DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. R-01]

Reporting of Fatality or Multiple Hospitalization Incidents

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

ACTION: Final rule.

SUMMARY: This final rule revises regulation on Reporting of Fatality or Multiple Hospitalization Accidents. Along with numerous clarifications and several minor modifications, this revision makes three major changes to the former reporting requirements: First, whereas the former regulation applied to employment accidents which resulted in one or more fatalities or hospitalizations of five or more employees, the regulation is expanded to require the reporting of work related incidents resulting in the death of an employee or the hospitalization of three or more employees. Second, the regulation requires the employer to verbally report such incidents within 8 hours after the employer learns of it, instead of 48 hours by either written or verbal communication. Third, whether or not an incident is immediately reportable, if it results in the death of an employee or the in-patient hospitalization of 3 or more employees within 30 days of the incident, OSHA requires that the employer report the fatality/multiple hospitalization within 8 hours after learning of it.

The materials upon which OSHA has relied in drafting this final rule are available for review and copying in the OSHA Docket Office.

DATES: The new regulation will become effective on or before May 2, 1994.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates for receipt of petitions for review of the regulation, the Associate Solicitor for Occupational Safety and Health, Office of the Solicitor, room S4004, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.

FOR FURTHER INFORMATION, CONTACT: Mr. James F. Foster, U.S. Department of Labor, Occupational Safety and Health Administration, Office of Information and Consumer Affairs, room N-3647, 200 Constitution Avenue NW., Washington, DC 20210, phone (202) 219-8148.

SUPPLEMENTARY INFORMATION: In this preamble, OSHA identifies sources of information submitted to the record by an exhibit number (Ex. 2). When applicable, comment numbers follow the exhibit in which they are contained (Ex. 2: 1). If more than one comment within an exhibit is cited, the comment numbers are separated by commas (Ex. 2: 1, 2, 3). For quoted material, page numbers are cited if other than page one (p. 2).

I. Background

The requirements in 29 CFR 1904.8, Reporting of fatality or multiple hospitalization accidents - often referred to as FATCAT (fatality/catastrophe) reports - have remained essentially unchanged since they were initially adopted in 1971. The present requirements read as follows:

Within 48 hours after the occurrence of an employment accident which is fatal to one or more employees or which results in hospitalization of five or more employees, the employer of any employees so injured or killed shall report the accident either orally or in writing to the nearest office of the Area Director of the Occupational Safety and Health Administration, U.S. Department of Labor. The reporting may be by telephone or telegraph. The report shall relate the circumstances of the accident, the number of fatalities, and the extent of any injuries. The Area Director may require such additional reports, in writing or otherwise, as he deems necessary, concerning the accident.

OSHA, or States operating OSHA-approved State plans, investigate such incidents in order to provide the Agency with information on the causes of employment fatalities, injuries and illnesses to identify and require correction of serious hazards and to prevent the occurrence of such incidents in the future. Such information can also be a source of support for new and revised safety and health standards. Investigators will determine whether there was a violation of OSHA standards, and, if so, whether the violation may have contributed to the incident. In addition, the Agency determines whether OSHA standards adequately cover the hazards which led to the incident. Therefore, such investigations must be prompt and thorough if they are to provide valid, useful information and achieve their intended purposes.

For many years, OSHA has considered whether changes are needed in 1904.8 to enable the Agency to conduct more effective workplace investigations. In October, 1979, OSHA published a notice of proposed rulemaking (44 FR 59560) that contained several suggested changes to the current requirements of 1904.8. The reporting changes included in the proposal were the following: A reduction in reporting time from 48 hours to 8 hours; the establishment of a OSHA toll-free phone number, to be used in reporting incidents which occur on evenings and weekends; and a requirement for employers to report fatalities which occur within 6 months of an employment incident. A 30-day written comment period was established, which was later extended to December 17, 1979. OSHA received 258 written comments during the comment period. During the review of the comments OSHA's priorities changed and work on the final rule was suspended indefinitely. Consequently no final rule was issued as a result of the 1979 rulemaking action.

Since that proposal was published, OSHA has determined that there are many other provisions in part 1904, Reporting and Recording Occupational Injuries and Illnesses, which should be considered for amendment or revision, in order to improve the quality of the data provided to the Agency and enhance OSHA's ability to gather useful information on the causes of employment injuries and illnesses. Accordingly, the Agency has decided to undertake a complete revision of part 1904, to be accomplished in two steps: The first step involves changes in 1904.8, dealing only with reporting of fatalities and multiple hospitalizations. The second step will involve the issuance of a proposal covering the remainder of part 1904. Separating the 1904.8 proposal from the overall revision of part 1904 enables OSHA to make the necessary changes in 1904.8 as soon as possible.

Because so much time had elapsed since the previous proposal was published, the Agency was concerned that the record was outdated, and more timely information was needed. Accordingly, OSHA withdrew the 1979 proposed rule in favor of the recent proposal for this final rule published in the Federal Register on May 19, 1992 (57 FR 21222). Most of the elements of the 1979 proposed rule were carried forward in the recent proposal. OSHA received a total of 110 written comments in response to the 1992 proposal and has subsequently drafted this final rule.

II. Agency Action

OSHA believes that reducing the reporting period and increasing the number of serious incidents reported is critical for the Agency to respond quickly and inspect for hazardous conditions that may pose a risk to other workers at the worksite. Moreover, prompt inspections will enable OSHA to determine whether its current standards adequately cover the hazards involved in the incident. OSHA will also gather better information on the causes of incidents which can be used to identify serious hazards, prevent incidents in the future, and form the basis for revised standards. Increasing the number of serious incidents reported will present OSHA the opportunity to inspect a greater number of hazardous worksites. In conclusion, OSHA has determined that the revision of the requirements of 29 CFR 1904.8, as reflected in this final rule, will provide information necessary to help ensure American workers safe and healthful workplaces.

III. Summary and Explanation of the Proposed Rule

This section contains an analysis of the evidence comprising the official record, along with related policy decisions pertaining to the various provisions of the regulation.

This rule makes a number of changes and clarifications in the requirements of 1904.8 which are discussed below.

1. Reducing the Reporting Period From 48 Hours to 8 Hours

Employers are required to report, within 8 hours after their occurrence, incidents which result in a worker fatality or multiple hospitalizations. The previous requirement allowed 48 hours to elapse before the fatality/catastrophe had to be reported.

Reducing 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 pertaining to possible causes (Ex. 2: 15, 47, 94). The shorter reporting time also makes it more likely that the incident site will be undisturbed, affording the investigating compliance officer a better view of the worksite as it appeared at the time of the incident (Ex. 2: 11, 15, 47, 55, 94, 107). The 8-hour criteria also coincides with a "standard work shift" for most employers and thus provides a logical cut-off point for fulfilling the reporting requirement.

The Office of the District Attorney for Milwaukee County (Ex. 2: 15) observed:

The current time reporting requirement of forty-eight hours materially handicaps the capability of investigators to accurately establish what transpired * * * the sooner a witness is interviewed the better is his or her memory and the less likely that he or she will color testimony to favor a particular position * * *. At our request, the medical examiner and the police and fire departments promptly notify our office of work site deaths and severe injuries * * *. I firmly believe that (the) practice of prompt investigation in Milwaukee County has been of great benefit to OSHA investigators in Wisconsin as well as to our own investigators.

OSHA solicited comments on the proposed 8-hour time period, the feasibility of a 4-hour time period, and other possible reporting periods which might be of equal or greater effectiveness in improving the Agency's information gathering capabilities.

The majority of comments received on this issue suggested that OSHA adopt a 24-hour reporting period (Ex. 2: 1, 9, 18, 19, 28, 29, 34, 35, 39, 41, 43, 45, 48, 50, 57, 58, 60, 64, 73, 74, 75, 77, 78, 79, 83, 85, 87, 89, 90, 92, 93, 97, 99, 100, 101, 103, 106). The rationale expressed by the Chevron Corporation (Ex. 2: 75, p. 2) is representative of many of the comments received:

* * * If OSHA perceives a need to be notified in less time (than the current 48 hours), then Chevron supports a 24-hour requirement as being adequate and reasonable. A 24-hour requirement would also be consistent with many state and U.S. Department of Transportation Regulations (49 CFR 394.7).

An 8-hour requirement, however, would in some instances be unreasonable and might create greater hazards for certain situations encountered in our industry. An accident that involves a process upset, significant potential for environmental damage or human exposure to potentially harmful materials, requires the employer to acquire and focus all available resources to stabilize and secure the scene. These actions must come first and should not be altered by regulatory reporting requirements.

The National Utility Contractors Association (Ex. 2: 103, p. 1-2) stated:

NUCA considers the proposed 8-hour employer reporting deadline inappropriate and unrealistic in the immediate aftermath of a serious mishap. In the wake of a mishap, the employer has more important responsibilities than the fulfillment of a federal reporting requirement. For example, he or she must deal with emergency services, anxious workers, and sometimes distraught family members * * * NUCA suggests that the reporting period be reduced from 48 to 24 hours, which would allow for more timely inspection, without unnecessarily distracting the employer from other responsibilities that are clearly preeminent.

On the other hand, several organizations requested a required reporting period of 4 hours or less (Ex. 2: 13, 21, 84, 105). The American Nurses Association (Ex. 2: 105, p. 1-2) observed:

We would support a Federal Policy which reflects the reporting requirements of the California regulations which require immediate reporting of every case involving a serious injury or illness (medical treatment beyond first aid) or death. In many cases such occurrences are serious threats to the health and safety of other workers.

Immediate reporting and follow-up can significantly reduce risk to others still in the environment. Moreover, such a requirement would provide leadership to the states and send a clear signal of OSHA's intent to collect data and develop standards to best protect the American workforce.

Therefore, in response to your question related to a shorter reporting requirement, ANA would support immediate reporting of the incidents described. We note that California requires immediate reporting and Utah has a 1-hour reporting requirement. We support OSHA's concern that the current 48-hour reporting requirement results in a delay which can hamper effectiveness. We agree that prompt investigation is critical.

The National Institute for Occupational Safety & Health (Ex. 84, p. 2) remarked:

NIOSH supports a reduction in the time allowed to report the occurrence of a serious incident. California OSHA requires the "immediate" reporting of "every case involving serious injury or illness (medical treatment beyond first aid) or death" and Utah OSHA requires reporting "fatalities within one hour" (58 FR 21224). If these states are achieving compliance with these requirements, OSHA should consider a reporting requirement of less than 8 hours. At a minimum, OSHA should require immediate reporting of a serious incident, not to exceed the shortest time period OSHA determines is reasonable.

In addition, several organizations suggested that the 48-hour reporting requirement was sufficient to serve the purpose for reporting serious incidents (Ex. 2: 2, 25, 44, 46, 52, 61, 63, 66, 71, 76, 82, 86, 89, 98, 109). Trinity Industries (Ex. 2: 61) stated:

When a fatality has occurred at the beginning of a second shift, or on a weekend or holiday, it can take considerable time for the job foreman to reach his plant manager or another responsible management representative who is authorized to report the accident to OSHA. Based on our own experience, it is not always possible to report a fatality within 8 hours.

We believe that changing the reporting time to eight hours is unrealistic and will impose unfair exposure to penalties for failure to report a fatality. For that reason, we request that the reporting time not be changed.

Boise Cascade (Ex. 2: 2) noted:

Boise Cascade, as well as all American industry, has introduced systems to ensure immediate notification of accidents. Employers want and need to know in order to allow appropriate investigation and corrective actions. The primary objective of employers is to ensure the best medical care for the injured, the safety of other employees involved in accidents, and avoidance of future and similar accidents * * *. The current reporting time frame provides for adequate time to handle the needs of injured employees, deal with workers' compensation laws, control damage, counsel employees, and handle reporting to OSHA.

Finally, of those who either supported or would support the 8-hour rule under certain circumstances, S C Johnson Wax (Ex. 2: 7) noted the following:

* * * Regarding the proposed 8-hour period for reporting. We believe this should provide adequate time for a preliminary report to be prepared by an employer; it would not be sufficient, however, for performing an in-depth investigation as to the cause of the accident. As long as preliminary information will fulfill OSHA's requirement, this time limit should not be a significant problem for an employer to meet.

OSHA strongly believes that the combination of cited benefits of prompt investigation, the enforcement by states such as California and Utah of more stringent requirements, and the minimal burden imposed on American business by the proposed change as outlined in section IV of this preamble, clearly justifies setting the required reporting time frame at 8 hours. This will allow for more timely investigation and provide for the possibility to more effectively reduce the risk of injury to other workers, decrease the opportunity for circumstances at the incident site to change, and witnesses' recollections of the incident will be more fresh and clear. These factors will increase OSHA's effectiveness in investigating the causes of reported workplace incidents, and at identifying and controlling the hazards which caused the fatalities or serious injuries or illnesses. Prompt investigation of incidents is also a key element in OSHA's ability to enforce existing standards and to evaluate the need for new standards.

2. Reducing the Reporting Threshold From Five Hospitalizations to Three Hospitalizations

Incidents which result in three or more hospitalized employees are to be reported. The former rule required the reporting of five or more hospitalized employees. Of those who commented upon this change, the majority supported OSHA's proposal (Ex. 2: 1, 9, 11, 13, 17, 18, 19, 21, 39, 41, 50, 55, 60, 63, 64, 68, 75, 76, 77, 83, 84, 87, 88, 90, 91, 94, 98, 99, 103, 107). Muscatine General Hospital (Ex. 2: 39, p. 3) observed:

We feel that lowering the number of severely injured employees from 5 to 3 is a positive step. This will, more than likely, increase the number of reported cases; however, it should allow for more accurate information to assist OSHA in determining the causes of workplace accidents.

The American Association of Occupational Health Nurses (Ex. 2: 60, p. 2) stated:

AAOHN supports the proposed rule change that requires the reporting of every employment accident that results in three or more hospitalized employees. Three or more injuries are significant enough to warrant early investigation. In addition, several organizations called for the reporting of fewer than three hospitalizations (Ex. 2: 11, 13, 21, 84, 88). NIOSH (Ex. 2: 84, p. 2) offered this reasoning:

NIOSH recommends that all occupationally related incidents that require hospitalization (including those that repeat over time from the same source) be reported regardless of the number of workers affected by any one incident. The proposed requirement by OSHA for the employer to report incidents only when there are at least 3 or more in-patient hospitalizations within an 8-hour period would not cover many incidents that should be reportable. Under this requirement, it is possible that one or two workers could be exposed to hazardous conditions necessitating hospitalization, but the incident would not have to be reported. Even if these one or two workers were repeatedly hospitalized, the employer would not be required to report the incidents * * * and the detection of this pattern of injury would not be possible.

The Service Employees International Union (Ex. 2: 88, p. 2) stated:

Extend reporting to cover the hospitalization of one or more employees. In the proposed revisions, OSHA would limit reporting of injuries to "accidents" which occurred at a single point in time and affected three or more employees. This proposed revision ignores repeated incidents in which there is only one affected employee.

On the other hand, there were a number of submitted comments opposing the proposed requirement of reporting the hospitalization of three or more employees (Ex. 2: 16, 51, 57, 62, 66, 89, 101). The Pacific Maritime Association (Ex. 2: 51, p. 1-2) noted:

The urgency to investigate three or more hospitalizations, as opposed to five or more, is not justified. We feel that this is a totally arbitrary number. In the preamble to the current proposal, OSHA states that "the expanded reporting requirement is expected to generate less than 200 additional reports per year." We fail to see how this could significantly "* * * provide OSHA with more accurate information on the causes of workplace accidents * * *" We suggest that this number either be reconsidered with some justification, or remain at five or more.

The Timber Operators Council (Ex. 2: 66) remarked:

Lowering the minimum hospitalizations from five to three may create problems with tracking employees, since some injured workers are not immediately admitted to a hospital. An accident that sends five employees to a hospital is a catastrophic accident. Employers would likely be informed of and able to track such an occurrence. This is not always the case with accidents resulting in three or more hospitalizations, especially when employees may delay going to the hospital.

The revised rule also clarifies that an employee is "hospitalized" when that employee is admitted to the hospital on an "in-patient" basis. Accordingly, emergency room and all other forms of out-patient care are excluded from the reporting requirement. The use of "in-patient hospitalizations" for reporting purposes assures that only the more serious incidents are reported. These clarifications received considerable support from the submitted comments (Ex. 2: 34, 35, 38, 39, 41, 59, 61, 63, 64, 75, 76, 77, 79, 80, 83, 85, 90, 91, 92, 93, 94, 98, 99, 101, 103, 109). The Chemical Manufacturers Association (Ex. 2: 92, p. 2-3) observed:

Specifying that hospitalization refers to the admission to the hospital on an "in-patient" basis helps to avoid confusion.

One way to further clarify this definition is to specify that "hospitalization as an in-patient" does not include admittance for observation. Employees admitted for observation may not be injured, but are usually being monitored on a precautionary basis * * * If, during the observation period, it is determined that the employee is injured and needs medical treatment, then that employee would be considered hospitalized for purposes of reporting the accident to OSHA.

CMA's recommendation is consistent with the current Bureau of Labor Statistics' Recordkeeping Guidelines for Occupational Injuries and Illnesses.

The American Petroleum Institute (Ex. 2:90) gave a similar observation:

* * * we strongly recommend that employers not be required to report in-patient hospitalizations for observation only. OSHA already recognizes the validity of this approach in the recordkeeping criteria, which do not require hospitalizations for observation-only to be recorded on the OSHA log. API believes 1904.8 and the OSHA recordkeeping requirements should be consistent.

Meanwhile, two sets of comments called for a more stringent criteria than "in-patient" hospitalization (Ex. 2: 54, 69). The International Brotherhood of Painters & Allied Traders (Ex. 2: 69) stated:

Due to the nature of many now treatable as out-patient, but serious, injuries and illnesses, this proposal creates a void in data that is imperative to have.

The New York State Nurses Association (Ex. 2: 54) commented:

We would recommend an additional clarification to the term "hospitalization" include the wording "on an in-patient basis or recommended for in-patient treatment" in that all persons that admission is recommended as the most appropriate form of treatment do not heed that advice.

OSHA believes that the term "in-patient" should not be further qualified by an additional criteria regarding the kind of treatment an employee requires after the admission. This additional burden upon the employer to track activities after admission is not justified and would likely lead to unnecessary confusion and delays in reporting. Therefore, once three or more employees are admitted to the hospital as in-patients the 8-hour requirement would begin.

In summary, OSHA believes the lowering of the reportable number of hospitalizations from five to three will provide the Agency with additional information on the causes of workplace incidents by increasing the number and broadening the range of incidents which it will investigate. This will assist OSHA in evaluating the effectiveness of present regulations and the need for revised or new requirements. OSHA also believes that any additional burden imposed by the requirement will be minimal. OSHA estimates approximately 200 additional reports requiring 15 minutes per report will be generated by the new requirements. This estimation is based on the evaluation and extrapolation of data available from State Plan States with more stringent reporting requirements (i.e. reports of one or more hospitalizations). 3. Time Limits for Incident Reporting

If the employer does not learn of a reportable incident at the time of its occurrence, the allotted reporting time begins as soon as the employer does obtain this information. The previous rule did not contain specific language to address this type of situation, which can occur, for example, when an employee is traveling on company business and is not in contact with the employer. OSHA received support for this clarification (Ex. 2: 38, 60, 63, 76, 83, 84, 93, 101, 103, 109). The American Subcontractors Association (Ex. 2: 109, p. 2) remarked:

* * * ASA strongly recommends that OSHA retain the language in the proposed rule which states that an employer should report such a fatality "after learning of the fatality." This is a reasonable request which alleviates the problem of requiring employers to report a fatality about which they may have no knowledge.

Numerous organizations expressed their concern that the "person responsible" for reporting incidents to OSHA or a person of authority will not learn of the incident until after an eight hour period (Ex. 2: 12, 25, 28, 34, 38, 39, 40, 63, 68, 71, 82, 83). Many felt that the reporting time frame should begin when such a person learns of the incident. General Dynamics (Ex. 2:63, p. 2) stated:

It is suggested that the clarification should be "* * * that the allotted time begins as soon as the responsible representative of the employer does obtain this information". In large, complex organizations the time for information flow within the employer in these cases would easily exceed 8 hours from the first representative of the employer to the one with responsibility to inform OSHA, to obtain information.

Two organizations expressed the opinion that employers should always have the capability to meet the reporting requirement.

The AAOHN (Ex. 60, p. 2) stated:

Businesses should develop and communicate clear policies about accident notification and reporting to which all employees must adhere. For example, every one, through every level of responsibility, must know what to do when accidents occur.

The International Brotherhood of Painters & Allied Trades (Ex. 2: 69) observed:

Ambiguous language would be addressed in the clarification on reporting for an accident when an employer first learns of the incident. However, we do insist that there should be a person made responsible for notification during times of an employers absence as the employer, even when not on site, always has a designated authoritative representative present.

Under today's final rule, there is an obligation to report a qualifying fatality or hospitalization to OSHA if any agent or employee of the employer becomes aware of the incident. It is the employer's responsibility to assure that appropriate instructions and procedures are in place to assure that corporate officers, managers, supervisors, medical/health personnel, safety officers, receptionists, switchboard personnel, and other employees or agents of the company who may be in a position to learn of employee deaths or hospitalizations are aware of the company's responsibility to make a timely report. Given the minimal amount of information required (establishment name, location of the incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident), OSHA believes eight hours, a period roughly corresponding to one complete shift during a typical industrial day, is more than adequate time to fulfill this reporting requirement.

4. Time Limits for Fatalities/Multiple Hospitalizations Not Immediately Reportable

Today's final rule specifies that even if an employment incident is not immediately reportable, if such an incident results in a death of an employee or the in-patient hospitalization of 3 or more employees within 30 days after the incident occurs, the employer is required to report such fatality/multiple hospitalization within 8 hours after learning of it. This clarifies the previous version of 29 CFR 1904.8 which required that fatalities/multiple hospitalizations be reported, but set no explicit outside time limit for the reporting of fatalities/multiple hospitalizations which did not occur immediately.

OSHA solicited comment on whether the proposed six-month time frame for reporting fatalities was appropriate and received a wide variety of comments and recommendations.

The suggested time frames for reporting delayed deaths ranged from 1 week after the incident to indefinitely. Several organizations were supportive of the proposed six month period (Ex. 2: 9, 15, 38, 60, 63, 69, 75, 77, 101) stating that six months is an appropriate time frame.

The majority of those who commented upon the subject, however, called for a shorter time frame (Ex. 2: 19, 35, 39, 41, 51, 57, 59, 62, 64, 66, 82, 83, 85, 91, 92, 94, 98) ranging from one week to three months. The American Trucking Associations (Ex. 2: 57, p. 6) remarked:

NHTSA studies found that 98% of traffic fatalities occur within that 30-day period. ATA believes that this is also probably true of fatalities in the workplace. A reporting requirement which captures 98% of the available data is adequate * * * ATA recommends that the requirement for follow-up reporting of workplace fatalities be limited to those fatalities which occur within 30 days of the accident.

Many of those calling for a shorter time period, made the arguments that investigations performed six months after the incident occurred would reveal little useful information and work relationship would be difficult to determine (Ex. 2: 19, 27, 39, 41, 45, 51, 59, 62, 64, 66, 68, 77, 82, 83, 85, 86, 87, 92, 94, 96, 101, 103). ChemDesign Corporation (Ex. 2:82, p. 3) observed:

Surely after 1 month, the equipment, other physical circumstances and witnesses' memories would have changed to such a degree that subsequent investigation by OSHA would be of limited usefulness. One month should also cover almost all directly related fatalities as well as eliminate from consideration most of those that would be questionable.

Only three organizations called for a longer time frame for reporting delayed fatalities (Ex. 2: 13, 54, 84). The United University Professions (Ex. 2:13, p. 2) called for an indefinite time frame for the following reason:

* * * Because of present-day medical expertise, an expertise that seems to be growing every day, life is being prolonged for greater and greater periods of time. Because of such life-prolonging techniques, cut-off periods for reporting will surely lapse in too many cases. Therefore, the result will be that too many work-related deaths will go unreported. Unfortunate as any death may be, all workplace-related deaths must be reported and investigated.

After review of the comments submitted to the docket and further analysis of the facts and opinions stated within the comments, OSHA now feels that information gathering after a 30 day period would not be productive for compliance and hazard identification purposes. The "accident scene" would likely be altered beyond the point of providing any useful information for evaluation purposes. For statistical purposes, OSHA believes that work related fatalities delayed after a 30 day period will be identified by other government information systems such as the National Traumatic Occupational Fatalities and the Census of Fatal Occupational Injuries programs.

5. Applicability to Both Current and Former Employees

In the proposed rule, OSHA asked if the requirement should be limited to injured workers who continue to be employed by the employer where they were injured. Both supportive and opposing comments were received (Ex. 2: 5, 29, 35, 54, 60, 64, 68, 77, 90). Gilbane Building Company (Ex. 2: 5) expressed a concern for relating to problems associated with tracking former employees in the construction industry:

There are many circumstances within the construction industry that preclude knowledge by the employer that worker (at the time of the accident) has died sometime following the accident. Particularly in cases where the worker has gone on to other employment and another employer may have been the cause of the fatality. OSHA is presupposing that the employees are long-term employees of an employer. In the construction industries, this is definitely not the case.

I would suggest adding a line stating that this only applies if the worker remains as an employee.

The American Association of Occupational Health Nurses (Ex. 2: 60, p.3) responded that former employees should be included:

The requirement should cover workers who continue to work for the employer after the injury as well as former employees who no longer work for the employer.

AAOHN believes that no extraordinary steps should be taken to track injured employees once they leave the employer. However, until workers' compensation and disability issues are resolved, employers would be aware.

OSHA agrees with the assessment of the occupational health nurses that reporting requirements under 29 CFR 1904.8 should apply whether or not the affected worker is technically a current employee of the employer for whom he worked when the incident occurred. OSHA believes that in the vast majority of cases the employer would be notified via worker's compensation or other insurance mechanisms of the subsequent death of any former employees from causes arising during employment with that company. Moreover, the reduction of the period during which reporting is required from 6 months in the proposed rule to 30 days in the final rule should greatly reduce concerns expressed in some of the comments that the tracking of former employees would place an undue burden on employers.

Some concern was expressed relating to the responsibilities of the worker's current employer if different from the employer at the time of the injury. These reporting requirements apply only to the employer at the time of the injury.

Finally, a significant number of organizations expressed their disagreement with the rationale used to require reporting of delayed deaths within 8 hours of learning of such an occurrence (Ex. 2: 9, 18, 27, 29, 35, 38, 51, 60, 61, 62, 63, 64, 75, 76, 77, 82, 83, 87, 92, 96, 101). The Aluminum Company of America (Ex. 2: 27) observed:

ALCOA objects to the eight-hour reporting requirement for an accident "which results in a fatality within six months after" the accident, as this stringent time frame for reporting is not consistent with the Agencies objectives.

The stated objectives of the revision are to assure more complete and timely information, to assure that the circumstances at the accident site don't change, and witness recollections don't change, etc. When up to six (6) months may have passed, it is unlikely that imposing an 8 hour vs. 48 hour time frame for reporting would make a significant difference. Therefore, the stringent reporting requirement should be modified accordingly to be more realistic and impose less of an administrative burden on the employer.

OSHA agrees with this assessment for the reasons stated. As discussed above, OSHA has modified its original proposed requirement for reporting deaths/multiple hospitalizations which are delayed from six (6) months to thirty (30) days. OSHA feels that this reduction will consequently alleviate much of the administrative burden discussed by ALCOA above. The Agency also believes that the potential confusion created by dual reporting requirements, i.e. 8 hours for one situation and 48 hours for another, would outweigh the benefits gained by extending the reporting time period for certain situations. Therefore, if the fatality/multiple hospitalization occurs within thirty days of the incident the employer is required to report the incident within 8 hours of learning of the fatality/multiple hospitalization.

6. Procedures for Making Reports to OSHA

In order to meet the reporting requirements in 29 CFR 1904.8, the employer must either: (1) Make his or her report orally, by telephone or in person, to the Area Office of the Occupational Safety and Health Administration located nearest to the site of the incident, or (2) contact OSHA using its toll free telephone number. It should be noted that neither media coverage, nor reports to insurance carriers or others constitute reporting to OSHA as required under this regulation. The information that must be supplied in the report is as follows: Establishment name, location of the incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident.

OSHA received comments suggesting the use of facsimiles and/or a toll free number to meet the reporting requirements. Organizations also called for OSHA to provide some form of documentation to the employer showing proof of compliance.

Specifically, the availability of a toll free number for meeting the reporting requirements received much support (Ex. 2: 5, 12, 13, 17, 19, 21, 27, 30, 45, 51, 57, 59, 65, 74, 76, 82, 83, 84, 85, 87, 91, 94, 99). Amoco (Ex. 2: 83, p. 2) stated:

We suggest that a single, centralized, toll-free, 24-hour telephone number for the notification nationwide of reportable incidents, similar to that used by the National Response Center for environmental incidents, would serve the regulated public. OSHA's central office would then transmit the pertinent information to the correct area office, and to any other agencies with a need to know. Such a system would facilitate error-free communication as a consequence of its simplicity, particularly for smaller businesses and facilities which may be functioning in a crisis mode at the time of reporting. In addition, one centralized number would obviate the need in each area office for a separate toll-free line or other specialized communication equipment.

The National Turkey Federation (Ex. 2: 94, p. 3) added:

* * * NTF believes that a toll free 800 number will enhance the reporting abilities of industry, particularly for those businesses located in Areas not equipped to receive reports 24 hours per day. Furthermore, it will become much easier for businesses to establish company-wide policies which have a single phone number to use in accident reporting.

Several organizations saw no need for instituting a toll-free number (Ex. 2: 60, 75, 77, 90, 92, 98, 101, 103) for reporting purposes. The American Petroleum Institute (Ex. 2: 90, p. 5) expressed its opinion towards the use of a toll-free number as follows:

Reporting to the OSHA area office, as OSHA proposes, would seem to be the more reasonable approach * * * It would provide information directly to the office where action, if any, would be taken. It would facilitate direct two-way communications between those providing the information and those needing it, thereby saving time for both employers and OSHA. It would preclude special handling and the added expense for OSHA to relay information from a central location to the area offices - a practice which could introduce errors and omissions. And lastly, employers can easily obtain the number of the nearest OSHA office from phone books or from directory assistance. For the reasons above, we believe a toll-free number is not needed.

In addition, reporting by the use of facsimile machines was an option called for by many organizations (Ex. 2: 7, 16, 21, 27, 37, 38, 51, 57, 59, 61, 64, 65, 74, 75, 77, 79, 81, 82, 83, 85, 87, 90, 92, 96, 98, 101, 103, 109). The Society of the Plastics Industry, Inc. (Ex. 2: 81, p. 3) observed:

Permitting companies to report by facsimile - or by courier or any other method with which the delivery of the written communication within the specified time period could be verified - would satisfy not only OSHA's objectives, but would give companies the necessary flexibility to report most appropriately under varying circumstances and to satisfy their own internal need for documentation of compliance.

OSHA does not agree that reporting by facsimile will meet its objectives in every case. If an incident occurred late on a Friday evening, and the employer used the facsimile machine to meet the reporting requirements, OSHA would most likely not learn of the incident until the following Monday morning. Telephone answering machines, if available, would be similarly deficient. For this reason, OSHA requires that these reporting obligations be met through direct verbal contact with the Area Office or by utilization of the OSHA toll-free number. In this manner a timely decision can be made regarding investigation of the scene.

Finally, a number of organizations requested that some sort of verification of compliance be given to the employer upon reporting a fatality or multiple hospitalization (Ex 2: 10, 17, 44, 57, 60, 64, 74, 75, 83, 89, 90, 93, 96). The Dow Chemical Company (Ex. 2: 93, p. 2) remarked:

Dow is also concerned with receiving confirmation of reports made to OSHA. With a shortened reporting period, reports may often be made after working hours. The Dow Chemical Company would like some method of verification that a report has been received by OSHA.

OSHA agrees with this assessment and while employers may certainly fax, mail, hand deliver etc. the information to OSHA as a backup procedure, the Agency will investigate other methods of providing proof of compliance - e.g. assigning report confirmation numbers.

IV. Regulatory Impact Assessment

The revised regulation, like the present 1904.8, applies to all employers within OSHA's jurisdiction, including general industry, construction, shipyard employment, longshoring, marine terminals, and agriculture.

OSHA has determined that a Regulatory Impact Analysis (RIA) is not required for this regulation because the regulation is not a "significant regulatory action" as defined by E.O. 12866.

Under the Executive Order a significant regulatory action must meet at least one of the following conditions:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof;

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

Based on the paperwork requirements identified below in Section IX, OSHA estimates the total national cost of this revision to the affected employers will be approximately $1500 per annum (i.e. 200 additional reports requiring 15 minutes each multiplied by $30.00 per hour, the cost of a professional to complete the report). At this annual national cost, this regulation does not meet the economic impact criteria of the Executive order, nor does it present issues of the kind described in the remaining criteria. Accordingly, this final rule is exempt from the regulatory impact analysis requirements of Executive Order 12866.

V. Regulatory Flexibility Assessment

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Assistant Secretary certifies that the rule will not have a significant adverse impact on a substantial number of small entities. OSHA estimates that of the additional 200 reports likely to be generated nationwide, only 52 will fall upon small business (i.e. 200 multiplied by .26, the percentage of the employment population represented by small businesses). OSHA estimates that the total cost to small business employers will be about $400 (i.e. 52 additional reports requiring 15 minutes each to complete multiplied by $30.00 per hour, the cost of a professional to complete the report). Thus, the rule will not have a significant adverse impact on a substantial number of small businesses.

VI. Environmental Impact Assessment

In accordance with the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), Council on Environmental Quality NEPA regulations (40 CFR part 1500 et seq.), and the Department of Labor's NEPA regulations (29 CFR part 11), the Assistant Secretary has determined that this rule will not have a significant impact on the external environment.

VII. Federalism

This rule has been reviewed in accordance with Executive Order 12612 (52 FR 41685), regarding Federalism. Because this rulemaking action involves a "regulation" issued under section 8 of the OSH Act, and not a "standard" issued under section 6 of the Act, the rule does not preempt State law, see 29 U.S.C. 667 (a).

VIII. State Plans

The 25 States and territories with their own OSHA approved occupational safety and health plans must adopt a comparable rule. These 25 States are: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands, Washington, and Wyoming; and Connecticut and New York (for state and local Government employees only). 29 CFR 1952.4 requires that such States with approved State plans under section 18 of the OSH Act (29 U.S.C. 677), must adopt recordkeeping and reporting regulations which are "substantially identical" to those set forth in 29 CFR part 1904. Therefore, the definitions used must be identical to ensure the uniformity of collected information. In addition, 1952.4 provides that employer variances or exceptions to State recordkeeping or reporting requirements in a State plan State must be approved by the Bureau of Labor Statistics. Similarly, a State is permitted to require supplemental reporting or recordkeeping data, but that State must obtain approval from the Bureau of Labor Statistics to insure that the additional data will not interfere with "the primary uniform reporting objectives." The responsibilities of the Bureau of Labor Statistics for the reporting requirements covered by this final rule were transferred to OSHA as part of a memorandum of understanding between OSHA and BLS effective January 1, 1991.

In accordance with 1952.4, OSHA has allowed the States to vary from the "substantially identical" requirement in certain, limited circumstances, such as 1904.8 reports, as long as the State requirements were at least as effective as the Federal requirements as it relates to fatality and multiple hospitalization reporting. As discussed above, a number of the States have adopted fatality/catastrophe reporting requirements more stringent than those of OSHA.

IX. Paperwork Reduction Act

This rule contains a "collection of information" requirement pertaining to the procedures for employers to report employment fatalities and multiple hospitalizations. This requirement has been submitted to the Office of Management and Budget for approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and 5 CFR part 1320.

Reporting by employers under this collection of information requirement is estimated to average 15 minutes per report. The time involved is for calling either the OSHA Area Office or utilizing the OSHA toll-free number and reporting the fatality or multiple hospitalizations.

Interested persons may submit comments regarding this burden estimate or other aspect of this collection of information to the OSHA Docket Office, Docket No. R-01, Occupational Safety and Health Administration, room N-2625, 200 Constitution Avenue NW, Washington, DC 20210, and to the OSHA Desk Officer (RIN 1218-AB28), Office of Management and Budget, Washington, DC 20503.

X. List of Subjects in 29 CFR Part 1904

Fatality, Multiple hospitalization, Notification of fatality, Occupational Safety and Health, Occupational Safety and Health Administration, Recordkeeping.

XI. Authority

This document was prepared under the direction of Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210.

Accordingly, pursuant to sections 8(c), 8(g) and 24 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, 29 CFR part 1904 is hereby amended by revising 1904.8 as set forth below.

Signed in Washington, DC, this 25th day of March 1994.

Joseph A. Dear,
Assistant Secretary of Labor.

PART 1904 - [AMENDED]

1. The authority citation for 29 CFR part 1904 is revised to read as follows:

Authority: Secs. 8, 24, Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as applicable.

Sections 1904.7 and 1904.8 also issued under 5 U.S.C. 553.

2. Section 1904.8 is revised to read as follows:

1904.8 Reporting of fatality or multiple hospitalization incidents.

(a) Within 8 hours after the death of any employee from a work-related incident or the in-patient hospitalization of three or more employees as a result of a work-related incident, the employer of any employees so affected shall orally report the fatality/multiple hospitalization by telephone or in person to the Area Office of the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, that is nearest to the site of the incident, or by using the OSHA toll-free central telephone number.

(b) This requirement applies to each such fatality or hospitalization of three or more employees which occurs within thirty (30) days of an incident.

(c) Exception: If the employer does not learn of a reportable incident at the time it occurs and the incident would otherwise be reportable under paragraphs (a) and (b) of this section, the employer shall make the report within 8 hours of the time the incident is reported to any agent or employee of the employer.

(d) Each report required by this section shall relate the following information: Establishment name, location of incident, time of the incident, number of fatalities or hospitalized employees, contact person, phone number, and a brief description of the incident.

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