[Federal Register Volume 59, Number 63 (Friday, April 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7778]


[[Page Unknown]]

[Federal Register: April 1, 1994]


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Part IV





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1904




Reporting of Fatality or Multiple Hospitalization Incidents; Final Rule
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.

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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 
Sec. 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 Sec. 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 Sec. 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 
Sec. 1904.8 proposal from the overall revision of part 1904 enables 
OSHA to make the necessary changes in Sec. 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 Sec. 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 
Sec. 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, Sec. 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 Sec. 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 Sec. 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:


Sec. 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.

[FR Doc. 94-7778 Filed 3-31-94; 8:45 am]
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