[Federal Register Volume 79, Number 181 (Thursday, September 18, 2014)]
[Rules and Regulations]
[Pages 56130-56188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21514]



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Vol. 79

Thursday,

No. 181

September 18, 2014

Part II





Department of Labor





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Occupational Safety and Health Administration





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29 CFR Part 1904





Occupational Injury and Illness Recording and Reporting Requirements--
NAICS Update and Reporting Revisions; Final Rule

  Federal Register / Vol. 79 , No. 181 / Thursday, September 18, 2014 / 
Rules and Regulations  

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

[Docket No. OSHA-2010-0019]
RIN 1218-AC50


Occupational Injury and Illness Recording and Reporting 
Requirements--NAICS Update and Reporting Revisions

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

ACTION: Final rule.

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SUMMARY: OSHA is issuing a final rule to update the appendix to its 
Injury and Illness Recording and Reporting regulation. The appendix 
contains a list of industries that are partially exempt from 
requirements to keep records of work-related injuries and illnesses due 
to relatively low occupational injury and illness rates. The updated 
appendix is based on more recent injury and illness data and lists 
industry groups classified by the North American Industry 
Classification System (NAICS). The current appendix lists industries 
classified by Standard Industrial Classification (SIC).
    The final rule also revises the requirements for reporting work-
related fatality, injury, and illness information to OSHA. The current 
regulation requires employers to report work-related fatalities and in-
patient hospitalizations of three or more employees within eight hours 
of the event. The final rule retains the requirement for employers to 
report work-related fatalities to OSHA within eight hours of the event 
but amends the regulation to require employers to report all work-
related in-patient hospitalizations, as well as amputations and losses 
of an eye, to OSHA within 24 hours of the event.

DATES: The final rule becomes effective January 1, 2015.

ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ann 
Rosenthal, Acting Associate Solicitor of Labor for Occupational Safety 
and Health, Office of the Solicitor, Room S-4004, U.S. Department of 
Labor, 200 Constitution Avenue NW., Washington, DC 20210, to receive 
petitions for review of the final rule.

FOR FURTHER INFORMATION CONTACT: 
    For press inquiries: Frank Meilinger, OSHA, Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue NW., Washington, DC 20210; telephone (202)-693-1999; email: 
[email protected]
    For general and technical information: Miriam Schoenbaum, OSHA, 
Office of Statistical Analysis, Room N-3507, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1841; email: [email protected]

SUPPLEMENTARY INFORMATION: 

1. Background

A. Table of Contents

    The following table of contents identifies the major sections of 
the preamble to the final rule revising OSHA's Occupational Injury and 
Illness Recording and Reporting Requirements regulation (NAICS update 
and reporting revisions):

I. Background
    A. Table of Contents
    B. References and Exhibits
    C. Introduction
    D. Regulatory History
II. Legal Authority
III. Section 1904.2--Partial Exemption for Certain Industries
    A. Background
    B. The Proposed Rule
    C. Comments on the Proposed Rule
    D. The Final Rule
IV. Section 1904.39 Reporting Requirements for Fatalities, In-
Patient Hospitalizations, Amputations, and Losses of an Eye
    A. Background
    B. The Proposed Rule
    C. Comments on the Proposed Rule
    D. The Final Rule
V. Final Economic Analysis and Regulatory Flexibility Analysis
    A. Introduction
    B. Industrial Profile
    C. Costs of the Final Regulation
    D. Benefits
    E. Technological Feasibility
    F. Economic Feasibility and Impacts
    G. Regulatory Flexibility Certification
    H. Appendix
VI. Environmental Impact Assessment
VII. Federalism
VIII. Unfunded Mandates
IX. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
X. State Plan Requirements
XI. Consultation and Coordination With Indian Tribal Governments

B. References and Exhibits

    In this preamble, OSHA references documents in Docket No. OSHA-
2010-0019, the docket for this rulemaking. The docket is available at 
http://www.regulations.gov, the Federal eRulemaking Portal.
    References to documents in this rulemaking docket are given as 
``Ex.'' followed by the document number. The document number is the 
last sequence of numbers in the Document ID Number on http://www.regulations.gov. For example, Ex. 1, the proposed rule, is Document 
ID Number OSHA-2010-0019-0001.
    The exhibits in the docket, including public comments, supporting 
materials, meeting transcripts, and other documents, are listed on 
http://www.regulations.gov. All exhibits are listed in the docket index 
on http://www.regulations.gov. However, some exhibits (e.g., 
copyrighted material) are not available to read or download from that 
Web page. All materials in the docket are available for inspection and 
copying at the OSHA Docket Office, Room N-2625, U.S. Department of 
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone 
(202) 693-2350.

C. Introduction

    OSHA's regulation at 29 CFR part 1904 requires employers with more 
than 10 employees in most industries to keep records of occupational 
injuries and illnesses at their establishments. Employers covered by 
these rules must record each recordable employee injury and illness on 
an OSHA Form 300, which is the ``Log of Work-Related Injuries and 
Illnesses'', or equivalent. Employers must also prepare a supplementary 
OSHA Form 301 ``Injury and Illness Incident Report'' or equivalent that 
provides additional details about each case recorded on the 300 Log. 
Finally, at the end of each year, employers are required to prepare a 
summary report of all injuries and illnesses on the OSHA Form 300A, 
which is the ``Summary of Work-Related Injuries and Illnesses'', and 
post the form in a visible location in the workplace.
    OSHA's current regulation at Section 1904.2 partially exempts 
establishments in certain lower-hazard industry groups from the 
requirement for keeping injury and illness records. Lower-hazard 
industries are currently those industries that are classified within 
SIC major industry groups 52-89 and that have an average Lost Workday 
Injury and Illness (LWDII) rate at or below 75 percent of the three-
year-average national LWDII rate for private industry.
    The LWDII rate is an incidence rate that represents the number of 
non-fatal injuries and illnesses resulting in days away from work or 
job restriction per 100 full-time-equivalent employees per year. The 
LWDII data used to compile the current list of partially-exempt 
industry groups were taken from the Bureau of Labor Statistics (BLS) 
Survey of Occupational Injuries and Illnesses (SOII) for the years 
1996, 1997, and

[[Page 56131]]

1998. Establishments in the industry groups listed in Appendix A to 
Subpart B do not need to keep OSHA injury and illness records unless 
they are asked to do so in writing by OSHA, BLS, or a state agency 
operating under the authority of OSHA or BLS.
    This final rule replaces the list of partially-exempt industry 
groups in SIC 52-89, based on 1996-1998 injury/illness data, with a 
list of partially-exempt industry groups in NAICS 44-81, based on 2007-
2009 injury/illness data. Because overall injury and illness rates have 
been declining, the threshold Days Away, Restriction, or Transfer 
(DART) rate for partial exemption is 1.5 (75% of the 2007-2009 average 
private industry DART rate of 2.0), down from the previous 2.325 (75% 
of the 1998 average private industry LWDII rate of 3.1).
    Additionally, OSHA's current regulation at 29 CFR 1904.39(a) 
requires employers to report all work-related fatalities and all in-
patient hospitalizations of three or more employees to OSHA within 
eight hours. This final rule leaves in place the current requirement 
that employers report all work-related fatalities to OSHA within eight 
hours. However, the final rule amends the current regulation by 
requiring employers to report all work-related in-patient 
hospitalizations that require care or treatment, all amputations, and 
all losses of an eye to OSHA within 24 hours.
    All employers covered by the OSH Act, including employers who are 
partially exempt from maintaining injury and illness records, are 
required to comply with OSHA's reporting requirements at 29 CFR 
1904.39.
    This rulemaking has net annualized costs of $7.7 million, with 
total annualized new costs of $19.2 million to employers and total 
annualized cost savings of $11.5 million for employers who no longer 
have to meet certain recordkeeping requirements. The Agency believes 
that the rulemaking will improve access to information about workplace 
safety and health, with potential benefits that could include:
     Allowing OSHA to use its resources more effectively by 
enabling the Agency to identify the workplaces where workers are at 
greatest risk, in general and/or from specific hazards, and target its 
compliance assistance and enforcement efforts accordingly.
     Increasing the ability of employers, employees, and 
employee representatives to identify and abate hazards that pose 
serious risks to workers at their workplaces.

D. Regulatory History

    OSHA's regulations on recording and reporting occupational injuries 
and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 
12612, July 2, 1971). On December 28, 1982, OSHA amended these 
regulations to partially exempt establishments in certain lower-hazard 
industries from the requirement to record occupational injuries and 
illnesses (47 FR 57699). In 1994, the Agency issued a final rule 
revising the requirements for employers to report work-related 
fatalities and certain work-related hospitalizations to OSHA (59 FR 
15594, April 1, 1994). On January 19, 2001, OSHA issued a final rule 
that comprehensively revised its Part 1904 recordkeeping regulations 
(66 FR 5915). As part of this revision, OSHA updated the list of 
industries eligible for partial exemption (Section 1904.2, 66 FR 5939-
5945) and amended the requirements for reporting work-related 
fatalities and certain hospitalizations to OSHA (Section 1904.39, 66 FR 
6062-6065).
    In this rulemaking, OSHA issued the proposed rule on June 22, 2011 
(75 FR 36414). No public hearings were held for this rulemaking. OSHA 
received 125 comments on the proposed rule. These comments are 
addressed below.

II. Legal Authority

    Section 24 of the OSH Act requires the Secretary to ``develop and 
maintain an effective program of collection, compilation, and analysis 
of occupational safety and health statistics'' and ``compile accurate 
statistics on work injuries and illnesses which shall include all 
disabling, serious, or significant injuries and illnesses, whether or 
not involving loss of time from work, other than minor injuries 
requiring only first aid treatment and which do not involve medical 
treatment, loss of consciousness, restriction of work or motion, or 
transfer to another job'' (29 U.S.C. 673(a)). Section 24 also requires 
employers to ``file such reports [of work injuries and illnesses] with 
the Secretary'' as the Secretary may prescribe by regulation (29 U.S.C. 
673(e)).
    In addition, the Secretary's responsibilities under the OSH Act are 
defined largely by its enumerated purposes, which include ``[p]roviding 
appropriate reporting procedures that will help achieve the objectives 
of this Act and accurately describe the nature of the occupational 
safety and health problem'' (29 U.S.C. 651(b)(12)).
    The OSH Act authorizes the Secretary to issue two types of 
occupational safety and health rules; standards and regulations. 
Standards, which are authorized by section 6 of the OSH Act, specify 
remedial measures to be taken to prevent and control employee exposure 
to identified occupational hazards; while regulations are the means to 
effectuate other statutory purposes, including the collection and 
dissemination of records of occupational injuries and illnesses. Courts 
of appeal have held that OSHA recordkeeping rules are regulations and 
not standards (Louisiana Chemical Ass'n v. Bingham, 657 F.2d 777, 782-
785 (5th Cir. 1981); Workplace Health & Safety Council v. Reich, 56 
F.3d 1465, 1467-1469 (D.C. Cir. 1995).

III. Section 1904.2--Partial Exemption for Certain Industries

A. Background

    Although the OSH Act gives OSHA the authority to require all 
employers covered by the Act to keep records of employee injuries and 
illnesses, two classes of employers are partially exempted from the 
recordkeeping requirements in Part 1904. First, as provided in Section 
1904.1, employers with 10 or fewer employees at all times during the 
previous calendar year are partially exempt from keeping OSHA injury 
and illness records. Second, as provided in Section 1904.2, 
establishments in certain lower-hazard industries are also partially 
exempt. Partially-exempt employers are not required to maintain OSHA 
injury and illness records unless required to do so by OSHA under 
Section 1904.41 (OSHA Data Initiative) or by BLS under Section 1904.42 
(Annual Survey).
    The partial exemption based on industry has been part of the OSHA 
recordkeeping regulation since 1982. OSHA established the 1982 list of 
partially-exempt industries by identifying major industry groups with 
relatively low rates of occupational injuries and illnesses in the 
divisions for retail trade; finance, insurance and real estate; and the 
service industries (SICs G, H, and I). Establishments were partially 
exempted from routinely keeping injury and illness records if the 
three-year-average lost workday case injury rate (LWCIR) for their 
major industry group was 75 percent or less of the overall three-year 
average LWCIR for private industry, using BLS data from 1978, 1979, and 
1980. Major industry groups in the divisions for agriculture, forestry 
and fishing; mining; construction; manufacturing; transportation and 
utilities; and wholesale trade (SIC Divisions A-F) were not eligible 
for the industry partial exemption. Although the 1982 Federal

[[Page 56132]]

Register notice discussed the possibility of revising the list of 
partially-exempt industries, the list remained unchanged until 2001.
    On January 19, 2001, OSHA published a final rule (66 FR 5916) that 
comprehensively revised the Part 1904 recordkeeping regulations. As 
part of this revision, OSHA updated the list of industries that are 
partially exempt from the recordkeeping requirements. The list in the 
current regulation at Appendix A to Subpart B is the list of industries 
established in the 2001 final rule.
    The 2001 final rule revised the 1982 list by using a similar method 
for identifying eligible industries. As in 1982, only industries in the 
major divisions for retail trade; finance, insurance and real estate; 
and the service industries (SICs G, H, and I) were eligible for 
inclusion, and the injury/illness rate threshold was 75 percent or less 
of the three-year-average rate for private industry. However, the 2001 
list differed from the 1982 list in two respects. First, OSHA used BLS 
injury/illness data from 1996, 1997, and 1998, rather than data from 
1978, 1979, and 1980. As a result, the threshold injury/illness rate 
for industries eligible for partial exemption was 2.325 in the 2001 
rule, compared to 3.0 in the 1982 rule. Second, the revised list showed 
industry groups (three-digit SIC), rather than major industry groups 
(two-digit SIC).
    OSHA currently lists the partially-exempt industries as follows:

------------------------------------------------------------------------
           SIC  code                       Industry description
------------------------------------------------------------------------
525............................  Hardware Stores.
542............................  Meat and Fish Markets.
544............................  Candy, Nut, and Confectionery Stores.
545............................  Dairy Products Stores.
546............................  Retail Bakeries.
549............................  Miscellaneous Food Stores.
551............................  New and Used Car Dealers.
552............................  Used Car Dealers.
554............................  Gasoline Service Stations.
557............................  Motorcycle Dealers.
56.............................  Apparel and Accessory Stores.
573............................  Radio, Television, & Computer Stores.
58.............................  Eating and Drinking Places.
591............................  Drug Stores and Proprietary Stores.
592............................  Liquor Stores.
594............................  Miscellaneous Shopping Goods Stores.
599............................  Retail Stores, Not Elsewhere
                                  Classified.
60.............................  Depository Institutions (banks &
                                  savings institutions).
61.............................  Nondepository Credit Institutions.
62.............................  Security and Commodity Brokers.
63.............................  Insurance Carriers.
64.............................  Insurance Agents, Brokers & Services.
653............................  Real Estate Agents and Managers.
654............................  Title Abstract Offices.
67.............................  Holding and Other Investment Offices.
722............................  Photographic Studios, Portrait.
723............................  Beauty Shops.
724............................  Barber Shops.
725............................  Shoe Repair and Shoeshine Parlors.
726............................  Funeral Service and Crematories.
729............................  Miscellaneous Personal Services.
731............................  Advertising Services.
732............................  Credit Reporting and Collection
                                  Services.
733............................  Mailing, Reproduction, & Stenographic
                                  Services.
737............................  Computer and Data Processing Services.
738............................  Miscellaneous Business Services.
764............................  Reupholstery and Furniture Repair.
78.............................  Motion Picture.
791............................  Dance Studios, Schools, and Halls.
792............................  Producers, Orchestras, Entertainers.
793............................  Bowling Centers.
801............................  Offices & Clinics Of Medical Doctors.
802............................  Offices and Clinics Of Dentists.
803............................  Offices Of Osteopathic.
804............................  Offices Of Other Health Practitioners.
807............................  Medical and Dental Laboratories.
809............................  Health and Allied Services, Not
                                  Elsewhere Classified.
81.............................  Legal Services.
82.............................  Educational Services (schools,
                                  colleges, universities and libraries).
832............................  Individual and Family Services.
835............................  Child Day Care Services.
839............................  Social Services, Not Elsewhere
                                  Classified.
841............................  Museums and Art Galleries.
86.............................  Membership Organizations.
87.............................  Engineering, Accounting, Research,
                                  Management, and Related Services.
899............................  Services, not elsewhere classified.
------------------------------------------------------------------------

    The 2001 rulemaking also addressed the issue of converting from SIC 
to NAICS (66 FR 5916). Although the first version of NAICS was adopted 
in 1997, BLS had not yet converted to NAICS for the collection of 
occupational injury and illness data when the 2001 final rule was 
issued. OSHA therefore based the partially-exempt industry groups on 
the SIC system. However, in the preamble to the 2001 final rule, OSHA 
stated its intention to conduct a future rulemaking to update the 
industry classifications to NAICS when BLS had published the injury and 
illness data required for making appropriate industry-by-industry 
decisions (66 FR 5944).
    Updating to NAICS also fulfills a commitment OSHA made to the 
Government Accountability Office (GAO). In October 2009, GAO published 
a report entitled ``Enhancing OSHA's Records Audit Process Could 
Improve the Accuracy of Worker Injury and Illness Data'' (GAO-10-10). 
GAO recommended that OSHA update the list of industries OSHA uses to 
select worksites for records audits. In its response to GAO, OSHA 
agreed to pursue rulemaking to update the industry coverage of the 
recordkeeping rule from SIC to NAICS. This allows the Agency to use 
current BLS data to redefine the coverage of the recordkeeping rule.

B. The Proposed Rule

    OSHA proposed to update Appendix A to Subpart B in two ways. First, 
industries would be classified by NAICS instead of SIC. Second, the 
injury/illness threshold would be based on more recent BLS data (2007, 
2008, and 2009).
    As in the current regulation, the agriculture, forestry, fishing, 
and hunting; mining; construction; manufacturing; and wholesale trade 
sectors were ineligible for partial exemption in the proposed rule. The 
following sectors were eligible: Retail trade; transportation and 
warehousing; information; finance and insurance; real estate and rental 
and leasing; professional, scientific, and technical services; 
management of companies and enterprises; administrative and support and 
waste management and remediation services; educational services; health 
care and social assistance; arts, entertainment, and recreation; 
accommodation and food services; and other services (except public 
administration) (NAICS 44-81). With one exception, industry groups 
(classified by four-digit NAICS) in these sectors would have been 
partially exempt from the recordkeeping requirements in Part 1904 if 
their three-year-average DART rate were 75 percent or less of the 
overall three-year-average DART rate for private industry, using BLS 
data from 2007, 2008, and 2009. Since the three-year-average private-
sector DART rate for 2007, 2008, and 2009 was 2.0, the threshold for 
partial exemption for eligible industry groups (classified by four-
digit NAICS) would have been a DART rate of 1.5 or less (see 76 FR 
3641).
    The one exception in eligibility due to three-year-average DART 
rate would have been for establishments in Employment Services (NAICS 
5613). This industry includes employment placement agencies, temporary 
help

[[Page 56133]]

services, and professional employer organizations. In the 2001 
rulemaking, the corresponding industry group (Personnel Supply Services 
(SIC 736)) was ineligible for partial exemption based on its three-
year-average DART rate (using data from 1996, 1997 and 1998). In the 
preamble to the proposed rule, OSHA explained that the Employment 
Services industry was below the 75 percent threshold, based on 2007, 
2008, and 2009 data. However, OSHA nonetheless proposed non-exemption 
of this industry on grounds that, for many employees in this industry, 
their actual place of work may be in an establishment that is part of a 
different, possibly higher-hazard industry. Therefore, NAICS 5613 
Employment Services was not included in proposed Appendix A to Subpart 
B.
    In the preamble to the proposed rule, OSHA estimated that 199,000 
establishments that had previously been partially exempt would have 
become non-exempt. These establishments employed 5.3 million employees 
and accounted for an estimated 173,000 injuries and illnesses per year. 
In addition, 119,000 establishments that were previously non-exempt 
would have become partially exempt. These establishments employed 4.0 
million employees and accounted for an estimated 76,000 injuries and 
illnesses per year.

C. Comments on the Proposed Rule

    In general, OSHA's decision to convert the listing of partially-
exempt employers from SIC to NAICS drew widespread support from 
commenters on the proposed rule (Exs. 24, 52, 59, 69, 77, 78, 81, 85, 
86, 90, 93, 99, 100, 112, 119, 120, 122, 124). OSHA received only one 
comment expressing concern about the conversion, and stating it would 
not be possible to compare data between the years covered by SIC and 
the years covered by NAICS (Ex. 29).
    OSHA notes that continued use of the SIC system would make injury 
and illness data incomparable with other types of contemporary industry 
data, and would make the use of injury and illness information in 
coordination with other economic data extremely difficult. Further, 
OSHA agrees with commenters whose expectation is that switching to 
NAICS from the seldom-used SIC system will decrease uncertainty in 
classification, save time, reduce confusion and lower the opportunity 
for errors in reporting the industry to which an employer belongs (Ex. 
24, 59, 85). Moreover, OSHA believes that the change to NAICS will 
improve the quality of injury and illness data because NAICS represents 
a more modern industry classification than the SIC system.
    OSHA received multiple comments on whether Part 1904 should include 
a partial exemption for lower-hazard industries. On the side of support 
for including a partial exemption, the National Association of Home 
Builders (NAHB) commented that, during the course of multiple 
rulemakings, OSHA has consistently found that the partial exemption for 
low-hazard industries (as well as for employer size) is consistent with 
the OSH Act, OSHA recordkeeping requirements, and national injury and 
illness statistics (Ex. 113).
    On the other hand, several comments generally opposed the partial 
exemption for lower-hazard industries and recommended that all 
industries should be subject to recordkeeping requirements (Exs. 69, 
74, 77, 81, 85, 86, 112). The International Union, United Automobile, 
Aerospace and Agricultural Implement Workers of America (UAW) opposed 
the exemption of any industries from the Part 1904 requirement on the 
basis of comparatively low injury and illness rates. The UAW commented 
that ``no industries whatsoever should be exempt from any of the 
recordkeeping requirements in Part 1904,'' because ``[s]o-called 
`lower-hazard' industries are not free from serious hazards that can 
kill or disable workers.'' As examples, the UAW cited four industries--
gasoline stations (NAICS 4471) jewelry, luggage, and leather goods 
stores (NAICS 4483), investigation and security services (NAICS 5616), 
and drinking places (NAICS 7224)--that were on the partially-exempt 
list in the proposed rule but had fatality rates higher than the 
national average (Ex. 77).
    In addition, Dow Chemical commented that ``this practice of partial 
exemption has questionable value, may be counterproductive or even 
unworkable, and should perhaps be discontinued.'' For the partial 
exemption for low-hazard industries, Dow Chemical stated that ``[a]n 
injury is an injury, regardless of the industry in which it occurs''; 
even establishments with comparatively low injury/illness rates can 
benefit from recordkeeping data to guide safety programs; ``[m]oving 
industries into and out of partially exempt status may be unworkable'' 
due to the need for expertise and procedures for correct recordkeeping; 
and OSHA recordkeeping data are ``a useful tool in efforts to reduce 
injuries'' (Ex. 64).
    In the final rule, OSHA has maintained its longstanding practice of 
partially exempting certain lower-hazard industry groups from the 
recordkeeping requirements in Part 1904. This partial exemption allows 
OSHA to concentrate recordkeeping requirements in sectors and industry 
groups that will provide the most useful data. The partial exemption 
also reduces the paperwork burden for employers in establishments in 
lower-hazard industries.
    OSHA acknowledges that the partial exemption by industry group 
inevitably means that some high-hazard establishments will be partially 
exempt from recordkeeping, while other, low-hazard establishments will 
be required to keep records. However, OSHA notes that the partial 
exemption only applies to industry groups whose injury/illness rates 
are 75 percent or less of the private-sector average, as well as only 
to industry groups in comparatively lower-hazard sectors (NAICS 52-88).
    The approach taken in this final rule regarding partial exemption 
is consistent with OSHA's current regulation. Although employers in 
partially-exempt industry groups are not required to routinely keep 
injury and illness records, they must keep such records if requested to 
do so by BLS for the BLS Annual Survey of Occupational Injuries and 
Illnesses (Section 1904.42), or by OSHA for the OSHA Data Initiative 
(Section 1904.41). Finally, in accordance with Section 1904.39, all 
employers covered by the OSH Act, regardless of partial exemptions due 
to industry group or company size, must report all work-related 
fatalities, in-patient hospitalizations, amputations, and losses of an 
eye to OSHA.
    The preamble to the proposed rule listed eight questions to the 
public about the partial-exemption part of this rulemaking. Each 
question is repeated below, followed by public comments and OSHA's 
response to the comments.
1. Exemption of Additional Industries From the Recordkeeping 
Requirements in Part 1904
    In the preamble to the proposed rule, OSHA asked, ``Should any 
additional industries be exempt from any of the recordkeeping 
requirements in Part 1904?''
    The American Road and Transportation Builders Association (ARTBA) 
commented that, as a result of the 75 percent threshold, there were 
previously partially-exempt industries, such as construction and 
planning design firms, that would now be ``penalized with new 
recordkeeping and reporting burdens'' despite declining injury and 
illness rates. ARTBA stated that these industries should remain exempt 
(Ex. 114).

[[Page 56134]]

    OSHA disagrees with this comment for two reasons. First, 
eligibility should be based on a threshold for partial exemption using 
timely data. The list in the current regulation is based on data from 
1996-1998. The list in the final rule is based on data from 2007-2009, 
which were the most recent data available at the time of the proposed 
rule. Second, while OSHA recognizes that injury and illness 
recordkeeping creates a paperwork burden for employers, OSHA believes 
that the benefits of keeping such records are substantial. Informed 
employers can use the injury and illness records to discover and 
prevent occupational hazards in their workplaces, thereby reducing the 
numbers of injuries and illnesses. Thus, the purpose of requiring 
previously partially-exempt industries to keep records is not to 
``penalize'' these industries, but rather to ensure that OSHA's 
recordkeeping requirements apply to the industries where the 
requirements have the greatest potential benefit, according to 
objective standards and timely data.
2. Detail and Aggregation of NAICS Codes for Partial Exemptions
    In the preamble to the proposed rule, OSHA asked, ``Should OSHA 
base partial exemptions on more detailed or more aggregated industry 
classifications, such as two-digit, three-digit, or six-digit NAICS 
codes?''
    Many commenters supported the use of industry classification by 
four-digit NAICS code (Exs. 29, 62, 68, 69, 70, 74, 75, 81, 86, 112, 
119). For example, Safety Compliance Services commented that four-digit 
NAICS codes represent ``the best compromise between data integrity and 
usefulness'' (Ex. 29). Mercer ORC HSE Networks commented that four-
digit NAICS codes ``provide sufficient granularity'' (Ex. 68). The 
National Council for Occupational Safety and Health (NCOSH) commented 
that four-digit NAICS codes ``allow for more accurate assessment of the 
degree of hazards in a given industry sector than if broader categories 
were used'' (Ex. 75).
    There were also commenters recommending the use of industry 
classifications by six-digit NAICS code (Exs. 24, 45, 52, 107). For 
example, Printing Industries of America commented that, because an 
industry ``has multiple segments and levels of operations . . . partial 
exemptions should be based on the more detailed industry 
classifications indicated by the six-digit NAICS codes'' (Ex. 45). The 
Kentucky Labor Cabinet's Department of Workplace Standards commented 
that six-digit NAICS codes would allow ``precise identification of the 
specific industries to be exempted'' (Ex. 52).
    The final rule, like the proposed rule, bases partial exemption for 
industry on industry group (four-digit NAICS code). The Agency finds 
that classification at this level has three advantages over the 
industry level (five-digit or six-digit NAICS code), which is more 
detailed. First, occupational injury and illness data are available 
from BLS for most industry groups (four-digit NAICS), while there are 
many industries (five-digit or six-digit NAICS) for which BLS data are 
not available. Second, establishments are more likely to remain in the 
same industry group (four-digit NAICS) over time than in the same 
industry (six-digit NAICS), reducing the chance that an establishment 
will go back and forth between non-exempt and partially-exempt status. 
Third, because industry group (four-digit NAICS) is more general than 
industry (six-digit NAICS), employers are less likely to encounter 
confusion when trying to determine whether or not their establishments 
are partially exempt due to industry.
3. Industry Sectors Ineligible for Partial Exemption
    In the preamble to the proposed rule, OSHA asked, ``Which industry 
sectors, if any, should be ineligible for partial exemption?''
    For specific industry sectors that should be ineligible for partial 
exemption, the AFL-CIO, NCOSH, the UAW, the USW, and Worksafe supported 
the continued ineligibility of the agriculture, manufacturing, 
construction, utilities, and wholesale trade sectors (Exs. 69, 75, 77, 
86, 112). The Association of Flight Attendants-CWA, AFL-CIO (AFA) 
commented that the transportation sector should not be eligible for 
partial exemption (Ex. 85).
    In addition, for specific industry groups or industries, NCOSH 
recommended that the newspapers, periodical, book, and directory 
publishers industry group (NAICS 5111) should be ineligible for partial 
exemption because the newspaper publishing industry (NAICS 51111) had 
high fatality rates between 2003 and 2008 (Ex. 66). (The overall hours-
based fatality rate for private industry, published by the Census of 
Fatal Occupational Injuries (CFOI) at BLS, ranged from 3.7 to 4.3 
deaths per 100,000 full-time equivalent workers during 2006-2008; the 
rate for the newspaper publishing industry ranged from 5.1 to 10.0. 
CFOI did not publish a rate for this industry in 2009.)
    UNITE HERE commented that contracted food services (NAICS 72231) 
and caterers (NAICS 72232) should be ineligible because ``injury and 
illness prevention and hazard reduction . . . requires regular 
maintenance of OSHA logs and OSHA log data by the employer'' (Ex. 70).
    The UAW commented that gas stations (NAICS 4471), jewelry, luggage, 
and leather stores (NAICS 4483), investigation and security services 
(NAICS 5616), and drinking places (NAICS 7224) should be ineligible 
because of high fatality rates (Ex. 77). According to published data 
from 2009 from CFOI, the fatality rate for private industry was 3.7 
deaths per 100,000 full-time equivalent workers, while the fatality 
rates for gas stations, investigation and security services, and 
drinking places were 8.3, 5.1, and 15.5, respectively. CFOI did not 
publish a fatality rate for jewelry, luggage, and leather stores.
    The UFCW commented that clothing stores (NAICS 4481) should be 
ineligible because the BLS total case rate (TCR) in that industry group 
increased by 25 percent from 2008 to 2009 (Ex. 81). The TCRs were 2.9 
and 3.2, respectively, for 2008 and 2009. The 2010 and 2011 TCRs were 
both 3.0.
    The AFA commented that industries that include one or more 
occupational classifications at high risk for injuries or illnesses, 
such as flight attendants in nonscheduled air transportation (NAICS 
4812), should be ineligible (Ex. 85).
    Consistent with the proposed rule and OSHA's longstanding policy, 
the final rule designates certain industry sectors as ineligible for 
partial exemption. Since 1982, it has been OSHA policy not to partially 
exempt certain industry divisions generally considered to involve 
greater occupational hazards. In the final rule, as in the proposed 
rule, agriculture, forestry, fishing and hunting (NAICS 11); mining, 
quarrying, and oil and gas extraction (NAICS 12); utilities (NAICS 22); 
construction (NAICS 23); manufacturing (NAICS 31-33); and wholesale 
trade (NAICS 42) are ineligible for partial exemption.
    In addition, in the final rule, as in the proposed rule, industry 
groups (by four-digit NAICS) in the transportation sector (NAICS 48) 
are eligible for partial exemption. This is a change from the current 
regulation, in which industry groups (by three-digit SIC) in the 
division that includes transportation (SIC E--Transportation, 
Communications, Electric, Gas, and Sanitary Services) were ineligible 
for partial exemption due to industry. The reason for this change is 
the different structure of NAICS versus the SIC system.

[[Page 56135]]

    In the final rule, Appendix A lists six partially-exempt industry 
groups in the transportation sector: non-scheduled air transportation 
(NAICS 4812); pipeline transportation of crude oil (NAICS 4861); 
pipeline transportation of natural gas (NAICS 4862); other pipeline 
transportation (NAICS 4869); scenic and sightseeing transportation, 
other (NAICS 4879); and freight transportation arrangement (NAICS 
4885).
    According to 2010 County Business Patterns data from the U.S. 
Census, there were 208,474 establishments with 4,011,989 employees in 
the transportation and warehousing sector (NAICS 48-49). The six 
partially-exempt industry groups in the transportation sector accounted 
for 26,013 establishments (12%) and 299,165 employees (7%), with 
freight transportation arrangement (NAICS 4885) as the single biggest 
industry group. Thus, although the transportation sector (NAICS 48) is 
eligible for partial exemption under the final rule, most 
establishments and employees in the transportation and warehousing 
sector (NAICS 48-49) will not be partially exempt due to industry. In 
addition, in non-scheduled air transportation (NAICS 4812), 72 percent 
of establishments had 1-9 employees, suggesting that many employers in 
this industry group will be partially exempt anyway due to size, 
regardless of the transportation sector's eligibility for partial 
exemption.
    Also under the final rule, as in the proposed rule, establishments 
in the employment services industry group (NAICS 5613) are ineligible 
for partial exemption due to industry. Under the current regulation, 
establishments in the corresponding SIC industry group (Personnel 
Supply Services (SIC 513)) were required to keep OSHA injury and 
illness records. OSHA has decided to continue this policy on grounds 
that, for many employees in this industry, their actual place of work 
may be in an establishment that is part of a different, possibly 
higher-hazard, industry. No comments were submitted to the docket on 
this issue.
    There were also several comments on OSHA's current partial 
exemption in Section 1904.1 for employers with 10 or fewer employees. 
Unions (the AFL-CIO, the UAW, the USW, and Worksafe), a safety 
professional firm (Safety Compliance Services), and Dow Chemical 
Company all commented that employers should not be partially exempt on 
this basis (Exs. 29, 59, 64, 69, 86, 77, 112).
    In particular, Dow Chemical commented that ``[t]he partial 
exemption is especially unlikely to work for small employers,'' who may 
wrongly conclude that they are completely exempt from all OSHA 
regulations, rather than partially exempt from OSHA recordkeeping 
regulations (Ex. 64).
    The AFL-CIO commented that employees at small workplaces get 
injured/ill, as do employees in industries with comparatively low 
injury/illness rates (Ex. 69), and that the small-employer exclusion 
especially affects the high-risk construction industry, since 80% of 
construction employers are partially exempt due to small employment 
size (Ex. 59). According to the AFL-CIO, ``The purpose of recording 
[injuries and illnesses] is to permit workers and employers to gather 
worksite data that will enhance the identification and elimination of 
hazards that pose serious risks to workers. As a consequence, there is 
great value in requiring the recording of these incidents'' (Ex. 69).
    The partial exemption for employers with 10 or fewer employees is 
beyond the scope of this rulemaking. However, OSHA continues to believe 
that its longstanding practice of partially exempting employers with 10 
or fewer employees is appropriate because it minimizes the paperwork 
burden on small employers. This is consistent with the direction 
provided in Section 8(d) of the OSH Act to minimize the burden of 
information collection upon employers, ``especially those operating 
small businesses.''
4. Alternatives To Using an Average DART Rate of 75 Percent of the Most 
Recent Three-Year-Average National DART Rate
    In the NPRM, OSHA asked, ``Instead of using an average DART rate of 
75 percent of the most recent national DART rate, is there a better way 
to determine which industries should be included in Appendix A?''
    Multiple commenters recommended using the total case rate (TCR) as 
well as the DART rate. The TCR includes all recordable cases, while the 
DART rate includes only cases that result in days away from work, 
restriction, or job transfer. Seth Turner proposed a partial exemption 
for industries with both a TCR and a DART rate at or below 85% of the 
most recent three-year national averages for private industry (Ex. 23). 
The UFCW proposed using the TCR and/or total number of cases (Ex. 81). 
The USW proposed using the TCR as well as the DART rate, because 
``[a]ll injuries are important to note that a hazard is present'' (Ex. 
86). Change to Win proposed using the TCR as well as the DART rate in 
order to ``reduce any unintended incentives to manipulate the treatment 
of workers after injuries (such as inappropriate assignment to the same 
tasks) in order to avoid the `restricted activity' . . .'' (Ex. 90).
    NIOSH commented that the severity of injuries and illnesses should 
also factor into the method for determining partial exemption. NIOSH 
stated that severity could be measured by using the number of injury/
illness cases involving three or more days away from work, since 
``three days . . . is the most common waiting period . . . necessary 
for injuries and illnesses to become sufficiently recognized and thus 
qualify injured workers to file claims which impose costs on private 
employers . . .'' In addition, NIOSH commented that ``OSHA might also 
consider which industries account for a disproportionate number of work 
loss days and not just work loss cases'' (Ex. 66).
    The AFL-CIO commented that, according to 2009 BLS data, 18% of 
total cases of injuries and illnesses (594,000 cases) and 13% of DART 
cases (217,000 cases) occurred in industry groups that were partially 
exempt under the criteria in the proposed rule (Exs. 69, 74). According 
to the AFL-CIO, ``[a]s a consequence, the 75% DART rate threshold 
exempts far too many injuries and illnesses, as well as industries, 
from OSHA's recording requirements.'' The AFL-CIO proposed three 
alternatives:
    1. Lowering the threshold to 50 percent, using both DART and total 
case data. This method would reduce the number of partially-exempt 
industries listed in the proposed rule by one-third, from 82 industries 
to 55.
    2. raising the threshold to 85 percent of the overall average DART 
rate, and setting an upper limit for number of total cases at 10,000 or 
fewer. This method would reduce the number of partially-exempt 
industries listed in the proposed rule by 21 percent, from 82 
industries to 65.
    3. lowering the threshold to 50 percent, using both DART and total 
case data, plus setting a limit for number of total cases at 10,000 or 
fewer. This method would reduce the number of partially-exempt 
industries listed in the proposed rule by 37 percent, from 82 
industries to 52.
    The AFL-CIO recommended the third alternative.
    The Small Business Administration's Office of Advocacy (SBA-OA) 
recommended raising the threshold from 75 percent to 80 percent, 85 
percent, or 90 percent of the overall average DART rate, as well as 
making more industry sectors eligible for partial exemption, or 
increasing the number of

[[Page 56136]]

employees an employer could have and still be partially exempt under 
Section 1904.1. The SBA-OA noted that ``[s]mall business 
representatives have complained that industries that have had declining 
injury and illness rates over many years will essentially be penalized 
with new recordkeeping . . . burdens because their injury and illness 
rates have declined, but not as fast as other industries'' (Ex. 94).
    OSHA disagrees with this recommendation for two reasons. First, 
although the Agency recognizes that injury and illness recordkeeping 
creates a paperwork burden for employers, the Agency does not agree 
that the requirement to keep records ``penalizes'' industries. Rather, 
OSHA agrees with the AFL-CIO's comment that ``[t]he purpose of 
recording [injuries and illnesses] is to permit workers and employers 
to gather worksite data that will enhance the identification and 
elimination of hazards that pose serious risks to workers'' (Ex. 69).
    Second, the purpose of the industry partial exemption is to balance 
the benefits of injury and illness recordkeeping, on the one hand, and 
the paperwork burden associated with injury and illness recordkeeping, 
on the other. OSHA believes that the potential benefits of injury and 
illness recordkeeping for workplace safety and health are greater in 
industries that are comparatively more hazardous than in industries 
that are comparatively less hazardous. Although it is true that injury 
and illness rates have been declining since 1992, both overall and in 
most industry sectors and groups, the rates in some industries have 
declined faster than the rates in other industries. As a result, some 
industries that used to have lower rates, relative to other industries 
and rates overall, now have higher rates, relative to other industries 
and rates overall. This shifts the balance for these industries towards 
greater relative benefits from recordkeeping. Conversely, industries 
that used to have higher relative rates and now have lower relative 
rates now have relatively fewer benefits from recordkeeping than other 
industries. OSHA therefore believes that raising the threshold for 
partial exemption from 75% would not properly balance the benefits and 
burden of recordkeeping. With a higher threshold, a class of industries 
that would potentially benefit greatly from recordkeeping would remain 
partially exempt from recordkeeping--namely, industries whose efforts 
to lower injury and illness rates have been relatively less successful, 
compared to other industries where rates have declined more.
    The National Federation of Independent Business (NFIB) made a 
comment similar to the SBA-OA's, noting that some industries had higher 
injury/illness rates when they qualified for partial exemption under 
the 2001 final rule than when they were proposed for non-exemption 
under this rulemaking. As a result, they proposed maintaining the 
partial exemption for any industry that was partially exempt in the 
2001 rulemaking and had declining DART rates. Alternatively, they 
proposed raising the threshold higher than 75 percent, ``to a level 
that captures only the most dangerous industries'' (Ex. 117).
    The ARTBA added to this point, commenting that, given the decline 
in overall injury and illness rates and the Administration's charge 
``to federal agencies to reduce unneeded regulatory burden,'' the 
number of partially-exempt establishments should have been higher, 
rather than lower, under this rulemaking (Ex. 114).
    Also noting the decline in overall injury and illness rates, the 
National Automobile Dealers Association (NADA) proposed that the 
threshold ``should be increased incrementally to compensate'' as ``the 
overall average DART rate for private employers continues to trend 
down.'' For example, raising the threshold to 80 percent would have put 
automobile dealers (NAICS 4411) on the list of partially-exempt 
industry groups. Alternatively, the Agency could raise the threshold to 
100 percent, which would still result in a threshold DART rate lower 
than the rates in the 1982 and 2001 final rules. (Note that a 100 
percent threshold, using the 2007-2009 BLS data in the final rule, 
would be 2.0 cases per 100 full-time workers. The 75 percent thresholds 
in the 2001 and 1981 rulemakings were 2.2 and 3.1, respectively.) The 
Agency could also ``backstop'' the increased threshold by removing the 
partial exemption for an industry group if an OSHA review of injury/
illness data showed that the industry group's DART rate had increased 
over the most recent three years of data (Ex. 119).
    Spurlock & Higgins and Safety Compliance Services proposed a survey 
of the hazards present in a particular industry, followed by ``a risk 
analysis process utilizing a risk matrix to score various NAICS codes 
on likelihood and severity of injury from the identified hazards'', 
with industries ``scoring below a pre-determined threshold . . . deemed 
partially exempt.'' This method would ``largely alleviate the need for 
periodic updates to the list of partially exempt industries because of 
fluctuations in injury statistics'' (Exs. 24, 29).
    Finally, Mercer ORC HSE Networks commented that ``applying a three-
year average and using the DART rate . . . make sense. Setting the cut 
off at or below 75 percent . . . and limiting eligibility to sectors 
that have historically experienced lower injury and illness rates also 
seem reasonable'' (Ex. 68).
    Finding the appropriate balance between the need for injury and 
illness information, on the one hand, and the paperwork burden created 
by recording obligations, on the other, is central to this rulemaking. 
OSHA believes that the use of the same criteria over the past 30 years 
of coverage demonstrates that these criteria achieve the desired 
balance. Therefore, OSHA has decided to use the selection criteria in 
the proposed rule, which are consistent with the criteria used in the 
2001 and 1982 rulemakings. In the final rule, with one exception, 
industry groups meeting the following two criteria are included in the 
list of partially-exempt industry groups in Appendix A: A sector 
classification of NAICS 44-81, and a DART rate of 75 percent or less of 
the overall three-year-average DART rate for private industry, using 
the most recent BLS data available at the time of the proposed rule 
(2007, 2008, and 2009). As noted earlier, the sole exception is for 
Employment Services (NAICS 5613), which is not partially exempt under 
the final rule. OSHA acknowledges that injuries and illnesses will also 
occur in industries that are partially exempt from recordkeeping. 
However, continuing OSHA's longstanding practice of using a threshold 
of 75 percent of the DART rate for private industry ensures that only 
industries with relatively low injury/illness rates will be partially 
exempt.
5. Using Numbers of Workers Injured or Made Ill in Each Industry in 
Addition to Industry Injury/Illness Rates
    In the NPRM, OSHA asked, ``Should OSHA consider numbers of workers 
injured or made ill in each industry in addition to industry injury/
illness rates in determining eligibility for partial exemption?''
    NIOSH, the AFL-CIO, the UAW, the UFCW, and the USW answered yes to 
this question (Exs. 66, 69, 74, 77, 81, 86). NIOSH commented that 
``[c]onsideration should be given to potential uses for site-specific 
targets (e.g., silicosis, other pneumoconiosis, dermatitis, cancers), 
as well as the potential use of these data by NIOSH . . . in sentinel 
case follow-up and evaluation'' (Ex. 66). The AFL-CIO commented that 
BLS data from 2009

[[Page 56137]]

show that 594,000 total cases (18% of total) and 217,000 DART cases 
(13% of total) occurred in industries proposed for partial exemption 
(Ex. 69). The UAW commented that ``OSHA should require recording by 
employers in all industries in which at least one worker has been 
injured or made ill'' (Ex. 77).
    For the final rule, OSHA has decided to use the same selection 
criteria as in the proposed rule. These criteria are consistent with 
the criteria used in the 2001 and 1982 rulemakings. This decision 
balances the need for injury and illness data with the paperwork burden 
on the regulated community. OSHA believes the incidence rate is the 
appropriate criterion to use because it shows the relative level of 
injuries and illnesses among different industries. Incidence rates 
allow for comparisons of industries that are vastly different in size 
and demographic make-up. Relying on the numbers of injuries and 
illnesses would bias the decision towards including industries that are 
very large but at the time relatively safe. As discussed elsewhere, in 
the final rule, with one exception, industry groups meeting the 
following two criteria are included in the list of partially-exempt 
industry groups in Appendix A: A sector classification of NAICS 44-81, 
and a DART rate of 75 percent or less of the overall three-year-average 
DART rate for private industry, using the most recent BLS data 
available at the time of the proposed rule (2007, 2008, and 2009). The 
one exception is for employment services (NAICS 5613), which is not 
partially exempt.
6. Additional or Alternative Criteria for Determining Eligibility for 
Partial Exemption?
    In the preamble to the proposed rule, OSHA asked, ``Are there any 
other data that should be applied as additional or alternative criteria 
for purposes of determining eligibility for partial exemption?''
    Multiple commenters proposed additional criteria not addressed in 
previous questions. The Marshfield Clinic proposed that establishments 
with less than a specified number of employees be partially exempt 
regardless of NAICS (Ex. 15). The Building and Construction Trades 
Department of the AFL-CIO suggested that OSHA consider fatality rates; 
they commented that ``fatality rates provide useful and, for the 
construction industry, better criteria because of problems associated 
with the underreporting of non-fatal injuries'' (Ex. 59). (Note that 
the construction industry is not eligible for partial exemption.)
    NIOSH suggested three additional data types. The first was work-
related fatalities, because ``a sudden increase in the number of 
fatalities in a particular industry may suggest a growing problem that 
needs further investigation and/or potential failures in prevention.'' 
The second was current labor force estimates for the industry, because 
``establishments within small industry subsectors have a very low 
probability of experiencing the necessary number of cases to satisfy 
BLS statistical reporting guidelines.'' The third was establishment 
size, which is ``an important factor in aspects of management, health 
and safety education, prevention, and workers' compensation services'' 
(Ex. 66). (Note that OSHA's regulation at Section 1904.39 requires all 
employers covered by the OSH Act, regardless of their partial-exemption 
status under Section 1904.2, to report all fatalities, in-patient 
hospitalizations, amputations, and losses of an eye to OSHA.)
    In the final rule, OSHA has decided to use the selection criteria 
in the proposed rule, which are consistent with the criteria used in 
the 2001 and 1982 rulemakings. OSHA reviewed BLS fatality rate data 
from the Census of Fatal Occupational Injuries. The majority of 
industries with fatality rates greater than the private industry 
fatality rate are not exempted under the final rule. As discussed 
above, all work-related fatalities are required to be reported to OSHA, 
and these data are captured in the OSHA Information System (OIS). OSHA 
concludes that the use of fatality data as a criterion is not warranted 
because it identifies the same industries as the DART rate distribution 
and because the site-specific fatality data are captured through the 
fatality reporting requirements.
    OSHA also concludes that labor force estimates are not a necessary 
criterion. BLS DART rate data were available for all industries because 
OSHA conducted the analysis at the 4-digit NAICS level.
    As noted above, in the final rule, with one exception, industry 
groups meeting the following two criteria are included in the list of 
partially-exempt industry groups in Appendix A: A sector classification 
of NAICS 44-81, and a DART rate of 75 percent or less of the overall 
three-year-average DART rate for private industry, using the most 
recent BLS data available at the time of the proposed rule (2007, 2008, 
and 2009). The sole exception is for employment services (NAICS 5613), 
which is not partially exempt.
7. Regular Updates of the List of Lower-Hazard Exempted Industries
    In the preamble to the proposed rule, OSHA asked, ``Should OSHA 
regularly update the list of lower-hazard exempted industries? If so, 
how frequently should the list be updated?''
    Multiple commenters supported regular updates of the list of lower-
hazard partially-exempt industries. Worksafe recommended that ``the 
Agency [be] required to review BLS injury rate data at least every two 
years, to re-determine exempt industries'' (Ex. 112). The Occupational 
Health Section of the American Public Health Association (APHA), the 
AFL-CIO, UNITE HERE, the TWU, the UAW, the UFCW, and the USW 
recommended updating the list every three years (Exs. 62, 69, 70, 74, 
77, 81, 86). Mercer ORC HSE Networks commented that ``the list could be 
renewed every five years or so to maintain its relevance and insure a 
sense of fairness'' (Ex. 68). NADA commented that ``OSHA should 
initiate a review of the [list of partially-exempt industries] soon 
after the results of a new economic census become available'' (Ex. 
119). NCOSH commented that OSHA should update the list ``regularly'' 
because ``[i]ndustry conditions and work environments change over time 
and it is important that this list reflect current conditions to the 
greatest extent possible'' (Ex. 75).
    In contrast, the Dow Chemical Company commented that ``moving 
industries into and out of partially exempt status may be unworkable'', 
because ``considerable expertise is necessary in order to correctly 
make determinations under OSHA's recordkeeping regulations'', 
``[d]etailed procedures must also be created, taught, and practiced . . 
.'', and ``[p]artially exempt industries must still be able to record 
injuries accurately if BLS or OSHA make a request'' (Ex. 64).
    OSHA has decided not to provide for regular updates of the list of 
lower-hazard partially-exempt industries in the final rule. First, 
historically, the list of industries meeting the criteria for partial 
exemption has changed very little from year to year. Second, OSHA 
agrees with Dow Chemical Company (Ex. 64) that moving industries in and 
out of partially-exempt status would be confusing. An analysis of 
NAICS-based BLS injury and illness data shows that exemption status 
tends to remain relatively constant over time. The analysis grouped the 
eight years of annual data from 2003 to 2010 into six groups of three-
year averages (2003-2005, 2004-2006, 2005-2007, 2006-2008, 2007-2009, 
2008-2010). There

[[Page 56138]]

were 155 industry groups (classified by four-digit NAICS) in the 
analysis. For 135 of these groups (87%), the exemption status remained 
constant; partially-exempt industry groups remained partially exempt 
throughout the period, and non-exempt industry groups remained non-
exempt. Of the remaining 20 industry groups, 10 (6%) changed status 
once, either from non-exempt to partially-exempt or from partially-
exempt to non-exempt; seven (5%) changed status twice; and three (2%) 
changed status three times. Although this final rule does not include a 
regularly-scheduled update of the partial exemption list, the Agency is 
planning a retrospective review of OSHA's recordkeeping regulations. 
The Occupational Safety and Health Act itself requires the Secretary to 
``develop and maintain an effective program of collection, compilation, 
and analysis of occupational safety and health statistics'' and 
specifies the underlying criteria for defining recordability. After the 
passage of the Act, OSHA issued Part 1904, Recording and Reporting 
Occupational Injuries and Illnesses. These regulations included 
provisions on the industry and size of establishments exempted from the 
recordkeeping requirements. Part 1904 was modified in 2001, following a 
national process in which a large group of stakeholder representatives 
and experts conducted a year-long dialogue on occupational injury and 
illness recordkeeping. Among the recommendations that came out of this 
dialogue that were incorporated into Part 1904 in the 2001 rulemaking 
were the elimination of the requirement to record injuries and 
illnesses that were viewed as irrelevant for evaluating the safety and 
health environment of the work-place, and the addition of criteria to 
capture newly recognized occupational safety and health conditions.
    OSHA believes there is value in a new re-examination of the 
Agency's recordkeeping regulations. First, there is extensive evidence 
that many work-related injuries and illnesses are currently not being 
recorded on the Injury and Illness Logs maintained by employers. It has 
long been recognized that most work-related illnesses, particularly 
those chronic diseases which do not appear until years after first 
exposure, are not recorded on these logs. In recent years, academic 
researchers have performed numerous studies, comparing work-related 
injuries recorded on employer-maintained logs with work-related 
injuries identified through workers' compensation or hospital records. 
These studies have demonstrated that a sizable proportion of work-
related injuries are not being recorded on employer-maintained logs. 
Further, changes in the structure of employment, exemplified by the 
increased presence of temporary and contractor workers in many 
establishments, raise important questions about the effectiveness of 
the current requirements and suggest that new approaches to injury 
tracking may be warranted. Finally, in recent years there has been 
little evaluation of the benefits and costs of the rule. With these 
issues in mind, OSHA plans to undertake a retrospective review of the 
effectiveness of the Agency's injury and illness recordkeeping 
regulations.
    This retrospective study will be conducted in accordance with the 
Department of Labor's Plan for Retrospective Analysis of Existing Rules 
which complies with Executive Order (E.O.) 13563 ``Improving Regulation 
and Regulatory Review'' (76 FR 3821). E.O. 13563 requires agencies to 
develop and submit to the Office of Information and Regulatory Affairs 
a preliminary plan, consistent with law and its resources and 
regulatory priorities, under which the agency will periodically review 
its existing significant regulations to determine whether any such 
regulations should be modified, streamlined, expanded, or repealed so 
as to make the agency's regulatory program more effective or less 
burdensome in achieving the regulatory objectives. [76 FR 3822].
    In addition to the retrospective review, OSHA will engage the 
public to assess the impact of the changes implemented under this 
rulemaking. The Agency will conduct a stakeholder meeting to discuss 
the burdens associated with the new coverage and reporting requirements 
and the utility and use of the new information collected. We anticipate 
conducting such a meeting after the new requirements have been in place 
for two years to allow for a sufficient impact to be considered.
8. Training, Education, and Compliance Assistance to Facilitate 
Compliance With the Recordkeeping Requirements
    In the NPRM, OSHA asked, ``Are there any specific types of 
training, education, and compliance assistance OSHA could provide that 
would be particularly helpful in facilitating compliance with the 
recordkeeping requirements?''
    The UAW commented that ``OSHA should do more training and 
dissemination of information about employee rights and employer 
obligations related to recordkeeping, especially for small employers 
and their employees'' (Ex. 77).
    OSHA has recently put two tools on its public Web site to help 
employers comply with recordkeeping requirements: A 15-minute on-line 
tutorial (training module) on completing the recordkeeping forms, and 
an interactive e-tool (Recordkeeping Advisor) that uses employer 
responses to questions to help employers determine whether or not (and 
how) they need to record/report specific injuries and illnesses. Both 
are available on OSHA's recordkeeping Web page at http://www.osha.gov/recordkeeping/index.html. In addition, the recordkeeping forms booklet 
includes general instructions, instructions for each OSHA recordkeeping 
form, and contact information for recordkeeping assistance from 
Regional and State Plan offices.
Other Issues Raised by Comments
    The National Association of Real Estate Investment Trusts (NAREIT) 
``encourage[d] OSHA to recalculate its [Preliminary Economic Analysis 
(PEA)] of the proposed rule utilizing 2007 NAICS codes, rather than 
pre-2007 NAICS codes'' (Ex. 41).
    The PEA in the NPRM was based on the 1997 Economic Census Bridge 
between SIC and NAICS tables (http://www.census.gov/epcd/naics02/S87TON02.HTM), 2006 data from County Business Patterns (CBP) on number 
of establishments (http://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls), and 2006 data from BLS on 
numbers of injuries and illnesses.
    Bridges between SIC and NAICS are available for 1987 SIC-1997 NAICS 
and 1987 SIC-2002 NAICS. No bridge is available for 1987 SIC-2007 
NAICS, although a bridge is available for 2002 NAICS -2007 NAICS.
    In the final rule, the Final Economic Analysis (FEA) is based on 
2010 data from CBP and 2007-2009 data from BLS. 2010 CBP data were 
based on the 2007 NAICS. 2007 and 2008 BLS data were based on the 2002 
NAICS; 2009 BLS data were based on the 2007 NAICS.
    For industry sectors (two-digit NAICS) eligible for partial 
exemption under both the proposed rule and the final rule, the 2002 
NAICS differs from the 2007 NAICS as follows (see http://www.census.gov/eos/www/naics/faqs/faqs.html):
    Sector 51, Information--Major changes were made in the Information 
sector. Telecommunications Resellers and Cable and Other Program

[[Page 56139]]

Distribution were moved, Internet Service Providers and Web Search 
Portals industries were restructured, and a new six-digit industry was 
created in the Other Information Services subsector.
    Sector 53, Real Estate and Rental and Leasing--2002 NAICS code 
525390- Real Estate Investment Trusts (REIT), was deleted and portions 
of it were reclassified as follows: (1) Equity REITs is classified in 
the Real Estate subsector in NAICS Industry Group 5311- Lessors of Real 
Estate, under individual national industries based on the content of 
the portfolio of real estate operated by a particular REIT; and (2) 
Mortgage REITs is moved to NAICS 525990, Other Financial Vehicles.
    Sector 54, Professional, Scientific, and Technical Services--
Research and Development in Biotechnology was added as a 6-digit 
industry.
    Sector 56, Administrative & Support and Waste Management & 
Remediation Services--Establishments that primarily provide executive 
search consulting services were moved to a new 6-digit industry, 
Executive Search Services.
    OSHA finds that the differences between the 2002 NAICS and the 2007 
NAICS are not significant to the rulemaking. This is further discussed 
in Section V Final Economic Analysis of this preamble.
    OSHA also received comments about the estimates in the PEA for 
recordkeeping costs at establishments in industry groups that are 
partially exempt under the current regulation but will no longer be 
partially exempt under this final rule. The Dow Chemical Company 
commented that the PEA underestimates the cost of the proposed rule at 
these establishments for three reasons. First, ``decisions on 
recordability . . . may involve physicians, industrial hygienists, 
personnel in the supervisory chain of the injured individual, safety 
professionals, attorneys, and recordkeeping subject-matter experts, all 
of whom are salaried, degreed professionals at salaries considerably 
higher'' than the $56,000 annual salary for a human resources 
specialist that the PEA used to estimate costs. Second, the PEA does 
not include the cost of ``set[ting] up the procedures and systems that 
are utilized for implementation of [OSHA recordkeeping] regulations.'' 
Third, ``the process of developing a competent OSHA recordkeeper is far 
more time-intensive than'' the time for training and re-training 
estimated in the PEA (Ex. 64).
    The SBA-OA commented that OSHA should ``consider whether its wage 
rate assumption is valid for many small businesses.'' The PEA uses the 
assumption that recordkeeping will be performed by a human resources 
specialist with a compensation cost of $40.04 per hour, but ``many 
small businesses do not employ such personnel and it is often the small 
business owner or other senior person who conducts these activities'' 
(Ex. 94).
    NADA commented that the PEA ``significantly underestimates'' the 
cost to establishments in the automobile dealer industry group (NAICS 
4411), which was partially exempt under the 2001 rulemaking but would 
not have been partially exempt under the proposed rule. (Note that the 
industry group will also not be partially exempt under the final rule.) 
According to NADA, each automobile dealer will ``hav[e] to train at 
least one person on Form 300 injury and illness recordkeeping/'' For 
training costs, NADA cites the $300 cost of the National Safety 
Council's one-day course on OSHA recordkeeping, in addition to 
``travel, lost income, and other related expenses.'' There are also 
ongoing costs due to employee turnover and ``compliance 
responsibilities'', including ``monitoring for workplace related 
injuries and illnesses, and completing, certifying, and posting the 
log'' (Ex. 119).
    OSHA's response to these comments is in Section V of this 
supplementary information.
    Four commenters (the NAHB, the Associated General Contractors of 
America, the National Federation of Independent Business (NFIB), and 
the US Chamber of Commerce) stated that it would have been a good idea 
for OSHA to convene a Small Business Regulatory Enforcement Fairness 
Act (SBREFA) panel (Exs. 113, 115, 117, 120). The NFIB also commented 
that ``OSHA did not do enough outreach to the small-business community 
in developing this rule'' (Ex. 120).
    OSHA did not convene a SBREFA panel because the Agency determined 
this rule will not have a significant economic impact on a substantial 
number of small entities. For a more thorough discussion of this issue, 
please refer to Section V of this supplementary information.
    The NAHB commented that ``OSHA's proposal is not consistent with 
Executive Order 13563, `Improving Regulation and Regulatory Review','' 
because ``[n]othing in OSHA's proposal indicates how the rule is 
intended to streamline regulatory requirements and reduced burdens on 
industry'' and because the Agency ``should consider the impacts of this 
proposal on small businesses and consider conducting additional 
outreach before moving forward'' (Ex. 113). The SBA-OA and the ARTBA 
made similar comments (Exs. 94, 114). OSHA's response to these comments 
is in Section V of this supplementary information.
    Executive Order 13563 requires regulatory agencies to consider the 
effect of new regulations on economic growth, competitiveness, and job 
creation. OSHA notes that, as discussed below in Section V-E, Economic 
Impacts, the compliance costs for each affected firm are too small to 
have any significant economic impacts, including impacts on economic 
growth, competitiveness, and job creation. In addition, OSHA's use of a 
partial exemption from recordkeeping requirements for specified 
industries embodies the principle that asks agencies to identify and 
use the best and least burdensome tools for achieving regulatory ends. 
The exemption both reduces the impact of regulatory requirements on 
industry overall and minimizes paperwork burden for many small 
employers. Also, as noted above, switching from the outdated SIC system 
to NAICS will reduce uncertainty, confusion, and errors, as well as 
save time. Therefore, the Agency believes that the approach taken in 
this rulemaking to update the list of partially-exempt industries is 
consistent with, and promotes the primary objectives of, Executive 
Order 13563.
    United Support and Memorial for Workplace Fatalities commented that 
``employers should be required to include on their injury, illness and 
fatality incident and reports and logs, the BLS standard occupational 
classification code for the affected worker's job title'' (Ex. 93). 
This is beyond the scope of this rulemaking.
    The US Chamber of Commerce commented that OSHA's use of BLS injury 
and illness data in the criteria for partial exemption for low-hazard 
industry groups ``is at odds with other OSHA efforts and comments that 
indicate a lack of faith in the credibility of this data since it is 
generated by employers self reporting'' (Ex. 120). OSHA's response is 
that, while academic researchers, OSHA, and BLS are studying the 
comprehensiveness and accuracy of BLS data, the BLS data are still the 
most comprehensive body of occupational injury and illness data 
available.

D. The Final Rule

    The final rule is the same as the proposed rule. With one 
exception, industry groups (classified by four-digit NAICS) that meet 
the following two

[[Page 56140]]

criteria are partially exempt from the recordkeeping requirements in 
Part 1904:
    1. Sector classification of NAICS 44-81.
    2. a DART rate of 75 percent or less of the overall three-year-
average DART rate for private industry, using BLS data from 2007, 2008, 
and 2009. The average national DART rate for private industry for 2007-
2009 was 2.0. Thus, the threshold for partial exemption for eligible 
industry groups (classified by four-digit NAICS) was a DART rate of 1.5 
or less.
    Like the proposed rule, the one exception is for Employment 
Services (NAICS 5613), which is not partially exempt. The three-year-
average DART rate for the Employment Services industry group, using BLS 
data from 2007, 2008, and 2009, was 1.1, which is below the 75 percent 
threshold of 1.5. However, this industry group is nonetheless 
ineligible for partial exemption on grounds that, for many employees in 
this industry, their actual place of work may be in an establishment 
that is in a different, non-partially-exempt industry group or sector, 
such as manufacturing. Therefore, NAICS 5613 Employment Services is not 
included in the final Appendix A to Subpart B. OSHA received no 
comments from the public about this exception.
    In the issues section of the preamble to the proposed rule, OSHA 
asked the public to comment on the appropriateness of the proposed 
exemption procedure; whether alternative procedures for determining 
partial exemption should be used; and whether specific industries 
should be included or excluded from the list of partially-exempt 
industries. OSHA notes that the final rule, like the proposed rule, is 
based on the most recent BLS injury and illness data available at the 
time of the proposed rule (2007-2009). Because OSHA is using the same 
criteria and same injury/illness data to establish the list of 
partially-exempt industry groups, the industry groups in the proposed 
Appendix A to Subpart B and the final Appendix A to Subpart B are the 
same.
    Under the final rule, employers are not required to keep OSHA 
injury and illness records for any establishment classified in an 
industry group listed in Appendix A to Subpart B, unless they are asked 
in writing to do so by OSHA, BLS, or a state agency operating under the 
authority of OSHA or BLS. All employers covered by the OSH Act, 
including employers who are partially exempt from recordkeeping based 
on size or industry classification, must report all work-related 
fatalities, in-patient hospitalizations, amputations, or losses of an 
eye to OSHA, as required by Section 1904.39.
    For a more thorough discussion of the specific industry groups that 
are newly partially exempted or newly covered by the final rule, please 
refer to Section V of this supplementary information.
    Because the final rule will require some establishments that had 
been partially exempt from OSHA recordkeeping requirements to now 
comply completely with these requirements, OSHA will offer compliance 
assistance, including outreach and training, to help these 
establishments keep complete and accurate records and comply with the 
recordkeeping regulation.
    The partially-exempt industry groups are:

------------------------------------------------------------------------
          NAICS  code                            Industry
------------------------------------------------------------------------
4412...........................  Other Motor Vehicle Dealers.
4431...........................  Electronics and Appliance Stores.
4461...........................  Health and Personal Care Stores.
4471...........................  Gasoline Stations.
4481...........................  Clothing Stores.
4482...........................  Shoe Stores.
4483...........................  Jewelry, Luggage, and Leather Goods
                                  Stores.
4511...........................  Sporting Goods, Hobby, and Musical
                                  Instrument Stores.
4512...........................  Book, Periodical, and Music Stores.
4531...........................  Florists.
4532...........................  Office Supplies, Stationery, and Gift
                                  Stores.
4812...........................  Nonscheduled Air Transportation.
4861...........................  Pipeline Transportation of Crude Oil.
4862...........................  Pipeline Transportation of Natural Gas.
4869...........................  Other Pipeline Transportation.
4879...........................  Scenic and Sightseeing Transportation,
                                  Other.
4885...........................  Freight Transportation Arrangement.
5111...........................  Newspaper, Periodical, Book, and
                                  Directory Publishers.
5112...........................  Software Publishers.
5121...........................  Motion Picture and Video Industries.
5122...........................  Sound Recording Industries.
5151...........................  Radio and Television Broadcasting.
5172...........................  Wireless Telecommunications Carriers
                                  (except Satellite).
5173...........................  Telecommunications Resellers.
5179...........................  Other Telecommunications.
5181...........................  Internet Service Providers and Web
                                  Search Portals.
5182...........................  Data Processing, Hosting, and Related
                                  Services.
5191...........................  Other Information Services.
5211...........................  Monetary Authorities--Central Bank.
5221...........................  Depository Credit Intermediation.
5222...........................  Nondepository Credit Intermediation.
5223...........................  Activities Related to Credit
                                  Intermediation.
5231...........................  Securities and Commodity Contracts
                                  Intermediation and Brokerage.
5232...........................  Securities and Commodity Exchanges.
5239...........................  Other Financial Investment Activities.
5241...........................  Insurance Carriers.
5242...........................  Agencies, Brokerages, and Other
                                  Insurance Related Activities.
5251...........................  Insurance and Employee Benefit Funds.
5259...........................  Other Investment Pools and Funds.
5312...........................  Offices of Real Estate Agents and
                                  Brokers.
5331...........................  Lessors of Nonfinancial Intangible
                                  Assets (except Copyrighted Works).
5411...........................  Legal Services.
5412...........................  Accounting, Tax Preparation,
                                  Bookkeeping, and Payroll Services.
5413...........................  Architectural, Engineering, and Related
                                  Services.
5414...........................  Specialized Design Services.
5415...........................  Computer Systems Design and Related
                                  Services.
5416...........................  Management, Scientific, and Technical
                                  Consulting Services.
5417...........................  Scientific Research and Development
                                  Services.
5418...........................  Advertising and Related Services.
5511...........................  Management of Companies and
                                  Enterprises.
5611...........................  Office Administrative Services.
5614...........................  Business Support Services.
5615...........................  Travel Arrangement and Reservation
                                  Services.
5616...........................  Investigation and Security Services.
6111...........................  Elementary and Secondary Schools.
6112...........................  Junior Colleges.
6113...........................  Colleges, Universities, and
                                  Professional Schools.
6114...........................  Business Schools and Computer and
                                  Management Training.
6115...........................  Technical and Trade Schools.
6116...........................  Other Schools and Instruction.
6117...........................  Educational Support Services.
6211...........................  Offices of Physicians.
6212...........................  Offices of Dentists.
6213...........................  Offices of Other Health Practitioners.
6214...........................  Outpatient Care Centers.
6215...........................  Medical and Diagnostic Laboratories.
6244...........................  Child Day Care Services.
7114...........................  Agents and Managers for Artists,
                                  Athletes, Entertainers, and Other
                                  Public Figures.
7115...........................  Independent Artists, Writers, and
                                  Performers.
7213...........................  Rooming and Boarding Houses.
7221...........................  Full-Service Restaurants.
7222...........................  Limited-Service Eating Places.
7224...........................  Drinking Places (Alcoholic Beverages).
8112...........................  Electronic and Precision Equipment
                                  Repair and Maintenance.

[[Page 56141]]

 
8114...........................  Personal and Household Goods Repair and
                                  Maintenance.
8121...........................  Personal Care Services.
8122...........................  Death Care Services.
8131...........................  Religious Organizations.
8132...........................  Grantmaking and Giving Services.
8133...........................  Social Advocacy Organizations.
8134...........................  Civic and Social Organizations.
8139...........................  Business, Professional, Labor,
                                  Political, and Similar Organizations.
------------------------------------------------------------------------

IV. Section 1904.39 Reporting Requirements for Fatalities, In-Patient 
Hospitalizations, Amputations, and Losses of an Eye

A. Background

    OSHA has required employers to report work-related fatalities and 
certain work-related hospitalizations since 1971, the year the OSH Act 
went into effect. The initial regulation in 29 CFR 1904.8 required 
employers to report, within 48 hours, an employment incident resulting 
in the fatality of one or more employees or the hospitalization of five 
or more employees. Employers were required to report by telephone or 
telegraph to the nearest OSHA Area Office.
    In 1994, the Agency revised the regulation to require reporting, 
within eight hours, of any work-related fatality or hospitalization of 
three or more employees (59 FR 15594, April 1, 1994). OSHA explained in 
the preamble to the final rule that ``[r]educing the reporting period 
from 48 hours to 8 hours enables OSHA to inspect the site of the 
incident and interview personnel while their recollections are more 
immediate, fresh and untainted by other events, thus providing more 
timely and accurate information.'' In addition, OSHA stated that 
reducing the reporting time increased the chances that the site of the 
incident would remain undisturbed and also ``coincided with a `standard 
work shift' for most employers.''
    The 1994 rulemaking also addressed several other issues. First, 
OSHA explained that hospitalization meant in-patient admission and 
excluded admission solely for observation. Second, OSHA added 
regulatory language stating that if employers did not learn of a 
reportable incident when it occurred, they were required to report 
within eight hours of learning of the incident. Third, OSHA specified 
that employers were required to report any fatality or in-patient 
hospitalization of three or more people occurring within 30 days of the 
incident. Fourth, OSHA added the option of reporting via OSHA's 
centralized toll-free telephone number.
    The requirements from the 1994 rulemaking have remained 
substantially unchanged and are currently codified at 29 CFR 1904.39.

B. The Proposed Rule

    The proposed rule would have made two major changes to OSHA's 
reporting requirements. First, the proposed rule would have required 
employers to report the work-related in-patient hospitalization of one 
or more employees to OSHA. The current regulation requires reporting 
only if three or more employees are hospitalized. The reporting time 
would have been eight hours, the same as the current regulation. 
Second, the proposed rule would have required employers to report all 
work-related amputations to OSHA, within 24 hours. The current 
regulation does not specifically require the reporting of amputations.
    For the reporting of in-patient hospitalizations of fewer than 
three employees, OSHA explained that ``[t]he hospitalization of a 
worker due to a work-related incident is a serious and significant 
event'' (76 FR 36419). The preamble to the proposed rule explained 
that, for OSHA recordkeeping purposes, in-patient hospitalization 
occurs when a person is ``formally admitted'' to a hospital or clinic 
for at least one overnight stay.
    For the reporting of amputations, OSHA explained that 
``[a]mputations include some of the most serious types of injuries and 
tend to result in a greater number of lost workdays than most other 
injuries . . . Furthermore, amputations differ from other types of 
serious injuries because they have long-term or permanent 
consequences'' (76 FR 36419). The proposed rule defined amputations in 
proposed Section 1904.39(b)(8) according to the definition in the 2007 
release of the Occupational Injury and Illness Classification (OIICS) 
Manual of the Bureau of Labor Statistics (BLS). This definition of 
amputations excluded traumatic injuries without bone loss, as well as 
losses of an eye.
    In the NPRM, OSHA explained that the changes in the proposed rule 
would have made OSHA's reporting requirements more similar to the 
requirements of other agencies, as well as to the requirements of some 
states that administer their own occupational safety and health 
programs.

C. Comments to the Proposed Rule

    Many comments supported the reporting requirements included in 
OSHA's proposed rule. Letitia Davis, ScD, EdM, the Director of the 
Occupational Health Surveillance Program at the Massachusetts 
Department of Public Health, noted: ``Case reporting of health events 
is a well-established approach to public health surveillance and 
intervention. Serious occupational injuries are urgent sentinel health 
events indicating that prevention efforts have failed and that 
intervention to remediate hazards may be warranted'' (Ex. 84). However, 
OSHA also received multiple comments that the proposed rule would not 
prevent injuries and illnesses and is redundant, premature, and not 
supported by data.
    The Steel Manufacturers Association commented that ``[d]ata in 
itself has never prevented any type of occurrence [of injuries]'' and 
that ``[t]he information required to be provided . . . while good at 
identifying basic information, does not collect any data that will 
serve in preventing future injuries or illnesses. The only possible 
preventative action that can be taken is for OSHA to conduct an 
inspection. The results are citations and press releases that provide 
little preventative effect beyond the employer involved'' (Ex. 36).
    Mercer ORC HSE Networks commented that ``merely establishing [a 
`comprehensive database' of information about the reportable events] 
may not be the best way, or even a very good way, to better determine 
how to better focus OSHA's resources on high-hazard workplaces. Put 
another way, it is not at all clear that employers experiencing the new 
case categories identified in the rulemaking . . . pose increased 
future risk to workers, or are any more likely than other employers to 
experience future serious cases. OSHA makes that implicit assumption 
without support. For example, a study conducted by Rand several years 
ago for the Duke Energy Foundation found that sites experiencing 
fatalities usually posed less risk to workers for future serious 
injury, not more'' (Ex. 68).
    In response, OSHA notes that the OSHA recordkeeping regulation has 
included requirements for employers to report certain work-related 
events to OSHA since 1971. These requirements have always been an 
important part of the Agency's statutory mission to assure safe and 
healthful working conditions for working men and women. Timely 
reporting of work-related fatalities, as well as certain other serious 
work-related events, allows OSHA to assess whether an intervention is 
necessary and to target hazardous workplaces for inspection.
    In addition, OSHA is able to use information gained from the 
investigations of work-related fatalities

[[Page 56142]]

and other serious work-related events to identify workplace hazards and 
prevent similar incidents, both at the inspected workplace and at other 
workplaces. This information also can also be used to support the 
issuance of new safety and health standards and regulations, as well as 
the revision of existing OSHA standards and regulations.
    The Tree Care Industry Association commented, ``Why would OSHA not 
work with State Workers Compensation programs and/or the State Plan 
OSHA's that already collect hospitalization data before it imposes 
redundant reporting requirements on employers under federal OSHA 
jurisdiction?'' (Ex. 37).
    In response, OSHA notes that one of the reasons for the reporting 
requirement in Section 1904.39 is to allow the Agency to conduct, if 
necessary, a prompt investigation of the incident leading to the 
serious occupational injury and illness event. OSHA also notes that six 
states with OSHA-approved State Plans currently require employers to 
report the in-patient hospitalization of fewer than three employees. As 
a result, OSHA concludes that the requirement to report in-patient 
hospitalizations of fewer than three employees would not be redundant 
even if OSHA had systematic access to hospitalization data from state 
workers' compensation programs.
    Gruber Hurst Johansen Hail Shank commented, ``If amputations and 
most incidents that require hospitalization are already recordable, 
then why is there a compelling need for additional reporting? . . . 
OSHA is already informed about these instances through recordkeeping'' 
(Ex. 60). Similarly, the Joint Poultry Industry Safety and Health 
Council commented that ``[t]he DART rate, calculated from existing 
injury and illness data, already identifies those workplaces with 
frequent, severe injuries. We fail to see why this currently available 
data is not sufficient to meet the goal of identifying `the most 
dangerous workplaces' and why OSHA needs this type of additional injury 
data'' (Ex. 61).
    Likewise, Mercer ORC HSE Networks commented that ``[a]ll of the 
cases that would be reported under the new OSHA criteria should already 
be captured on the OSHA log. To target inspections, OSHA already 
collects summary data that includes these cases from a census of sites 
in portions of the private sector that the Agency feels tend to involve 
higher risk. BLS also captures the same information in more detailed 
form in a parallel . . . data collection effort. In addition to its 
annual survey that produces incidence rates and detailed case 
characteristics across industry, BLS also conducts a Census of Fatal 
Occupational Injuries (CFOI) that produces accurate counts and very 
detailed descriptive data on fatal work related injuries. So data on 
fatalities and amputations should clearly be accessible from existing 
data collections. Granted it might be harder to capture data on some 
in-patient hospitalizations. But some of that information could be 
obtained from existing OSHA supplementary records. Data that could not 
be extracted from existing OSHA records could be obtained by less 
burdensome means than proposed, such as conducting follow-back studies 
of a small sample of employers'' (Ex. 68).
    In response, OSHA notes the distinction between the employer's 
obligation to record an injury or illness and the employer's obligation 
to report. Since OSHA's founding, the reporting requirement has been 
separate from the recording requirement. As a rule, OSHA obtains the 
detailed, case-specific information recorded by employers under Part 
1904 only when OSHA conducts an on-site inspection. And OSHA inspects 
only a small percentage of all establishments subject to OSHA authority 
each year. For example, in 2010, OSHA and its state partners inspected 
approximately 1 percent of establishments subject to OSHA authority 
(approximately 98,000 inspections, out of 7.5 million total 
establishments).
    On November 8, 2013, OSHA also published a notice of proposed 
rulemaking (NPRM) on Improve Tracking of Workplace Injuries and 
Illnesses, which would expand its collection of injury and illness data 
(FR 78 67254-67283). In that NPRM, OSHA proposed collecting case-
specific information from approximately 38,000 establishments with 250 
or more employees in industries subject to the recordkeeping 
requirements in Part 1904. Again, this is only a small percentage of 
all establishments subject to OSHA authority. OSHA notes the proposed 
rule on improving tracking of workplace injuries and illnesses would 
not add to or change any employer's obligation to complete and retain 
injury and illness records under OSHA's regulations for recording and 
reporting occupational injuries and illnesses. The proposed rule also 
would not add to or change the recording criteria or definitions for 
these records. The proposed rule would only modify employers' 
obligations to transmit information from these records to OSHA or 
OSHA's designee.
    In addition, although all employers are subject to the requirement 
to report fatalities and specified non-fatal injury/illness events, 
many employers are partially exempt from the Part 1904 requirement to 
record injuries and illnesses. As a result, it is incorrect to assume 
that all amputations and most hospitalization incidents are captured in 
employer injury and illness records. As noted by the AFL-CIO, BLS data 
from 2009 show that 217,000 DART cases (13% of total) occurred in 
industries that would have been partially exempt from recordkeeping due 
to industry classification under the NAICS update part of this proposed 
rule (Ex. 69). Work-related amputations and hospitalizations suffered 
by employees of employers with ten or fewer employees are also not 
required to be recorded.
    OSHA further notes that injury and illness summary information 
collected by OSHA for inspection targeting purposes through the OSHA 
Data Initiative (ODI) does not enable the Agency to identify specific 
hazards or problems at individual workplaces. Further, the ODI data are 
not timely because inspection targeting is based on injury/illness data 
from the previous year's ODI, which is collected from the prior year. 
As a result, OSHA's targeting is typically based on injury/illness data 
that are two or three years old. In addition, the group of 80,000 
establishments in each year's ODI is not a statistically-representative 
sample, either of establishments eligible to be included in the ODI, or 
of establishments overall.
    Finally, for data collected by BLS, OSHA notes that, while the BLS 
Survey of Occupational Injuries and Illnesses (SOII) provides 
information about industries with frequent, severe injuries and 
illnesses, it does not identify specific workplaces with frequent, 
severe injuries and illnesses. Industries with frequent, severe 
injuries and illnesses may include workplaces where injuries and 
illnesses are rare and minor, just as industries with rare, minor 
injuries and illnesses may include workplaces where injuries and 
illnesses are frequent and severe. In any event, the Confidential 
Information Protection and Statistical Efficiency Act of 2002 (Pub. L. 
107-347, Dec. 17, 2002) (CIPSEA) prohibits BLS from releasing 
establishment-specific data to the general public or to OSHA. As a 
result, for employer-specific, workplace-specific information about 
fatalities, OSHA relies on its own information, obtained through the 
current Part 1904 requirement for employers to report fatalities to 
OSHA.
    The American Chemistry Council commented that ``[s]everal ongoing

[[Page 56143]]

OSHA programs, such as the National Emphasis Program on Recordkeeping 
(NEP-R), target data reporting, including amputations . . . For 
example, NEP-R is relatively new (September 10) and was intended to 
address inaccuracies in recording of occupational illness and injury. 
The analysis of the results of this program would be useful in 
assessing whether continuation of NEP-R satisfies the intent of the 
[proposed rule]'' (Ex. 76). They added, ``OSHA currently has two 
programs, the National Emphasis Program on Amputations (NEP-A), and the 
Severe Violator Enforcement Program (SVEP), which specifically target 
amputations . . . The overall intent of both NEP-A and SVEP are 
identical to that of the [proposed rule]: `to target scarce resources 
to the most dangerous workplaces and prevent future injuries at these 
workplaces' (76 FR 36419). Until a holistic evaluation of these 
existing amputation-focused programs is conducted, we recommend that 
OSHA exclude reporting of amputations [in the proposed rule] . . .''
    In response, OSHA notes, as above, the distinction between 
recording and reporting; the recordkeeping NEP was about recording 
injuries and illnesses, while this final rule in Section 1904.39 is 
about reporting. OSHA also notes that there are multiple OSHA programs, 
including the amputations NEP and the SVEP, whose intent is to target 
scarce resources to the most dangerous workplaces and prevent future 
injuries at these workplaces. (Similarly, OSHA has multiple programs 
whose purpose is to assure safe and healthful working conditions for 
working men and women.) Neither the amputations NEP, nor the SVEP, 
provide the case reporting of sentinel occupational safety and health 
events that this final rule will provide. As a result, OSHA does not 
agree that the recordkeeping NEP, the amputations NEP, and/or the SVEP 
make this rulemaking premature.
    Mercer ORC HSE Networks commented that ``[w]ith 40 years of rich 
agency `fat-cat' investigation experience and data, it would have been 
reasonable to expect OSHA to have provided some (any) demonstration of 
how those investigations and the information gleaned from them have 
resulted in safer workplaces and how, with some specificity, the 
collection of the proposed substantially increased reports of incidents 
is expected to improve the agency's effectiveness. As the proposal 
stands, there is almost no evidence (or data) in the record to support 
OSHA's `belief' that collecting this new information will make a 
positive difference in Agency efficiency or in serious injury 
reduction'' (Ex. 68).
    The National Roofing Contractors Association commented that ``OSHA 
offers no evidence, data or research that shows a beneficial effect on 
workplace safety based on either the arbitrary timeframes it suggests 
or other timeframes it may have considered or analyzed'' (Ex. 118). 
They added, ``The history of reporting requirements . . . could be 
valuable for the agency to investigate further to determine the 
potential effectiveness of its proposed revisions. In 1971, employers 
were required to report, within 48 hours, any worker fatality or in-
patient hospitalization of 5 or more workers. This reporting 
requirement was revised 23 years later in 1994 to require reporting, 
within 8 hours, of any workplace fatality or in-patient hospitalization 
of three or more workers . . . What methodologies and metrics were 
employed to assess the impact on worker safety of the regulatory 
requirements immediately after those two reporting revisions became 
effective? Analysis of prior history of similar action taken by the 
agency should provide a better answer as to how this action will 
enhance worker safety than the cryptic OSHA statement that benefits are 
not quantified but are `significantly in excess of annual costs'.''
    In response, OSHA notes that the Agency did not have metrics and 
methodologies when these regulations were implemented to allow OSHA to 
evaluate the effects of the revisions. It was therefore not possible 
within the timeframe of this rulemaking to provide an analysis singling 
out the effect of the 1971 reporting requirement and the 1994 
rulemaking from among the enormous number of variables related to the 
decrease in number and rate of injuries, illnesses, and fatalities 
since OSHA's founding. Further, OSHA notes that case reporting of 
health events is a well-established approach to public health 
surveillance and intervention. Serious occupational injuries and 
illnesses are urgent sentinel health events indicating that prevention 
efforts have failed and that intervention to remediate hazards may be 
warranted. OSHA further discusses the benefits of the rule in the Final 
Economic Analysis in Section V of this supplementary information.
Specific Questions Asked in the Proposed Rule
    The preamble to the proposed rule included eight questions relevant 
to the reporting part of this rulemaking. Each question is repeated 
below, followed by public comments and OSHA's response to the comments.
    1. Types of Incidents and/or Injuries and Illnesses for Required 
Reporting
    In the preamble to the proposed rule, OSHA asked, ``What types of 
incidents and/or injuries and illnesses should be reported to OSHA and 
why?''
    Comments responding to this question primarily focused on three 
main topics:
    1. The seriousness and significance of the in-patient 
hospitalization of a single worker.
    2. The definition of in-patient hospitalization.
    3. The potential complications resulting from a requirement to 
report the in-patient hospitalizations of fewer than three employees.
    There were many comments about the seriousness and significance of 
the in-patient hospitalization of a single worker. Many commenters 
stated that it is not necessarily a serious or significant event (Exs. 
19, 24, 26, 27, 29, 31, 35, 51, 55, 60, 72, 82, 94, 100, 102, 104, 110, 
111, 114, 115, 125). Many other commenters stated that it is (Exs. 59, 
62, 69, 74, 75, 77, 86, 93, 112).
    Spurlock and Higgins commented that ``there are numerous 
circumstances surrounding a decision to hospitalize a single employee . 
. . that do not necessarily stem from an employer's failure to identify 
and/or control a particular hazard'' (Ex. 24). Safety Compliance 
Services commented that ``[w]hether a person is hospitalized is not 
related to whether there are hazards in the workplace or poor employer 
controls'' (Ex. 29). Similarly, the International Fragrance Association 
North America (IFRA-NA) commented that ``the decision to hospitalize a 
single employee can be influenced by factors that are not connected to 
work place hazards'' (Ex. 51). The Healthcare Distribution Management 
Association (HDMA) commented that ``[a] single [non-fatal] injury does 
not indicate a major workplace issue'' (Ex. 55). Gruber Hurst Johansen 
Hail Shank commented that ``the hospitalization of one employee may or 
may not be considered significant, depending on the circumstances'' 
(Ex. 60). Ameren commented that ``[single in-patient hospitalizations] 
do not always represent a serious injury or illness'' (Ex. 72). 
Stericycle commented that ``single hospitalizations may not be a good 
indicator of serious hazards in the workplace'' and that ``. . . many 
workplace hospitalizations occur due to non work-related events'' (Ex. 
82). The Small Business Administration Office of Advocacy (SBA-OA) 
commented that ``. . . single employee hospitalizations

[[Page 56144]]

often do not signify an emergency situation . . .'' (Ex. 94). The 
Pacific Maritime Association commented that ``th[e] injury could be 
purely accidental'' or be an ``isolated [incident] that may have 
nothing to do with workplace safety . . .'' (Ex. 100). The Retail 
Industry Leaders Association (RILA) commented that in-patient 
hospitalizations ``potentially would include a wide variety of 
situations, ranging from minor incident to a significant workplace 
accident'' (Ex. 102); the Shipbuilders Council of America made a 
similar comment (Ex. 104). The National Utility Contractors Association 
(NUCA) commented that ``[e]mployees are commonly hospitalized for 
evaluation of injuries including chest pain or mild concussions which 
are often not serious'' (Ex. 110). The American Supply Association 
commented that ``[e]ach and every day, workers have mishaps such as 
joint dislocations or concussions which may result in a 
hospitalization, perhaps solely because of the injury or possibly 
secondary to underlying medical conditions. These injuries may not even 
be related to workplace conditions but rather to something as simple as 
a lapse in concentration'' (Ex. 111). The American Road and 
Transportation Builders Association (ARTBA) commented that ``a single 
injury or illness often does not indicate an unsafe workplace'' (Ex. 
114); the Associated General Contractors of America (AGC) made a 
similar comment (Ex. 115).
    Commenters arguing that the in-patient hospitalization of a single 
worker is a serious and significant event for occupational safety and 
health included the Department of Workplace Standards in the Kentucky 
Labor Cabinet (Kentucky), stating that ``Kentucky believes, for several 
reasons, the hospitalization of any employee or any number of employees 
due to a work-related injury or illness . . . are significant events 
that must be reported. Most importantly, reporting allows for prompt 
investigation, if needed, to ensure the prevention of additional injury 
or illness'' (Ex. 52). The AFL-CIO commented that ``the need to 
hospitalize a single worker after a workplace incident is a clear 
indication that it was a serious event'' (Ex. 59) and that 
``[c]ollecting this information . . . will greatly assist OSHA in 
developing data and understanding about the causes of injuries and 
illnesses responsible for the incident, provide the agency with an 
opportunity to conduct an inspection if it chooses, and help in 
assessing the adequacy of the standards'' (Ex. 69). The Transport 
Workers Union (TWU) commented that ``work-related incidents resulting 
in in-patient hospitalizations . . . are extremely serious events 
resulting in significant burden, and often subsequent impairment, to 
employees who suffer them. Understanding the root causes and workplace 
factors which contributed to these events' occurrence is a prerequisite 
to eliminating hazards and preventing workers from encountering further 
illness and injury'' (Ex. 74). The National Council for Occupational 
Safety and Health (NCOSH) commented that ``[g]iven that even fairly 
serious work-related injuries may not result in a hospital admission, 
OSHA should be notified promptly of all incidents requiring the 
hospitalization of any worker'' (Ex. 75). The United Automobile, 
Aerospace, and Agricultural Implement Workers of America (UAW) 
commented that the requirement for reporting single in-patient 
hospitalizations ``is an improvement over the current requirement'' 
that will ``provid[e] a significant increase in vitally useful 
information available to OSHA'' (Ex. 77); the United Steelworkers (USW) 
made a similar comment (Ex. 86). Letitia Davis commented that ``[c]ase 
reporting of health events is a well-established approach to public 
health surveillance and intervention. Serious occupational injuries are 
urgent sentinel health events indicating that prevention efforts have 
failed and that intervention to remediate hazards may be warranted'' 
(Ex. 84). United Support and Memorial for Workplace Fatalities (USMWF) 
commented that ``OSHA needs to be informed about every work-related 
hospitalization to decide whether other workers are at-risk'' (Ex. 93).
    OSHA agrees with the commenters who stated that the in-patient 
hospitalization of an employee after a work-related incident is a 
serious and significant event. The hospitalization indicates that 
serious hazards may exist in the workplace and that an intervention to 
abate these hazards and prevent further injury or illness may be 
warranted. OSHA will develop internal guidance for determining which 
incidents to inspect and which to handle using other interventions. 
Even when OSHA determines that an inspection is not warranted, OSHA 
will follow up with the employer about the hospitalization event. OSHA 
may follow up via email, phone, or fax, with regular reminders and 
deadlines.
    In addition, employers' reports the event help OSHA gather 
information about serious workplaces injuries and illnesses to help 
focus agency resources and assess the adequacy of its safety and health 
standards. For example, the reports on amputations will provide the 
Agency with information it currently does not have to further focus the 
scope of its Amputation NEP and to evaluate any deficiencies of its 
machine guarding standards. As a result, like the proposed rule, 
Section 1904.39(a)(2) of the final rule requires employers to report 
the work-related in-patient hospitalization of one or more employees.
    There were also many comments about the definition of an in-patient 
hospitalization. The preamble to the proposed rule explained that, for 
OSHA recordkeeping purposes, an in-patient hospitalization occurs when 
a person is ``formally admitted'' to a hospital or clinic for at least 
one overnight stay. Some commenters recommended excluding 
hospitalization for observation or diagnostic testing only from the 
reporting requirement for in-patient hospitalization (Ex. 15, 38). They 
also asked OSHA to clarify the meanings of ``formal admission'' and 
``overnight stay'' (Ex. 17, 38, 51, 76, 79, 100, 103, 115, 120). In 
addition, some commenters recommended excluding scheduled 
hospitalization admissions for the treatment of chronic conditions (for 
a discussion of this issue, see Question 6).
    In response to these comments, the final rule includes both a 
definition of in-patient hospitalization and a clarification about 
hospitalization for observation and diagnostic testing. OSHA will 
define in-patient hospitalization as a formal admission to the in-
patient service of a hospital or clinic for care or treatment (see 
sections 1904.39(b)(9) and (b)(10) of the final rule).
    There were also comments about the complications that might result 
from a requirement to report the in-patient hospitalizations of fewer 
than three employees. For example, the American Iron and Steel 
Institute commented that the ``requirement to make notification of an 
isolated case within 8 hours, particularly for these ambiguous cases, 
will be burdensome to both the employer and OSHA'' (Ex. 108); the 
International Association of Drilling Contractors (IADC) and Stericycle 
made similar comments (Exs. 39, 82). The HDMA commented that the ``vast 
majority of states do not have this type of requirement, and it would 
be a significant shift in policy for them to adopt it'' (Ex. 55). 
Verizon commented that the requirement will result in over-reporting of 
non-work-related hospital admissions by compliant employers, 
``caus[ing] these employers to incur unnecessary costs and burdens

[[Page 56145]]

associated with over-reporting'' (Ex 78); similarly, Ingalls 
Shipbuilding warned of the risk that ``the data may disproportionately 
`point the finger' toward major manufacturers who aggressively 
implement programs to control safety and health hazards while leading 
OSHA to bypass smaller entities who demonstrate `plain indifference to 
employee safety and health' '' (Ex. 103). The Pacific Maritime 
Association commented that employers may not be able to acquire the 
necessary information in time: ``Has OSHA ever tried to contact a 
hospital to gather information on an employee? . . . The reply that we 
often receive is that we cannot provide you with any information due to 
privacy concerns. Despite being entitled to know if an employee has 
been `admitted' to the hospital, this does not always occur'' (Ex. 
100); Stericycle and the RILA made similar comments (Exs. 82, 102).
    Other commenters, however, pointed out that requirements similar to 
the proposed rule already exist, without causing undue burdens or 
complications. The State of Kentucky commented that their ``regulation 
has served the employers and employees very effectively. The Kentucky 
OSH program believes its requirements support the prevention of 
additional injuries or illnesses, effectively direct OSH Program 
resources, and reduce the state's occupational injury and illness 
rates. Experience has established that Kentucky's requirements do not 
exert an increase in the burden of regulatory compliance'' (Ex. 52). 
The AFL-CIO commented that the ``existence of similar reporting 
requirements in state-administered occupational safety and health plans 
in Alaska, California and Washington demonstrates that the proposed 
change is feasible to comply with and to administer'' (Ex. 59). The UAW 
made a similar comment, adding that Oregon also requires reporting of 
hospitalizations of one or two employees, within 24 hours (Ex. 77). The 
Occupational Health Section of the American Public Health Association 
(APHA) commented that ``[i]n an era of electronic recordkeeping, which 
in the occupational health arena includes workers compensation reports 
to and from insurers as well as BLS/OSHA logs, it should be a minor 
cost to enable broad and prompt reporting across a range of 
industries'' (Ex. 62). Worksafe commented that their experience with 
reporting requirements in California, as well as ``that of other states 
with similar requirements (as well as those of other countries) is one 
indication of how feasible they are to implement'' (Ex. 112).
    OSHA finds that many employers are already subject to the 
requirement to report in-patient hospitalizations of fewer than three 
employees. Alaska, California, Kentucky, Oregon, Utah, and Washington 
currently require reporting of single in-patient hospitalizations. 
According to 2009 data from County Business Patterns at the U.S. Census 
Bureau, these states accounted for over 1.3 million establishments (18 
percent of the national total) and 19.4 million paid employees (17 
percent of the national total). One of these states, Kentucky, 
specifically commented that ``[e]xperience has established that 
Kentucky's requirements do not exert an increase in the burden of 
regulatory compliance'' (Ex. 52).
    OSHA therefore concludes that the requirement to report in-patient 
hospitalizations of fewer than three employees is feasible and 
practicable and will not impose an undue burden on employers.
    In addition, as explained elsewhere in this document, this final 
rule at Section 1904.39(a)(2) requires employers to report all work-
related in-patient hospitalizations to OSHA within 24 hours, rather 
than within 8 hours, as in the proposed rule. This change gives 
employers more time to determine whether the employee has been formally 
admitted for in-patient hospitalization and whether the hospitalization 
results from a work-related event.
    This final rule requires employers to report to OSHA, within 24 
hours, all work-related in-patient hospitalizations within 24 hours of 
the incident (Sec.  1904.39(a)(2) and (b)(6)).
2. Non-Hospitalization Injuries, Illnesses, or Conditions for Required 
Reporting
    In the preamble to the proposed rule, OSHA asked: ``Are there any 
injuries, illnesses, or conditions that should be reported to OSHA and 
are not included among in-patient hospitalizations?''
    The UAW commented that Legionnaires' disease and hypersensitivity 
pneumonia ``are potentially indicative of serious and correctible 
hazards in the workplace and should be reported to OSHA upon physician 
diagnosis regardless of whether or not they result in inpatient 
hospitalization'' (Ex. 77).
    OSHA does not agree that the final rule should include a specific 
requirement for employers to report work-related cases of Legionnaires' 
disease and hypersensitivity pneumonitis. The work relationship of 
Legionnaires' is generally established by a cluster of cases. When 
clusters do occur, they are reported to state and local public health 
departments, which conduct investigations of the problem. Severe cases 
of work-related Legionnaires' disease would result in hospital 
admission and therefore would trigger the reporting requirement in 
Section 1904.39.
    OSHA believes a specific diagnosis of hypersensitivity pneumonitis 
does not necessarily indicate work-relatedness or an emergency 
situation that requires immediate OSHA intervention. Clusters of this 
condition (captured on the OSHA Log) would indicate intervention is 
needed, but a single reported case would be considered a sentinel 
health event. Again, it should be noted that a severe work-related case 
would likely result in in-patient hospitalization and therefore would 
trigger the reporting requirement.
3. Non-Hospitalization Amputations for Required Reporting
    In the preamble to the proposed rule, OSHA asked: ``Should 
amputations that do not result in in-patient hospitalizations be 
reported to OSHA?''
    Some commenters stated that OSHA should not require employers to 
report amputations that do not involve in-patient hospitalization. The 
Printing Industries of America (PIA) commented that ``it is not known 
what sort of amputation could be experienced without an in-patient 
hospitalization. However, if such an amputation would occur and did not 
require an in-patient hospitalization it would be reasonable to assume 
that such an incident was not severe enough to require hospitalization 
and therefore should not be subject to a reporting requirement'' (Ex. 
45). The IADC commented that ``this only adds burdensome reporting for 
the employer. It is confusing and will result in employers spending 
valuable early incident investigation time attempting to determine the 
reportability of an incident'' (Ex 39). The American Chemistry Council 
commented that ``OSHA could avoid ambiguity by eliminating independent 
reporting of amputations (i.e., separate from in-patient 
hospitalizations), as severe amputations would be captured in in-
patient hospitalization statistics'' (Ex. 76). Ameren commented that 
``[c]ases of amputation . . . that do not result in hospitalization of 
the employee would not likely warrant OSHA's examination'' (Ex 72). The 
National Petrochemical and Refiners Association (NPRA) commented that 
``. . . reporting all work-related amputations is redundant if the 
requirement for reporting all hospitalizations is adopted.

[[Page 56146]]

It is not likely that an amputation would occur that would not result 
in a hospitalization and if it didn't, it would not be a serious enough 
injury to warrant a follow-up by OSHA'' (Ex. 80). The National Grain 
and Feed Association (NGFA) commented that `. . . minor incidents that 
do not require hospitalization--including loss of the fingertip to the 
bone--should not be [reportable]. However, we do agree that significant 
incidents such as loss of a limb, which would require hospitalization, 
should be reportable'' (Ex. 96). The RILA recommended requiring the 
reporting only of amputations ``necessitating in-patient hospital 
treatment'' and not of ``incidents in which the injury necessitates 
minor treatment in an emergency room or out-patient facility'' (Ex. 
102).
    Other commenters, however, supported the requirement to report all 
amputations, regardless of whether they resulted in in-patient 
hospitalizations. Most of these commenters provided data showing the 
prevalence and significance of amputations that did not involve in-
patient hospitalization.
    NIOSH commented that ``[o]f the 2.6 million [emergency department 
(ED)] visits for work-related injuries and illnesses in 2009 [in the 
NIOSH-NEISS-Work dataset], approximately 15,000 workers were diagnosed 
as having sustained an amputation (includes injuries with bone loss, 
possibly without bone loss, severe avulsions, and near amputations). Of 
these, 78% were treated and released while 22% were admitted to the 
hospital or transferred to another facility.'' NIOSH continued, ``. . . 
given that over \3/4\ of ED treated work-related injuries and illnesses 
were treated and released, collecting the less severe injuries that are 
simply treated and released may identify areas that need further 
investigation.'' NIOSH recommended that employers be required to report 
all amputations to OSHA (Ex. 66).
    The UAW commented that ``[n]inety six percent of amputations 
involve a finger. These amputations may have a permanently disabling 
impact on their victims' lives, but may, in some cases be treated by 
outpatient surgery and not lead to inpatient hospitalization. They 
should nevertheless be reported to OSHA'' (Ex. 77). The United Food and 
Commercial Workers International Union (UFCW) made a similar comment 
(Ex. 81).
    Finally, Letitia Davis cited data collected by the Massachusetts 
Department of Public Health (MDPH) showing that ``there were 696 work-
related amputations treated in Massachusetts hospitals during 2007-
2008, an average of 348 amputations per year. The majority of these 
cases were treated in the emergency department only (N = 501; 71%); a 
small number (N = 28; 4%) were first treated in emergency departments 
and hospitalized at a later date; 22% (N = 156) were first treated as 
inpatients. These findings suggest that restricting reporting to 
amputations treated only an inpatient basis would substantially reduce 
number of cases identified and miss important opportunities for 
intervention'' (Ex. 84).
    OSHA finds that amputations are significant workplace injuries and 
that the data show that the majority of amputations do not involve in-
patient hospitalizations. As a result, like the proposed rule, the 
final rule will require employers to report all amputations to OSHA, 
whether or not they involve in-patient hospitalization (see Sec.  
1904.39(a)(2)). (Note that, for amputations involving in-patient 
hospitalization, employers will only have to make a single report.)
4. Required Reporting of Amputations
    In the preamble to the proposed rule, OSHA asked: ``Should OSHA 
require the reporting of all amputations?''
    Commenters responding to this question primarily focused on two 
main topics:
    1. The seriousness and significance of amputations.
    2. The definition of amputations.
    On the topic of the seriousness and significance of amputations, 
many commenters opposed the requirement in the proposed rule to report 
all amputations. Spurlock and Higgins commented that ``the mere 
occurrence of an amputation can often be attributed to numerous hazards 
for which OSHA has no standard, or there are few, practical hazard 
controls at an employer's disposal'' (Ex. 24); Safety Compliance 
Services made a similar comment (Ex. 29). The IADC commented that 
``[r]eporting amputations, such as the tip of a finger, is overly 
burdensome and again offers little value in protecting workers from 
occupational hazards'' (Ex. 39). The PIA commented that ``in most 
cases, especially in the printing industry, singular cases [of 
amputations] are not associated with a significant event or a high 
gravity situation'' (Ex. 45). The American Society of Safety Engineers 
(ASSE) commented that ``[w]hile not underestimating the serious nature 
of any amputation, it must be noted that an amputation of a part of a 
finger may, in the reasonable person's mind, is not as serious or 
traumatic an event as the amputation of an arm, hand, leg or foot. 
Further, other injuries like multiple broken bones, crushed vertebra, 
head injuries can be more serious and life-altering than an amputation. 
From that viewpoint, singling out amputations makes little sense other 
than the perception that they are more easily recordable. However, even 
that is questioned by our members'' (Ex. 46); Newport News Shipbuilding 
made a similar comment (Ex. 125). The American Foundry Society 
commented that the reporting requirement should be limited to 
amputations involving at least one joint (Ex. 101). NUCA commented that 
``[w]ith respect to all amputations as severe injuries, . . . 
amputations . . . do not amount to a fatality or catastrophic event'' 
(Ex. 110).
    In addition, the American Chemistry Council commented that 
rulemaking on the reporting of amputations be postponed ``[u]ntil a 
holistic evaluation of [the National Emphasis Program (NEP) on 
amputations and the Severe Violator Enforcement Program (SVEP)] is 
conducted'' (Ex. 76). Similarly, the Associated General Contractors of 
America (AGC) commented that the reporting requirement for amputations 
is ``unnecessary'' because ``[o]ver the past five years since the 
effective date of the [amputations NEP] the agency has had an 
opportunity to collect the necessary data to enforce and evaluate the 
effectiveness of existing standards'' (Ex. 115).
    However, many other commenters supported the requirement in the 
proposed rule to report all work-related amputations (Exs. 34, 112). 
The Phylmar Regulatory Roundtable (PRR) commented that ``an amputation 
as defined in the proposal [to include loss of bone] indicates a 
serious traumatic injury and is thus properly included under the 
reporting regulation'' (Ex. 38). NIOSH commented, ``Given the high 
probability that most amputations require some form of medical care 
through hospitals or emergency departments, OSHA should require the 
reporting of all amputation cases'' (Ex. 66). NCOSH commented that 
``[a]mputations are serious injuries with permanent consequences; thus, 
it is important all of these cases be reported to OSHA'' (Ex. 75). The 
USW commented that ``[l]essons can be learned from this amputation 
while the events leading up to the incident are clear to the witnesses. 
Amputees don't just happen, there were unsafe condition(s), change in 
procedure, equipment or a number of other factors. This person's life 
is changed forever'' (Ex. 86).

[[Page 56147]]

    The AFL-CIO referred to BLS data to support their statement that an 
``amputation is a serious, severe, and significant event that can 
result in some permanent impairment.'' According to BLS data from 2009, 
the median number of days away from work (DAFW) for an amputation was 
21 days, compared to a median of 8 days for all work-related injuries 
and illnesses. The AFL-CIO added that the number of amputations 
involving days away from work was 5,930, representing 0.6% of all DAFW 
injuries/illnesses. The AFL-CIO commented that the proportion of 
amputations among total injuries/illnesses is ``similar to, or less 
than, 0.6% reported for injuries involving [DAFW] (given that most 
amputations are likely to involve some number of [days away from 
work]'' and concluded that ``[t]hus, it's evident to us that, given the 
numbers of amputations that occur annually in the U.S., reporting all 
amputations to OSHA would pose nothing more than a minimal burden on 
employers'' (Ex. 69). In addition, the AFL-CIO stated that ``California 
and Kentucky already require the reporting of amputations as part of 
their state-administered plans, proving that such a requirement is 
feasible'' (Ex. 59); the UAW made a similar comment (Ex. 77).
    Finally, Letitia Davis's comments also included data on 
amputations, specifically the results of the referral of work-related 
amputations to OSHA in Massachusetts (Ex. 84). ``In July 2010, the 
Massachusetts Public Health Department initiated a protocol referring 
work-related amputations with logically consistent body part codes to 
OSHA for follow-up. In 2010, 22 private employers were referred to one 
of three OSHA area offices. The 22 referrals resulted in 13 on-site 
inspections and additional phone/fax initiatives. Among the 13 
inspections, OSHA had already been notified about two of the injuries 
(from city police or fire departments that responded to the site) and 
had already initiated inspections at the time of the referrals. Nine of 
the referrals leading to onsite inspections resulted in citations, 
indicating shortcomings or failures of occupational health and safety 
programming. These included citations related to lockout/tagout, lack 
of machine guarding, failure to conduct a hazard assessment and the 
general duty clause . . . Notably amputations were verified in nine of 
the 13 onsite investigations. Four were found to be other injuries. 
Even when amputations did not occur, OSHA found hazardous conditions 
that were associated with other serious injuries. These findings 
indicate that OSHA investigations prompted by case reports of 
amputations are productive, and well-targeted, leading to 
identification of serious workplace hazards and concrete steps to 
eliminate hazards that cause or contribute to injuries. They suggest 
that direct reporting of amputations to OSHA by employers would be an 
effective means of targeting limited enforcement resources to high 
priority problems.''
    Although these results are limited to the experience of OSHA's area 
offices in Massachusetts, OSHA believes it is reasonable to expect 
comparable findings and results in its other area offices across the 
country. OSHA area offices operate using standardized procedures. 
Reviews of OSHA inspection data have shown that inspections conducted 
by area offices under national programs routinely have similar results 
across the country.
    OSHA agrees with commenters who stated that amputations are serious 
events. OSHA refers to BLS data showing that in 2010, half of fingertip 
amputations involved 18 or more days away from work. OSHA finds that 
all amputations are severe and significant workplace injuries, 
including amputations of fingertips and fingers as well as amputations 
of large body parts, such as hands, arms, and feet, and that reports of 
amputations to OSHA can be an effective way of targeting workplace 
hazards. In addition, the requirement to report work-related 
amputations will help OSHA determine the causes of these injuries and 
develop enforcement strategies and guidance to help prevent them.
    In addition, OSHA notes the existing California and Kentucky state 
requirements to report work-related amputations, which are similar to 
the requirements under this final rule, show that such requirements are 
feasible.
    Finally, OSHA believes that comments such as those by Spurlock and 
Higgins (Ex. 24), saying that amputations can often be attributed to 
numerous hazards for which OSHA has no standard, or there are few, 
practical hazard controls at an employer's disposal, actually support 
OSHA's decision to require the reporting of work-related amputations. 
Section 5(a)(1) of the OSH Act requires employers to ``. . . furnish to 
each of his employees employment and a place of employment which are 
free from recognized hazards that are causing or are likely to cause 
death or serious physical harm to his employees.'' Section 5(a)(1) does 
not make exceptions for hazards for which OSHA has no standards or 
employers have few practical controls. In addition, reports of 
amputations will provide OSHA with data to identify hazards and support 
the development of further standards and practical controls. Thus, 
employer reports of amputations, and OSHA intervention in workplaces 
where amputations occurred, are both critical for complying with 
Section 5(a)(1) of the OSH Act and preventing further serious injury or 
death.
    The final rule requires employers to report to OSHA, within 24 
hours, all amputations that result from a work-related incident within 
24 hours of the incident (see Sec.  1904.39(a)(2) and (b)(6)).
    On the topic of the definition of an amputation, there were 
comments on the definition in the proposed rule, as well as requests 
for clarification. The proposed rule defined amputations according to 
the 2007 release of the OIICS Manual published by BLS, as follows: ``An 
amputation is the traumatic loss of a limb or other external body part, 
including a fingertip. In order for an injury to be classified as an 
amputation, bone must be lost. Amputations include loss of a body part 
due to a traumatic incident, a gunshot wound, and medical amputations 
due to irreparable traumatic injuries. Amputations exclude traumatic 
injuries without bone loss and exclude enucleation (eye removal).''
    Nonetheless, several commenters requested a definition of 
``amputation'' (Ex. 14, 17, 60, 101, 108).
    There were also comments about both the wording of the definition 
and the implementation of the definition. Colony Tire Corporation asked 
about reporting a finger that had been amputated, reattached, and then 
later removed (Ex. 35). Dow Chemical Company commented that ``[t]he 
proposed wording of Section 1904.39(b)(8) defines `amputation' in a 
manner that is extremely unclear'' (Ex. 64). The American Chemistry 
Council recommended that OSHA use the definition of amputations in the 
2010 release of the OIICS Manual ``and clarify whether avulsions are 
included, to avoid ambiguity'' (Ex. 76). IPC-Association Connecting 
Electronics Industries (IPC) ``encourage[d] OSHA to amend the Field 
Operations Manual (FOM) to include the definition'' in the proposed 
rule (Ex. 47), and Kentucky ``recommend[ed] and respectfully 
request[ed] that OSHA include a definition of amputation in 29 CFR 
1904.46'', the definitions subpart of Part 1904 (Ex. 52).
    Finally, there were comments about whether the definition of 
``amputation'' should require bone loss. The American Trucking 
Associations (ATA) commented that ``the definition of an

[[Page 56148]]

`amputation' should require `loss of bone' (Ex. 65); NPRA made a 
similar comment (Ex. 80). However, both David Bonauto M.D. M.P.H. (Ex. 
56) and Letitia Davis Sc.D. Ed.M. (Ex. 84) provided data to support 
their comments that the definition of amputations should not require 
loss of bone because of the difficulties of identifying bone loss.
    David Bonauto's data (Ex. 56) consisted of 3,000 claims with 
suspected amputation injuries in the Washington state fund workers 
compensation claims data for the period 2006-2008; medical record 
review validated 1,885 of these claims as amputations. Bonauto is the 
occupational medicine physician and interim research director with the 
Safety and Health Research Assessment Program in the Washington State 
Department of Labor and Industries. He commented that ``. . . about 90% 
had loss of the protruding body part from the injury. We could 
determine bone loss in nearly 3 of 4 cases; however, this could only be 
done retrospectively based on review of the medical records. 
Determination of the injury resulting in bone loss could not be done 
based on the initial report of injury. Most lower extremity amputations 
resulted from surgical treatment of the injury (e.g., surgical removal 
of a crushed foot) which often occurred after the initial injury event. 
More than two thirds of the injuries resulting in the loss of a 
protruding body part were not characterized as an `amputation' on the 
initial report of accident by the health care provider. These cases 
were often characterized as contusions, lacerations, and fractures but 
ultimately resulted in the loss of a protruding body part . . . From 
these data, the proposed rule might benefit by defining amputations as 
`any injury resulting in the temporary or permanent loss of a 
protruding body part'. Due to the poor initial documentation of the 
injury, a requirement for bone loss in reports will lead to significant 
underreporting.''
    Similarly, Letitia Davis's comments were based on amputation data 
collected by the Massachusetts Department of Public Health, with 696 
work-related amputations treated in Massachusetts hospitals in 2007-
2008 (Ex. 84). She commented that ``[s]some amputations by definition 
include bone loss, e.g. amputation of finger, foot, hand, but if only 
the tip of a finger or toe is amputated, involvement of bone loss at 
time of injury is not necessarily apparent and involves determination 
by clinical review. Even upon clinical review, bone loss can be 
ambiguous. In our experience reviewing amputation cases reported by 
employers on OSHA logs and in workers' compensation claim reports for 
amputations, bone loss is most often not specified. Thus we advise 
against bone loss as a criterion for reporting or at least specifying 
that cases with uncertain bone loss should be reported.''
    After careful consideration, OSHA finds that using the definition 
of amputation in the 2010 release (OIICS Version 2.0) of the BLS OIICS 
Manual will provide the greatest possible clarity and consistency. This 
change from the proposed rule responds to commenters who recommended 
that OSHA use the 2010 release of the OIICS manual, as well as to 
commenters who recommended that the definition not include bone loss. 
Thus, Section 1904.39(b)(11) of this final rule defines amputations as 
the traumatic loss of a limb or other external body part (see Section 
1904.39(b)(11) of this final rule). According to this definition, an 
amputations include a part, such as a limb or appendage, that has been 
severed, cut off, amputated (either completely or partially); fingertip 
amputations with or without bone loss; medical amputations resulting 
from irreparable damage; and amputations of body parts that have since 
been reattached. Amputations do not include avulsions, enucleations, 
deglovings, scalpings, severed ears, or broken or chipped teeth.
5. Required Reporting of Enucleations
    In the preamble to the proposed rule, OSHA asked: ``Should OSHA 
require the reporting of enucleations?''
    Several commenters responded that OSHA should not specifically 
require the reporting of enucleations (i.e., losses of an eye). The PRR 
commented that an enucleation ``indicates a severe and traumatic injury 
has occurred to the employee'' but that ``[t]here is some question 
whether a severe injury leading to an enucleation would ever not fit 
under the definition of in-patient hospitalization . . . and thus it 
may be unnecessary to explicitly include this procedure'' (Ex. 38). The 
PIA commented that ``[PIA] does not feel that the reporting of 
enucleations would be appropriate . . . as the cause and circumstances 
surrounding these types of incidents are vast and may or may not be 
work related and in most cases within the printing industry would not 
be the result of a work related'' event (Ex. 45). Ameren commented that 
``Cases of . . . enucleation that do not result in hospitalization of 
the employee would not likely warrant OSHA's examination'' (Ex. 72).
    Other commenters responded that OSHA should specifically require 
the reporting of enucleations. NIOSH commented that ``[a]lthough 
enucleations of the eye are an infrequent occurrence, reporting would 
serve as a sentinel event for identifying workplaces at risk for other 
preventable injuries including intraocular foreign bodies, penetrating 
eye injuries, and other eye injuries where eye protective equipment may 
not be used'' (Ex. 66). The AFL-CIO commented that ``the loss of an eye 
is an extremely serious injury that can have significant impact on a 
worker and leave him or her with a substantial impairment . . .[T]o the 
extent that an enucleation event does not result in an in-patient 
hospitalization, we believe OSHA should require employers to report all 
work-related enucleations to ensure that every enucleation incident is 
captured'' (Ex. 69). The Building and Construction Trades Department 
(BTCD) of the AFL-CIO (Ex. 59), the UAW (Ex. 77), and the USW (Ex. 86) 
made similar comments, as did the TWU, which added that ``adding 
enucleations to the events requiring report would likely not result in 
greater burden to employers since one would anticipate most of these 
injuries to require, and be accounted for by requirements related to, 
in-patient hospitalizations'' (Ex. 74).
    OSHA finds that the loss of an eye is a severe and significant 
injury and that a requirement to report such injuries, irrespective of 
in-patient hospitalization, can help identify workplaces where serious 
eye hazards are present. Based on comments submitted to the proposed 
rule, Section 1904.39(a)(2) of this rule includes a new requirement for 
employers to report, within 24 hours, all losses of an eye resulting 
from a work-related incident. Section 1904.39(b)(6) provides that this 
reporting requirement applies only when the loss of the eye occurs 
within 24 hours of the work-related incident.
6. Number of Work-Related Incidents Involving In-Patient 
Hospitalizations, Including More Than 30 Days Afterwards
    In the preamble to the proposed rule, OSHA asked: ``Are there 
additional data or estimates available regarding the number of work-
related incidents involving in-patient hospitalizations? Is there 
information available on how many work-related hospitalizations occur 
more than 30 days after the report of an injury or illness?''
    Comments on this question addressed three main topics.
    1. Work-related incidents involving in-patient hospitalization.

[[Page 56149]]

    2. Hospitalizations occurring more than 30 days after the report of 
the injury/illness.
    3. Amputations occurring more than 30 days after a work-related 
incident. The third issue arises from the requirement in Section 
1904.39(b)(6) of the proposed rule for requiring employers to report 
amputations that occurred up to 30 days after the work-related 
incident.
    On work-related incidents involving in-patient hospitalizations, 
commenters provided comments, as well as data and suggestions for data 
sources.
    The U.S. Chamber of Commerce commented that even within a thirty-
day limit, ``the employee may be hospitalized after he or she is no 
longer employed by the employer which would significantly complicate an 
employer's ability to know about the hospitalization'' (Ex. 120).
    Stericycle commented that ``[r]ather than use data from OSHA logs 
or Workers Compensation data to estimate single hospitalization 
reports, OSHA should have collected data from emergency responders to 
determine how many emergency calls were to the workplace'' (Ex. 82).
    NIOSH provided data on the patients with occupational injuries or 
illnesses who were seen in the ED (Ex. 66): ``The NIOSH NEISS-Work data 
provide national estimates of the number of patients treated in an ED 
and released, treated and transferred, treated and admitted, held for 
observation, and an estimate of patients that left without being seen 
or left against medical advice . . . For 2009, it is estimated that 
approximately 81,500 (3%) patients with occupational injuries or 
illnesses seen in the ED were either admitted or transferred and 
another 5,600 (0.2%) were held for observation. It is not known if 
those held for observation were admitted or released. These data do not 
include the length of time that passed between the injury or onset of 
illness and ED treatment.''
    Letitia Davis provided data on work-related in-patient 
hospitalizations in Massachusetts in FY 2008 (Ex. 84): ``There were 
3,448 work-related hospitalizations in Massachusetts during October 
2007-September 2008. The largest number was for injuries and poisonings 
(N=1595; 46%) followed by musculoskeletal disorders (N=1184; 34%). 
Information about time between workplace incident and hospitalization 
was not available but information about admission type is informative. 
Notably, 59% of work-related hospitalizations were for emergent or 
urgent care; 1,337 (39%) were for elective procedures, most of which 
(N-935; 70%) were for musculoskeletal disorders.''
    On work-related hospitalizations occurring more than 30 days after 
the report of an injury or illness, David Bonauto provided data on 
9,262 claims to the Washington State Fund workers compensation program 
that resulted in in-patient hospitalization from 2006-2008 (Ex. 56). He 
commented, ``Of these hospitalizations, 36% occurred within one day 
following the occupational injury or illness event and nearly 50% 
occurred greater than 31 days following the occupational injury or 
illness. When differentiating the type of injury or illness using the 
primary ICD-9 code on the hospital bill, nearly 90% of all inpatient 
hospitalizations occurring within one day of the injury or illness 
event were billed with an injury or poisoning diagnosis as opposed to a 
disease diagnosis. Conversely, nearly 93% of all hospitalizations 
occurring 31 days after the injury or illness event had a disease 
diagnosis listed as the primary diagnosis on the bill.''
    In addition, there were comments about the proposed requirement to 
report in-patient hospitalizations occurring within 30 days of the 
incident. The Marshfield Clinic commented that `[t]he proposed changes 
also give a 30 day period where hospitalization needs to be reported. 
Since some surgeries require inpatient hospitalization; this will 
require that surgeries be reported that . . . are not related to an 
acute work injury. It would not appear that OSHA is interested in 
getting notified of every employee that may be hospitalized due to a 
need for a routine surgery that may be related to a work injury'' (Ex. 
15). The American Chemistry Council commented that the reporting 
requirement for in-patient hospitalization should ``exclude 
hospitalization for chronic cases (such as carpal tunnel)'' if ``OSHA's 
intent is to obtain information about acute injuries resulting from 
serious, incident-specific hazards''; in addition, the final rule 
``should clarify how in-patient hospitalizations for treatment of acute 
injuries for which rehabilitation was unsuccessful (for example, a 
tendon injury in the hand or knee that ultimately requires surgery to 
repair, or back injuries that require later surgery) will be reported'' 
(Ex. 76). Stericycle commented that ``[the 30-day] timeframe may be too 
long as with strains and sprains, 2-4 weeks of physical therapy or 
other conservative treatment may be administered before an injured 
worker may determine surgery is the best option. Then if surgery and 
hospitalization occurs within the 30 days, the reporting requirement is 
triggered . . . After 30 days, OSHA's quick response may be too late 
and the employer may have already abated the hazard'' (Ex. 82).
    On the other hand, the UAW commented that ``[s]everal states, 
including Alaska, Oregon, and Washington have established a 30 day 
reporting period'' (Ex. 77).
    For the third issue, related to the requirement in the proposed 
rule for reporting amputations occurring up to 30 days after the work-
related incident, the PIA commented that ``if amputations are to be 
included as a reporting requirement, a reasonable scope should only 
require reporting if the amputation occurs at the time of the incident 
or at most, at the initial diagnosis of the attending medical 
provider'' (Ex. 45).
    Both David Bonauto (Ex. 56) and Letitia Davis (Ex. 84) provided 
data on this issue. David Bonauto provided data on 1,885 validated 
amputations among Washington State Fund workers compensation claims 
with medical record review in 2006-2008 (Ex. 56). He found that 89% of 
amputations occurred at the time of injury, while 11% of the 
amputations resulted from surgery after the injury (including on the 
same day). However, while 92% of the 1,796 amputations to upper 
extremities occurred at the time of injury, only 38% of the 91 
amputations of lower extremities occurred at the time of injury. He 
commented that ``specific provisions requiring reporting of late 
amputations will more effectively capture lower extremity 
amputations.''
    Letitia Davis provided data on work-related amputations treated in 
Massachusetts hospitals in 2007-2008 (Ex. 84). She commented that ``the 
great majority (92%) of work-related amputations involving hospital 
treatment were treated within one day of injury incident. Only 4.1% 
were treated more than 30 days after the injury incident. Again, OSHA 
might consider limiting reporting to amputations that occur within 24 
hours of the precipitating incidents. These data suggest that in doing 
so, they would capture the great majority of the cases.''
    OSHA finds that limiting the reporting requirement to the 
hospitalizations, amputations, and losses of an eye most likely to 
require urgent or emergent care best serves OSHA's purposes of 
surveillance and appropriate timely investigations of these events, 
while limiting the burden on employers. The final rule requires 
employers to report work-related in-patient hospitalizations, 
amputations, and losses of an eye only if the event occurs within 
twenty-four hours of the

[[Page 56150]]

work-related incident (see Sec.  1904.39(b)(6)).
7. Non-Telephone Methods of Reporting (Email, Fax, or Web-Based System)
    In the preamble to the proposed rule, OSHA asked: ``Should OSHA 
allow reports to be made by means other than a telephone, such as by 
email, fax, or a Web-based system?''
    Many commenters supported additional options for reporting. For 
example, the Marshfield Clinic supported ``[a] system that allows 
computer notification (either email or on-line)'' (Ex. 15). Safety 
Compliance Services commented that ``OSHA should allow for computerized 
reporting of incidents. However this capability needs to be 
standardized so that systems can report the information directly 
without requiring additional work or effort on the part of those 
reporting'' (Ex. 29). Justin Barnes supported ``means such as email, 
fax, and a web-based system'' (Ex. 34). The PIA commented that ``OSHA 
should allow and make considerations of all means available with 
today's technology including telephone, text, email, fax, or through a 
web-based system'' (Ex. 45). The HDMA supported ``alternative methods 
of reporting, such email, fax or Internet'' (Ex. 55). Gruber Horst 
Johansen Hail Shank commented that ``it would be a great idea for OSHA 
to add the ability to report fatalities and applicable incidents 
through their Web site. Any system should include a verification and 
email confirmation of the report for employers to save and/or print 
out, so that they can demonstrate compliance. Development of smartphone 
apps by OSHA . . . would also assist employers to quickly report 
fatalities and applicable incidents'' (Ex. 60). The ATA commented that 
``employers need flexibility in the method of reporting (i.e., phone 
calls, emails, faxes, and web based systems)'' (Ex. 65). NIOSH 
recommended that OSHA ``allow reports to be made by means other than 
telephone, such as by email, fax, or a web-based system'' (Ex. 66). 
Ameren commented that ``a web-based system would allow employers to 
report while at the same time give OSHA an opportunity to capture data 
for automatic analysis and trending'' (Ex. 72). The American Chemistry 
Council commented that ``a mobile application, web or email based 
reporting system would be appropriate, including the application of 
formal controls to prevent false reporting'' (Ex. 76). The UAW 
commented that ``OSHA should permit reporting by any communication 
method that exists now or may exist in the future, provided that the 
content of the report meets all existing OSHA requirements'' (Ex. 77). 
Verizon supported ``the addition of electronic means as an option for 
serious incident notification to OSHA, including email, facsimile and 
web-based reporting tools'' (Ex. 78). NPRA recommended ``electronic 
reporting in addition to phone, fax, and email'' (Ex. 80). Letitia 
Davis commented that ``OSHA should allow employers to report by means 
other than a telephone as long as confidentially of personal 
identifiable health information can be maintained, e.g. by confidential 
fax or secure electronic transmission'' (Ex. 84). The Pacific Maritime 
Association commented that ``[i]n addition to the 800 number, an email, 
Web site reporting tool or similar application would create a time 
stamped record that both the employer and OSHA could find of use'' (Ex. 
100). The RILA suggested that ``employers should be allowed flexibility 
to report whether it is via phone, email or fax'' (Ex. 102). Ingalls 
Shipbuilding ``urge[d] OSHA to expand reporting options to permit 
electronic transmissions, including fax, email or a web-based system'' 
(Ex. 103); Newport News Shipbuilding made a similar comment (Ex. 125). 
The U.S. Chamber of Commerce commented that ``OSHA should allow for 
reporting via email, interactive Web site, texting and faxing to 
provide maximum flexibility for employers and give them a record they 
can use to demonstrate compliance'' (Ex. 120).
    On the other hand, a few commenters opposed additional options for 
reporting. The AFL-CIO commented that ``the current requirement that 
permits reporting . . . only by reporting the incident via a telephone 
or in person should be retained in the final rule . . . We have 
concerns that passive approaches such as email, fax or a Web-based 
system, as opposed to an active oral reporting requirement, would not 
assure the agency that all of the required information is obtained from 
an employer and thus would result in incomplete reports'' (Ex. 69). The 
USW ``strongly urge[d] OSHA to maintain the requirement that a phone 
call is necessary to that the information is reported as soon as 
possible to OSHA'' (Ex. 86). USMWF commented that, for hospitalizations 
for acute, traumatic injuries and illnesses, ``notifications should be 
made by telephone to ensure that OSHA receives all the key pieces of 
information regarding the incident'' (Ex. 93).
    OSHA agrees with the comments supporting additional options for 
reporting. However, OSHA also agrees with the comments on the 
importance of obtaining all of the required information from the 
employer. Therefore, Section 1904.39(a)(3) of this final rule provides 
flexibility by allowing employers to choose among three options for 
reporting a work-related fatality, in-patient hospitalization, 
amputation, or loss of an eye to OSHA.
    First, as in the current regulation, an employer may report by 
telephone or in person to the OSHA Area Office that is nearest to the 
site of the incident.
    Second, as in the current regulation, an employer may report by 
telephone to the OSHA toll-free central telephone number, 1-800-321-
OSHA (1-800-321-6742).
    Third, as a new option, an employer may report by electronic 
submission using a fatality/injury/illness reporting application that 
will be located on OSHA's public Web site at www.osha.gov. The 
reporting application will include mandatory fields for the required 
information. If the report does not include the required information in 
the mandatory fields, the reporting application will not accept the 
report. The mandatory fields, as specified in Section 1904.39(b)(2), 
are the establishment name; the location of the work-related incident; 
the time of the work-related incident; the type of reportable event 
(i.e., fatality, in-patient hospitalization, amputation, or loss of an 
eye); the number of injured employees; the names of the injured 
employees; the employer's contact person and his or her phone number; 
and a brief description of the work-related incident. The public will 
be given the opportunity to comment on this new electronic submission 
option through the Paperwork Reduction Act (PRA) approval process when 
OSHA applies to reauthorize the information collection.
    Section 1904.39(b)(1) makes clear that if the Area Office is 
closed, the employer must report the work-related event by using either 
the OSHA toll-free central telephone number or the reporting 
application on OSHA's public Web site.
    The final rule does not include options for reporting by email, 
fax, or text, because OSHA would not be able to ensure that employers 
who reported using these options provided all of the required 
information.
8. Time Periods for Required Reporting
    In the NPRM, OSHA asked: ``Are the reporting times of eight hours 
for fatalities, eight hours for in-patient hospitalizations, and 24 
hours for amputations generally appropriate time periods for requiring 
reporting? What advantages or disadvantages would be

[[Page 56151]]

associated with these or any alternative time periods?''
    Comments primarily focused on four topics:
    1. The circumstances under which OSHA would consider that the 
employer knew, or should have known, about the reportable event;
    2. When the reporting clock would start--with the occurrence of the 
work-related incident, or with the occurrence of the reportable event;
    3. The appropriate reporting time period for in-patient 
hospitalizations;
    4. The appropriate reporting time period for other events employers 
would be required to report.
    For the circumstances under which OSHA would consider that the 
employer knew, or should have known, about the reportable event, 
Section 1904.39(b)(7) of the proposed rule provided that if employers 
did not learn about a fatality, in-patient hospitalization, or 
amputation right away, they would have been required to report it 
within the specified time period after the fatality, in-patient 
hospitalization, or amputation was reported to ``[the employer] or to 
any of [the employer's] agent(s) or employee(s)''. Commenters on this 
topic had two concerns. First, that OSHA might require employers to 
report events they did not know about. Second, that OSHA might unfairly 
penalize employers for not reporting events they did not know about.
    Related to an employer being required to report an event the 
employer did not know about, Morganite Industries commented that ``[i]t 
is not clear that an appropriate member of management would have the 
information, allowing the required reporting to OSHA, just because any 
individual employee has that information. For example, the injured 
employee himself might know that he has been hospitalized, but his 
knowing it does not mean that anyone with authority or ability to make 
the report has that information'' (Ex. 20). Ingalls Shipbuilding made a 
similar comment (Ex. 103), as did Dow Chemical (Ex. 64) and the Pacific 
Maritime Association (Ex. 100). Dow Chemical commented that ``the 
`clock' [should] start only when the incident, and the fact the worker 
was hospitalized, have been communicated to the employee's supervisor 
or to other employees whose responsibilities and position qualify them 
to recognize the reporting requirement'' (Ex. 64). The Pacific Maritime 
Association commented in addition that ``[i]njuries should be reported 
to a direct supervisor or management. This is the only means in which 
an employer can be in knowledge of the injury'' (Ex. 100).
    Related to an employer being penalized for not reporting an event 
the employer did not know about, the Joint Poultry Industry Safety and 
Health Council commented, ``While we recognize the 8 hour provision is 
from the time the incident is reported to the employer, its agents or 
employees, we believe the interpretation of what constitutes notice, 
particularly notice to ``any of your agent(s) or employee(s)'' will 
simply generate another cause of litigation if OSHA chooses to cite an 
employer for failing to meet the 8 hour time requirement'' (Ex. 61). 
The ATA commented that ``there is no provision for the Agency to NOT 
impute knowledge of an injury to an employer--i.e., ``should have been 
aware''--as in other OSHA rules. Companies may find themselves in a 
position of being expected to know about an employee's private medical 
information or a hospitalization outside of the purview of the 
employer'' (Ex. 65); Fed Ex made a similar comment (Ex. 67). The 
National Association of Manufacturers (NAM) commented, ``The employer 
may never know of the hospitalization until days or weeks later. Would 
the employer be in violation for not reporting this incident to OSHA 
when there was no knowledge of when the hospitalization took place? 
Additionally, a worker could be injured on a weekend or overnight shift 
and the employer is not notified of the worker's hospitalization until 
the next business day. Would that employer be in violation for not 
reporting the incident within eight hours?'' (Ex. 71). The Pacific 
Maritime Association (Ex. 100) and the Shipbuilders Council of America 
(Ex. 104) made similar comments. To address this concern, Verallia 
suggested that the rule be amended to require notification ``within 
[the specified time period] of the employer becoming aware'' of the 
reportable event (Ex. 91).
    OSHA acknowledges commenters' concern about defining employer 
notification to include reporting to ``any of [the employer's] 
employee(s)''. Therefore, this rule removes this provision. Under 
Section 1904.39(b)(7) of the final rule, employers are required to 
report within the specified time period after the fatality, in-patient 
hospitalization, amputation, or loss of an eye is reported to the 
employer or to any of the employer's agent(s).
    OSHA does not agree with the comments about employers being 
unfairly penalized for not reporting hospitalizations that they did not 
know about.
    First, the current regulation, the proposed rule, and the final 
rule all have a specific provision for employers who do not know about 
an in-patient hospitalization or other reportable event. Under the 
current regulation, if an employer does not learn about a reportable 
incident right away, the employer must make the report within eight 
hours of the time the incident is reported to the employer (see Section 
1904.39(b)(7)). Under the proposed rule, if the employer did not learn 
about a reportable incident right away, the employer would have to make 
the report within eight hours for a fatality or in-patient 
hospitalization, or twenty-four hours for an amputation, of the time 
the incident was reported to the employer (see proposed Section 
1904.39(b)(7)).
    Under the final rule, if the employer does not learn about a 
reportable event (fatality, in-patient hospitalization, amputation, or 
loss of an eye) right away, the employer must make the report within 
eight hours for a fatality, or twenty-four hours for an in-patient 
hospitalization, amputation, or loss of an eye, of the time the event 
is reported to the employer (see Section 1904.39(b)(7) of the final 
rule).
    Second, as discussed above, employers at over 1.3 million 
establishments in six states are already subject to the requirement to 
report in-patient hospitalizations of fewer than three employees. If 
these employers were being penalized for not reporting events they did 
not know about, it seems likely that at least a few of them, or their 
industry organizations, would have submitted comments on this issue 
during this rulemaking. Instead, the only non-hypothetical comment 
received by OSHA on this issue came from one of these six states, which 
specifically commented that ``[e]xperience has established that 
Kentucky's requirements do not exert an increase in the burden of 
regulatory compliance'' (Ex. 52).
    OSHA therefore concludes that the requirement in the final rule to 
report in-patient hospitalizations will not result in an unfair penalty 
for employers. Under the final rule, as in the current regulation, 
employers are only required to report work-related events that have 
been reported to them or their agent(s).
    For the issue in the proposed rule of whether the reporting clock 
would start with the occurrence of the work-related incident or with 
the occurrence of the reportable event (fatality, in-patient 
hospitalization, or amputation), the PRR, the IADC, Gruber Hurst 
Johansen Hail Shank, NAM, and Verizon requested clarification (Exs. 38, 
39, 60,

[[Page 56152]]

71, and 78). To address this issue, OSHA has revised the text in 
Section 1904.39(a)(1) and (a)(2) of the final rule to make clear that, 
consistent with OSHA's current reporting regulation in Section 1904.39, 
the reporting clock starts with the occurrence of the reportable event. 
Section 1904.39(b)(7) also provides instruction on when the reporting 
clock starts to run in situations where the employer or the employer's 
agent(s) does not learn about the reportable event (fatality, in-
patient hospitalization, amputation, or loss of an eye) right away.
    For example, if an employee suffers a work-related injury (the 
work-related incident) at 9:00 a.m., and dies from that injury at 10:00 
a.m., and the employer or the employer's agent(s) learn of the fatality 
(the reportable event) at 10:00 a.m., then the employer would be 
required to report the fatality (the reportable event) to OSHA within 
eight hours of the fatality (the reportable event)--i.e., 6:00 p.m. 
Similarly, if an employee is fatally injured as the result of a work-
related incident at 8:30 p.m. on Monday, but the employer or employer's 
agent(s) do not learn of the fatality (the reportable event) until 9:00 
a.m. the next day (Tuesday), then the employer would be required to 
report the fatality (the reportable event) to OSHA within eight hours 
of learning of the fatality (the reportable event)--i.e., by 5:00 p.m. 
on Tuesday. Also, if an employee suffers a work-related injury (the 
work-related incident) at 11:00 a.m. on Thursday and is hospitalized as 
an in-patient, as a result of that injury, at 3:00 p.m., and the 
employer or the employer's agent(s) learn of the in-patient 
hospitalization for the injury at 3:00 p.m., then the employer would be 
required to report the in-patient hospitalization (the reportable 
event) within 24 hours of the in-patient hospitalization (the 
reportable event)--i.e., by 3:00 p.m. on Friday.
    This would also be the case if the employer needs time to determine 
whether a specific incident is work-related. For example, if an 
incident leads to an employee's death at 9:00 a.m. on Monday, but the 
employer does not have enough information to make a work-relatedness 
determination until 11:00 a.m. on Monday, then the employer would be 
required to report the fatality (the reportable event) within 8 hours 
of learning that the fatality was due to a work-related incident--i.e., 
by 7:00 p.m. on Monday). The final rule states that if the employer 
does not learn right away that the reportable event (fatality, in-
patient hospitalization, amputation, or loss of an eye) was the result 
of a work-related incident, then the employer must make the report to 
OSHA within the following time period after the employer or any of the 
employer's agent(s) learn that the reportable event was the result of a 
work-related incident: Eight (8) hours for a fatality, and twenty-four 
(24) hours for an in-patient hospitalization, an amputation, or a loss 
of an eye. (see Section 1904.39(b)(8))
    For the issue of the appropriate reporting time period for in-
patient hospitalizations, OSHA received many comments that the proposed 
eight-hour reporting period for in-patient hospitalizations was too 
short. The Marshfield Clinic commented that ``an employer is normally 
going to know immediately'' about a fatality and ``probably would also 
know'' about the hospitalization of three or more employees'', but that 
``[t]his is not necessarily the case for the hospitalization of an 
individual employee'' (Ex. 15). IBM commented that ``[i]t would be 
difficult for us to be compliant with reporting any in-patient 
hospitalizations within eight hours, especially with the travelling 
employee, time zone issues, language barriers, communication issues'' 
(Ex. 22). Apogee Enterprises commented that eight hours may not be 
enough time for an employer to determine work-relatedness, that an 
employer may not find out about the hospitalization if the employee 
does not go to the hospital from work, and that the privacy of medical 
information ``can make it very difficult for the employer to find out 
the cause of a hospitalization, especially in the proposed timeframe'' 
(Ex. 40). The HDMA commented that ``. . . many circumstances will arise 
where . . . the full determination of the employee's condition has not 
been determined within eight hours because the employee was admitted to 
the hospital for a variety of reasons some of which may or may not be 
work-related'' (Ex. 55). Ameren commented that ``[t]he determination of 
work-relationship for a case involving a single hospitalization may not 
be immediately obvious and could take more than 8 hours to be 
resolved'' (Ex. 72). Verizon commented that ``[i]t is not practical to 
expect all employers to be able to notify OSHA within eight hours of an 
employee's admission into a hospital with a work-related condition'', 
especially for employers ``whose employees often work alone or with a 
co-worker at off-site locations and at hours other than normal business 
hours'' (Ex. 78). The Pacific Maritime Association commented that ``the 
employer may not have all of the necessary facts within eight hours . . 
. this is too tight a deadline and is a recipe for false or misleading 
information to OSHA'' (Ex. 100). The American Foundry Society commented 
that ``the proposed 8-hour time frame does not offer a realistic time 
frame,'' due to ``circumstances including patient privacy and 
communication delays between a patient and employer or medical provider 
and employer'' (Ex. 101). The American Supply Association commented 
that ``the shift to an 8-hour reporting requirement . . . may interfere 
with an employer who is also tending to the employee's injury during 
this time. The uncertainties placed on the employer, in particular, 
during a period when they are addressing employee safety is overly 
burdensome'' (Ex. 111); the Sheet Metal and Air Conditioning 
Contractors National Association (SMACNA) made a similar comment (Ex. 
122). The ARTBA commented that ``eight hours is unrealistic as it may 
be difficult to quickly ascertain the root cause of the injury'' (Ex. 
114).
    OSHA also received comments proposing alternate time periods, 
including 24 hours, 48 hours, 72 hours, and five days. Morganite 
Industries commented that ``it is reasonable to expect that within 24 
hours management will be made aware that an in-patient hospitalization 
has occurred. It is then reasonable to believe that reporting to OSHA 
is feasible within that same 24 hours'' (Ex. 20). Whirlpool 
Corporation, the IADC, the HDMA, the American Chemistry Council, 
Verizon, the Pennsylvania Independent Oil and Gas Association (PIOGA), 
RILA, and Ingalls Shipbuilding made similar comments (Exs. 31, 39, 55, 
76, 78, 89, 102, and 103).
    NPRA recommended ``that OSHA at a minimum increase the reporting 
time to 48 hours to allow the medical facility time to treat the 
injured, if necessary, determine the need for hospitalization and 
advise the employer'' (Ex. 80). Kentucky commented that ``[e]xperience 
has proven that the reporting of a hospitalization after eight (8) 
hours has passed . . . but before seventy-two (72) hours have elapsed, 
is not detrimental to ensuring that a prompt investigation is 
initiated, if needed, to ensure the prevention of additional injury or 
illness'' (Ex. 52). Fed Ex similarly supported a 72-hour time period, 
commenting that ``[s]eventy-two hours would give an employer adequate 
time to gather and verify the information necessary to make an accurate 
report to OSHA, and it is soon enough after an accident for OSHA to 
make a meaningful investigation'' (Ex. 67).

[[Page 56153]]

    Dow Chemical recommended that ``if the Agency decides to require 
reporting of every hospitalization, the deadline for reporting should 
be (preferably) three business days, or (at the very tightest) the 
following business day after the employer learns both that there was a 
hospitalization, and that the injury was work-related'' (Ex. 64). The 
Duke University Health System recommended ``a reporting period of five 
days if OSHA is to achieve its goal of this regulation presenting only 
a `relatively minor burden' for employers'' (Ex. 63).
    On the other hand, USMWF commented that ``8 hours is far too long a 
time period. OSHA should change its regulation to require an employer 
to immediately notify federal or State OSHA of a fatality or serious 
incidents. The Mine Safety and Health Administration's (MSHA) 
regulations require employers to notify the agency of serious incidents 
within 15 minutes. OSHA should adopt equivalent requirements. We 
believe that California OSHA requires immediate reporting and Utah OSHA 
has a 1-hour reporting requirement'' (Ex. 93).
    In addition, multiple commenters recommended requiring the same 
reporting time period of eight hours for non-fatal reportable events 
(in-patient hospitalizations, amputations, and losses of an eye) as for 
fatalities. The Building and Construction Trades Department of the AFL-
CIO commented that ``[t]he move to a single reporting time frame would 
also benefit OSHA and employers. In the case of OSHA, the move to 8 
hours for all serious incidents would provide the agency with more 
timely information on which to base decisions. For employers, the use 
of one reporting timeframe would simplify the reporting process'' (Ex. 
59). The AFL-CIO, the TWU, the UAW, and the UFCW made similar comments 
(Exs. 69, 74, 77, and 81).
    OSHA acknowledges the commenters' concern about the eight-hour 
reporting time for in-patient hospitalizations in the proposed rule. 
Accordingly, Section 1904.39(a)(2) of the final rule requires employers 
to report in-patient hospitalizations within 24 hours of learning of 
the in-patient hospitalization due to a work-related incident. Note 
that, as discussed below, this will simplify the reporting process by 
requiring a single reporting period (24 hours) for all of the non-fatal 
events that employers are required to report. Note also that, because 
the reporting time period for in-patient hospitalizations does not 
begin until the employee has been formally admitted to the in-patient 
service of a hospital or clinic for care or treatment (see Sec.  
1904.39(b)(8)), the reporting requirement will not interfere with the 
employer's efforts to provide the proper care for the employee whose 
eventual in-patient hospitalization the employer will be required to 
report.
    For the appropriate reporting time periods for other events 
employers would be required to report, many of the same comments about 
reporting time periods for in-patient hospitalizations applied.
    However, OSHA did receive some specific comments as well. For 
amputations, Dow Chemical commented that ``if notification for 
amputations is ultimately required, the deadline should be the end of 
the next business day after the injury is classified as an amputation, 
rather than within 24 hours. This would facilitate compliance, because 
there would be greater certainty that the expert personnel who 
understand the reporting requirement would be available. In addition, 
it would allow for an accurate determination that the injury is, in 
fact, an amputation'' (Ex. 64). The NPRA recommended a reporting time 
period of 48 hours (Ex. 80).
    For amputations and losses of an eye, the USMWF commented that 
``[t]he reporting should be made by the employer no later than 24 hours 
after the employer learns that the amputation or eye loss occurred'' 
(Ex. 93).
    OSHA finds that a reporting time period of 24 hours for amputations 
and losses of an eye will simplify the reporting process by requiring a 
single reporting period (24 hours) for all of the non-fatal events that 
employers are required to report. Section 1904.39(a)(2)) of this rule 
requires employers to report amputations and losses of an eye to OSHA 
within 24 hours.
Other Issues Raised by Commenters
    OSHA received multiple comments that the Agency does not have 
enough resources to be able to collect, track, and use the additional 
data from the new reporting requirements for in-patient 
hospitalizations of one or two employees, amputations, and losses of an 
eye. For example, Rexnord Industries commented that ``[t]here are 
concerns with the ongoing budget debates and whether or not OSHA will 
be able to give the appropriate attention that is needed to the new 
information to drive the needed results'' (Ex. 28). The Tree Care 
Industry Association commented that ``we do not understand how OSHA 
would handle the additional workload . . . How would OSHA handle the 
call volume when it increases from 4,600 to 210,000 calls per year?'' 
(Ex. 37). The National Safety Council commented that ``[s]ome members 
have also expressed concerns regarding OSHA staffing constraints and 
the ability of the agency to process and utilize the increased number 
of submissions to the agency . . .'' (Ex. 58). Gruber Hurst Johansen 
Hail Shank commented that ``[t]he proposed rule would require OSHA to 
spend 52,682.25 hours to simply receive and record the reports . . . 
This does not factor in the countless hours that would also be added by 
the increased amount of inspections OSHA would presumably initiate 
under the proposed rule'' (Ex. 60).
    Mercer ORC HSE Networks commented that they have ``serious 
reservations about whether OSHA has the capacity or resources to 
evaluate and utilize the new collected data on an ongoing basis in a 
way that would significantly improve the targeting of its resources or, 
at the end of the day, would result in improved worker safety and 
health'' (Ex. 68). The American Chemistry Council commented that ``OSHA 
has not demonstrated . . . how the Administration will utilize these 
new data with its finite resources to target unsafe workplaces'' (Ex. 
76). Verizon commented on its concern ``that the simple number of 
notifications will overwhelm OSHA's resources . . .'' (Ex. 78). The 
National Grain and Feed Association commented that ``this will not be a 
prudent use of OSHA's existing resources since it will add another 
time-consuming task to OSHA staff and prevent them from dealing with 
the Agency's three core functions that include: 1) programmed 
inspections; 2) investigation of fatalities; and 3) responding to 
employee complaints'' (Ex. 96); the Shipbuilders Council of America and 
the Corn Refiners Association made similar comments (Exs. 104, 109).
    The NAHB commented that it ``does not seem feasible for OSHA staff 
to investigate each and every in-patient hospitalization given the 
Agency's limited resources'' (Ex. 113). The ARTBA commented that they 
``question whether OSHA is prepared to receive the additional 
information stream that will be generated from the proposed changes'' 
(Ex. 114). The U.S. Chamber of Commerce commented that ``there is every 
reason to believe that the significantly increased level of reporting 
[the expansion of the hospitalization reporting requirement] will 
generate will overwhelm OSHA's limited resources . . .'' (Ex. 120).
    OSHA agrees that it would overwhelm the resources of Federal OSHA 
and the State Plan programs if the Agency conducted an inspection of 
every workplace reporting a serious

[[Page 56154]]

occupational event under this rule. However, OSHA does not intend to do 
this. Rather, OSHA will conduct report-related inspections only at 
workplaces where reports indicate that an Agency inspection to 
remediate hazards may be warranted. OSHA will conduct other 
interventions at workplaces where reports indicate that an Agency 
inspection to remediate hazards is not warranted. In either case, the 
overall objective is for the reports to trigger activities that lead to 
hazard abatement. OSHA will develop internal guidance for determining 
whether to inspect or to conduct a different kind of intervention after 
receiving a report of an in-patient hospitalization of one or two 
workers, an amputation, or a loss of an eye. In either case, OSHA 
follow-up with the employer is essential. Follow-up may be done via 
email, phone, or fax, with regular reminders and deadlines. These 
interventions will require OSHA to reallocate some of its inspection 
resources. However, OSHA believes that ensuring the abatement of 
hazards that resulted in serious injury or illness justifies these 
changes.
    This approach is similar to OSHA's current approach for 
investigating fatalities and hospitalizations of three or more 
employees, as well as OSHA's approach for targeting inspections to the 
highest-hazard workplaces. At present, OSHA does not inspect each 
workplace with a report, per Section 1904.39 of the current regulation, 
of a fatality or the hospitalization of three or more employees. 
Rather, OSHA uses the information in the initial report to decide 
whether or not the Agency should investigate the event. OSHA will 
continue to use this approach under this final rule.
    Similarly, OSHA does not currently try to inspect all 7.5 million 
establishments in the country. Rather, OSHA has a priority system 
designed to allocate available OSHA inspection resources as effectively 
as possible to ensure that the maximum feasible protection is provided 
to working men and women. Case reports of sentinel safety and health 
events, such as fatalities and hospitalizations, support OSHA's 
application of this priority system and will continue to do so under 
this final rule.
    Further, OSHA notes that six states, accounting for over 1.3 
million establishments (18% of the national total) and 19.4 million 
paid employees (17% of the national total), already require employers 
to report in-patient hospitalizations of fewer than three employees, 
evidently without overwhelming the resources of their programs or 
compromising their abilities to conduct targeted inspections, respond 
to worker complaints, and investigate fatalities. Indeed, one of these 
states, Kentucky, specifically commented that ``[t]he Kentucky OSH 
program believes its requirements support the prevention of additional 
injuries or illnesses, effectively direct OSH program resources, and 
reduce the state's occupational injury and illness rates'' (Ex. 52). In 
addition, Kentucky also commented that ``[i]t is important to note that 
neither OSHA's present reporting requirements or proposed rule, nor 
Kentucky's state specific reporting requirements, compel OSHA or 
Kentucky to investigate every reported hospitalization or amputation . 
. . Not all hospitalizations or amputations reported to [Kentucky's] 
Division of Compliance are investigated'' (Ex. 52).
    OSHA also received multiple comments about the Preliminary Economic 
Analysis (PEA).
    The SBA-OA commented that OSHA should ``consider whether its wage 
rate assumption is valid for many small businesses.'' The PEA uses the 
assumption that reporting will be performed by a human resources 
specialist with a compensation cost of $40.04 per hour, but ``many 
small businesses do not employ such personnel and it is often the small 
business owner or other senior person who conducts these activities'' 
(Ex. 94).
    The Pacific Maritime Association commented that ``private sector 
workers . . . already work 40-hour weeks . . . [Unless] OSHA intends on 
removing another set of duties imposed by regulations to free time and 
make it available to perform these new recordkeeping tasks[, w]hen 
imposing new regulations, OSHA should always estimate that the work 
performed will have to be completed at the overtime rate of pay (of 
time and a half)'' (Ex. 100).
    OSHA's response to these comments is in Section V of this 
supplementary information.
    OSHA received multiple comments about the PEA's estimate of the 
time required to report single in-patient hospitalizations and 
amputations. Dow Chemical Company commented that the 15 minutes ``may 
perhaps account for the time spent on the telephone, but it does not 
include all the people who need to participate in, or be notified of, 
the incident and the upcoming notification to OSHA'' (Ex. 64). The ATA 
commented that ``[t]he [time] multiplier should, according to our 
members, be 0.5 [hours] instead of 0.25, to accurately reflect current 
time spent on this task'' (Ex. 65); Fed Ex made a similar comment (Ex. 
67). Mercer ORC HSE Networks commented that ``OSHA focuses strictly on 
the amount of time it takes an individual to `pick up a phone' and make 
the report to OSHA. This is an unduly narrow view of the impact of the 
proposal on employers'' (Ex. 68). NUCA commented that ``OSHA has 
significantly underestimated the economic impact of obtaining injury 
information on a construction site which does not necessarily have an 
office. First, field personnel must stop what they are doing to collect 
information, which must then be transmitted to the company office where 
it must be reviewed and recorded. Along with the proposed additional 
requirements to report to OSHA, which could require hours of 
investigation to prepare for, the total time would easily exceed a mere 
15 minutes'' (Ex. 110).
    In addition, OSHA received several comments that the PEA's time 
assumption did not include the time required to adjust data systems to 
the new reporting requirements. For example, the American Trucking 
Association commented that ``[t]aking into consideration the 
sophisticated internal systems that larger motor carries may use to 
report inpatient hospitalization and amputations . . . ATA estimates--
again, based on member experience--that an additional 150-175 hours may 
be required per employer, something that is not reflected in the Agency 
cost estimate'' (Ex. 65). Fed Ex made a similar comment (Ex. 67).
    Finally, OSHA received several comments that the PEA's time 
assumption did not include employer responses to the inspections that 
might follow the reports. For example, the Tree Care Industry 
Association commented that ``OSHA claims that the additional data-
gathering would be restricted to phone interviews, with a relatively 
minor additional reporting burden estimated to be an average of 15 
minutes per reported incident. However, with the proposed rule in place 
there would be nothing to prevent the Agency from performing on-site 
investigations of reported accidents . . . Obviously to superimpose an 
OSHA on-site investigation on to the post-accident investigations that 
companies already perform as part of their safety procedure creates a 
significant additional burden for employers'' (Ex. 37); the Dow 
Chemical Company and Fed Ex made similar comments (Exs. 64, 67).
    OSHA's responses to these comments are in Section V of this 
supplementary information.
    The HDMA commented that OSHA should ``make allowance for 
outstanding

[[Page 56155]]

circumstances--for instance, the proposed rule does not provide any 
information on what allowances can be made for a disaster type of 
situation where other issues arise that need to be addressed that would 
impede the employer's ability to report to OSHA, due to natural 
disasters such as snow storms, hurricanes, tornadoes, flooding, etc. or 
manmade such as electrical failures, fires, etc. that the employer must 
immediately focus on the disaster and its implications for public 
safety reasons'' (Ex. 55).
    The Agency notes that previous OSHA rulemakings on reporting of 
fatalities and in-patient hospitalizations have not explicitly made 
allowance for emergencies and disasters, but that OSHA has nonetheless 
taken such circumstances into account when they occurred. OSHA will 
continue to do so under the final rule.
    The NAHB commented that ``OSHA's proposal is not consistent with 
Executive Order 13563, `Improving Regulation and Regulatory Review,' '' 
because ``[n]othing in OSHA's proposal indicates how the rule is 
intended to streamline regulatory requirements and reduced burdens on 
industry'' and because the Agency ``should consider the impacts of this 
proposal on small businesses and consider conducting additional 
outreach before moving forward'' (Ex. 113). The SBA-OA (Ex. 94), RILA 
(Ex. 102), and the ARTBA (Ex. 114) made similar comments.
    Executive Order 13563 requires regulatory agencies to consider the 
effect of new regulations on economic growth, competitiveness, and job 
creation. OSHA notes that, as discussed below in Section V-E, Economic 
Impacts, the compliance costs for each affected firm are too small to 
have any significant economic impacts, including impacts on economic 
growth, competitiveness, and job creation. Additionally, the final rule 
includes a new option for employers to report fatalities and other 
reportable events through OSHA's public Web site, which should make it 
easier for employers to fulfill their reporting obligations. Also, 
under the final rule, the time for reporting all non-fatality 
reportable events (i.e., in-patient hospitalizations, amputations, and 
losses of an eye) to OSHA is 24 hours. For in-patient hospitalizations, 
this is a change from the proposed rule, and it should reduce the 
reporting burden on small employers. Therefore, the Agency believes the 
reporting requirements in this rulemaking are consistent with Executive 
Order 13563.
    Mercer ORC HSE Networks commented that they ``believe that [the 
proposed rule] is emblematic of a larger problem; that the national 
system for collecting and compiling data on occupational injuries and 
illnesses is really a hodge-podge of disparate data requirements 
developed by different Agencies to meet their own particular needs . . 
. Consequently . . . we have no real handle on the occurrence (or 
prevalence) of occupational illness in the United States, and many even 
question the accuracy of the data we use to track injuries and acute 
health conditions . . . The last study of the national injury and 
illness data system was conducted over two decades ago by the National 
Academy of Sciences. Although all of the findings were not implemented, 
the 1987 report, Counting Injuries and Illnesses in the Workplace, 
served as the basis for a major overhaul of the BLS safety and health 
statistical programs. Mercer ORC Networks believes that we are overdue 
for another systems-wide review . . . The initial cost for such a 
review might seem high given the current budget climate. However, we 
are convinced that the investment would be `drop in the bucket' 
compared to the potential savings in program efficiencies and 
improvements in prevention effectiveness'' (Ex. 68).
    OSHA agrees with Mercer ORC's assessment that improvement can and 
should be made to the current occupational injury and illness 
collecting and reporting system. OSHA believes this rulemaking 
addresses some of the system shortfalls by expanding the data that are 
collected (e.g., in-patient hospitalizations, amputations, and losses 
of an eye) and by readjusting the scope of the regulation to cover 
industries that will benefit from the availability and use of the 
injury and illness information captured on the recordkeeping forms. In 
addition to this rulemaking, the Agency has taken other steps to 
address system shortfalls including increased enforcement and outreach 
activities. BLS and NIOSH have also taken positive steps to identify 
and address gaps in collecting and reporting on occupational injury and 
illness data. Finally, as stated above, OSHA is planning a new re-
examination of the Agency's recordkeeping regulations. Improvement of 
the system is an ongoing effort, and OSHA will consider Mercer ORC's 
recommendation.

D. The Final Rule

    The final rule is similar to the proposed rule in requiring 
employers to report all work-related fatalities, in-patient 
hospitalizations, and amputations. However, there are also several 
differences from the proposed rule. The differences include the time 
periods for reporting the event, the time periods between the work-
related incident and the reportable event, definitions, and reporting 
options. In addition, the final rule adds work-related losses of an eye 
to the list of events that employers are required to report to OSHA.
    Under the final rule, employers must report the following events:
    1. Each fatality resulting from a work-related incident, within 8 
hours of the death. This requirement applies to all fatalities 
occurring within 30 days of a work-related incident. See Sec.  
1904.39(a)(1) and (b)(6). This is the same as the current regulation 
and the proposed rule.
    2. Each in-patient hospitalization resulting from a work-related 
incident, within 24 hours of the hospitalization. This requirement 
applies to all in-patient hospitalizations occurring within 24 hours of 
a work-related incident. See Sec.  1904.39(a)(2) and (b)(6). Under the 
proposed rule, employers would have been required to report all in-
patient hospitalizations within 8 hours, for hospitalizations occurring 
within 30 days of a work-related incident. Under the current 
regulation, employers are required to report, within 8 hours, in-
patient hospitalizations of three or more employees, for 
hospitalizations occurring within 30 days of a work-related incident.
    3. Each amputation resulting from a work-related incident, within 
24 hours of the amputation. This requirement applies to all amputations 
occurring within 24 hours of a work-related incident. See Sec.  
1904.39(a)(2) and (b)(6). Under the proposed rule, employers would have 
been required to report all amputations within 24 hours, for 
amputations occurring within 30 days of a work-related incident. Under 
the current regulation, employers are not required to report 
amputations.
    4. Each loss of an eye resulting from a work-related incident, 
within 24 hours of the loss of an eye. This requirement applies to all 
losses of an eye occurring within 24 hours of a work-related incident. 
See Sec.  1904.39(a)(2) and (b)(6). The proposed rule would not have 
required employers to report losses of an eye, and the current 
regulation also does not require them to do so.
    Other major differences between the final rule and the proposed 
rule include the following:
    1. In the final rule, the regulatory text provides an explicit 
definition of in-patient hospitalization (see Sec.  1904.39(b)(9) and 
(b)(10)). In the proposed rule, the regulatory text did

[[Page 56156]]

not include a definition. The final rule defines in-patient 
hospitalization as a formal admission to the in-patient service of a 
hospital or clinic for care or treatment. Employers do not have to 
report in-patient hospitalizations that involve only observation and/or 
diagnostic testing.
    2. In the final rule, the definition of amputations comes from the 
2010 release (OIICS Version 2.0) of the BLS OIICS Manual (see Sec.  
1904.39(b)(11)). In the proposed rule, the definition of amputations 
came from the 2007 release of the BLS OIICS Manual. The final rule 
defines amputations as the traumatic loss of a limb or other external 
body part. Amputations include a part, such as a limb or appendage, 
that has been severed, cut off, amputated (either completely or 
partially); fingertip amputations with or without bone loss; medical 
amputations resulting from irreparable damage; amputations of body 
parts that have since been reattached. Amputations do not include 
avulsions, enucleations, deglovings, scalpings, severed ears, or broken 
or chipped teeth.
    3. In the final rule, employers have three options for reporting 
the fatality, in-patient hospitalization, amputation, or loss of an eye 
(see Sec.  1904.39(a)(3) and (b)(1)): (1) by telephone or in person to 
the OSHA Area Office that is nearest to the site of the incident; (2) 
by telephone to the OSHA toll-free central telephone number, 1-800-321-
OSHA (1-800-321-6742); (3) by electronic submission using the fatality/
injury/illness reporting application located on OSHA's public Web site 
at www.osha.gov. Under both the proposed rule and the current 
regulation, only the first two options were available. The electronic 
submission option is new for the final rule.
    4. In the final rule, if employers do not learn about a reportable 
fatality, in-patient hospitalization, amputation, or loss of an eye 
when the event happens, they must report to OSHA within a specified 
time period after the event has been reported to the employer or to any 
of the employer's agent(s) (see Sec.  1904.39(b)(7)). Under both the 
proposed rule and the current regulation, the specified time period 
began after a report to the employer or to any of the employer's 
agent(s) or employee(s).
    Overall, the final rule will provide OSHA with more information 
about serious workplace injuries and illnesses. This information will 
allow OSHA to carry out timely investigations of these events as 
appropriate, leading to the mitigation of related hazards and the 
prevention of further events at the workplaces where the events 
occurred. This information will also help OSHA establish a 
comprehensive database that the Agency, researchers, and the public can 
use to identify hazards related to reportable events and to identify 
industries and processes where these hazards are prevalent. Finally, 
this information will be obtained cost-effectively, with a relatively 
minimal estimated average burden on employers of 30 minutes per 
reported incident.
    In addition, the final rule will make OSHA's reporting requirements 
more similar to the requirements of other agencies. For example, the 
National Transportation Safety Board (NTSB) requires aircraft pilots or 
operators to report aviation accidents involving death, serious injury, 
or substantial damage to an aircraft, as well as non-accidents that 
affect or could affect the safety of operations. The Federal Railroad 
Administration (FRA) requires railroads to complete reports and records 
of accidents and incidents. These accidents and incidents include 
significant injuries to or significant illnesses of railroad employees 
diagnosed by a physician or other licensed health care professional. 
They also include collisions, derailments, fires, explosions, acts of 
God, or other events involving the operation of railroad on-track 
equipment and causing reportable damages greater than the reporting 
threshold for the year ($9,200 in 2010).
    Finally, the changes will make OSHA's reporting requirements more 
similar to the current requirements in some states that administer 
their own occupational safety and health program, as follows:
     Alaska requires employers to report, within 8 hours, 
occupational accidents that result in the death or overnight 
hospitalization of one or more employees (AS 18.60.058). This 
requirement has been in effect since 1976.
     California requires employers to ``report immediately by 
telephone or telegraph to the nearest District Office of the Division 
of Occupational Safety and Health any serious injury or illness, or 
death, of an employee occurring in a place of employment or in 
connection with any employment.'' ``Immediately'' means ``as soon as 
practically possible but not longer than 8 hours after the employer 
knows or with diligent inquiry would have known of the death or serious 
injury or illness'' (Title 8, California Code of Regulations, Section 
342(a)). ``Serious injury or illness'' means ``any injury or illness 
occurring in a place of employment or in connection with any employment 
which requires inpatient hospitalization for a period in excess of 24 
hours for other than medical observation or in which an employee 
suffers a loss of any member of the body or suffers any serious degree 
of permanent disfigurement'' (Title 8, California Code of Regulations, 
Section 330(h)). This requirement has been in effect since 1979.
     Kentucky requires employers to report workplace 
fatalities, amputations, and hospitalizations. Employers must report 
fatalities and hospitalizations of three or more employees within 8 
hours, and amputations and hospitalizations of one or two employees 
within 72 hours (803 KAR 2:180). This requirement has been in effect 
since 2006.
     Oregon requires employers to report work-related incidents 
that cause overnight hospitalizations, catastrophes, or fatalities, 
including heart attacks and motor vehicle accidents. Employers must 
report fatalities and catastrophes (three or more employees admitted to 
a hospital) within 8 hours of the incident, and overnight 
hospitalization of at least one employee for medical treatment within 
24 hours of the incident (OAR-437-001-0700). The single-hospitalization 
requirement has been in effect since 1992.
     Utah requires employers to report, within 8 hours of 
occurrence, work-related fatalities, disabling, serious, or significant 
injuries, and occupational disease incidents (Utah Occupational Safety 
and Health Rule, R614-1-5.C). This requirement has been in effect since 
2002.
     Washington requires employers to report, within 8 hours, 
the death, or probable death, of any employee, or the in-patient 
hospitalization of any employee (WAC 296-800-32005). This requirement 
has been in effect since 2009.
    Note that, under the final rule, as under the proposed rule and the 
current regulation, employers are not required to report events 
resulting from motor vehicle accidents that occurred on a public street 
or highway, but not in a construction work zone (see Section 
1904.39(b)(3)). Employers are required to report events resulting from 
motor vehicle accidents that occurred anywhere else, including in a 
construction work zone on a public street or highway, or on other 
roadways, or off-road.
    A summary comparison of the proposed rule and the final rule is 
below:

[[Page 56157]]



------------------------------------------------------------------------
                                 Proposed rule           Final rule
------------------------------------------------------------------------
Fatalities.................  Employers required to  Employers required
                              report each fatality   to report each
                              within 8 hours of      fatality within 8
                              the death, for all     hours of the death,
                              fatalities occurring   for all fatalities
                              within 30 days of      occurring within 30
                              the work-related       days of the
                              incident.              incident.
Hospitalizations...........  Employers required to  Employers required
                              report each in-        to report each in-
                              patient                patient
                              hospitalization        hospitalization
                              within 8 hours of      within 24 hours of
                              the hospitalization,   the
                              for all                hospitalization,
                              hospitalizations       for all
                              occurring within 30    hospitalizations
                              days of the work-      occurring within 24
                              related incident.      hours of the work-
                                                     related incident.
                             No definition of in-   In-patient
                              patient                hospitalization
                              hospitalization.       defined as a formal
                                                     admission to the in-
                                                     patient service of
                                                     a hospital or
                                                     clinic for care or
                                                     treatment.
Amputations................  Employers required to  Employers required
                              report each            to report each
                              amputation within 24   amputation within
                              hours of the           24 hours of the
                              amputation, for all    amputation, for all
                              amputations            amputations
                              occurring within 30    occurring within 24
                              days of the work-      hours of the work-
                              related incident.      related incident.
                             Definition comes from  Definition comes
                              BLS OIICS Manual       from BLS OIICS
                              2007.                  Manual 2010.
Losses of an eye...........  No requirement.......  Employers required
                                                     to report each loss
                                                     of an eye within 24
                                                     hours of the loss
                                                     of an eye, for all
                                                     losses of an eye
                                                     occurring within 24
                                                     hours of the work-
                                                     related incident.
Reporting options..........  Two options: by        Three options: by
                              telephone or in        telephone or in
                              person to OSHA Area    person to OSHA Area
                              Office; or by          Office; or by
                              telephone to 1-800-    telephone to 1-800-
                              321-OSHA.              321-OSHA; or by
                                                     electronic
                                                     submission on
                                                     OSHA.gov.
Knowledge of event.........  Employer required to   Employer required to
                              report if event        report if event
                              (fatality, in-         (fatality, in-
                              patient                patient
                              hospitalization,       hospitalization,
                              amputation) is         amputation, loss of
                              reported to            an eye) is reported
                              employer, employer's   to employer or
                              agent(s), or           employer's
                              employee(s).           agent(s).
------------------------------------------------------------------------

V. Final Economic Analysis and Regulatory Flexibility Analysis

A. Introduction

    OMB has determined that this rule is a ``significant regulatory 
action'' within the context of Executive Order (E.O.) 12866. This 
rulemaking has net annualized costs of $9 million, with total 
annualized new costs of $20.6 million to employers, total annualized 
cost savings of $11.5 million for employers who no longer have to meet 
certain recordkeeping requirements, and average annualized costs of $82 
per year for the most-affected firms (those newly required to keep 
records every year). Thus, this rulemaking imposes far less than $100 
million in annual costs on the economy, and does not meet the other 
criteria specified for an unfunded mandate under the Unfunded Mandates 
Reform Act (UMRA) (2 U.S.C. 1532(a) or a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.). Consequently, OMB has 
determined that this rule is not ``economically significant'' within 
the meaning of Section 3(f)(1) of E.O. 12866.
    This Final Economic Analysis (FEA) addresses the costs, benefits, 
economic impacts, and feasibility of the final rule as required by the 
OSH Act as interpreted by the courts. This FEA is also designed to meet 
the principles of E.O. 12866 and E.O. 13563. The final rule would make 
two changes to the existing recording and reporting requirements in 29 
CFR part 1904. It would change the industries that are partially 
exempted from keeping records of occupationally-related injuries and 
illnesses, and it would change the requirements for reporting certain 
work-related injury and illness events. The affected establishments are 
only partially exempt from keeping these records because, while they 
are exempt from routine OSHA injury and illness recordkeeping 
requirements, the Bureau of Labor Statistics (BLS) may require any 
establishment to respond to its Survey of Occupational Injuries and 
Illnesses (SOII), and OSHA may require any establishment to respond to 
its annual injury and illness survey. The costs to those firms required 
to respond to the SOII are covered in the BLS's information collection 
request for the survey; costs to other establishments that OSHA may 
require to respond to its annual injury and illness survey are subject 
to future OSHA information collection requests and their approval by 
the OMB's Office of Information and Regulatory Affairs (OIRA).
    The existing OSHA regulation partially exempts all employers with 
10 or fewer employees and all establishments in specific lower-hazard 
industry sectors from routinely keeping OSHA records. The existing 
industry partial exemptions were determined by identifying industries 
with relatively low lost workday injury/illness (LWDII) rates at the 3-
digit Standard Industrial Classification (SIC) code level. This final 
rule would retain the partial exemption for employers with 10 or fewer 
employees. It also would update the list of partially-exempted 
industries to reflect more recent data on days away from work, job 
restriction, or job transfer (DART) rates and would convert the 
industry classifications to the North American Industry Classification 
System (NAICS). These changes would lead to new costs for employers who 
would be newly required to keep records, but there would also be cost 
savings for employers who would no longer be required to keep records.
    The existing regulation requires employers to report all work-
related fatalities and work-related incidents involving three or more 
hospitalizations to OSHA within eight hours. The final rule would 
require employers to report any work-related fatality to OSHA within 8 
hours and any in-patient hospitalization, amputation, or loss of an eye 
occurring within 24 hours of a work-related incident to OSHA within 24 
hours. The final rule would thus increase the number of events that 
employers must report to OSHA.
    The remaining sections of this FEA are: (B) the Industrial Profile; 
(C) Costs of the Final Regulation; (D) Benefits; (E) Technological 
Feasibility; (F) Economic Feasibility and Impacts; (G) Regulatory 
Flexibility Certification; and (H) Appendix.
    OSHA received a variety of comments in response to the Preliminary 
Economic Analysis (PEA). The Agency responds to these comments in 
detail in the relevant sections; this introduction summarizes the 
nature of the comments. The SBA Office of Advocacy recommended that 
OSHA carefully consider any small business comments it receives (Ex. 
94). OSHA notes that it has carefully considered all comments. While 
many commenters expressed views on OSHA's approach to deciding what 
industries would be partially exempted, none objected to OSHA's 
methodology for estimating the number

[[Page 56158]]

of establishments, firms, employees, and injuries or illnesses that 
would be partially exempted. There were some comments that provide 
alternative approaches to estimating various elements of the number of 
in-patient hospitalizations, amputations, and losses of an eye. These 
are fully discussed in the industrial profile section.
    OSHA received many comments on the Agency's estimated compliance 
costs. OSHA increased some cost estimates in response to these 
comments, and responds to these comments in the cost section. However, 
no commenters suggested that the change in reporting requirements would 
be economically infeasible. Although one commenter suggested that this 
rule would be ``much more than a minor burden to industry'' (Ex. 63), 
no one suggested that it would impose a significant economic impact on 
a substantial number of small entities. However, some commenters also 
said that OSHA would have found it useful to conduct a Small Business 
Advocacy Review Panel (Exs. 115, 120) pursuant to the Small Business 
Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 609). This issue 
is discussed further in Section V-F Regulatory Flexibility 
Certification.
    One commenter, the National Association of Home Builders (Ex. 113), 
questioned whether OSHA was complying with E.O. 13563, which requires 
that regulatory agencies take into consideration the effect of new 
regulations on economic growth, competitiveness, and job creation. OSHA 
notes that, as discussed below in Section V-E, Economic Impacts, the 
compliance costs for each affected firm are too small to have any 
significant economic impacts, including impacts on economic growth, 
competitiveness, and job creation. The NAHB (Ex. 113) commented that 
``OSHA's proposal is not consistent with Executive Order 13563, 
`Improving Regulation and Regulatory Review' '', because ``[n]othing in 
OSHA's proposal indicates how the rule is intended to streamline 
regulatory requirements and reduced burdens on industry.'' E.O. 13563 
does not require that all proposals indicate how the rule is intended 
to streamline regulatory requirements and reduce burdens on industry. 
This portion of the E.O. applies only to those proposals that result 
from analyses chosen for the purpose of retrospective review.
    ARTBA argued that OSHA had failed to adequately consider small 
business burdens as required by E.O. 13563. This issue is further 
discussed in Section V-F, which discusses OSHA's analysis of small 
business burdens.
    Some commenters questioned whether OSHA had adequately demonstrated 
the benefits of this regulation. OSHA provides additional discussion of 
the potential benefits of this rule in its revised benefits discussion.
    There were no comments on the discussion of environmental impacts.

B. Industrial Profile

    The purposes of this section are to provide information about the 
industries that would be affected by the recordkeeping provisions of 
the final rule, including the number of affected establishments and the 
structure of employment within these industries, as well as to provide 
estimates of the numbers of additional in-patient hospitalizations, 
amputations, and losses of an eye that will be reported annually under 
the reporting provisions of the final rule. Because current regulations 
already require the reporting of work-related fatalities, OSHA has not 
estimated the number of reportable fatalities for this FEA.
Partial Exemption
    OSHA identified all of the affected establishments in industries 
that would be newly required to keep records and all of the affected 
establishments in industries that would be newly partially exempt from 
keeping records. This identification was complicated by the fact that 
the current regulation classifies employers by SIC codes, a 
classification system dating back to the 1930s that is no longer used 
in government statistics. There is not a simple one-to-one translation 
for industry classification codes between SIC and its replacement, 
NAICS. Some SIC industries were divided among several NAICS industries, 
while other SIC industries were combined to form a single NAICS 
industry. As a result, OSHA had to determine how employers previously 
classified by 1987 SIC code would now be classified using the 2007 
NAICS codes.
    OSHA's decision to convert the listing of partially-exempt 
employers from SIC codes to NAICS codes drew widespread support from 
participants in the rulemaking. Winslow Sargeant, Chief Council for the 
SBA Office of Advocacy, stated that he ``applauds OSHA's proposed 
transition from SIC to NAICS and believes this change will result in 
improved data for OSHA programs'' (Ex. 94). Mr. Sargeant's comments 
were representative of the overwhelmingly positive comments OSHA 
received concerning the transition from SIC to NAICS (Exs. 24, 52, 59, 
69, 77, 78, 81, 85, 86, 90, 93, 99, 100, 112, 119, 120, 122, 124). 
Nonetheless, one commenter expressed concern that it would not be 
possible to compare data between the years covered by SIC and the years 
covered by NAICS (Ex. 29). However, data comparisons for industries are 
almost entirely based on SOII data, which are already collected on a 
NAICS basis. Whether OSHA uses SIC or NAICS codes to define exemptions 
will have no effect on industry time series data. OSHA's expectation is 
that switching to NAICS codes from the seldom-used SIC code system will 
decrease uncertainty in classification, save time, reduce confusion, 
and lower the opportunity for errors in reporting the industry an 
employer belongs to, a belief echoed by some commenters (Exs. 24, 59, 
85). OSHA believes that the change to NAICS will improve the quality of 
data, since the NAICS represents a more modern system of industry 
classification.
    In many cases, OSHA's process of converting classification systems 
meant that a single SIC code was divided into several NAICS codes, and 
conversely, a single NAICS code might contain establishments from 
multiple SIC codes. For maximum accuracy, this analysis was conducted 
at the six-digit NAICS level. The data resulting from this analysis are 
presented in the Appendix to this FEA.
    Because there were no objections to the methodology used in the PEA 
for converting SIC codes to NAICS codes, OSHA has continued to use that 
same methodology. OSHA first examined the 1997 Economic Census: Bridge 
between SIC and NAICS Tables (Census Bureau, 1997). These tables show, 
for 1997, the percentages of the establishments in each SIC code that 
were transferred into each NAICS code. Next OSHA examined the 2002 
Economic Census: Bridge between 2002 NAICS and 1997 NAICS Tables 
(Census Bureau 2002). The bridge tables likewise show, for 2002, the 
percentages of the establishments in 1997 NAICS codes that were 
transferred into 2002 NAICS codes. Affected establishments in a SIC 
code partially exempted under the existing rule but classified in a 
non-partially-exempted NAICS code under the final rule would be newly 
subject to the recordkeeping requirements. These establishments, not 
partially exempted under the final rule, would incur new recordkeeping 
costs.
    After identifying by 6-digit NAICS code (2002) the portions of the 
industries that would be newly required to keep records, OSHA used 2006 
data from the Census Bureau's Statistics of

[[Page 56159]]

U.S. Businesses (SUSB) to determine the corresponding numbers of 
establishments and employees (Census Bureau, 2008) in those NAICS 
industries. The SUSB provides not only the total number of 
establishments and employees in an industry, but also a breakdown of 
employees and establishments by the size of the firm that owns the 
establishment. For this FEA, OSHA is updating the PEA to incorporate 
the most recent 2010 SUSB data (Census Bureau, 2012). In the interest 
of using the best available data, OSHA uses the 2007 NAICS codes to be 
consistent with the Office of Management and Budget's (OMB) North 
American Industry Classification System--Revision for 2007 (OMB, 2006).
    The National Association of Real Estate Investment Trusts (Ex. 41) 
recommended that OSHA update their analysis from the 2002 to the 2007 
NAICS code system, which the Agency has done for this FEA. As a result 
of the 2007 NAICS revision, there has been a significant change to 
NAICS 525930, Real Estate Investment Trusts. The 2007 NAICS update 
split NAICS 525930 into five different industries: 531110, Lessors of 
Residential Buildings and Dwellings; 531120, Lessors of Nonresidential 
Buildings (except Miniwarehouses); 531130, Lessors of Miniwarehouses 
and Self-Storage Units; 531190, Lessors of Other Real Estate Property; 
and 525990, Other Financial Vehicles. In the 2001 OSHA rulemaking, Real 
Estate Investment Trusts were partially exempted from keeping records 
by virtue of being classified under SIC 67, Holding and Other 
Investment Offices. However, as indicated in Appendix A, the final rule 
does not partially exempt NAICS 5311 Lessors of Real Estate, and 
therefore NAICS industries 531110, 531120, 531130 and 531190 will be 
newly required to keep injury and illness records. NAICS 525990 Other 
Financial Vehicles continues to be partially exempt from recordkeeping 
requirements under the final rule.
    The 2007 NAICS revision also reclassified a few industries. To 
assign these industries to the correct NAICS category, OSHA used the 
2002 NAICS to 2007 NAICS Concordance (Census Bureau, 2007). NAICS 
517211, Paging, and NAICS 517212, Cellular and Other Wireless 
Telecommunications--both of which were required to keep records under 
the 2001 rulemaking but were classified as newly partially exempt from 
keeping records under the proposed rule--were merged into NAICS 517210, 
Wireless telecommunications carriers (except satellite), and will 
continue to be newly partially exempt from keeping records under the 
final rule. NAICS 518112, Web Search Portals, has become NAICS 519130, 
Internet Publishing and Broadcasting and Web Search Portals. NAICS 
518112 was required to keep records under the 2001 rulemaking, was 
newly partially exempt from keeping records under the proposed rule, 
and (as NAICS 519130) will continue to be newly partially exempt from 
keeping records under the final rule.
    Satellite telecommunications was classified as NAICS 517310 in the 
2002 NAICS but was classified as NAICS 517911 in the 2007 NAICS. Other 
Telecommunications was classified as NAICS 517910 in the 2002 NAICS but 
as NAICS 517919 in the 2007 NAICS. NAICS 517310 and NAICS 517910 were 
both required to keep records under the 2001 rulemaking; were newly 
partially exempt from keeping records in the proposed rule, and will 
continue to be newly partially exempt from keeping records in the final 
rule.
    SUSB data report establishments by employment size classification, 
with one class being all employers with 10 to 19 employees. However, 
the current regulation, proposed rule, and final rules cover employers 
with 11 or more employees. To deduct employers with exactly 10 
employees, OSHA estimated that such employers represent one tenth of 
all employers with 10 to 19 employees. This approach probably 
overestimates the number of covered firms because there are more firms 
in the lower end of a given size category.
    OSHA then estimated the number of newly-affected establishments and 
employees in each industry by multiplying the total number of 
establishments and employees in the industry by the percentage of 
affected establishments that were identified using the SIC--NAICS 
bridge tables described above. Then, the Agency calculated the number 
of newly-recordable injuries and illnesses for 2010 by dividing the 
total number of injuries and illness reported per industry by the 
Bureau of Labor Statistics (BLS, 2011a) by total employment in the 
industry, and multiplying the resulting rate by the number of affected 
employees in the industry. OSHA used BLS data at the most detailed 
NAICS level for which data were available--at the six-digit NAICS level 
where those data were available and the lowest level data available 
otherwise.
    Table V-1 presents data for the industries with establishments that 
would be newly required to keep records. The table shows the four-digit 
NAICS code, industry name, the number of affected establishments, the 
number of affected employees, and an estimate of the number of 
recordable injuries and illnesses, based on historical data, for newly-
affected employers. Table V-1 shows that OSHA estimates that the final 
rule will require 220,000 establishments, employing 5.5 million 
employees and having 153,000 injuries and illnesses per year, that were 
previously partially exempted from recordkeeping requirements to now 
keep records.

[[Page 56160]]

[GRAPHIC] [TIFF OMITTED] TR18SE14.000

    Having used the bridge tables and other data sources described 
above to identify the segment of the NAICS industries that would be 
newly required to keep records, OSHA used a similar methodology to 
determine the number of affected employees and recordable injuries and 
illnesses for establishments that would no longer be required to 
regularly keep records. Table V-2 shows, for each affected industry 
that would no longer be required to keep records, the four-digit NAICS 
code, industry name, number of affected establishments, number of 
affected employees, and estimated number of injuries and illnesses that 
would no longer be recorded. OSHA estimates that as a result of the 
revision to the list of partially-exempt industries, 160,000 
establishments, with 4.1 million employees and an estimated 56,000 
injuries and illnesses per year, would no longer need to keep records 
routinely.
    Based on the ICR estimates (OSHA, 2011), OSHA currently requires 
1,563,000 establishments to record injuries and illnesses. This total 
represents approximately 54 percent of all establishments with more 
than ten employees and 22 percent of all establishments. The change 
from SIC to NAICS would increase the number of establishments required 
to record injuries and illnesses to 1,592,000, a four percent increase 
in the number of establishments recording, and an increase from 54 to 
56 percent of all establishments with more than 10 employees.

[[Page 56161]]

[GRAPHIC] [TIFF OMITTED] TR18SE14.001


[[Page 56162]]


Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and 
Losses of an Eye
    The final rule would require that employers report all work-related 
fatalities, in-patient hospitalizations, amputations, and losses of an 
eye to OSHA. This requirement would affect all industries, all 
employers, and all 7.5 million establishments subject to OSHA 
authority. Because OSHA already requires the reporting of work-related 
fatalities, this economic analysis focuses on the new requirement for 
reporting all work-related in-patient hospitalizations, all 
amputations, and all losses of an eye. The current regulation requires 
the reporting of work-related hospitalizations of three or more 
workers. The number of such multiple hospitalizations represents a 
trivial portion of all work-related in-patient hospitalizations. For 
example, in Fiscal Year 2010, there were a total of 14 such reports to 
OSHA (OSHA, 2010). OSHA therefore estimated the total number of work-
related in-patient hospitalizations without deducting the very small 
number of multiple hospitalizations that are already reported.
    In the PEA, OSHA noted that it is difficult to estimate the number 
of in-patient hospitalizations that would need to be reported under the 
final rule. One commenter asked that OSHA collect information from 
emergency responders (Ex. 87). OSHA recognizes the value of emergency 
responder data, but such data do not normally provide the distinctions 
OSHA needs to determine if the injury or illness is work-related and if 
the case meets OSHA's definition of an in-patient hospitalization.
    In the PEA, OSHA examined a number of existing estimates and 
approaches to making such estimates. First, OSHA noted that NIOSH 
estimated that in 2004, a total of 68,000 work-related emergency 
department (ED) visits resulted in hospitalization (CDC, 2007). In its 
comments on the PEA, NIOSH estimates that for 2009, approximately 
81,500 patients admitted to emergency rooms with occupational injuries 
or illnesses were either admitted or transferred to hospitals and 
another 5,600 patients were held for observation (Ex. 66). This 
estimate (81,500) may be a high estimate of the number of 
hospitalizations that will be required to be reported under this rule, 
as it may include patients admitted only for diagnostic testing or 
observation, or admitted more than 24 hours after the work-related 
incident. On the other hand, the estimate may be too low because not 
all hospital admissions occur through emergency rooms.
    In the PEA, OSHA noted that Dembe et al. (Dembe, et al., 2003) 
estimate that, based on 1997-1999 data from the Nationwide Inpatient 
Sample (NIS), there were 210,000 in-patient hospital admissions per 
year (or 630,000 over the three-year period) paid for by Workers' 
Compensation insurance. OSHA also noted that studies in Massachusetts 
(1996-2001) and Louisiana (1998-2007) came up with figures ranging from 
150,000 to 275,000 workers'-compensation-related hospitalizations per 
year when state-level data were extrapolated to the nation as a whole. 
In the PEA, OSHA relied on an estimate of 210,000 hospitalizations but 
noted this might be an overestimate, as it included elective 
hospitalizations not covered by the proposed rule.
    Statistics compiled by BLS indicate that 20.1 million occupational 
injuries and illnesses were reported in 1997-1999 in the United States 
(BLS, 2012). Dembe et al. recognize that there are significant 
differences in data collection methodologies between the NIS and BLS, 
and possible under-reporting or misclassification of occupational 
injuries and illnesses in those databases (Murphy, et al., 1996; Leigh, 
et al., 2000). The available statistics nevertheless allow for Dembe et 
al. to infer that about 3 percent of workplace injuries and illnesses 
result in the hospitalization of the affected worker. In the PEA, OSHA 
failed to note that Dembe et al. also estimate that 46.8 percent of all 
workers' compensation hospital admissions are classified as 
``elective''; therefore the remaining 53.2 percent of all workers 
compensation hospital admissions would then be classified as ``non-
elective''. Since the OSHA reporting requirement would only apply to 
``non-elective'' admissions, OSHA estimated for the proposed rule that 
there would have been 107,000 \1\ hospitalizations in 2001 based on 
Dembe and BLS data.
---------------------------------------------------------------------------

    \1\ 20.1M BLS Injuries and Illnesses between 1997-1999/3 years = 
6.7M.
    6.7M Injuries and Illnesses x 3% of workplace injuries and 
illnesses resulting in hospitalization = 0.2M.
    0.2M Hospitalizations x 53.2% non-elective hospitalizations = 
107,000.
---------------------------------------------------------------------------

    One commenter thought that the hospitalizations estimate derived by 
Dembe et al. was too low (Ex. 82). OSHA, recognizing the differences 
between the NIS and BLS, determined that a range of inpatient 
hospitalizations for non-elective procedures could be derived. Using 
the NIS estimate of 210,000 in-patient hospital admissions and Dembe et 
al.'s estimate of the percentage of non-elective workers' compensation-
related hospitalizations, OSHA now estimates that there were 112,000 
non-elective hospitalizations \2\ for 2001. If OSHA instead applies 
Dembe et al.'s estimate of the percentage of workplace injuries and 
illnesses that result in hospitalization--3 percent--and the estimate 
of ``non-elective'' procedures--53.2 percent--to the 4.1 million 
injuries and illnesses reported by the BLS for 2009, OSHA estimates 
that there were roughly 66,000 \3\ inpatient hospitalizations for non-
elective procedures, a value that may lie near the low end of the true 
range.
---------------------------------------------------------------------------

    \2\ Dembe's estimated hospitalizations: 210,000 x 53.2% non-
elective hospitalizations = 112,000.
    \3\ 4.1M BLS Injuries and Illnesses for 2009 x 3% of workplace 
injuries and illnesses resulting in hospitalization = 123,000.
    123,000 Hospitalizations x 53.2% non-elective hospitalizations = 
65,436.
---------------------------------------------------------------------------

    Using Massachusetts data for FY 2008, Letitia Davis from the 
Massachusetts Department of Public Health commented that 39 percent of 
hospitalizations were for elective procedures (Ex. 84). Davis also 
notes that Massachusetts studied inpatient hospitalizations during 
1996-2000 and, using payments by workers' compensation as an indicator 
of work-relatedness, identified an annual average of 4,091 work-related 
inpatient hospitalizations (Ex. 84). Using employment data to 
extrapolate the 4,091 hospitalizations in Massachusetts to the entire 
United States, OSHA calculates that 157,843 \4\ work-related 
hospitalizations would occur annually nationwide. Narrowing the total 
to non-elective hospitalizations using Davis's alternative methodology 
and her estimate of the percentage of hospitalizations in Massachusetts 
that are non-elective (61 percent), OSHA calculates that 96,000 non-
elective work-related hospitalizations occur nationwide.
---------------------------------------------------------------------------

    \4\ MA Employment = 2.97M; U.S. Employment = 114.51M; MA 
Hospitalizations = 4,091.
    Ratio MA Employment to U.S. Employment = 2.97M/114.51M = 2.59%.
    Inflator MA to U.S. = 1/2.59% = 38.58.
    U.S. Hospitalizations extrapolated from MA Hospitalizations = 
4,901 x 38.58 = 157,843.
---------------------------------------------------------------------------

    In summary, a variety of methodologies were examined to estimate 
the number of non-elective hospitalization paid for by workers' 
compensation. The resulting estimates range from 66,000 (extrapolation 
of Dembe to 2009) to 96,000 (extrapolation from Massachusetts data) to 
112,000 (Dembe estimate for 2001) non-elective, occupationally-related 
hospitalizations annually.
    It is also possible to make an estimate of the number of single in-
patient hospitalizations reported in states that currently require 
reporting of single in-

[[Page 56163]]

patient hospitalizations. There are six states \5\ that currently 
require employers to report occupationally-related single-patient 
hospitalizations. Employers in these states report a hospitalization to 
the relevant State Plan Area Office, which then completes an OSHA Form 
36 based on that information. OSHA's Office of Statistical Analysis 
reports that during 2002-2010, a total of 38,000 such forms were 
completed, for an average of 4,200 forms completed annually. Assuming a 
consistent rate of occupationally-related single-patient 
hospitalizations across all fifty states, the number of forms submitted 
by these six states can be extrapolated to all fifty states in the U.S. 
This yields an estimate of 25,000 \6\ annual, reportable, single-
patient hospitalizations. OSHA believes that this low estimate, as 
compared to those developed above, may be the result of failure by 
employers to report hospitalizations that should have been reported. 
The result may be a realistic estimate of how many hospitalizations 
will actually be reported to OSHA, but the Agency prefers to use, for 
costing and economic feasibility purposes, an estimate based on what 
the regulation would require if employers fully complied, such as the 
estimates above based on non-elective hospitalizations paid for by 
workers' compensation.
---------------------------------------------------------------------------

    \5\ Alaska, California, Kentucky, Oregon, Utah and Washington 
all require the reporting of single-patient hospitalizations.
    \6\ 6 State Employment = 19,381,966. 50 State Employment = 
114,509,626.
    Ratio 6 State Employment to total U.S. Employment = 16.93%.
    6 State inflator to 50 states = 1/16.93% = 5.91.
    Average 6 State hospitalizations from 2002-2010 = 4,222.
    Average 6 State hospitalizations extrapolated to U.S. = 4,222 x 
5.91 = 24,946.
---------------------------------------------------------------------------

    Under the final rule, employers would not have to report 
hospitalizations that occur more than 24 hours after the work-related 
incident. Therefore, scheduled or planned hospitalizations would not 
normally be reportable. As discussed above, Davis (Ex. 84) estimates 
that 39 percent of all hospitalizations are for elective procedures, 
while Dembe et al. estimate that 46.8 percent of all hospitalizations 
are for elective procedures. Whereas Davis is only examining 
Massachusetts data, Dembe et al. are comparing data across 24 states. 
OSHA believes that Dembe's sample of 24 states is likely to be more 
representative of the U.S. than Davis's sample and has therefore 
elected to use Dembe et al.'s estimate of 46.8 percent to derive the 
number of work-related hospitalizations that are either scheduled or 
elective. OSHA has opted to use the upper end of the range of estimated 
work-related hospitalizations as its estimate of overall reported 
hospitalizations, with the result that, based on Dembe's estimate of 
the number of non-elective hospitalization paid for by workers' 
compensation in 2001, an estimated 112,000 hospitalizations per year 
will be reported to the Agency as a result of this final rule.
    According to BLS, in 2009, there were 5,930 amputations that 
involved days away from work (BLS, 2010). In its preliminary estimates, 
OSHA assumed that all amputation and losses of an eye would result in 
hospitalization. The more serious amputation cases will clearly require 
in-patient hospitalization. Likewise, the loss of an eye usually 
results in a hospitalization. OSHA estimated this in the proposal, and 
there were no objections. OSHA continues to estimate that the loss of 
an eye normally involves a hospitalization. OSHA notes (but, for the 
basis of the analysis, does not rely on) Moshfeghi's support of this in 
his 2000 article: A Review of Enucleation (Moshfeghi, et al., 2000). 
However, in a comment on the proposed rule, Letitia Davis reported 
that, for FY 2008 in Massachusetts, only 22 percent of all amputations 
resulted in in-patient hospitalizations and that 4 percent of all 
amputations resulted in hospitalization more than 24 hours after the 
injury (Ex. 84). Based on Davis's results for Massachusetts, OSHA has 
adjusted its preliminary nationwide estimate of in-patient 
hospitalizations and amputations.
    Amputations that result in in-patient hospitalizations (22 percent 
of all amputations) have been accounted for in the estimate of 112,000 
total in-patient hospitalizations above, and therefore affected 
employers will not incur an additional reporting burden for amputations 
resulting in in-patient hospitalizations as a result of the requirement 
to report amputations. Amputations that occur more than 24 hours after 
the work-related incident that leads to the amputation (4 percent) will 
not be reportable under the final rule because they occur outside of 
the required time for amputations to be reported; therefore affected 
employers will not incur an additional reporting burden. The remaining 
4,389 amputations (74 percent of 5,930 BLS-reported amputations) will 
require additional reporting to OSHA. For this FEA, OSHA has 
conservatively rounded up this figure to 5,000 amputations and has 
included that estimate in the total number of events that will need to 
be reported annually.
    To summarize, OSHA estimates that a total of 112,000 single in-
patient hospitalizations (including 1,300 amputations that require 
hospitalization, as well as all losses of an eye) and 5,000 amputations 
not involving hospitalization will need to be reported to OSHA annually 
as a result of this final rule. OSHA suspects that the resulting total 
of 117,000 in-patient hospitalizations and amputations is an 
overestimate of the actual number of events that would require 
reporting under the final rule. OSHA could find no evidence to indicate 
how many occupational injuries result in the loss of an eye in a year 
and received no comments from stakeholders providing estimates of the 
number of occupationally-related enucleation. Because the loss of an 
eye is likely to require hospitalization, the estimated 117,000 single 
in-patient hospitalizations and amputations should account for cases of 
losses of an eye. OSHA is confident that an estimate of 117,000 reports 
accounts for all reportable single in-patient hospitalizations, eye 
losses, and amputations.

C. Costs of the Final Regulation

Overview
    This section presents OSHA's estimate of the costs and cost savings 
of the final rule. The time requirements for the activities associated 
with the final rule have been developed through previous rulemakings 
and information collection requests that have been subject to extensive 
notice and comment. For the purpose of analyzing the costs of the 
proposed rule, OSHA relied primarily on past estimates of the time 
needed to complete recordkeeping activities; these past estimates of 
unit time requirements have already been subject to multiple 
opportunities for public comment, as they have been used in ICRs 
multiple times. OSHA is continuing to rely primarily on these estimates 
where they seem appropriate in light of the record. Past ICRs provide 
estimates of the costs of all aspects of recordkeeping for new firms, 
and these estimates were adopted in the preliminary analysis. Past ICRs 
also provided estimates of the costs of reporting fatalities. For its 
preliminary analysis, OSHA assumed that the costs of reporting 
hospitalizations and amputations would have the same time requirements 
as fatalities. (The specific past estimates on which OSHA relied are 
cited for each time estimate.)
    During the comment period of the proposed rule, OSHA received three 
general comments on the overall costs. One commenter, Marshfield 
Clinic, argued that being on the list of

[[Page 56164]]

industries partially exempt from keeping records wasn't a time savings 
for establishments that have been selected by the Bureau of Labor 
Statistics (BLS) to keep records for the BLS Survey of Occupational 
Injuries and Illnesses (SOII) (Ex. 15). Marshfield Clinic asked that 
OSHA develop a trigger mechanism for determining the ideal number of 
employers responsible for keeping the records, regardless of their 
NAICS classification. The concept of an ideal number of employers 
responsible for maintaining the OSHA injury and illness records would 
only be valid if OSHA were compiling injury and illness data for 
statistical purposes and were striving for a representative sample. 
However, OSHA's data collection efforts serve a different purpose, and 
therefore developing an ideal number of responsible employers is not in 
keeping with OSHA's data collection purposes. OSHA asks for injury and 
illness records to help OSHA, employees, and employers determine an 
employer's past experience with worker health and safety. BLS selects 
different businesses to keep records for the SOII each year, so that, 
for example, reporting this year doesn't require an employer to report 
in future years. BLS incurs the paperwork burden for their survey 
requirements. OSHA is aware that some businesses will not realize a 
full cost savings during the years when they are required to keep 
records for BLS or other federal agencies. OSHA recognizes that (1) 
there will be some cost savings in years when they report to BLS, 
because of differences in the specific reporting requirements (such as 
the need to certify OSHA but not BLS records), and (2) there will be a 
cost savings in the years when they are not required to keep records. 
For this FEA, OSHA has not assessed employer burden for BLS or any 
other type of recordkeeping, nor does OSHA believe that such an 
assessment is necessary in order to demonstrate the feasibility of the 
final rule. Because OSHA and BLS do not account for any overlap in 
their requirements, the combined estimated burdens of the two agencies 
for recording injuries and illnesses almost certainly exceed the actual 
burdens.
    Some commenters (Exs. 64, 65, 67) suggested specific kinds of costs 
that might have been overlooked in OSHA's preliminary cost estimates. 
The Dow Chemical Company (Dow) was concerned that ``one legal opinion 
as to whether an injury is recordable could cost far more than [what 
OSHA has estimated].'' (Ex. 64). OSHA's experience is that borderline 
cases that require a legal opinion on recordability are extremely rare. 
In the overwhelming majority of recordkeeping cases, the recordability 
is clear-cut. For those cases where it is not, the already necessary 
determination of whether the case is compensable under workers' 
compensation may help to resolve the issue. For the remaining cases, 
most employers will find it less expensive to record an uncertain case 
than to seek a legal opinion. Also, as stated elsewhere in this 
document, OSHA has several resources available free of charge on its 
Web site that can help employers determine recordability.
    Another rulemaking participant, FedEx Corporation (FedEx), 
commented that complying with the 8-hour reporting requirement for in-
patient hospitalizations would require new protocols and procedures 
that would necessitate 150-175 hours annually (Ex. 67). The American 
Trucking Association made a very similar comment (Ex. 65). OSHA 
believes that extending the reporting deadline from 8 hours to 24 
hours, and making clear that this deadline is from the time the 
employer first learns of the reportable event (in-patient 
hospitalization, amputation, loss of an eye) resulting from a work-
related incident, will relieve the need for the elaborate system for 
tracking potential hospitalizations that these commenters envisioned. 
The following subsection presents OSHA's estimate of the time 
requirements and other unit values associated with the compliance 
activities expected by OSHA following the effective date of the final 
rule.
Unit Costs
    Initial training of recordkeepers is expected to require one hour 
per establishment and will apply only to current partially-exempt 
establishments that would be newly required to keep records (OSHA, 
2001). A commenter (Ex. 17) noted that this requirement would signify 
the need for retraining of both human resource and safety 
professionals. OSHA, based on its experience inspecting establishments 
and discussing recordkeeping with stakeholders, believes that the 
average establishment that employs 25 workers will only assign the task 
of understanding of the details of recordkeeping to one employee per 
establishment. This analytical assumption is consistent with OSHA's 
Supporting Statement to the Information Collection Request (ICR) 
transmitted to OMB in 2011 (OSHA, 2011). Some commenters argued that 
much more extensive training would be needed. For example, Holman 
Automotive Group (Ex. 124) and the National Association of Automobile 
Dealers argued that training might involve a one-day course at a cost 
of $300, plus the cost of employee time, travel expenses, etc. OSHA 
believes this is an overestimate of potential training costs, as the 
Agency's own Web site provides training on recordkeeping that can 
easily be completed in less than one hour. It should be noted that 
there is a trade-off between time spent on training and time spent on 
individual records. A recordkeeper at a very large establishment with 
many injuries and illnesses in the course of a year may find it more 
efficient to have more extensive initial training in order to spend 
less time on each individual record. On the other hand, a recordkeeper 
who records only two or three injuries/illnesses a year will be better 
off learning about the complexities of the system only if such 
complexities ever actually arise in their establishment, resulting in 
lower initial training costs but more time spent recording each case. 
OSHA's estimates are designed to represent an average across large and 
small firms and establishments, taking into account both situations 
where more extensive initial training is provided as well as situations 
where little or no initial training is done. OSHA also notes that 
injury and illness recordkeeping development and training can account 
for much more than just keeping records of injuries and illnesses under 
29 CFR part 1904; in other words, these types of administrative 
functions address not just other OSHA requirements but also 
requirements for other agencies, such as BLS and workers' compensation 
insurers. The one hour estimate presented in this FEA accounts for only 
the incremental addition of training needed for OSHA-required recording 
of injuries and illnesses.
    Training of recordkeepers to account for turnover was estimated to 
take one hour per establishment, and a turnover rate of 20 percent per 
year was applied in the cost algorithm, resulting in an average of 0.2 
hours per establishment per year to train newly-hired recordkeepers. 
This estimate applies to costs for current partially-exempt 
establishments that would be newly required to keep records and will 
contribute to cost savings for establishments that would no longer be 
required to keep records (OSHA, 2001). As discussed below, in the PEA, 
OSHA estimated that this task would be performed by a Human Resource 
Specialist, but for this FEA, OSHA has decided that it would be more 
accurate to use the higher salary of an

[[Page 56165]]

Occupational Health and Safety Specialist (OHSS). A person with these 
higher qualifications will typically be better able than a human 
resources specialist to carry out the required duties in the estimated 
times.
    The final rule will require the completing, posting, and certifying 
of the OSHA Form 300A annually. OSHA estimates that 0.47 hours per 
establishment, as calculated in the ICR, will be needed to complete and 
post the form, and 0.5 hours will be needed to certify the log entries, 
for a total of 0.97 hours per establishment. This estimate applies on a 
per-establishment basis to costs for current partially-exempt 
establishments that would be newly required to keep records and to cost 
savings for establishments that would no longer be required to keep 
records (OSHA, 2011).
    In addition to the per-establishment costs incurred to complete, 
post, and certify the OSHA Form 300A annually, there are also costs for 
each injury and illness recorded. These costs include the costs for 
completing the OSHA Form 301, entering each injury and illness on to 
the OSHA Form 300, and responding to requests for copies of the OSHA 
Form 301. OSHA estimated in the ICR that 0.38 hours per recordable 
injury or illness will be expended to comply with these requirements 
(OSHA, 2011). This estimate applies to costs for current partially-
exempt establishments that would be newly required to keep records and 
to cost savings for establishments that would no longer be required to 
keep records (OSHA, 2011).
    OSHA received several comments on its time estimate of 15 minutes 
for reporting in-patient hospitalizations and amputations to OSHA. OSHA 
estimated that reporting in-patient hospitalizations or amputations is 
an activity that is expected to require the same time as OSHA estimates 
for reporting fatalities and multiple hospitalizations: 0.25 hours (15 
minutes) of OHSS labor per fatality or hospitalization (OSHA, 2011). 
Several commenters suggested that reporting to OSHA would take more 
than 15 minutes (Exs. 46, 64. 65, 67, 68, 83, 110). These commenters 
provided several different reasons for believing that more than fifteen 
minutes would be required. Some commenters were concerned that the call 
itself would require more than 15 minutes. The American Society of 
Safety Engineers and others claimed that the telephone call to report 
to OSHA is too complex to complete in 15 minutes. Mercer ORC HSE 
Networks stated that it could take longer than 15 minutes to make a 
connection over the telephone with OSHA, and that such a connection is 
especially difficult outside of OSHA's normal operating hours (Ex. 68).
    Other commenters were concerned with the possibility that the 
required information would be difficult to obtain within the required 
time frame. Some commenters (see Exs. 65 and 67) asserted that 
elaborate procedures would need to be in place to assure that all 
hospitalizations were reported within eight hours of admission. OSHA 
has altered the final rule to require reporting within 24 hours of the 
hospitalization, and to clarify that the 24 hours starts when the 
employer learns of the reportable event resulting from a work-related 
incident.
    Other commenters were concerned that pre-call activities had not 
been included in the time estimate. The Dow Chemical Company stated 
that the telephone call to report the event would require the attention 
of several different salaried professionals (Ex. 64). FedEx said that 
the allotted time should also include the time required to enter the 
information into their system and to allow for subsequent review by 
management, and recommended that OSHA use 30 minutes as the estimate 
for the reporting time (Ex. 67). The American Trucking Association 
stated the view that 15 minutes is a ``gross underestimation'' of the 
time required to report to OSHA and that, in their experience, 
reporting takes, on average, 30 minutes (Ex. 65). NUCA, a trade 
association representing utility construction and excavation 
contractors, expressed a concern that OSHA's PEA ``significantly 
underestimated the economic impact of obtaining injury information on a 
construction site which does not necessarily have an office.'' In 
NUCA's estimation, the entire process of collecting, transmitting, and 
recording the information would far exceed 15 minutes (Ex. 110). NUCA 
was also concerned that field operations without offices would have 
trouble complying with the rule (Ex 110).
    In response, OSHA notes that employers are already required to 
gather all of the information required for reporting the 
hospitalization in order to record the injury or illness within seven 
days of the occurrence of the injury or illness. The question is 
therefore whether the need to report within 24 hours of finding out 
about the hospitalization or the need to report directly to OSHA, 
increases the time necessary to obtain the required information. OSHA 
also notes that employers are routinely in touch with hospitals for 
work-related incident in order to communicate necessary information 
related to Workers' Compensation. (The HIPAA Privacy Rule has an 
exemption for employers involved in the workers' compensation system: 
http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/workerscomp.html)
    OSHA believes that 15 minutes is a reasonable approximation of the 
time required for the telephone call alone. In response to the comment 
from Mercer ORC HSE Networks (Ex. 68) about the difficulty of reaching 
OSHA within 15 minutes, the Agency notes that OSHA has a toll-free 
number for employers to call that is staffed 24 hours per day to allow 
immediate reporting at any hour of the day. This final rule also 
enables 24-hour electronic reporting using a web form that OSHA will 
develop in conjunction with issuance of the final rule. OSHA 
acknowledges that there might be times when an employer will have to 
wait on hold to speak to an OSHA representative, but on the average, 
even allowing for such delays, the phone call should not exceed 15 
minutes.
    Many, if not most, employers will need no additional time beyond 
the time for the telephone call for the task of reporting a fatality, 
hospitalization, amputation, or loss of an eye, given they are both 
already required to obtain the information, and will frequently have 
the necessary information as a result of communications related to 
Workers' Compensation. However, OSHA recognizes that some firms, 
particularly larger firms, may require additional review of reports 
that are sent directly to OSHA and that may well trigger OSHA 
enforcement activities. In addition, some firms may need to undertake 
additional information-gathering efforts, such as calls to hospitals or 
interviews with other employees, that would not have been necessary in 
the current seven-day timeframe for recording cases. As a result of 
these considerations, OSHA has adopted the suggestion of some 
commenters (Exs. 65 and 67) to expand the total estimate of time 
required to report a hospitalization from 15 minutes to 30 minutes.
    Dow argued that OSHA should also take into consideration the time 
spent following up with OSHA inspectors (Ex. 64). Other commenters made 
similar points and were also concerned about the time spent with 
follow-up inspections (Exs. 37, 67). In general, the requirements in 
this final rule will not result in additional OSHA enforcement 
activities. Instead, the provisions of the final rule should only 
result in more letters from OSHA to employers. OSHA inspections may 
increase at some facilities that report hospitalization, but may 
decrease at other facilities. OSHA

[[Page 56166]]

does not have the data to determine which industries will be more or 
less affected, but believes that this will be a shift in the cost of 
being inspected, as opposed to an increase in net costs. To the extent 
that inspections targeted on reports of an in-patient hospitalization 
result in more citations than other inspections, such inspections may 
result in greater costs than other inspections. However, OSHA lacks the 
data to make an estimate of such costs at this time. This topic is 
discussed in more detail in the benefits section.
    For the PEA, OSHA estimated that recordkeeping tasks would most 
likely be performed by a Human Resource, Training, and Labor Relations 
Specialist, not elsewhere classified (Human Resource Specialist),\7\ a 
labor category defined by BLS's Occupational Employment Statistics 
(OES) program. Some commenters noted that the people keeping records 
would be likely to earn more than $28.00 per hour, or approximately 
$56,000 per year, and that the required recordkeeping tasks would more 
accurately be performed by an individual whose qualifications were 
similar to those of an Industrial Hygienist (Exs. 64, 117). OSHA agrees 
with that recommendation and, for this FEA, has assigned the 
recordkeeping tasks to an Occupational Health and Safety Specialist \8\ 
(OHSS) earning $31.54 per hour on average, or approximately $66,000 per 
year (BLS, 2011b). OSHA is aware that relatively few employers affected 
by this rule actually employ an OHSS, but feels that the additional 
cost per hour more accurately reflects the costs for recordkeepers. The 
labor hours assigned in OSHA's updated Recordkeeping ICR (OSHA, 2011) 
reflect this OES occupation category, and OSHA has applied the OHSS 
wage in this FEA.
---------------------------------------------------------------------------

    \7\ BLS Occupational Employment Statistics (OES) code 13-1078.
    \8\ BLS Occupational Employment Statistics (OES) code 29-9011.
---------------------------------------------------------------------------

    In December 2011, BLS reported that employer costs for employee 
benefits (other than wage and salary) were 30.1 percent of total 
compensation for management, professional, and related occupations 
(BLS, 2011c). OSHA calculates a mean fringe benefit factor of 1.43 for 
management, professional, and related occupations.\9\ Multiplying the 
base wage of $31.54 by the fringe benefit factor of 1.43 yields a total 
cost to employers for employee compensation of $45.12 in hourly wages 
for an OHSS.
---------------------------------------------------------------------------

    \9\ The percentage of total wages attributed to employee 
benefits (0.301) divided by the percent of total wages attributed to 
base wages (0.699) = the fringe benefit factor (1.43).
---------------------------------------------------------------------------

    OSHA has also determined that, while an OHSS or equivalent employee 
will perform the recordkeeping duties, there is likely to be a more 
senior employee responsible for certifying the OSHA Form 300A (Annual 
Summary). In the recordkeeping ICR (OSHA, 2011), OSHA estimated that 
the person responsible for certifying the log will typically have a 
wage equivalent to an Industrial Production Manager. OSHA has adopted 
that estimate for this analysis. An Industrial Production Manager \10\ 
(or IPM, a labor category defined by OES), or equivalent employee, is 
expected to earn an average of $45.99 per hour (BLS, 2011b). Applying 
the fringe benefit factor of 1.43 to this salary, total hourly 
compensation is calculated to be $65.79 for an IPM.
---------------------------------------------------------------------------

    \10\ BLS Occupational Employment Statistics (OES) code 11-3051.
---------------------------------------------------------------------------

    The Small Business Administration (SBA) Office of Advocacy urged 
OSHA to consider ``whether its wage rate assumption is valid for many 
small businesses'' (Ex. 94). OSHA agrees that recordkeeping will more 
likely be performed by an OHSS or equivalent employee, and the Agency's 
2011 ICR for Recordkeeping reflects this cost assumption (OSHA, 2011). 
As noted above, for this FEA, OSHA has applied a higher wage than the 
wage applied in the PEA. OSHA recognizes that there is significant 
diversity among firms with respect to the personnel charged with OSHA 
recordkeeping responsibilities. Smaller firms may have a bookkeeper 
perform this function, while larger firms will likely use an 
occupational health and safety specialist. However, OSHA believes that 
the hourly cost of $45.12, the total compensation of an OHSS, is a 
reasonable estimate of the costs for the typical recordkeeper, 
regardless of actual occupation.
    Another commenter asked that OSHA always use an overtime wage (Ex. 
100). In fact, OSHA's estimate of loaded wages (wages that include 
compensated benefits) includes an overtime and premium component within 
the compensated benefits. Therefore, OSHA believes that its estimate of 
loaded wages captures overtime compensation. OSHA does not believe that 
the overtime rate would be an appropriate measure for the base rate in 
all circumstances, because OSHA does not anticipate that all labor 
resulting from the regulation will occur during overtime.
Total Costs
    Combining the unit time requirements, hourly wages, numbers of 
establishments, and injury and illness totals presented in Table V-1, 
Table V-3 shows OSHA's estimate of the cost of the final rule for the 
current partially-exempt employers who would need to keep records as a 
result of the final rule. The expected annualized cost of the rule to 
those employers is $17.9 million per year, with the most expensive 
element being the completion, certification, and posting of the OSHA 
Form 300A ($11.9 million per year). The 4-digit industry projected to 
bear the highest cost ($2.9 million) is NAICS 6241, Individual and 
Family Services.
    Combining the unit time requirements, hourly wages, number of 
establishments, and injury and illness totals presented in Table V-2, 
Table V-4 shows OSHA's annualized estimate of the cost savings of the 
final rule for employers who would no longer need to routinely keep 
records as a result of the final rule. OSHA estimates that the total 
cost savings for these employers would be $11.5 million per year.
    Combining estimated costs and estimated savings, the net cost of 
the changes in the partial exemption part of the final rule is $6.4 
million per year.

[[Page 56167]]

[GRAPHIC] [TIFF OMITTED] TR18SE14.002


[[Page 56168]]


[GRAPHIC] [TIFF OMITTED] TR18SE14.003

    To estimate the costs of reporting in-patient hospitalizations, 
amputations, and losses of an eye, OSHA multiplied the estimated number 
of such events per year (112,000 in-patient hospitalizations plus 5,000 
amputations not leading to in-patient hospitalizations), the estimated 
time per report (0. 5 hours), and the hourly compensation costs of a 
recordkeeper ($45.12). The resulting estimate of the annual cost of 
this provision is $2.6 million per year.
    Table V-5 shows the total net costs of the final rule considering 
all three elements: costs incurred by current partially-exempt 
employers who would be newly required to keep records, cost savings to 
employers who would no longer be required to routinely keep records, 
and costs associated with the reporting of all in-patient 
hospitalizations, amputations, and losses of an eye. OSHA estimates 
that the total net costs of this final rule would be $9 million per 
year.

 Table V-5--Annualized Costs and Cost Savings for the Major Elements of
                                the Rule
------------------------------------------------------------------------
             Cost or cost savings element                     Value
------------------------------------------------------------------------
Costs to Employers Newly Required to Keep Records.....       $17,920,888
Cost Savings to Employers Newly Exempt from Keeping         (11,532,266)
 Records..............................................
Costs of Additional Reporting of Hospitalizations,             2,639,520
 Amputations and Losses of an Eye.....................
------------------------------------------------------------------------
Net Costs.............................................         9,028,142
------------------------------------------------------------------------


[[Page 56169]]

D. Benefits

    OSHA believes that the conversion from SIC to NAICS and the revised 
reporting requirements have substantially different goals and thus 
different potential benefits. OSHA expects the conversion from SIC to 
NAICS to result in more useful injury and illness data. The SIC system 
currently used by OSHA is obsolete and has not been used by many other 
data collection entities for years. Converting to NAICS will enable 
both affected employers and OSHA to achieve consistency and 
comparability with other data collection efforts conducted by both 
public and private entities. OSHA found little controversy concerning 
the concept of converting from SIC to NAICS. However, there is no way 
to convert from SIC to NAICS without changing in some way the number of 
establishments required to routinely record injuries and illnesses. 
This result is inevitable because there is no one-for-one mapping from 
SIC to NAICS for many industries. Some SIC industries were split into 
several NAICS industries that include other SIC industries, while some 
NAICS industries represent consolidations of several SIC industries. 
OSHA decided that the best way to conduct the conversion was to update 
the included industries using BLS data on DART rates by NAICS code, and 
apply the rule used in two previous OSHA rulemakings--that 
establishments in industries with DART rates of 75 percent or more of 
the mean overall DART rate should record injuries and illnesses. Based 
on analysis of the record and data from the Census Bureau provided in 
the industrial profile section of this analysis, OSHA estimates that 
160,000 establishments will now be partially exempt from keeping 
records. According to 2010 data from BLS, these establishments have an 
average injury and illness rate of 1.4 cases per 100 full-time workers. 
On the other hand, the revision to the regulation applies injury and 
illness recordkeeping requirements to an additional 220,000 
establishments that have an average injury and illness rate of 2.8 
cases per 100 full-time workers. Though on average, establishments 
newly required to record have higher injury and illness rates than 
those newly partially exempted, there will certainly be individual 
portions of industries that are newly required to record even though 
their injury and illness rates are quite low, as well as portions of 
industries that are newly exempt even though their injury and illness 
rates are quite high. This is the inevitable result of categorizing 
industries based on similarity of business products or services rather 
than similarity of risk of occupational injury and illness. However, as 
the average injury and illness rates for the industries newly required 
to record and newly partially-exempt from recording show, on the whole 
the changes that result from the transition from SIC to NAICS will 
require higher-risk establishments to record while partially-exempting 
lower-risk establishments.
    Some commenters, such as the SBA Office of Advocacy, were concerned 
that ``industries with declining injury and illness rates would now be 
required to maintain OSHA Logs even though their workplaces have become 
safer.'' SBA went on to call the basic criteria OSHA used 
``arbitrary.'' There was also an implicit concern that although 
industries had lower injury and illness rates in the aggregate, more 
industries would be required to routinely record. On the other hand, 
some commenters argued that OSHA should require all establishments to 
routinely record work-related injuries and illnesses.
    OSHA's original justification in 1982 for providing a partial 
exemption to industries with injury and illness rates below 75 percent 
of the national average injury and illness rate was primarily based on 
two reasons, (1) that records would be available in establishments more 
likely to be inspected by OSHA; and (2) that the number of 
establishments required to keep records that would record no injuries 
or illnesses would be limited (47 FR 57699-701). At that time, OSHA 
viewed the primary purpose of injury and illness rate records as 
something to be made available during an OSHA inspection. Since OSHA 
continues to do inspections, the decline in injury and illness rates is 
not relevant to the first reason. As for the second reason, the size of 
the establishment is at least as relevant as the injury and illness 
rate. A larger establishment with a lower injury and illness rate may 
be more likely to have a recordable injury or illness than a smaller 
establishment with a higher injury and illness rate,
    The changes to the partial exemption in this final rule have 
several benefits, two of which were explicitly recognized in the 
original 1982 rulemaking. First, because on average, the update in the 
data used to calculate the average DART rate partially exempts 
establishments with a lower average DART rate from the recording 
requirements, and adds establishments with a higher average DART rate 
to the recording requirements, there will be fewer facilities that will 
have to keep records even though they will never record an injury or 
illness. Second, the establishments that OSHA is most likely to 
inspect, those with 10 or more employees in higher-hazard industries, 
will have a record of injuries and illnesses available at the time of 
the inspection. OSHA is relatively unlikely to inspect partially-
exempted industries unless there is a fatality, catastrophe, or 
complaint, and thus there is less need for a record of injuries and 
illnesses to help guide the inspection.
    In addition, OSHA emphasizes today that recordkeeping is not simply 
a requirement useful in the event of an OSHA inspection, but that 
recordkeeping also permits workers and employers to gather worksite 
data that enhance the identification and elimination of hazards that 
pose serious risks to workers. This function seems useful whenever and 
wherever there are preventable injuries and illnesses and is not 
limited by the level of hazard found. There are several reasons to 
believe that a requirement to keep records can be a first step toward 
lowering injury and illness rates. Simply the process of keeping and 
certifying accurate records will make employers more aware of their 
safety and health problems and provide them with a basis for 
benchmarking themselves against others in their industry. Recordkeeping 
data should also allow them to take steps to prevent injuries and 
illnesses from occurring in the same manner. Having records available 
also enables OSHA compliance officers to focus their inspection 
activities in areas with high numbers of injuries and illnesses. As a 
result of keeping records, the average employer in an industry with 
relatively high injury and illness rates, their employees, and OSHA 
will have a better understanding of the nature of the serious injuries 
and illnesses occurring in establishments. On the other hand, some 
employers with relatively low injury and illness rates will now be 
partially exempt from keeping records and providing them to their 
employees or OSHA.
    The employers newly required to keep records have an average costs 
of $117 per injury or illness recorded (based on dividing the total 
cost of recording in Table V-3 by the total number of injuries in Table 
V-1.) On the other hand, newly partially-exempted establishments had 
average costs of $208 per injury and illness recorded (based on 
dividing the total cost of recording in Table V-4 by the total number 
of injuries in Table V-2.) This revision is more cost-effective than 
the original rule in the sense that the revision adds employers with a 
lower average cost of recording injuries and

[[Page 56170]]

illnesses and removes employers with a higher average cost, and this 
serves to lower the average cost of recording injuries and illnesses 
for the rule as a whole.
    Although OSHA lacks the information to determine the exact value of 
keeping OSHA injury and illness records, it is possible to look at 
scenarios that justify OSHA's assertion that there is some value to 
recording injuries and illnesses when the cost of recording is under 
$200 per case. A meta-analysis of willingness-to-pay estimates 
(Viscusi, et al., 2003) values a prevented injury at $62,000. Using the 
cost of a record as $117 per case, there would be recordkeeping costs 
of $23,400 for two hundred cases. If keeping injury and illness records 
results in eliminating one injury in two hundred, then there would be 
benefits for these two hundred injuries and illnesses of $62,000. 
Compared to costs of $23,400, this results in a net benefit of $38,600 
for these two hundred cases. However, some account must be taken of the 
costs of correcting these hazards. If the costs of eliminating the 
hazard that lead to the injury or illness are $38,600, then the benefit 
and costs would be equal ($62,000 in benefit equals $23,400 in 
recording costs plus $38,600 in control costs.) To the extent that the 
ratio of illnesses and injuries prevented to illnesses and injuries 
reported is greater than 1 in 200, or if the control costs necessary to 
prevent the injury or illness were lower, the benefits of keeping the 
record would exceed the costs. OSHA believes that there are many such 
situations. For example, many injuries could be prevented by assuring 
that already-provided PPE is consistently used--a relatively 
inexpensive kind of fix. Further, there may be situations in recording 
injuries and illnesses that may be worthwhile even when the cost of 
recording exceeds an average of $200 per case. In any event, 
investments in preventing injuries and illnesses as a result of 
recordkeeping are entirely voluntary, and employers are likely to 
undertake only those investments for which the employer believes the 
benefits will exceed the costs. If the employer does not find that the 
benefits will exceed the costs, there may be instances where the rule's 
reporting requirements will not lead to health and safety benefits.
    As noted above, OSHA's criteria for the partial exemption were 
intended neither to expand nor to contract the number of establishments 
required to keep records. They were instead intended to minimize the 
number of establishments required to keep records that have nothing to 
record, while assuring that the establishments OSHA would be most 
likely to visit would keep records. Given this approach, there is no 
reason why the number of establishments covered by the recordkeeping 
regulation should not rise as aggregate industry rates go down, 
especially when rates in some of the industries with the highest rates 
have gone down the fastest. Further, OSHA inspections suggest, and 
safety and health professionals agree, that injury and illness records 
can have value to employers and employees even when OSHA does not 
visit, provided that reasonable numbers of preventable injuries and 
illnesses remain in the industries required to keep records.
    The requirement to report all work-related fatalities, in-patient 
hospitalizations, amputations, and losses of an eye assures that OSHA 
will be able to better use inspection and enforcement resources by 
targeting those resources to establishments with the most serious 
hazards. OSHA currently requires the reporting only of fatalities and 
incidents resulting in three or more hospitalizations. In-patient 
hospitalizations, amputations, and losses of an eye due to work-related 
incidents are serious and significant events. Requiring the reporting 
of each of these events will ensure that OSHA is informed of 
approximately 30 times as many serious events. There are some incidents 
leading to hospitalizations that, by their very nature, virtually 
guarantee that an OSHA standard was violated. OSHA does not intend to 
conduct an inspection for every reported hospitalization. Instead, the 
Agency will treat each hospitalization on a case-by-case basis, and 
depending on the circumstances, determine whether it is necessary to 
inspect, respond by phone and fax, or provide compliance assistance 
materials. Greater awareness regarding the extent and nature of such 
cases helps OSHA develop and prioritize various OSHA enforcement 
programs and initiatives. It also serves the public interest by 
enabling OSHA to more effectively and efficiently target occupational 
safety and health hazards.
    There will also be potential benefits as a result of better 
inspection targeting, to the extent that OSHA's resources are able to 
lead to the abatement of a greater number of hazards, and these 
abatements have benefits that exceed the costs. The abatement of 
additional hazards will also result in additional costs to industry to 
abate these hazards. OSHA conducts its enforcement and consultation 
programs based on the belief that, in the aggregate, abatement of more 
occupational hazards is a reasonable goal for the Agency. This belief 
is supported by the fact that, in the aggregate, OSHA's estimates of 
the benefits and costs of regulations since 1980 show that the benefits 
exceed the costs.
    Six commenters (Exs. 68, 102, 108, 111, 113, 118) either argued 
that the proposed requirement to report hospitalizations and 
amputations had no benefits or urged OSHA to present a fuller analysis 
of benefits. The National Association of Home Builders (NAHB) stated 
that ``the burden has no corresponding benefit'' (Ex. 113). The 
American Supply Association commented, ``There is no evidence that 
reporting isolated hospitalizations to OSHA would meaningfully improve 
safety within the workplace'' (Ex. 111). OSHA acknowledges that the PEA 
did not include a quantified benefits analysis, but argues that the 
costs of the regulation are such that the regulation need only have a 
minute effect in reducing injuries and illnesses for the benefits to 
exceed the costs. In this final preamble, OSHA has attempted to more 
carefully indicate why it believes there may be potential benefits 
associated with such reporting. To assist in this explanation, OSHA has 
introduced some new studies to the docket, which will be cited where 
relevant. However, OSHA is not depending on this new information.
    Having data on establishments that experience significant events 
and have higher injury and illness rates will improve inspection 
targeting. Studies have shown that OSHA inspections can lead to a 
reduction in the rate of injuries and illnesses, and that the effect is 
greater where injury and illness rates are higher and where the 
inspection finds violations that result in a citation. Most studies 
reviewed showed reductions in injuries and illnesses at a given 
facility only when the inspection uncovered safety and health 
violations that resulted in citations. In a working paper funded by the 
RAND Corporation, Haviland (Haviland, et al., 2008) estimated that 
firms with between 20 and 250 employees experience a 19 to 24 percent 
reduction in injury rates per year for two years following an 
inspection that results in a citation. Haviland went on to review 
similar prior studies, noting that ``Gray and Mendeloff (2005) 
concluded that the impacts of OSHA penalty inspections [measured as a 
decline in injuries in the years following an inspection that found 
penalties] on lost workday manufacturing injuries had declined steadily 
over three periods--from an average of about 20 percent [decline in 
injuries in the years following an

[[Page 56171]]

inspections where violations were found and penalties were levied] in 
1979-1985 to about 12 percent in 1987-1991 and to only (a non-
significant) 1 percent in 1992-1998.'' These various studies thus 
provide a range of a 1 to 24 percent decline in injuries in the years 
following an inspection that found health and safety violations that 
resulted in citations. The studies varied as to the size and industry 
of establishments studied, and varied in examining effects from 2 to 4 
years after the inspection, but show strong evidence that there is some 
positive effect for worker health and safety in the years following an 
inspection where citations are issued.
    These studies show that inspections targeted to establishments with 
higher injury and illness rates have a greater potential for reducing 
injuries and illnesses. The revisions that OSHA is making to these 
provisions in Part 1904 will increase the amount of injury and illness 
data recorded on employer records and available for review and 
collection by OSHA. With this improved availability of data, OSHA will 
be able to better target facilities that are more likely to have 
violations that result in citations, which will, in turn, have some 
positive effect on the rates of injuries and illnesses at those 
facilities. The benefit of such improved targeting will only exceed the 
cost of improved targeting where the benefits of prevented injuries and 
illnesses exceed the costs of correcting of the hazards found via the 
improved targeting. However, OSHA's contribution to the Department of 
Labor's Strategic Plan is based on the belief that improved targeting 
that results in reduced injuries and illnesses is a desirable goal. 
Benefits in improved inspection targeting are the primary source of 
potential benefits for the requirement to report all in-patient 
hospitalizations. Data from the states that currently require reporting 
of single work-related in-patient hospitalizations show that 
inspections resulting from those hospitalizations result in citations 
66.5 percent of the time, while all other inspections result in 
citations 51.8 percent of time (OSHA 2012 Integrated Management 
Information System, Data Query). Given the finding that citations 
resulting from inspections help to reduce the rates of workplace 
injuries and illnesses in the years following the inspections, 
requiring reporting of single work-related in-patient hospitalizations 
at an estimated cost of under $23 per report is highly likely to have a 
positive effect on worker safety and health.

E. Technological Feasibility

Partial Exemption
    There are a large number of establishments already recording 
injuries and illnesses in compliance with the existing Part 1904 
regulation. Further, every year, some firms that were partially exempt 
from routinely keeping records under the existing regulation have had 
to report injury and illness data to BLS, which demonstrates that such 
firms are capable of keeping the required records. OSHA does not see 
any reason why employers in industries no longer partially exempt from 
recording requirements would experience any feasibility difficulties in 
complying with this final rule, and no industry that is newly required 
to keep records has recordkeeping issues that would cause it to be 
significantly different from industries that are already required to 
maintain the records.
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and 
Losses of an Eye
    In six states, an estimated 1.3 million establishments under OSHA 
jurisdiction are currently required to report single in-patient 
hospitalizations. There are approximately 7.4 million establishments 
currently under OSHA's nationwide jurisdiction (Census Bureau, 2009). 
Nearly 18 percent of all establishments in the U.S. are already 
required to report single in-patient hospitalizations and are 
successfully doing so. Therefore, OSHA has no reason to believe that 
employers newly required to report single in-patient hospitalizations 
would have difficulty complying with this final rule.

F. Economic Feasibility and Impacts

    In this section, OSHA first considers the economic impact on firms 
newly required to keep records under this final rule, and then turns to 
the economic impact of requirements to report in-patient 
hospitalizations, amputations, and losses of an eye. The economic 
impact for firms that are no longer required to routinely keep records 
is a net reduction in costs and is thus obviously economically 
feasible.
Partial Exemption
    OSHA's primary estimate of economic impacts for this analysis is 
total annualized cost of compliance per establishment, calculated by 
dividing the total annualized incremental costs of compliance for each 
industry by the number of affected establishments in each industry. 
Table V-6 shows the costs per establishment for four-digit NAICS 
industries, and Table V-6A, in the appendix, shows the costs per 
establishment for six-digit NAICS industries. Costs per establishment 
average $82 per year and range from a minimum of $71 per year per 
establishment to a maximum of just under $150 per year per 
establishment across six-digit NAICS industries. OSHA believes that 
costs of this magnitude could not possibly affect the viability of a 
firm and are thus economically feasible. This finding of economic 
feasibility would still be valid even if the costs of this provision 
were considerably greater than OSHA's estimates. After all, employers 
have had to meet these recordkeeping requirements in many industries 
for years with no reported impact on the economic viability of those 
industries.

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[GRAPHIC] [TIFF OMITTED] TR18SE14.004

Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and 
Losses of an Eye
    OSHA received many comments claiming that the provision requiring 
employers to report fatalities, hospitalizations, and amputations 
within a specified time period would be overly burdensome to employers 
and would cost more than OSHA estimated (Exs. 27, 39, 53, 63, 89, 97, 
98, 104, 105, 108, 111, 113, 119). However, OSHA received no comments 
that such costs would be economically infeasible. OSHA notes the 
estimate of total costs of approximately $2.6 million per year across 
all 7.4 million business establishments in OSHA's jurisdiction; the 
average cost per establishment of this provision is $0.32 per 
establishment per year. In a typical year, most establishments will not 
report a single work-related in-patient hospitalization, amputation, or 
loss of an eye. For those establishments that do report such incidents, 
the costs will be approximately $23 per reported incident. Costs of 
this magnitude--which represent the costs of 30 minutes of employer 
time--will not affect the viability of any firm. Even if these costs 
were significantly higher, they would not affect the viability of any 
firm and thus could not affect the economic feasibility of this part of 
the regulation.

G. Regulatory Flexibility Certification

    After the final rule becomes effective, OSHA will continue to 
partially exempt employers with fewer than 11 employees from routinely 
recording work-related injuries and illnesses. Such very small firms 
are affected by the revisions to this rule only insofar as they may 
have to report a fatality, in-patient hospitalization, amputation, or 
loss of an eye. Such an event will be extremely rare for most small 
firms, and even when they occur, OSHA has estimated the costs as 
approximately $23 per report, a sum that will not represent a 
significant economic impact for even the smallest firms.
    Most of the employers affected by the change in the partial 
exemption to the recordkeeping regulation are small firms. Even when 
considering the mix of small and large firms covered by this final 
rule, the average cost per establishment is well under $100 per year 
per establishment. OSHA believes that average costs of less than $100 
per establishment do not represent a significant economic impact on 
small firms with 11 employees or more. The cost will be lowest for very 
small firms that do not have any injuries and illnesses to record. 
However, because the fixed costs of setting up a recordkeeping system 
are high relative to the marginal costs per injury or illness recorded, 
the smallest firms with few injuries and illnesses to record will still 
have the highest costs as percentage of revenues.
    The Associated General Contractors of America stated that they 
believe that a Small Business Regulatory Enforcement Fairness Act 
(SBREFA) panel would enable the Agency to better assess the

[[Page 56173]]

impacts of this final rule on small businesses (Ex. 115). The U.S. 
Chamber of Commerce also commented that OSHA would benefit from a 
SBREFA panel because of the large number of small businesses that will 
now have to keep records (Ex. 120). The SBA Office of Advocacy asked 
OSHA to consider conducting additional public outreach (Ex. 94). In 
response to these comments, OSHA notes that there are already a 
substantial number of small businesses currently required to keep 
records under the previous regulation, and that no evidence was 
presented in the record to show that small businesses are experiencing 
significant economic impacts as a result of complying with provisions 
identical to those required by this final rule. OSHA reiterates that 
with compliance costs of approximately $23 per report for reporting an 
incident, and average annual costs of less than $100 for recording 
injuries and illnesses, these costs do not represent an economic impact 
on small firms of the magnitude that the Agency believes would compel 
the need for a SBREFA panel. OSHA has engaged stakeholders throughout 
the rulemaking process and received many comments from small businesses 
that the Agency incorporated into this final rule and FEA. As a result, 
OSHA considers it unlikely that a SBREFA panel would provide any new 
information that would alter the estimates of costs or the alternatives 
considered as a part of this rulemaking.
    The Associated General Contractors of America stated that the 
proposed rule on the MSD column showed that OSHA underestimates small 
business impact (Ex. 115). OSHA has not made any determination, either 
affirmative or negative, on the assertion that OSHA underestimated the 
small business impacts of the MSD column proposed rule.
    As a result of these considerations, and in accordance with the 
Regulatory Flexibility Act, OSHA certifies that the final rule will not 
have a significant economic impact on a substantial number of small 
entities.

H. Appendix: FEA Data at the Six-Digit NAICS Level

    This appendix provides supporting material developed in support of 
this rule at the six-digit NAICS level.
    Table V-1A presents data on industries with establishments that 
would be newly required to keep records. The table shows the six-digit 
NAICS code, industry name, number of affected employees, and estimate 
of the number of recordable injuries and illnesses, based on historical 
data, for newly affected employers.
    Table V-2A presents data on industries with establishments that 
would be newly partially exempt from recordkeeping. The table shows the 
six-digit NAICS code, industry name, number of affected establishments 
per industry, number of employees, and estimated number of injuries and 
illnesses that would no longer be recorded in each affected industry.
    Table V-3A shows OSHA's estimates of the costs of the final rule, 
at the six-digit NAICS level, for current partially-exempt employers 
who would need to keep records as a result of the final rule.
    Table V-4A shows OSHA's estimates of the cost savings of the final 
rule, at the six-digit NAICS level, for employers who would no longer 
need to keep records as a result of the proposed rule.
    Table V-6A shows the costs per establishment at the six-digit NAICS 
level.

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[GRAPHIC] [TIFF OMITTED] TR18SE14.013

Bureau of Labor Statistics BLS, 2010. ``Nonfatal Occupational 
Injuries and Illnesses Requiring Days Away From Work''. http://www.bls.gov/news.release/archives/osh2_11092011.pdf. 
Accessed March 2012.
Bureau of Labor Statistics 2011a. ``Incidence Rate and Number of 
Nonfatal Occupational Injuries by Industry and Ownership 2010''. 
http://www.bls.gov/iif/oshwc/osh/os/ostb2427.pdf. Accessed March 
2012.
Bureau of Labor Statistics 2011b. ``National Occupational Employment 
and Wage Estimates--May 2010''. United States Bureau of Labor 
Statistics, April 2011.
Bureau of Labor Statistics 2011c. ``Employer Cost for Employee 
Compensation--September 2011''. December 2011.
Bureau of Labor Statistics 2012. Occupational Injuries and 
Illnesses: Industry Data database. Data Query February.
Census Bureau, U.S. 1997. ``Bridge Between NAICS and SIC''. 1997 
Economic Census http://www.census.gov/epcd/ec97brdg/. Accessed 
October 2010.
Census Bureau, U.S. 2002. ``Bridge Between 2002 NAICS and 1997 
NAICS, All Sectors. U.S.'' 2002 Economic Census. http://www.census.gov/econ/census02/data/bridge/. Accessed October 2010.
Census Bureau, U.S. 2007. ``2002 NAICS to 2007 NAICS''. http://www.census.gov/eos/www/naics/concordances/concordances.html. 
Accessed October 2011.
Census Bureau, U.S. 2008. ``Number of Firms, Number of 
Establishments, Employment, and Annual Payroll by Employment Size of 
the Enterprise for the United States, All Industries 2006''. http://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls. Accessed September 2010.
Census Bureau, U.S. 2009. ``Number of Firms, Number of 
Establishments, Employment, and Annual Payroll by Employment Size of 
the Enterprise for the United States, All Industries 2009''. http://www.census.gov/econ/cbp/download/09data/index.htm/cbp09us.zip. 
Accessed September 2010.
Census Bureau, U.S. 2012. ``U.S., All Industries. Statistics of U.S. 
Businesses''. http://www.census.gov/econ/susb/. Accessed March 2013.
Centers for Disease Control and Prevention 2007. ``Nonfatal 
Occupational Injuries and Illnesses--United States, 2004''. 
Morbidity and Mortality Weekly Report. April 27. 56(16):393-397'' 
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5616a3.htm. Accessed 
April 2012.
Dembe AE, Mastroberti MA, Fox SE., Bigelow C, and Banks SM 2003. 
``Inpatient hospital care for work-related injuries and illnesses''. 
American Journal of Industrial Medicine. 44(4):331-42.
Haviland AM, Burns RM, Gray W, Ruder T, and Mendeloff J 2008. ``The 
Impact of OSHA Inspections on Lost Time Injuries in Manufacturing: 
Pennsylvania Manufacturing, 1998-2005''. Working paper. RAND Center 
for Health and Safety in the Workplace. September. http://www.rand.org/pubs/working_papers/2008/RAND_WR592.pdf. Accessed March 2012.
Leigh JP, Markowitz SB, Fahs M, and Landrigan PJ 2000. ``Costs of 
Occupational Injuries and Illnesses''. Ann Arbor: University of 
Michigan Press.
Moshfeghi DM, Moshfeghi AA, and Finer PT 2000, ``A Review of 
Enucleation''. Survey of Ophthalmology. 44:277-301.
Murphy PL, Sorock GS, Courtney TK, Webster B, and Leamon TB 1996. 
``Injury and Illness in the American Workplace: A Comparison of Data 
Sources''. American Journal of Industrial Medicine. 30:130-141.
Occupational Safety and Health Administration 2001. ``Occupational 
Injury and Illness Recording and Reporting Requirements: Final 
Economic Analysis''. FR 66:5916-6135. January 19.
Occupational Safety and Health Administration 2010. ``Regional 
Federal and State Fatality/Catastrophe Weekly Report Ending 
September 25, 2010''. http://www.osha.gov/dep/fatcat/fatcat_regional_rpt_09252010.html. Accessed 
March 2012.
Occupational Safety and Health Administration 2011. ``Recordkeeping 
and Reporting Occupational Injuries and

[[Page 56183]]

Illnesses (29 CFR Part 1904): Supporting Statement A''. ICR, SS 
1218-0176. March 23.
Occupational Safety and Health Administration 2012. Integrated 
Management Information System, Data Query 2012.
Office of Management and Budget 2006. ``North American Industry 
Classification System--Revision for 2007''. Notice. 70 FR 12390-
12399. May 16.
Viscusi, Kip; Joseph E. Aldy 2003. ``The Value of a Statistical 
Life: A Critical Review of Market Estimates Throughout the World.'' 
Journal of Risk and Uncertainty. 2003 27 (1): 5-76.

VI. Environmental Impact Assessment

    OSHA has reviewed the provisions of this final rule in accordance 
with the requirements of the National Environmental Policy Act (NEPA) 
of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality 
(CEQ) NEPA regulations (40 CFR parts 1500-1508), and the Department of 
Labor's NEPA Procedures (29 CFR part 11). As a result of this review, 
OSHA has determined that the final rule will have no significant 
adverse effect on air, water, or soil quality, plant or animal life, 
use of land, or other aspects of the environment.

VII. Federalism

    The final rule has been reviewed in accordance with Executive Order 
13132 regarding Federalism (52 FR 41685). The final rule is a 
``regulation'' issued under Sections 8 and 24 of the OSH Act (29 U.S.C. 
657, 673) and not an ``occupational safety and health standard'' issued 
under Section 6 of the OSH Act (29 U.S.C. 655). Therefore, pursuant to 
section 667(a) of the OSH Act, the final rule does not preempt State 
law (29 U.S.C. 667(a)). The effect of the final rule on OSHA-approved 
State Plan States is discussed in section X.

VIII. Unfunded Mandates

    Section 3 of the Occupational Safety and Health Act makes clear 
that OSHA cannot enforce compliance with its regulations or standards 
on the U.S. government ``or any State or political subdivision of a 
State.'' Under voluntary agreement with OSHA, some States enforce 
compliance with their State standards on public sector entities, and 
these agreements specify that these State standards must be equivalent 
to OSHA standards. Thus, although OSHA may include compliance costs for 
affected public sector entities in its analysis of the expected impacts 
associated with the final rule, the rule does not involve any unfunded 
mandates being imposed on any State or local government entity.
    Based on the evidence presented in this economic analysis, OSHA 
concludes that the final rule would not impose a Federal mandate on the 
private sector in excess of $100 million in expenditures in any one 
year. Accordingly, OSHA is not required to issue a written statement 
containing a qualitative and quantitative assessment of the anticipated 
costs and benefits of the Federal mandate, as required under Section 
202(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532(a)).

IX. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995

    The final rule contains collection of information (paperwork) 
requirements that are subject to review by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA)(44 U.S.C. 
3501 et seq.) and OMB regulations (5 CFR part 1320). The PRA requires 
that agencies obtain approval from OMB before conducting any collection 
of information (44 U.S.C. 3507). The PRA defines a ``collection of 
information'' as ``the obtaining, causing to be obtained, soliciting, 
or requiring the disclosure to third parties or the public of facts or 
opinions by or for an agency regardless of form or format'' (44 U.S.C. 
3502(3)(A)).
    OSHA's existing recordkeeping forms consist of the OSHA 300 Log, 
the 300A Summary, and the 301 Report. These forms are contained in the 
Information Collection Request (ICR) (paperwork package) titled 29 CFR 
part 1904 Recordkeeping and Reporting Occupational Injuries and 
Illnesses, which OMB approved under OMB Control Number 1218-0176 
(expiration date 07/31/2017).
    The final rule affects the ICR estimates in four ways: 1) The 
number of establishments covered by the recordkeeping regulation 
increases by 60,210 establishments; 2) the number of injuries and 
illnesses recorded by covered establishments increases by 97,182 cases; 
3) the number of reportable events (fatalities, in-patient 
hospitalizations, amputations, and losses of an eye) reported by 
employers increases by 117,000 reports, and 4) the time required to 
report a fatality or catastrophe to OSHA is increased from 15 minutes 
per report to 30 minutes per report. In the initial year, the burden 
hours for the final rule are estimated to be 392,676, and in subsequent 
years, the total burden hours are estimated to be 172,828. As a result 
of these changes, the total burden for the Recordkeeping rule as a 
whole will rise from 2,967,236 per year to 3,359,913 in the first year 
and to 3,140,065 in subsequent years. There are no capital costs for 
this collection of information.
    The tables below present the various components of the rule that 
comprise the ICR estimates. Table IX-1 presents the estimated burden of 
the entire rule for the initial year. Table IX-2 presents the estimated 
burden for the entire rule in subsequent years. The estimated initial-
year burden is greater because all newly-covered establishments must 
learn the basics of the recordkeeping system upon implementation of the 
final rule. In subsequent years, only establishments with turnover in 
the recordkeeper position will incur this burden.

                                                    Table IX-1--Estimated Burden Hours--Initial Year
                                                                [Estimated burden hours]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Current OMB approval                                                   Implementation of the final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of    Unit hours per   Total burden      Number of    Unit hours per   Total burden
           Actions entailing paperwork burden                  cases           case            hours           cases           case            hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
1904.4--Complete OSHA 301 (Includes research of                1,180,529           0.367         433,254       1,219,385           0.367         447,514
 instructions and case details to complete the form)....
1904.4--Line entry on OSHA Form 300 other than                 2,613,635           0.233         608,977       2,710,817           0.233         631,620
 needlesticks (Includes research of instructions and
 case details to complete the form).....................

[[Page 56184]]

 
1904.8--Line entry on OSHA Form 300 for needlesticks             337,645           0.083          28,025         337,645           0.083          28,025
 (Includes research of instructions and case details to
 complete the form).....................................
1904.29(b)(6)--Entry on privacy concern case                     350,800            0.05          17,540         364,753            0.05          18,238
 confidential list......................................
1904.32--Complete, certify and post OSHA Form 300A             1,585,374           0.967       1,533,057       1,645,494           0.967       1,591,193
 (Includes research of instructions)....................
1904.35--Employee Access to the OSHA Form 300...........         111,540           0.083           9,258         115,185           0.083           9,560
1904.35--Employee Access to the OSHA Form 301...........         287,980           0.083          23,902         304,846           0.083          25,302
1904.39--Report fatalities/catastrophes.................           2,028            0.25             507         119,028            0. 5          59,514
Learning Basics of the Recordkeeping System--newly               312,717               1         312,717         548,947               1         548,947
 covered and turnover of personnel......................
1904.38--Request for variance...........................               0               0               0               0               0               0
                                                         -----------------------------------------------------------------------------------------------
    Total Burden Hours..................................  ..............  ..............       2,967,236  ..............  ..............       3,359,913
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                  Table IX-2--Estimated Burden Hours--Subsequent Years
                                                                [Estimated burden hours]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Current OMB approval                                                   Implementation of the final rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of    Unit hours per   Total burden      Number of    Unit hours per   Total burden
           Actions entailing paperwork burden                  cases           case            hours           cases           case            hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
1904.4--Complete OSHA 301 (Includes research of                1,180,529           0.367         433,254       1,219,385           0.367         447,514
 instructions and case details to complete the form)....
1904.4--Line entry on OSHA Form 300 other than                 2,613,635           0.233         608,977       2,710,817           0.233         631,620
 needlesticks (Includes research of instructions and
 case details to complete the form).....................
1904.8--Line entry on OSHA Form 300 for needlesticks             337,645           0.083          28,025         337,645           0.083          28,025
 (Includes research of instructions and case details to
 complete the form).....................................
1904.29(b)(6)--Entry on privacy concern case                     350,800            0.05          17,540         364,753            0.05          18,238
 confidential list......................................
1904.32--Complete, certify and post OSHA Form 300A             1,585,374           0.967       1,533,057       1,645,494           0.967       1,591,193
 (Includes research of instructions)....................
1904.35--Employee Access to the OSHA Form 300...........         111,540           0.083           9,258         115,185           0.083           9,560
1904.35--Employee Access to the OSHA Form 301...........         287,980           0.083          23,902         304,846           0.083          25,302
1904.39--Report fatalities/catastrophes.................           2,028            0.25             507         119,028            0. 5          59,514
Learning Basics of the Recordkeeping System--turnover of         312,717               1         312,717         329,099               1         329,099
 personnel..............................................
1904.38--Request for variance...........................               0               0               0               0               0               0
                                                         -----------------------------------------------------------------------------------------------
    Total Burden Hours..................................  ..............  ..............       2,967,236  ..............  ..............       3,140,065
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As a new option, an employer may report to OSHA work-related 
fatalities, amputations, in-patient hospitalizations, or the loss of an 
eye by electronic submission using a fatality/injury/illness reporting 
application that will be located on OSHA's public Web site at 
www.osha.gov. The public will be given the opportunity to comment on 
this new collection option through the Paperwork Reduction Act (PRA) 
approval process when OSHA applies to reauthorize the information 
collection.
    OSHA received a number of comments pertaining to the estimated time 
necessary to meet the proposed paperwork requirements.
    Initial training of recordkeepers is expected to require one hour 
per establishment and will apply to current partially-exempt 
establishments that would be newly required to keep records. A 
commenter (Ex. 17) noted

[[Page 56185]]

that this requirement would signify the need for retraining of both 
human resource and safety professionals. OSHA assumes that the average 
establishment that employs 25 workers will only assign recordkeeping 
duties to one employee per establishment.
    Dow, the National Automobile Dealers Association (NADA), and a few 
other commenters argued that it would take longer than an hour to train 
a competent recordkeeper (Exs. 64, 100, 106, 119, 124). NADA stated 
specifically that the training would entail a one-day course at the 
cost of $300. OSHA agrees that some establishments with large employee 
populations that experience large numbers of injuries and illnesses 
would benefit from an intensive training program. It should be noted 
that there is a trade-off between time spent on training and time spent 
on individual records. A recordkeeper at a large establishment with 
many injuries and illnesses may find it more efficient to have more 
extensive initial training in order to spend less time on each 
individual record. A recordkeeper who records only two or three 
injuries a year will be better off learning about the complexities of 
the system only if such complexities ever actually arise in their 
establishment, resulting in lower initial training costs but more time 
spent recording each incident. OSHA's estimates are designed to 
represent an average across large and small firms and establishments, 
taking into account both situations where more extensive initial 
training is provided as well as situations where less extensive initial 
training is sufficient.
    The vast majority of establishments in these low-rate industries do 
not experience large numbers of injuries and illnesses. OSHA believes 
these establishments will require training on only the fundamentals of 
the recordkeeping requirements. For establishments that experience few 
injuries and illnesses, OSHA believes these employers will use a more 
efficient method of researching the recordability of unique injuries 
and illnesses on a case by case basis. The associated paperwork burden 
for these situations is included in the time estimate for recording 
each individual case. On its public Web site, OSHA provides a brief 
tutorial on completing the recordkeeping forms. This tutorial provides 
employers with a fundamental knowledge of the recordkeeping 
requirements. The tutorial takes approximately 15 minutes to view. OSHA 
believes that an estimate of one hour of training is a reasonable 
middle ground between establishments that require an intensive training 
and those that only require a fundamental knowledge of the system to 
meet their recordkeeping obligations.
    Dow commented that deciding whether the injury or illness is 
recordable takes more time and more people than OSHA had estimated (Ex. 
64). Dow also commented that reporting events would require the 
attention of several different people. However, OSHA believes that 
after initial familiarization with the recordkeeping requirements, the 
vast majority of companies will assign responsibilities to an 
experienced professional who they feel is competent to make decisions 
on the recordability of an incident, and who will be in close 
communication with the management team. OSHA also has tools, such as 
its Recordkeeping Advisor, available on the Agency's recordkeeping 
homepage, which will make it easier to determine whether an incident is 
recordable.
    OSHA received several comments on its time estimate of 15 minutes 
for reporting in-patient hospitalizations and amputations to OSHA. OSHA 
estimated that reporting in-patient hospitalizations, amputations, or 
losses of an eye is an activity that is expected to require the same 
time as OSHA estimates for reporting fatalities and multiple 
hospitalizations: 0.25 hours of OHSS labor per fatality or 
hospitalization (OSHA, 2011). Several commenters suggested that 
reporting to OSHA would take more than 15 minutes (Exs. 46, 65, 67, 68, 
83, 110). The American Society of Safety Engineers and others claimed 
that the phone call to report to OSHA is too complex to complete in 15 
minutes, but provide no reason as to why the call is too complex to 
complete in that time, given the information that must be provided 
during such a phone call is quite simple (Exs. 46, 83, 110). The Dow 
Chemical Company stated that this phone call would require the 
attention of several different salaried professionals (Ex. 64). FedEx 
said that the allotted time should also include the time required to 
enter the information into their system and to allow for subsequent 
review by management, and recommends that OSHA calculate 30 minutes for 
the reporting time (Ex. 67). The American Trucking Association voiced 
the view that 15 minutes is a ``gross underestimation'' of the time 
required to report to OSHA and that in their experience reporting 
takes, on average, 30 minutes (Ex. 65).
    In response, OSHA has revised its estimate of time required to 
complete a hospitalization report to include activities prior the call 
to OSHA such as information gathering and review and now estimates that 
the this requirement will require 30 minutes in total.
    Mercer ORC HSE Networks stated that it could take longer than 15 
minutes to make a connection over the phone with OSHA, and that such a 
connection is especially difficult outside of OSHA's normal operating 
hours (Ex. 68). In response to this comment, the Agency notes that OSHA 
has a toll-free number for employers to call that is staffed 24 hours 
per day, to allow immediate reporting at any hour of the day. This 
final rule also enables 24-hour reporting over a web form that OSHA 
will create in conjunction with issuance of the final rule. OSHA 
acknowledges that there might be times when an employer will have to 
wait on hold to speak to an OSHA representative, but OSHA believes that 
on the average, even allowing for such delays, the report will not 
exceed 30 minutes.
    NUCA, a trade association representing utility construction and 
excavation contractors, expressed a concern that OSHA's PEA 
``significantly underestimated the economic impact of obtaining injury 
information on a construction site which does not necessarily have an 
office''. In NUCA's estimation, the entire process of collecting, 
transmitting, and recording the information would far exceed 15 minutes 
(Ex. 110). In response, at this time, there are a wide variety of 
mechanisms that virtually all managers will have, such as cell phones, 
that can be used to report to OSHA or a corporate central office.
    The PRA specifies that Federal agencies cannot conduct or sponsor a 
collection of information unless it is approved by OMB and displays a 
currently valid OMB (44 U.S.C. 3507). Also, notwithstanding any other 
provision of law, respondents are not required to respond to the 
information collection requirements until they have been approved and a 
currently valid control number is displayed. OSHA will publish a 
subsequent Federal Register document when OMB takes further action on 
the information collection requirements in the Recordkeeping and 
Recording Occupational Injuries and Illnesses rule.

X. State Plan Requirements

    Notice of intent and adoption required. The States with OSHA-
approved State Plans are required to adopt a rule identical to or at 
least as effective as this final Recordkeeping regulation. State Plans 
are required to notify OSHA within 60 days whether they intend to adopt 
the recordkeeping regulation.

[[Page 56186]]

    States with OSHA-approved State Plans are ordinarily provided six 
months to adopt a regulation or standard that is either identical to or 
at least as effective as a new Federal regulation or standard. For 
certain injury and illness recording provisions, the State Plans' 
recordkeeping regulations must be identical to the Federal regulations 
(29 CFR 1904.4 through 1904.11). OSHA regulations (29 CFR 1904.37(b)(1) 
and 1952.4(a)) explain that States with approved State Plans must have 
recording and reporting regulations that impose identical requirements 
for determining which injuries and illnesses are recordable and how 
they are entered. As noted in the preamble to the 2001 Recordkeeping 
regulation, these requirements must be the same for employers in all 
the States, whether under Federal or State Plan jurisdiction, and for 
state and local government employers covered only through State Plans, 
to ensure that the occupational injury and illness data for the entire 
nation are uniform and consistent, so that statistics that allow 
comparisons between the States and between employers located in 
different States are created (66 FR 6060-6061).
    Per 29 CFR 1953.4(b), if a State Plan adopts or maintains 
recordkeeping requirements that differ from federal requirements, the 
State must identify the differences and may either post its policy on 
its Web site and provide the link to OSHA or submit an electronic copy 
to OSHA with information on how the public may obtain a copy. If a 
State Plan adopts requirements that are identical to federal 
requirements, the State Plan must provide the date of adoption to OSHA. 
State Plan adoption must be accomplished within six months, with 
posting or submission of documentation within 60 days of adoption. The 
effective date for changes to 29 CFR 1904.2 must be either January 1, 
2015 (encouraged) or January 1, 2016 (required). OSHA will provide 
summary information on the State Plan response to this instruction on 
its Web site at www.osha.gov/dcsp/osp/index.html.

XI. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have 
``tribal implications'' as defined in that order. This final rule does 
not have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.

List of Subjects in 29 CFR Part 1904

    Health statistics, Occupational safety and health, Reporting and 
recordkeeping requirements.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under Sections 8 and 24 of the Occupational Safety 
and Health Act of 1970 (29 U.S.C. 657, 673), 5 U.S.C. 553, and 
Secretary of Labor's Order No. 4-2010 (75 FR 55355 (9/10/2010)).

    Signed at Washington, DC on September 5, 2014.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Final Rule

    Part 1904 of Title 29 of the Code of Federal Regulations is hereby 
amended as follows:

 PART 1904--[AMENDED]

0
1. The authority citation for part 1904 continues to read as follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.

0
2. Amend Sec.  1904.2 by revising paragraphs (a)(1) and (b) to read as 
follows:


Sec.  1904.2  Partial exemption for establishments in certain 
industries.

    (a) Basic requirement. (1) If your business establishment is 
classified in a specific industry group listed in appendix A to this 
subpart, you do not need to keep OSHA injury and illness records unless 
the government asks you to keep the records under Sec. Sec.  1904.41 or 
1904.42. However, all employers must report to OSHA any workplace 
incident that results in an employee's fatality, in-patient 
hospitalization, amputation, or loss of an eye (see Sec.  1904.39).
* * * * *
    (b) Implementation--(1) Is the partial industry classification 
exemption based on the industry classification of my entire company or 
on the classification of individual business establishments operated by 
my company? The partial industry classification exemption applies to 
individual business establishments. If a company has several business 
establishments engaged in different classes of business activities, 
some of the company's establishments may be required to keep records, 
while others may be partially exempt.
    (2) How do I determine the correct NAICS code for my company or for 
individual establishments? You can determine your NAICS code by using 
one of three methods, or you may contact your nearest OSHA office or 
State agency for help in determining your NAICS code:
    (i) You can use the search feature at the U.S. Census Bureau NAICS 
main Web page: http://www.census.gov/eos/www/naics/. In the search box 
for the most recent NAICS, enter a keyword that describes your kind of 
business. A list of primary business activities containing that keyword 
and the corresponding NAICS codes will appear. Choose the one that most 
closely corresponds to your primary business activity, or refine your 
search to obtain other choices.
    (ii) Rather than searching through a list of primary business 
activities, you may also view the most recent complete NAICS structure 
with codes and titles by clicking on the link for the most recent NAICS 
on the U.S. Census Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/. Then click on the two-digit Sector code to see all the 
NAICS codes under that Sector. Then choose the six-digit code of your 
interest to see the corresponding definition, as well as cross-
references and index items, when available.
    (iii) If you know your old SIC code, you can also find the 
appropriate 2002 NAICS code by using the detailed conversion 
(concordance) between the 1987 SIC and 2002 NAICS available in Excel 
format for download at the ``Concordances'' link at the U.S. Census 
Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/.

0
3. Revise Non-Mandatory Appendix A to Subpart B of Part 1904 to read as 
follows:

Non-Mandatory Appendix A to Subpart B of Part 1904--Partially Exempt 
Industries

    Employers are not required to keep OSHA injury and illness 
records for any establishment classified in the following North 
American Industry Classification System (NAICS) codes, unless they 
are asked in writing to do so by OSHA, the Bureau of Labor 
Statistics (BLS), or a state agency operating under the authority of 
OSHA or the BLS. All employers, including those partially exempted 
by reason of company size or industry classification, must report to 
OSHA any employee's fatality, in-patient hospitalization, 
amputation, or loss of an eye (see Sec.  1904.39).

------------------------------------------------------------------------
           NAICS Code                            Industry
------------------------------------------------------------------------
4412...........................  Other Motor Vehicle Dealers.
4431...........................  Electronics and Appliance Stores.
4461...........................  Health and Personal Care Stores.
4471...........................  Gasoline Stations.

[[Page 56187]]

 
4481...........................  Clothing Stores.
4482...........................  Shoe Stores.
4483...........................  Jewelry, Luggage, and Leather Goods
                                  Stores.
4511...........................  Sporting Goods, Hobby, and Musical
                                  Instrument Stores.
4512...........................  Book, Periodical, and Music Stores.
4531...........................  Florists.
4532...........................  Office Supplies, Stationery, and Gift
                                  Stores.
4812...........................  Nonscheduled Air Transportation.
4861...........................  Pipeline Transportation of Crude Oil.
4862...........................  Pipeline Transportation of Natural Gas.
4869...........................  Other Pipeline Transportation.
4879...........................  Scenic and Sightseeing Transportation,
                                  Other.
4885...........................  Freight Transportation Arrangement.
5111...........................  Newspaper, Periodical, Book, and
                                  Directory Publishers.
5112...........................  Software Publishers.
5121...........................  Motion Picture and Video Industries.
5122...........................  Sound Recording Industries.
5151...........................  Radio and Television Broadcasting.
5172...........................  Wireless Telecommunications Carriers
                                  (except Satellite).
5173...........................  Telecommunications Resellers.
5179...........................  Other Telecommunications.
5181...........................  Internet Service Providers and Web
                                  Search Portals.
5182...........................  Data Processing, Hosting, and Related
                                  Services.
5191...........................  Other Information Services.
5211...........................  Monetary Authorities--Central Bank.
5221...........................  Depository Credit Intermediation.
5222...........................  Nondepository Credit Intermediation.
5223...........................  Activities Related to Credit
                                  Intermediation.
5231...........................  Securities and Commodity Contracts
                                  Intermediation and Brokerage.
5232...........................  Securities and Commodity Exchanges.
5239...........................  Other Financial Investment Activities.
5241...........................  Insurance Carriers.
5242...........................  Agencies, Brokerages, and Other
                                  Insurance Related Activities.
5251...........................  Insurance and Employee Benefit Funds.
5259...........................  Other Investment Pools and Funds.
5312...........................  Offices of Real Estate Agents and
                                  Brokers.
5331...........................  Lessors of Nonfinancial Intangible
                                  Assets (except Copyrighted Works).
5411...........................  Legal Services.
5412...........................  Accounting, Tax Preparation,
                                  Bookkeeping, and Payroll Services.
5413...........................  Architectural, Engineering, and Related
                                  Services.
5414...........................  Specialized Design Services.
5415...........................  Computer Systems Design and Related
                                  Services.
5416...........................  Management, Scientific, and Technical
                                  Consulting Services.
5417...........................  Scientific Research and Development
                                  Services.
5418...........................  Advertising and Related Services.
5511...........................  Management of Companies and
                                  Enterprises.
5611...........................  Office Administrative Services.
5614...........................  Business Support Services.
5615...........................  Travel Arrangement and Reservation
                                  Services.
5616...........................  Investigation and Security Services.
6111...........................  Elementary and Secondary Schools.
6112...........................  Junior Colleges.
6113...........................  Colleges, Universities, and
                                  Professional Schools.
6114...........................  Business Schools and Computer and
                                  Management Training.
6115...........................  Technical and Trade Schools.
6116...........................  Other Schools and Instruction.
6117...........................  Educational Support Services.
6211...........................  Offices of Physicians.
6212...........................  Offices of Dentists.
6213...........................  Offices of Other Health Practitioners.
6214...........................  Outpatient Care Centers.
6215...........................  Medical and Diagnostic Laboratories.
6244...........................  Child Day Care Services.
7114...........................  Agents and Managers for Artists,
                                  Athletes, Entertainers, and Other
                                  Public Figures.
7115...........................  Independent Artists, Writers, and
                                  Performers.
7213...........................  Rooming and Boarding Houses.
7221...........................  Full-Service Restaurants.
7222...........................  Limited-Service Eating Places.
7224...........................  Drinking Places (Alcoholic Beverages).
8112...........................  Electronic and Precision Equipment
                                  Repair and Maintenance.
8114...........................  Personal and Household Goods Repair and
                                  Maintenance.
8121...........................  Personal Care Services.
8122...........................  Death Care Services.
8131...........................  Religious Organizations.
8132...........................  Grantmaking and Giving Services.
8133...........................  Social Advocacy Organizations.
8134...........................  Civic and Social Organizations.
8139...........................  Business, Professional, Labor,
                                  Political, and Similar Organizations.
------------------------------------------------------------------------


0
4. Revise Sec.  1904.39 to read as follows:


Sec.  1904.39  Reporting fatalities, hospitalizations, amputations, and 
losses of an eye as a result of work-related incidents to OSHA.

    (a) Basic requirement. (1) Within eight (8) hours after the death 
of any employee as a result of a work-related incident, you must report 
the fatality to the Occupational Safety and Health Administration 
(OSHA), U.S. Department of Labor.
    (2) Within twenty-four (24) hours after the in-patient 
hospitalization of one or more employees or an employee's amputation or 
an employee's loss of an eye, as a result of a work-related incident, 
you must report the in-patient hospitalization, amputation, or loss of 
an eye to OSHA.
    (3) You must report the fatality, in-patient hospitalization, 
amputation, or loss of an eye using one of the following methods:
    (i) By telephone or in person to the OSHA Area Office that is 
nearest to the site of the incident.
    (ii) By telephone to the OSHA toll-free central telephone number, 
1-800-321-OSHA (1-800-321-6742).
    (iii) By electronic submission using the reporting application 
located on OSHA's public Web site at www.osha.gov.
    (b) Implementation--(1) If the Area Office is closed, may I report 
the fatality, in-patient hospitalization, amputation, or loss of an eye 
by leaving a message on OSHA's answering machine, faxing the Area 
Office, or sending an email? No, if the Area Office is closed, you must 
report the fatality, in-patient hospitalization, amputation, or loss of 
an eye using either the 800 number or the reporting application located 
on OSHA's public Web site at www.osha.gov.
    (2) What information do I need to give to OSHA about the in-patient 
hospitalization, amputation, or loss of an eye? You must give OSHA the 
following information for each fatality, in-patient hospitalization, 
amputation, or loss of an eye:
    (i) The establishment name;
    (ii) The location of the work-related incident;
    (iii) The time of the work-related incident;
    (iv) The type of reportable event (i.e., fatality, in-patient 
hospitalization, amputation, or loss of an eye);
    (v) The number of employees who suffered a fatality, in-patient 
hospitalization, amputation, or loss of an eye;
    (vi) The names of the employees who suffered a fatality, in-patient 
hospitalization, amputation, or loss of an eye;
    (vii) Your contact person and his or her phone number; and
    (viii) A brief description of the work-related incident.
    (3) Do I have to report the fatality, in-patient hospitalization, 
amputation, or loss of an eye if it resulted from a motor vehicle 
accident on a public street or highway? If the motor vehicle accident 
occurred in a construction work zone, you must report the fatality, in-
patient hospitalization, amputation, or loss of an eye. If the motor 
vehicle accident occurred on a public street or highway,

[[Page 56188]]

but not in a construction work zone, you do not have to report the 
fatality, in-patient hospitalization, amputation, or loss of an eye to 
OSHA. However, the fatality, in-patient hospitalization, amputation, or 
loss of an eye must be recorded on your OSHA injury and illness 
records, if you are required to keep such records.
    (4) Do I have to report the fatality, in-patient hospitalization, 
amputation, or loss of an eye if it occurred on a commercial or public 
transportation system? No, you do not have to report the fatality, in-
patient hospitalization, amputation, or loss of an eye to OSHA if it 
occurred on a commercial or public transportation system (e.g., 
airplane, train, subway, or bus). However, the fatality, in-patient 
hospitalization, amputation, or loss of an eye must be recorded on your 
OSHA injury and illness records, if you are required to keep such 
records.
    (5) Do I have to report a work-related fatality or in-patient 
hospitalization caused by a heart attack? Yes, your local OSHA Area 
Office director will decide whether to investigate the event, depending 
on the circumstances of the heart attack.
    (6) What if the fatality, in-patient hospitalization, amputation, 
or loss of an eye does not occur during or right after the work-related 
incident? You must only report a fatality to OSHA if the fatality 
occurs within thirty (30) days of the work-related incident. For an in-
patient hospitalization, amputation, or loss of an eye, you must only 
report the event to OSHA if it occurs within twenty-four (24) hours of 
the work-related incident. However, the fatality, in-patient 
hospitalization, amputation, or loss of an eye must be recorded on your 
OSHA injury and illness records, if you are required to keep such 
records.
    (7) What if I don't learn about a reportable fatality, in-patient 
hospitalization, amputation, or loss of an eye right away? If you do 
not learn about a reportable fatality, in-patient hospitalization, 
amputation, or loss of an eye at the time it takes place, you must make 
the report to OSHA within the following time period after the fatality, 
in-patient hospitalization, amputation, or loss of an eye is reported 
to you or to any of your agent(s): Eight (8) hours for a fatality, and 
twenty-four (24) hours for an in-patient hospitalization, an 
amputation, or a loss of an eye.
    (8) What if I don't learn right away that the reportable fatality, 
in-patient hospitalization, amputation, or loss of an eye was the 
result of a work-related incident? If you do not learn right away that 
the reportable fatality, in-patient hospitalization, amputation, or 
loss of an eye was the result of a work-related incident, you must make 
the report to OSHA within the following time period after you or any of 
your agent(s) learn that the reportable fatality, in-patient 
hospitalization, amputation, or loss of an eye was the result of a 
work-related incident: Eight (8) hours for a fatality, and twenty-four 
(24) hours for an in-patient hospitalization, an amputation, or a loss 
of an eye.
    (9) How does OSHA define ``in-patient hospitalization''? OSHA 
defines in-patient hospitalization as a formal admission to the in-
patient service of a hospital or clinic for care or treatment.
    (10) Do I have to report an in-patient hospitalization that 
involves only observation or diagnostic testing? No, you do not have to 
report an in-patient hospitalization that involves only observation or 
diagnostic testing. You must only report to OSHA each in-patient 
hospitalization that involves care or treatment.
    (11) How does OSHA define ``amputation''? An amputation is the 
traumatic loss of a limb or other external body part. Amputations 
include a part, such as a limb or appendage, that has been severed, cut 
off, amputated (either completely or partially); fingertip amputations 
with or without bone loss; medical amputations resulting from 
irreparable damage; amputations of body parts that have since been 
reattached. Amputations do not include avulsions, enucleations, 
deglovings, scalpings, severed ears, or broken or chipped teeth.

[FR Doc. 2014-21514 Filed 9-17-14; 8:45 am]
BILLING CODE 4510-26-P