA calculates a mean fringe benefit factor of 1.43 for
management, professional, and related occupations.\9\ Multiplying the
base wage of $31.54 by the fringe benefit factor of 1.43 yields a total
cost to employers for employee compensation of $45.12 in hourly wages
for an OHSS.
---------------------------------------------------------------------------
\9\ The percentage of total wages attributed to employee
benefits (0.301) divided by the percent of total wages attributed to
base wages (0.699) = the fringe benefit factor (1.43).
---------------------------------------------------------------------------
OSHA has also determined that, while an OHSS or equivalent employee
will perform the recordkeeping duties, there is likely to be a more
senior employee responsible for certifying the OSHA Form 300A (Annual
Summary). In the recordkeeping ICR (OSHA, 2011), OSHA estimated that
the person responsible for certifying the log will typically have a
wage equivalent to an Industrial Production Manager. OSHA has adopted
that estimate for this analysis. An Industrial Production Manager \10\
(or IPM, a labor category defined by OES), or equivalent employee, is
expected to earn an average of $45.99 per hour (BLS, 2011b). Applying
the fringe benefit factor of 1.43 to this salary, total hourly
compensation is calculated to be $65.79 for an IPM.
---------------------------------------------------------------------------
\10\ BLS Occupational Employment Statistics (OES) code 11-3051.
---------------------------------------------------------------------------
The Small Business Administration (SBA) Office of Advocacy urged
OSHA to consider "whether its wage rate assumption is valid for many
small businesses" (Ex. 94). OSHA agrees that recordkeeping will more
likely be performed by an OHSS or equivalent employee, and the Agency's
2011 ICR for Recordkeeping reflects this cost assumption (OSHA, 2011).
As noted above, for this FEA, OSHA has applied a higher wage than the
wage applied in the PEA. OSHA recognizes that there is significant
diversity among firms with respect to the personnel charged with OSHA
recordkeeping responsibilities. Smaller firms may have a bookkeeper
perform this function, while larger firms will likely use an
occupational health and safety specialist. However, OSHA believes that
the hourly cost of $45.12, the total compensation of an OHSS, is a
reasonable estimate of the costs for the typical recordkeeper,
regardless of actual occupation.
Another commenter asked that OSHA always use an overtime wage (Ex.
100). In fact, OSHA's estimate of loaded wages (wages that include
compensated benefits) includes an overtime and premium component within
the compensated benefits. Therefore, OSHA believes that its estimate of
loaded wages captures overtime compensation. OSHA does not believe that
the overtime rate would be an appropriate measure for the base rate in
all circumstances, because OSHA does not anticipate that all labor
resulting from the regulation will occur during overtime.
Total Costs
Combining the unit time requirements, hourly wages, numbers of
establishments, and injury and illness totals presented in Table V-1,
Table V-3 shows OSHA's estimate of the cost of the final rule for the
current partially-exempt employers who would need to keep records as a
result of the final rule. The expected annualized cost of the rule to
those employers is $17.9 million per year, with the most expensive
element being the completion, certification, and posting of the OSHA
Form 300A ($11.9 million per year). The 4-digit industry projected to
bear the highest cost ($2.9 million) is NAICS 6241, Individual and
Family Services.
Combining the unit time requirements, hourly wages, number of
establishments, and injury and illness totals presented in Table V-2,
Table V-4 shows OSHA's annualized estimate of the cost savings of the
final rule for employers who would no longer need to routinely keep
records as a result of the final rule. OSHA estimates that the total
cost savings for these employers would be $11.5 million per year.
Combining estimated costs and estimated savings, the net cost of
the changes in the partial exemption part of the final rule is $6.4
million per year.
[GRAPHIC] [TIFF OMITTED] TR18SE14.002
[GRAPHIC] [TIFF OMITTED] TR18SE14.003
To estimate the costs of reporting in-patient hospitalizations,
amputations, and losses of an eye, OSHA multiplied the estimated number
of such events per year (112,000 in-patient hospitalizations plus 5,000
amputations not leading to in-patient hospitalizations), the estimated
time per report (0. 5 hours), and the hourly compensation costs of a
recordkeeper ($45.12). The resulting estimate of the annual cost of
this provision is $2.6 million per year.
Table V-5 shows the total net costs of the final rule considering
all three elements: costs incurred by current partially-exempt
employers who would be newly required to keep records, cost savings to
employers who would no longer be required to routinely keep records,
and costs associated with the reporting of all in-patient
hospitalizations, amputations, and losses of an eye. OSHA estimates
that the total net costs of this final rule would be $9 million per
year.
Table V-5--Annualized Costs and Cost Savings for the Major Elements of
the Rule
------------------------------------------------------------------------
Cost or cost savings element Value
------------------------------------------------------------------------
Costs to Employers Newly Required to Keep Records..... $17,920,888
Cost Savings to Employers Newly Exempt from Keeping (11,532,266)
Records..............................................
Costs of Additional Reporting of Hospitalizations, 2,639,520
Amputations and Losses of an Eye.....................
------------------------------------------------------------------------
Net Costs............................................. 9,028,142
------------------------------------------------------------------------
D. Benefits
OSHA believes that the conversion from SIC to NAICS and the revised
reporting requirements have substantially different goals and thus
different potential benefits. OSHA expects the conversion from SIC to
NAICS to result in more useful injury and illness data. The SIC system
currently used by OSHA is obsolete and has not been used by many other
data collection entities for years. Converting to NAICS will enable
both affected employers and OSHA to achieve consistency and
comparability with other data collection efforts conducted by both
public and private entities. OSHA found little controversy concerning
the concept of converting from SIC to NAICS. However, there is no way
to convert from SIC to NAICS without changing in some way the number of
establishments required to routinely record injuries and illnesses.
This result is inevitable because there is no one-for-one mapping from
SIC to NAICS for many industries. Some SIC industries were split into
several NAICS industries that include other SIC industries, while some
NAICS industries represent consolidations of several SIC industries.
OSHA decided that the best way to conduct the conversion was to update
the included industries using BLS data on DART rates by NAICS code, and
apply the rule used in two previous OSHA rulemakings--that
establishments in industries with DART rates of 75 percent or more of
the mean overall DART rate should record injuries and illnesses. Based
on analysis of the record and data from the Census Bureau provided in
the industrial profile section of this analysis, OSHA estimates that
160,000 establishments will now be partially exempt from keeping
records. According to 2010 data from BLS, these establishments have an
average injury and illness rate of 1.4 cases per 100 full-time workers.
On the other hand, the revision to the regulation applies injury and
illness recordkeeping requirements to an additional 220,000
establishments that have an average injury and illness rate of 2.8
cases per 100 full-time workers. Though on average, establishments
newly required to record have higher injury and illness rates than
those newly partially exempted, there will certainly be individual
portions of industries that are newly required to record even though
their injury and illness rates are quite low, as well as portions of
industries that are newly exempt even though their injury and illness
rates are quite high. This is the inevitable result of categorizing
industries based on similarity of business products or services rather
than similarity of risk of occupational injury and illness. However, as
the average injury and illness rates for the industries newly required
to record and newly partially-exempt from recording show, on the whole
the changes that result from the transition from SIC to NAICS will
require higher-risk establishments to record while partially-exempting
lower-risk establishments.
Some commenters, such as the SBA Office of Advocacy, were concerned
that "industries with declining injury and illness rates would now be
required to maintain OSHA Logs even though their workplaces have become
safer." SBA went on to call the basic criteria OSHA used
"arbitrary." There was also an implicit concern that although
industries had lower injury and illness rates in the aggregate, more
industries would be required to routinely record. On the other hand,
some commenters argued that OSHA should require all establishments to
routinely record work-related injuries and illnesses.
OSHA's original justification in 1982 for providing a partial
exemption to industries with injury and illness rates below 75 percent
of the national average injury and illness rate was primarily based on
two reasons, (1) that records would be available in establishments more
likely to be inspected by OSHA; and (2) that the number of
establishments required to keep records that would record no injuries
or illnesses would be limited (47 FR 57699-701). At that time, OSHA
viewed the primary purpose of injury and illness rate records as
something to be made available during an OSHA inspection. Since OSHA
continues to do inspections, the decline in injury and illness rates is
not relevant to the first reason. As for the second reason, the size of
the establishment is at least as relevant as the injury and illness
rate. A larger establishment with a lower injury and illness rate may
be more likely to have a recordable injury or illness than a smaller
establishment with a higher injury and illness rate,
The changes to the partial exemption in this final rule have
several benefits, two of which were explicitly recognized in the
original 1982 rulemaking. First, because on average, the update in the
data used to calculate the average DART rate partially exempts
establishments with a lower average DART rate from the recording
requirements, and adds establishments with a higher average DART rate
to the recording requirements, there will be fewer facilities that will
have to keep records even though they will never record an injury or
illness. Second, the establishments that OSHA is most likely to
inspect, those with 10 or more employees in higher-hazard industries,
will have a record of injuries and illnesses available at the time of
the inspection. OSHA is relatively unlikely to inspect partially-
exempted industries unless there is a fatality, catastrophe, or
complaint, and thus there is less need for a record of injuries and
illnesses to help guide the inspection.
In addition, OSHA emphasizes today that recordkeeping is not simply
a requirement useful in the event of an OSHA inspection, but that
recordkeeping also permits workers and employers to gather worksite
data that enhance the identification and elimination of hazards that
pose serious risks to workers. This function seems useful whenever and
wherever there are preventable injuries and illnesses and is not
limited by the level of hazard found. There are several reasons to
believe that a requirement to keep records can be a first step toward
lowering injury and illness rates. Simply the process of keeping and
certifying accurate records will make employers more aware of their
safety and health problems and provide them with a basis for
benchmarking themselves against others in their industry. Recordkeeping
data should also allow them to take steps to prevent injuries and
illnesses from occurring in the same manner. Having records available
also enables OSHA compliance officers to focus their inspection
activities in areas with high numbers of injuries and illnesses. As a
result of keeping records, the average employer in an industry with
relatively high injury and illness rates, their employees, and OSHA
will have a better understanding of the nature of the serious injuries
and illnesses occurring in establishments. On the other hand, some
employers with relatively low injury and illness rates will now be
partially exempt from keeping records and providing them to their
employees or OSHA.
The employers newly required to keep records have an average costs
of $117 per injury or illness recorded (based on dividing the total
cost of recording in Table V-3 by the total number of injuries in Table
V-1.) On the other hand, newly partially-exempted establishments had
average costs of $208 per injury and illness recorded (based on
dividing the total cost of recording in Table V-4 by the total number
of injuries in Table V-2.) This revision is more cost-effective than
the original rule in the sense that the revision adds employers with a
lower average cost of recording injuries and illnesses and removes
employers with a higher average cost, and this serves to lower the average
cost of recording injuries and illnesses for the rule as a whole.
Although OSHA lacks the information to determine the exact value of
keeping OSHA injury and illness records, it is possible to look at
scenarios that justify OSHA's assertion that there is some value to
recording injuries and illnesses when the cost of recording is under
$200 per case. A meta-analysis of willingness-to-pay estimates
(Viscusi, et al., 2003) values a prevented injury at $62,000. Using the
cost of a record as $117 per case, there would be recordkeeping costs
of $23,400 for two hundred cases. If keeping injury and illness records
results in eliminating one injury in two hundred, then there would be
benefits for these two hundred injuries and illnesses of $62,000.
Compared to costs of $23,400, this results in a net benefit of $38,600
for these two hundred cases. However, some account must be taken of the
costs of correcting these hazards. If the costs of eliminating the
hazard that lead to the injury or illness are $38,600, then the benefit
and costs would be equal ($62,000 in benefit equals $23,400 in
recording costs plus $38,600 in control costs.) To the extent that the
ratio of illnesses and injuries prevented to illnesses and injuries
reported is greater than 1 in 200, or if the control costs necessary to
prevent the injury or illness were lower, the benefits of keeping the
record would exceed the costs. OSHA believes that there are many such
situations. For example, many injuries could be prevented by assuring
that already-provided PPE is consistently used--a relatively
inexpensive kind of fix. Further, there may be situations in recording
injuries and illnesses that may be worthwhile even when the cost of
recording exceeds an average of $200 per case. In any event,
investments in preventing injuries and illnesses as a result of
recordkeeping are entirely voluntary, and employers are likely to
undertake only those investments for which the employer believes the
benefits will exceed the costs. If the employer does not find that the
benefits will exceed the costs, there may be instances where the rule's
reporting requirements will not lead to health and safety benefits.
As noted above, OSHA's criteria for the partial exemption were
intended neither to expand nor to contract the number of establishments
required to keep records. They were instead intended to minimize the
number of establishments required to keep records that have nothing to
record, while assuring that the establishments OSHA would be most
likely to visit would keep records. Given this approach, there is no
reason why the number of establishments covered by the recordkeeping
regulation should not rise as aggregate industry rates go down,
especially when rates in some of the industries with the highest rates
have gone down the fastest. Further, OSHA inspections suggest, and
safety and health professionals agree, that injury and illness records
can have value to employers and employees even when OSHA does not
visit, provided that reasonable numbers of preventable injuries and
illnesses remain in the industries required to keep records.
The requirement to report all work-related fatalities, in-patient
hospitalizations, amputations, and losses of an eye assures that OSHA
will be able to better use inspection and enforcement resources by
targeting those resources to establishments with the most serious
hazards. OSHA currently requires the reporting only of fatalities and
incidents resulting in three or more hospitalizations. In-patient
hospitalizations, amputations, and losses of an eye due to work-related
incidents are serious and significant events. Requiring the reporting
of each of these events will ensure that OSHA is informed of
approximately 30 times as many serious events. There are some incidents
leading to hospitalizations that, by their very nature, virtually
guarantee that an OSHA standard was violated. OSHA does not intend to
conduct an inspection for every reported hospitalization. Instead, the
Agency will treat each hospitalization on a case-by-case basis, and
depending on the circumstances, determine whether it is necessary to
inspect, respond by phone and fax, or provide compliance assistance
materials. Greater awareness regarding the extent and nature of such
cases helps OSHA develop and prioritize various OSHA enforcement
programs and initiatives. It also serves the public interest by
enabling OSHA to more effectively and efficiently target occupational
safety and health hazards.
There will also be potential benefits as a result of better
inspection targeting, to the extent that OSHA's resources are able to
lead to the abatement of a greater number of hazards, and these
abatements have benefits that exceed the costs. The abatement of
additional hazards will also result in additional costs to industry to
abate these hazards. OSHA conducts its enforcement and consultation
programs based on the belief that, in the aggregate, abatement of more
occupational hazards is a reasonable goal for the Agency. This belief
is supported by the fact that, in the aggregate, OSHA's estimates of
the benefits and costs of regulations since 1980 show that the benefits
exceed the costs.
Six commenters (Exs. 68, 102, 108, 111, 113, 118) either argued
that the proposed requirement to report hospitalizations and
amputations had no benefits or urged OSHA to present a fuller analysis
of benefits. The National Association of Home Builders (NAHB) stated
that "the burden has no corresponding benefit" (Ex. 113). The
American Supply Association commented, "There is no evidence that
reporting isolated hospitalizations to OSHA would meaningfully improve
safety within the workplace" (Ex. 111). OSHA acknowledges that the PEA
did not include a quantified benefits analysis, but argues that the
costs of the regulation are such that the regulation need only have a
minute effect in reducing injuries and illnesses for the benefits to
exceed the costs. In this final preamble, OSHA has attempted to more
carefully indicate why it believes there may be potential benefits
associated with such reporting. To assist in this explanation, OSHA has
introduced some new studies to the docket, which will be cited where
relevant. However, OSHA is not depending on this new information.
Having data on establishments that experience significant events
and have higher injury and illness rates will improve inspection
targeting. Studies have shown that OSHA inspections can lead to a
reduction in the rate of injuries and illnesses, and that the effect is
greater where injury and illness rates are higher and where the
inspection finds violations that result in a citation. Most studies
reviewed showed reductions in injuries and illnesses at a given
facility only when the inspection uncovered safety and health
violations that resulted in citations. In a working paper funded by the
RAND Corporation, Haviland (Haviland, et al., 2008) estimated that
firms with between 20 and 250 employees experience a 19 to 24 percent
reduction in injury rates per year for two years following an
inspection that results in a citation. Haviland went on to review
similar prior studies, noting that "Gray and Mendeloff (2005)
concluded that the impacts of OSHA penalty inspections [measured as a
decline in injuries in the years following an inspection that found
penalties] on lost workday manufacturing injuries had declined steadily
over three periods--from an average of about 20 percent [decline in
injuries in the years following an inspections where violations were
found and penalties were levied] in 1979-1985 to about 12 percent in
1987-1991 and to only (a non-significant) 1 percent in 1992-1998." These
various studies thus provide a range of a 1 to 24 percent decline in
injuries in the years following an inspection that found health and safety
violations that resulted in citations. The studies varied as to the size
and industry of establishments studied, and varied in examining effects
from 2 to 4 years after the inspection, but show strong evidence that there
is some positive effect for worker health and safety in the years following
an inspection where citations are issued.
These studies show that inspections targeted to establishments with
higher injury and illness rates have a greater potential for reducing
injuries and illnesses. The revisions that OSHA is making to these
provisions in Part 1904 will increase the amount of injury and illness
data recorded on employer records and available for review and
collection by OSHA. With this improved availability of data, OSHA will
be able to better target facilities that are more likely to have
violations that result in citations, which will, in turn, have some
positive effect on the rates of injuries and illnesses at those
facilities. The benefit of such improved targeting will only exceed the
cost of improved targeting where the benefits of prevented injuries and
illnesses exceed the costs of correcting of the hazards found via the
improved targeting. However, OSHA's contribution to the Department of
Labor's Strategic Plan is based on the belief that improved targeting
that results in reduced injuries and illnesses is a desirable goal.
Benefits in improved inspection targeting are the primary source of
potential benefits for the requirement to report all in-patient
hospitalizations. Data from the states that currently require reporting
of single work-related in-patient hospitalizations show that
inspections resulting from those hospitalizations result in citations
66.5 percent of the time, while all other inspections result in
citations 51.8 percent of time (OSHA 2012 Integrated Management
Information System, Data Query). Given the finding that citations
resulting from inspections help to reduce the rates of workplace
injuries and illnesses in the years following the inspections,
requiring reporting of single work-related in-patient hospitalizations
at an estimated cost of under $23 per report is highly likely to have a
positive effect on worker safety and health.
E. Technological Feasibility
Partial Exemption
There are a large number of establishments already recording
injuries and illnesses in compliance with the existing Part 1904
regulation. Further, every year, some firms that were partially exempt
from routinely keeping records under the existing regulation have had
to report injury and illness data to BLS, which demonstrates that such
firms are capable of keeping the required records. OSHA does not see
any reason why employers in industries no longer partially exempt from
recording requirements would experience any feasibility difficulties in
complying with this final rule, and no industry that is newly required
to keep records has recordkeeping issues that would cause it to be
significantly different from industries that are already required to
maintain the records.
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and
Losses of an Eye
In six states, an estimated 1.3 million establishments under OSHA
jurisdiction are currently required to report single in-patient
hospitalizations. There are approximately 7.4 million establishments
currently under OSHA's nationwide jurisdiction (Census Bureau, 2009).
Nearly 18 percent of all establishments in the U.S. are already
required to report single in-patient hospitalizations and are
successfully doing so. Therefore, OSHA has no reason to believe that
employers newly required to report single in-patient hospitalizations
would have difficulty complying with this final rule.
F. Economic Feasibility and Impacts
In this section, OSHA first considers the economic impact on firms
newly required to keep records under this final rule, and then turns to
the economic impact of requirements to report in-patient
hospitalizations, amputations, and losses of an eye. The economic
impact for firms that are no longer required to routinely keep records
is a net reduction in costs and is thus obviously economically
feasible.
Partial Exemption
OSHA's primary estimate of economic impacts for this analysis is
total annualized cost of compliance per establishment, calculated by
dividing the total annualized incremental costs of compliance for each
industry by the number of affected establishments in each industry.
Table V-6 shows the costs per establishment for four-digit NAICS
industries, and Table V-6A, in the appendix, shows the costs per
establishment for six-digit NAICS industries. Costs per establishment
average $82 per year and range from a minimum of $71 per year per
establishment to a maximum of just under $150 per year per
establishment across six-digit NAICS industries. OSHA believes that
costs of this magnitude could not possibly affect the viability of a
firm and are thus economically feasible. This finding of economic
feasibility would still be valid even if the costs of this provision
were considerably greater than OSHA's estimates. After all, employers
have had to meet these recordkeeping requirements in many industries
for years with no reported impact on the economic viability of those
industries.
[GRAPHIC] [TIFF OMITTED] TR18SE14.004
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and
Losses of an Eye
OSHA received many comments claiming that the provision requiring
employers to report fatalities, hospitalizations, and amputations
within a specified time period would be overly burdensome to employers
and would cost more than OSHA estimated (Exs. 27, 39, 53, 63, 89, 97,
98, 104, 105, 108, 111, 113, 119). However, OSHA received no comments
that such costs would be economically infeasible. OSHA notes the
estimate of total costs of approximately $2.6 million per year across
all 7.4 million business establishments in OSHA's jurisdiction; the
average cost per establishment of this provision is $0.32 per
establishment per year. In a typical year, most establishments will not
report a single work-related in-patient hospitalization, amputation, or
loss of an eye. For those establishments that do report such incidents,
the costs will be approximately $23 per reported incident. Costs of
this magnitude--which represent the costs of 30 minutes of employer
time--will not affect the viability of any firm. Even if these costs
were significantly higher, they would not affect the viability of any
firm and thus could not affect the economic feasibility of this part of
the regulation.
G. Regulatory Flexibility Certification
After the final rule becomes effective, OSHA will continue to
partially exempt employers with fewer than 11 employees from routinely
recording work-related injuries and illnesses. Such very small firms
are affected by the revisions to this rule only insofar as they may
have to report a fatality, in-patient hospitalization, amputation, or
loss of an eye. Such an event will be extremely rare for most small
firms, and even when they occur, OSHA has estimated the costs as
approximately $23 per report, a sum that will not represent a
significant economic impact for even the smallest firms.
Most of the employers affected by the change in the partial
exemption to the recordkeeping regulation are small firms. Even when
considering the mix of small and large firms covered by this final
rule, the average cost per establishment is well under $100 per year
per establishment. OSHA believes that average costs of less than $100
per establishment do not represent a significant economic impact on
small firms with 11 employees or more. The cost will be lowest for very
small firms that do not have any injuries and illnesses to record.
However, because the fixed costs of setting up a recordkeeping system
are high relative to the marginal costs per injury or illness recorded,
the smallest firms with few injuries and illnesses to record will still
have the highest costs as percentage of revenues.
The Associated General Contractors of America stated that they
believe that a Small Business Regulatory Enforcement Fairness Act
(SBREFA) panel would enable the Agency to better assess the
impacts of this final rule on small businesses (Ex. 115). The U.S.
Chamber of Commerce also commented that OSHA would benefit from a
SBREFA panel because of the large number of small businesses that will
now have to keep records (Ex. 120). The SBA Office of Advocacy asked
OSHA to consider conducting additional public outreach (Ex. 94). In
response to these comments, OSHA notes that there are already a
substantial number of small businesses currently required to keep
records under the previous regulation, and that no evidence was
presented in the record to show that small businesses are experiencing
significant economic impacts as a result of complying with provisions
identical to those required by this final rule. OSHA reiterates that
with compliance costs of approximately $23 per report for reporting an
incident, and average annual costs of less than $100 for recording
injuries and illnesses, these costs do not represent an economic impact
on small firms of the magnitude that the Agency believes would compel
the need for a SBREFA panel. OSHA has engaged stakeholders throughout
the rulemaking process and received many comments from small businesses
that the Agency incorporated into this final rule and FEA. As a result,
OSHA considers it unlikely that a SBREFA panel would provide any new
information that would alter the estimates of costs or the alternatives
considered as a part of this rulemaking.
The Associated General Contractors of America stated that the
proposed rule on the MSD column showed that OSHA underestimates small
business impact (Ex. 115). OSHA has not made any determination, either
affirmative or negative, on the assertion that OSHA underestimated the
small business impacts of the MSD column proposed rule.
As a result of these considerations, and in accordance with the
Regulatory Flexibility Act, OSHA certifies that the final rule will not
have a significant economic impact on a substantial number of small
entities.
H. Appendix: FEA Data at the Six-Digit NAICS Level
This appendix provides supporting material developed in support of
this rule at the six-digit NAICS level.
Table V-1A presents data on industries with establishments that
would be newly required to keep records. The table shows the six-digit
NAICS code, industry name, number of affected employees, and estimate
of the number of recordable injuries and illnesses, based on historical
data, for newly affected employers.
Table V-2A presents data on industries with establishments that
would be newly partially exempt from recordkeeping. The table shows the
six-digit NAICS code, industry name, number of affected establishments
per industry, number of employees, and estimated number of injuries and
illnesses that would no longer be recorded in each affected industry.
Table V-3A shows OSHA's estimates of the costs of the final rule,
at the six-digit NAICS level, for current partially-exempt employers
who would need to keep records as a result of the final rule.
Table V-4A shows OSHA's estimates of the cost savings of the final
rule, at the six-digit NAICS level, for employers who would no longer
need to keep records as a result of the proposed rule.
Table V-6A shows the costs per establishment at the six-digit NAICS
level.
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Bureau of Labor Statistics BLS, 2010. "Nonfatal Occupational
Injuries and Illnesses Requiring Days Away From Work". http://
www.bls.gov/news.release/archives/osh211092011.pdf*.
Accessed March 2012.
Bureau of Labor Statistics 2011a. "Incidence Rate and Number of
Nonfatal Occupational Injuries by Industry and Ownership 2010".
http://www.bls.gov/iif/oshwc/osh/os/ostb2427.pdf*. Accessed March
2012.
Bureau of Labor Statistics 2011b. "National Occupational Employment
and Wage Estimates--May 2010". United States Bureau of Labor
Statistics, April 2011.
Bureau of Labor Statistics 2011c. "Employer Cost for Employee
Compensation--September 2011". December 2011.
Bureau of Labor Statistics 2012. Occupational Injuries and
Illnesses: Industry Data database. Data Query February.
Census Bureau, U.S. 1997. "Bridge Between NAICS and SIC". 1997
Economic Census http://www.census.gov/epcd/ec97brdg/. Accessed
October 2010.
Census Bureau, U.S. 2002. "Bridge Between 2002 NAICS and 1997
NAICS, All Sectors. U.S." 2002 Economic Census.
http://www.census.gov/econ/census02/data/bridge/. Accessed October 2010.
Census Bureau, U.S. 2007. "2002 NAICS to 2007 NAICS".
http://www.census.gov/eos/www/naics/concordances/concordances.html.
Accessed October 2011.
Census Bureau, U.S. 2008. "Number of Firms, Number of
Establishments, Employment, and Annual Payroll by Employment Size of
the Enterprise for the United States, All Industries 2006". http://
www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls*. Accessed
September 2010. Census Bureau, U.S. 2009. "Number of Firms, Number of
Establishments, Employment, and Annual Payroll by Employment Size of
the Enterprise for the United States, All Industries 2009".
http://www.census.gov/econ/cbp/download/09data/index.htm/cbp09us.zip.
Accessed September 2010.
Census Bureau, U.S. 2012. "U.S., All Industries. Statistics of U.S.
Businesses". http://www.census.gov/econ/susb/ Accessed March 2013.
Centers for Disease Control and Prevention 2007. "Nonfatal
Occupational Injuries and Illnesses--United States, 2004".
Morbidity and Mortality Weekly Report. April 27. 56(16):393-397"
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5616a3.htm. Accessed
April 2012.
Dembe AE, Mastroberti MA, Fox SE., Bigelow C, and Banks SM 2003.
"Inpatient hospital care for work-related injuries and illnesses".
American Journal of Industrial Medicine. 44(4):331-42.
Haviland AM, Burns RM, Gray W, Ruder T, and Mendeloff J 2008. "The
Impact of OSHA Inspections on Lost Time Injuries in Manufacturing:
Pennsylvania Manufacturing, 1998-2005". Working paper. RAND Center
for Health and Safety in the Workplace. September.
http://www.rand.org/pubs/workingpapers/2008/RANDWR592.pdf. Accessed
March 2012. Leigh JP, Markowitz SB, Fahs M, and Landrigan PJ 2000.
"Costs of Occupational Injuries and Illnesses". Ann Arbor: University
of Michigan Press.
Moshfeghi DM, Moshfeghi AA, and Finer PT 2000, "A Review of
Enucleation". Survey of Ophthalmology. 44:277-301.
Murphy PL, Sorock GS, Courtney TK, Webster B, and Leamon TB 1996.
"Injury and Illness in the American Workplace: A Comparison of Data
Sources". American Journal of Industrial Medicine. 30:130-141.
Occupational Safety and Health Administration 2001. "Occupational
Injury and Illness Recording and Reporting Requirements: Final
Economic Analysis". FR 66:5916-6135. January 19.
Occupational Safety and Health Administration 2010. "Regional
Federal and State Fatality/Catastrophe Weekly Report Ending
September 25, 2010". http://www.osha.gov/dep/fatcat/
fatcatregionalrpt09252010.html. Accessed
March 2012.
Occupational Safety and Health Administration 2011. "Recordkeeping
and Reporting Occupational Injuries and
Illnesses (29 CFR Part 1904): Supporting Statement A". ICR, SS
1218-0176. March 23.
Occupational Safety and Health Administration 2012. Integrated
Management Information System, Data Query 2012.
Office of Management and Budget 2006. "North American Industry
Classification System--Revision for 2007". Notice. 70 FR 12390-
12399. May 16.
Viscusi, Kip; Joseph E. Aldy 2003. "The Value of a Statistical
Life: A Critical Review of Market Estimates Throughout the World."
Journal of Risk and Uncertainty. 2003 27 (1): 5-76.
VI. Environmental Impact Assessment
OSHA has reviewed the provisions of this final rule in accordance
with the requirements of the National Environmental Policy Act (NEPA)
of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality
(CEQ) NEPA regulations (40 CFR parts 1500-1508), and the Department of
Labor's NEPA Procedures (29 CFR part 11). As a result of this review,
OSHA has determined that the final rule will have no significant
adverse effect on air, water, or soil quality, plant or animal life,
use of land, or other aspects of the environment.
VII. Federalism
The final rule has been reviewed in accordance with Executive Order
13132 regarding Federalism (52 FR 41685). The final rule is a
"regulation" issued under Sections 8 and 24 of the OSH Act (29 U.S.C.
657, 673) and not an "occupational safety and health standard" issued
under Section 6 of the OSH Act (29 U.S.C. 655). Therefore, pursuant to
section 667(a) of the OSH Act, the final rule does not preempt State
law (29 U.S.C. 667(a)). The effect of the final rule on OSHA-approved
State Plan States is discussed in section X.
VIII. Unfunded Mandates
Section 3 of the Occupational Safety and Health Act makes clear
that OSHA cannot enforce compliance with its regulations or standards
on the U.S. government "or any State or political subdivision of a
State." Under voluntary agreement with OSHA, some States enforce
compliance with their State standards on public sector entities, and
these agreements specify that these State standards must be equivalent
to OSHA standards. Thus, although OSHA may include compliance costs for
affected public sector entities in its analysis of the expected impacts
associated with the final rule, the rule does not involve any unfunded
mandates being imposed on any State or local government entity.
Based on the evidence presented in this economic analysis, OSHA
concludes that the final rule would not impose a Federal mandate on the
private sector in excess of $100 million in expenditures in any one
year. Accordingly, OSHA is not required to issue a written statement
containing a qualitative and quantitative assessment of the anticipated
costs and benefits of the Federal mandate, as required under Section
202(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532(a)).
IX. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
The final rule contains collection of information (paperwork)
requirements that are subject to review by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C.
3501 et seq.) and OMB regulations (5 CFR part 1320). The PRA requires
that agencies obtain approval from OMB before conducting any collection
of information (44 U.S.C. 3507). The PRA defines a "collection of
information" as "the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public of facts or
opinions by or for an agency regardless of form or format" (44 U.S.C.
3502(3)(A)).
OSHA's existing recordkeeping forms consist of the OSHA 300 Log,
the 300A Summary, and the 301 Report. These forms are contained in the
Information Collection Request (ICR) (paperwork package) titled 29 CFR
part 1904 Recordkeeping and Reporting Occupational Injuries and
Illnesses, which OMB approved under OMB Control Number 1218-0176
(expiration date 07/31/2017).
The final rule affects the ICR estimates in four ways: 1) The
number of establishments covered by the recordkeeping regulation
increases by 60,210 establishments; 2) the number of injuries and
illnesses recorded by covered establishments increases by 97,182 cases;
3) the number of reportable events (fatalities, in-patient
hospitalizations, amputations, and losses of an eye) reported by
employers increases by 117,000 reports, and 4) the time required to
report a fatality or catastrophe to OSHA is increased from 15 minutes
per report to 30 minutes per report. In the initial year, the burden
hours for the final rule are estimated to be 392,676, and in subsequent
years, the total burden hours are estimated to be 172,828. As a result
of these changes, the total burden for the Recordkeeping rule as a
whole will rise from 2,967,236 per year to 3,359,913 in the first year
and to 3,140,065 in subsequent years. There are no capital costs for
this collection of information.
The tables below present the various components of the rule that
comprise the ICR estimates. Table IX-1 presents the estimated burden of
the entire rule for the initial year. Table IX-2 presents the estimated
burden for the entire rule in subsequent years. The estimated initial-
year burden is greater because all newly-covered establishments must
learn the basics of the recordkeeping system upon implementation of the
final rule. In subsequent years, only establishments with turnover in
the recordkeeper position will incur this burden.
Table IX-1--Estimated Burden Hours--Initial Year
[Estimated burden hours]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current OMB approval Implementation of the final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Unit hours per Total burden Number of Unit hours per Total burden
Actions entailing paperwork burden cases case hours cases case hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
1904.4--Complete OSHA 301 (Includes research of 1,180,529 0.367 433,254 1,219,385 0.367 447,514
instructions and case details to complete the form)....
1904.4--Line entry on OSHA Form 300 other than 2,613,635 0.233 608,977 2,710,817 0.233 631,620
needlesticks (Includes research of instructions and
case details to complete the form).....................
1904.8--Line entry on OSHA Form 300 for needlesticks 337,645 0.083 28,025 337,645 0.083 28,025
(Includes research of instructions and case details to
complete the form).....................................
1904.29(b)(6)--Entry on privacy concern case 350,800 0.05 17,540 364,753 0.05 18,238
confidential list......................................
1904.32--Complete, certify and post OSHA Form 300A 1,585,374 0.967 1,533,057 1,645,494 0.967 1,591,193
(Includes research of instructions)....................
1904.35--Employee Access to the OSHA Form 300........... 111,540 0.083 9,258 115,185 0.083 9,560
1904.35--Employee Access to the OSHA Form 301........... 287,980 0.083 23,902 304,846 0.083 25,302
1904.39--Report fatalities/catastrophes................. 2,028 0.25 507 119,028 0. 5 59,514
Learning Basics of the Recordkeeping System--newly 312,717 1 312,717 548,947 1 548,947
covered and turnover of personnel......................
1904.38--Request for variance........................... 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------
Total Burden Hours.................................. .............. .............. 2,967,236 .............. .............. 3,359,913
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table IX-2--Estimated Burden Hours--Subsequent Years
[Estimated burden hours]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current OMB approval Implementation of the final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Unit hours per Total burden Number of Unit hours per Total burden
Actions entailing paperwork burden cases case hours cases case hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
1904.4--Complete OSHA 301 (Includes research of 1,180,529 0.367 433,254 1,219,385 0.367 447,514
instructions and case details to complete the form)....
1904.4--Line entry on OSHA Form 300 other than 2,613,635 0.233 608,977 2,710,817 0.233 631,620
needlesticks (Includes research of instructions and
case details to complete the form).....................
1904.8--Line entry on OSHA Form 300 for needlesticks 337,645 0.083 28,025 337,645 0.083 28,025
(Includes research of instructions and case details to
complete the form).....................................
1904.29(b)(6)--Entry on privacy concern case 350,800 0.05 17,540 364,753 0.05 18,238
confidential list......................................
1904.32--Complete, certify and post OSHA Form 300A 1,585,374 0.967 1,533,057 1,645,494 0.967 1,591,193
(Includes research of instructions)....................
1904.35--Employee Access to the OSHA Form 300........... 111,540 0.083 9,258 115,185 0.083 9,560
1904.35--Employee Access to the OSHA Form 301........... 287,980 0.083 23,902 304,846 0.083 25,302
1904.39--Report fatalities/catastrophes................. 2,028 0.25 507 119,028 0. 5 59,514
Learning Basics of the Recordkeeping System--turnover of 312,717 1 312,717 329,099 1 329,099
personnel..............................................
1904.38--Request for variance........................... 0 0 0 0 0 0
-----------------------------------------------------------------------------------------------
Total Burden Hours.................................. .............. .............. 2,967,236 .............. .............. 3,140,065
--------------------------------------------------------------------------------------------------------------------------------------------------------
As a new option, an employer may report to OSHA work-related
fatalities, amputations, in-patient hospitalizations, or the loss of an
eye by electronic submission using a fatality/injury/illness reporting
application that will be located on OSHA's public Web site at
www.osha.gov. The public will be given the opportunity to comment on
this new collection option through the Paperwork Reduction Act (PRA)
approval process when OSHA applies to reauthorize the information
collection.
OSHA received a number of comments pertaining to the estimated time
necessary to meet the proposed paperwork requirements.
Initial training of recordkeepers is expected to require one hour
per establishment and will apply to current partially-exempt
establishments that would be newly required to keep records. A
commenter (Ex. 17) noted that this requirement would signify the need for
retraining of both human resource and safety professionals. OSHA assumes
that the average establishment that employs 25 workers will only assign
recordkeeping duties to one employee per establishment.
Dow, the National Automobile Dealers Association (NADA), and a few
other commenters argued that it would take longer than an hour to train
a competent recordkeeper (Exs. 64, 100, 106, 119, 124). NADA stated
specifically that the training would entail a one-day course at the
cost of $300. OSHA agrees that some establishments with large employee
populations that experience large numbers of injuries and illnesses
would benefit from an intensive training program. It should be noted
that there is a trade-off between time spent on training and time spent
on individual records. A recordkeeper at a large establishment with
many injuries and illnesses may find it more efficient to have more
extensive initial training in order to spend less time on each
individual record. A recordkeeper who records only two or three
injuries a year will be better off learning about the complexities of
the system only if such complexities ever actually arise in their
establishment, resulting in lower initial training costs but more time
spent recording each incident. OSHA's estimates are designed to
represent an average across large and small firms and establishments,
taking into account both situations where more extensive initial
training is provided as well as situations where less extensive initial
training is sufficient.
The vast majority of establishments in these low-rate industries do
not experience large numbers of injuries and illnesses. OSHA believes
these establishments will require training on only the fundamentals of
the recordkeeping requirements. For establishments that experience few
injuries and illnesses, OSHA believes these employers will use a more
efficient method of researching the recordability of unique injuries
and illnesses on a case by case basis. The associated paperwork burden
for these situations is included in the time estimate for recording
each individual case. On its public Web site, OSHA provides a brief
tutorial on completing the recordkeeping forms. This tutorial provides
employers with a fundamental knowledge of the recordkeeping
requirements. The tutorial takes approximately 15 minutes to view. OSHA
believes that an estimate of one hour of training is a reasonable
middle ground between establishments that require an intensive training
and those that only require a fundamental knowledge of the system to
meet their recordkeeping obligations.
Dow commented that deciding whether the injury or illness is
recordable takes more time and more people than OSHA had estimated (Ex.
64). Dow also commented that reporting events would require the
attention of several different people. However, OSHA believes that
after initial familiarization with the recordkeeping requirements, the
vast majority of companies will assign responsibilities to an
experienced professional who they feel is competent to make decisions
on the recordability of an incident, and who will be in close
communication with the management team. OSHA also has tools, such as
its Recordkeeping Advisor, available on the Agency's recordkeeping
homepage, which will make it easier to determine whether an incident is
recordable.
OSHA received several comments on its time estimate of 15 minutes
for reporting in-patient hospitalizations and amputations to OSHA. OSHA
estimated that reporting in-patient hospitalizations, amputations, or
losses of an eye is an activity that is expected to require the same
time as OSHA estimates for reporting fatalities and multiple
hospitalizations: 0.25 hours of OHSS labor per fatality or
hospitalization (OSHA, 2011). Several commenters suggested that
reporting to OSHA would take more than 15 minutes (Exs. 46, 65, 67, 68,
83, 110). The American Society of Safety Engineers and others claimed
that the phone call to report to OSHA is too complex to complete in 15
minutes, but provide no reason as to why the call is too complex to
complete in that time, given the information that must be provided
during such a phone call is quite simple (Exs. 46, 83, 110). The Dow
Chemical Company stated that this phone call would require the
attention of several different salaried professionals (Ex. 64). FedEx
said that the allotted time should also include the time required to
enter the information into their system and to allow for subsequent
review by management, and recommends that OSHA calculate 30 minutes for
the reporting time (Ex. 67). The American Trucking Association voiced
the view that 15 minutes is a "gross underestimation" of the time
required to report to OSHA and that in their experience reporting
takes, on average, 30 minutes (Ex. 65).
In response, OSHA has revised its estimate of time required to
complete a hospitalization report to include activities prior the call
to OSHA such as information gathering and review and now estimates that
the this requirement will require 30 minutes in total.
Mercer ORC HSE Networks stated that it could take longer than 15
minutes to make a connection over the phone with OSHA, and that such a
connection is especially difficult outside of OSHA's normal operating
hours (Ex. 68). In response to this comment, the Agency notes that OSHA
has a toll-free number for employers to call that is staffed 24 hours
per day, to allow immediate reporting at any hour of the day. This
final rule also enables 24-hour reporting over a web form that OSHA
will create in conjunction with issuance of the final rule. OSHA
acknowledges that there might be times when an employer will have to
wait on hold to speak to an OSHA representative, but OSHA believes that
on the average, even allowing for such delays, the report will not
exceed 30 minutes.
NUCA, a trade association representing utility construction and
excavation contractors, expressed a concern that OSHA's PEA
"significantly underestimated the economic impact of obtaining injury
information on a construction site which does not necessarily have an
office". In NUCA's estimation, the entire process of collecting,
transmitting, and recording the information would far exceed 15 minutes
(Ex. 110). In response, at this time, there are a wide variety of
mechanisms that virtually all managers will have, such as cell phones,
that can be used to report to OSHA or a corporate central office.
The PRA specifies that Federal agencies cannot conduct or sponsor a
collection of information unless it is approved by OMB and displays a
currently valid OMB (44 U.S.C. 3507). Also, notwithstanding any other
provision of law, respondents are not required to respond to the
information collection requirements until they have been approved and a
currently valid control number is displayed. OSHA will publish a
subsequent Federal Register document when OMB takes further action on
the information collection requirements in the Recordkeeping and
Recording Occupational Injuries and Illnesses rule.
X. State Plan Requirements
Notice of intent and adoption required. The States with OSHA-
approved State Plans are required to adopt a rule identical to or at
least as effective as this final Recordkeeping regulation. State Plans
are required to notify OSHA within 60 days whether they intend to adopt
the recordkeeping regulation.
States with OSHA-approved State Plans are ordinarily provided six
months to adopt a regulation or standard that is either identical to or
at least as effective as a new Federal regulation or standard. For
certain injury and illness recording provisions, the State Plans'
recordkeeping regulations must be identical to the Federal regulations
(29 CFR 1904.4 through 1904.11). OSHA regulations (29 CFR 1904.37(b)(1)
and 1952.4(a)) explain that States with approved State Plans must have
recording and reporting regulations that impose identical requirements
for determining which injuries and illnesses are recordable and how
they are entered. As noted in the preamble to the 2001 Recordkeeping
regulation, 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 uniform and consistent, so that statistics that allow
comparisons between the States and between employers located in
different States are created (66 FR 6060-6061).
Per 29 CFR 1953.4(b), if a State Plan adopts or maintains
recordkeeping requirements that differ from federal requirements, the
State must identify the differences and may either post its policy on
its Web site and provide the link to OSHA or submit an electronic copy
to OSHA with information on how the public may obtain a copy. If a
State Plan adopts requirements that are identical to federal
requirements, the State Plan must provide the date of adoption to OSHA.
State Plan adoption must be accomplished within six months, with
posting or submission of documentation within 60 days of adoption. The
effective date for changes to 29 CFR 1904.2 must be either January 1,
2015 (encouraged) or January 1, 2016 (required). OSHA will provide
summary information on the State Plan response to this instruction on
its Web site at www.osha.gov/dcsp/osp/index.html.
XI. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have
"tribal implications" as defined in that order. This final rule does
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.
List of Subjects in 29 CFR Part 1904
Health statistics, Occupational safety and health, Reporting and
recordkeeping requirements.
Authority and Signature
This document was prepared under the direction of David Michaels,
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under Sections 8 and 24 of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 657, 673), 5 U.S.C. 553, and
Secretary of Labor's Order No. 4-2010 (75 FR 55355 (9/10/2010)).
Signed at Washington, DC on September 5, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Final Rule
Part 1904 of Title 29 of the Code of Federal Regulations is hereby
amended as follows:
PART 1904--[AMENDED]
0
1. The authority citation for part 1904 continues to read as follows:
Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of
Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.
0
2. Amend Sec. 1904.2 by revising paragraphs (a)(1) and (b) to read as
follows:
Sec. 1904.2 Partial exemption for establishments in certain
industries.
(a) Basic requirement. (1) If your business establishment is
classified in a specific industry group listed in appendix A to this
subpart, you do not need to keep OSHA injury and illness records unless
the government asks you to keep the records under Sec. Sec. 1904.41 or
1904.42. However, all employers must report to OSHA any workplace
incident that results in an employee's fatality, in-patient
hospitalization, amputation, or loss of an eye (see Sec. 1904.39).
* * * * *
(b) Implementation--(1) Is the partial industry classification
exemption based on the industry classification of my entire company or
on the classification of individual business establishments operated by
my company? The partial industry classification exemption applies to
individual business establishments. If a company has several business
establishments engaged in different classes of business activities,
some of the company's establishments may be required to keep records,
while others may be partially exempt.
(2) How do I determine the correct NAICS code for my company or for
individual establishments? You can determine your NAICS code by using
one of three methods, or you may contact your nearest OSHA office or
State agency for help in determining your NAICS code:
(i) You can use the search feature at the U.S. Census Bureau NAICS
main Web page: http://www.census.gov/eos/www/naics/. In the search box
for the most recent NAICS, enter a keyword that describes your kind of
business. A list of primary business activities containing that keyword
and the corresponding NAICS codes will appear. Choose the one that most
closely corresponds to your primary business activity, or refine your
search to obtain other choices.
(ii) Rather than searching through a list of primary business
activities, you may also view the most recent complete NAICS structure
with codes and titles by clicking on the link for the most recent NAICS
on the U.S. Census Bureau NAICS main Web page:
http://www.census.gov/eos/www/naics/. Then click on the two-digit Sector
code to see all the NAICS codes under that Sector. Then choose the six-digit
code of your interest to see the corresponding definition, as well as cross-
references and index items, when available.
(iii) If you know your old SIC code, you can also find the
appropriate 2002 NAICS code by using the detailed conversion
(concordance) between the 1987 SIC and 2002 NAICS available in Excel
format for download at the "Concordances" link at the U.S. Census
Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/.
0
3. Revise Non-Mandatory Appendix A to Subpart B of Part 1904 to read as
follows:
Non-Mandatory Appendix A to Subpart B of Part 1904--Partially Exempt
Industries
Employers are not required to keep OSHA injury and illness
records for any establishment classified in the following North
American Industry Classification System (NAICS) codes, unless they
are asked in writing to do so by OSHA, the Bureau of Labor
Statistics (BLS), or a state agency operating under the authority of
OSHA or the BLS. All employers, including those partially exempted
by reason of company size or industry classification, must report to
OSHA any employee's fatality, in-patient hospitalization,
amputation, or loss of an eye (see Sec. 1904.39).
------------------------------------------------------------------------
NAICS Code Industry
------------------------------------------------------------------------
4412........................... Other Motor Vehicle Dealers.
4431........................... Electronics and Appliance Stores.
4461........................... Health and Personal Care Stores.
4471........................... Gasoline Stations.
4481........................... Clothing Stores.
4482........................... Shoe Stores.
4483........................... Jewelry, Luggage, and Leather Goods
Stores.
4511........................... Sporting Goods, Hobby, and Musical
Instrument Stores.
4512........................... Book, Periodical, and Music Stores.
4531........................... Florists.
4532........................... Office Supplies, Stationery, and Gift
Stores.
4812........................... Nonscheduled Air Transportation.
4861........................... Pipeline Transportation of Crude Oil.
4862........................... Pipeline Transportation of Natural Gas.
4869........................... Other Pipeline Transportation.
4879........................... Scenic and Sightseeing Transportation,
Other.
4885........................... Freight Transportation Arrangement.
5111........................... Newspaper, Periodical, Book, and
Directory Publishers.
5112........................... Software Publishers.
5121........................... Motion Picture and Video Industries.
5122........................... Sound Recording Industries.
5151........................... Radio and Television Broadcasting.
5172........................... Wireless Telecommunications Carriers
(except Satellite).
5173........................... Telecommunications Resellers.
5179........................... Other Telecommunications.
5181........................... Internet Service Providers and Web
Search Portals.
5182........................... Data Processing, Hosting, and Related
Services.
5191........................... Other Information Services.
5211........................... Monetary Authorities--Central Bank.
5221........................... Depository Credit Intermediation.
5222........................... Nondepository Credit Intermediation.
5223........................... Activities Related to Credit
Intermediation.
5231........................... Securities and Commodity Contracts
Intermediation and Brokerage.
5232........................... Securities and Commodity Exchanges.
5239........................... Other Financial Investment Activities.
5241........................... Insurance Carriers.
5242........................... Agencies, Brokerages, and Other
Insurance Related Activities.
5251........................... Insurance and Employee Benefit Funds.
5259........................... Other Investment Pools and Funds.
5312........................... Offices of Real Estate Agents and
Brokers.
5331........................... Lessors of Nonfinancial Intangible
Assets (except Copyrighted Works).
5411........................... Legal Services.
5412........................... Accounting, Tax Preparation,
Bookkeeping, and Payroll Services.
5413........................... Architectural, Engineering, and Related
Services.
5414........................... Specialized Design Services.
5415........................... Computer Systems Design and Related
Services.
5416........................... Management, Scientific, and Technical
Consulting Services.
5417........................... Scientific Research and Development
Services.
5418........................... Advertising and Related Services.
5511........................... Management of Companies and
Enterprises.
5611........................... Office Administrative Services.
5614........................... Business Support Services.
5615........................... Travel Arrangement and Reservation
Services.
5616........................... Investigation and Security Services.
6111........................... Elementary and Secondary Schools.
6112........................... Junior Colleges.
6113........................... Colleges, Universities, and
Professional Schools.
6114........................... Business Schools and Computer and
Management Training.
6115........................... Technical and Trade Schools.
6116........................... Other Schools and Instruction.
6117........................... Educational Support Services.
6211........................... Offices of Physicians.
6212........................... Offices of Dentists.
6213........................... Offices of Other Health Practitioners.
6214........................... Outpatient Care Centers.
6215........................... Medical and Diagnostic Laboratories.
6244........................... Child Day Care Services.
7114........................... Agents and Managers for Artists,
Athletes, Entertainers, and Other
Public Figures.
7115........................... Independent Artists, Writers, and
Performers.
7213........................... Rooming and Boarding Houses.
7221........................... Full-Service Restaurants.
7222........................... Limited-Service Eating Places.
7224........................... Drinking Places (Alcoholic Beverages).
8112........................... Electronic and Precision Equipment
Repair and Maintenance.
8114........................... Personal and Household Goods Repair and
Maintenance.
8121........................... Personal Care Services.
8122........................... Death Care Services.
8131........................... Religious Organizations.
8132........................... Grantmaking and Giving Services.
8133........................... Social Advocacy Organizations.
8134........................... Civic and Social Organizations.
8139........................... Business, Professional, Labor,
Political, and Similar Organizations.
------------------------------------------------------------------------
0
4. Revise Sec. 1904.39 to read as follows:
Sec. 1904.39 Reporting fatalities, hospitalizations, amputations, and
losses of an eye as a result of work-related incidents to OSHA.
(a) Basic requirement. (1) Within eight (8) hours after the death
of any employee as a result of a work-related incident, you must report
the fatality to the Occupational Safety and Health Administration
(OSHA), U.S. Department of Labor.
(2) Within twenty-four (24) hours after the in-patient
hospitalization of one or more employees or an employee's amputation or
an employee's loss of an eye, as a result of a work-related incident,
you must report the in-patient hospitalization, amputation, or loss of
an eye to OSHA.
(3) You must report the fatality, in-patient hospitalization,
amputation, or loss of an eye using one of the following methods:
(i) By telephone or in person to the OSHA Area Office that is
nearest to the site of the incident.
(ii) By telephone to the OSHA toll-free central telephone number,
1-800-321-OSHA (1-800-321-6742).
(iii) By electronic submission using the reporting application
located on OSHA's public Web site at www.osha.gov.
(b) Implementation--(1) If the Area Office is closed, may I report
the fatality, in-patient hospitalization, amputation, or loss of an eye
by leaving a message on OSHA's answering machine, faxing the Area
Office, or sending an email? No, if the Area Office is closed, you must
report the fatality, in-patient hospitalization, amputation, or loss of
an eye using either the 800 number or the reporting application located
on OSHA's public Web site at www.osha.gov.
(2) What information do I need to give to OSHA about the in-patient
hospitalization, amputation, or loss of an eye? You must give OSHA the
following information for each fatality, in-patient hospitalization,
amputation, or loss of an eye:
(i) The establishment name;
(ii) The location of the work-related incident;
(iii) The time of the work-related incident;
(iv) The type of reportable event (i.e., fatality, in-patient
hospitalization, amputation, or loss of an eye);
(v) The number of employees who suffered a fatality, in-patient
hospitalization, amputation, or loss of an eye;
(vi) The names of the employees who suffered a fatality, in-patient
hospitalization, amputation, or loss of an eye;
(vii) Your contact person and his or her phone number; and
(viii) A brief description of the work-related incident.
(3) Do I have to report the fatality, in-patient hospitalization,
amputation, or loss of an eye if it resulted from a motor vehicle
accident on a public street or highway? If the motor vehicle accident
occurred in a construction work zone, you must report the fatality, in-
patient hospitalization, amputation, or loss of an eye. If the motor
vehicle accident occurred on a public street or highway,
but not in a construction work zone, you do not have to report the
fatality, in-patient hospitalization, amputation, or loss of an eye to
OSHA. However, the fatality, in-patient hospitalization, amputation, or
loss of an eye must be recorded on your OSHA injury and illness
records, if you are required to keep such records.
(4) Do I have to report the fatality, in-patient hospitalization,
amputation, or loss of an eye if it occurred on a commercial or public
transportation system? No, you do not have to report the fatality, in-
patient hospitalization, amputation, or loss of an eye to OSHA if it
occurred on a commercial or public transportation system (e.g.,
airplane, train, subway, or bus). However, the fatality, in-patient
hospitalization, amputation, or loss of an eye must be recorded on your
OSHA injury and illness records, if you are required to keep such
records.
(5) Do I have to report a work-related fatality or in-patient
hospitalization caused by a heart attack? Yes, your local OSHA Area
Office director will decide whether to investigate the event, depending
on the circumstances of the heart attack.
(6) What if the fatality, in-patient hospitalization, amputation,
or loss of an eye does not occur during or right after the work-related
incident? You must only report a fatality to OSHA if the fatality
occurs within thirty (30) days of the work-related incident. For an in-
patient hospitalization, amputation, or loss of an eye, you must only
report the event to OSHA if it occurs within twenty-four (24) hours of
the work-related incident. However, the fatality, in-patient
hospitalization, amputation, or loss of an eye must be recorded on your
OSHA injury and illness records, if you are required to keep such
records.
(7) What if I don't learn about a reportable fatality, in-patient
hospitalization, amputation, or loss of an eye right away? If you do
not learn about a reportable fatality, in-patient hospitalization,
amputation, or loss of an eye at the time it takes place, you must make
the report to OSHA within the following time period after the fatality,
in-patient hospitalization, amputation, or loss of an eye is reported
to you or to any of your agent(s): Eight (8) hours for a fatality, and
twenty-four (24) hours for an in-patient hospitalization, an
amputation, or a loss of an eye.
(8) What if I don't learn right away that the reportable fatality,
in-patient hospitalization, amputation, or loss of an eye was the
result of a work-related incident? If you do not learn right away that
the reportable fatality, in-patient hospitalization, amputation, or
loss of an eye was the result of a work-related incident, you must make
the report to OSHA within the following time period after you or any of
your agent(s) learn that the reportable fatality, in-patient
hospitalization, amputation, or loss of an eye was the result of a
work-related incident: Eight (8) hours for a fatality, and twenty-four
(24) hours for an in-patient hospitalization, an amputation, or a loss
of an eye.
(9) How does OSHA define "in-patient hospitalization"? OSHA
defines in-patient hospitalization as a formal admission to the in-
patient service of a hospital or clinic for care or treatment.
(10) Do I have to report an in-patient hospitalization that
involves only observation or diagnostic testing? No, you do not have to
report an in-patient hospitalization that involves only observation or
diagnostic testing. You must only report to OSHA each in-patient
hospitalization that involves care or treatment.
(11) How does OSHA define "amputation"? An amputation is the
traumatic loss of a limb or other external body part. Amputations
include a part, such as a limb or appendage, that has been severed, cut
off, amputated (either completely or partially); fingertip amputations
with or without bone loss; medical amputations resulting from
irreparable damage; amputations of body parts that have since been
reattached. Amputations do not include avulsions, enucleations,
deglovings, scalpings, severed ears, or broken or chipped teeth.
[FR Doc. 2014-21514 Filed 9-17-14; 8:45 am]
BILLING CODE 4510-26-P
