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

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.

SUMMARY:

OSHA is issuing a final rule to update the appendix to its Injury and Illness Recording and Reporting regulation. The appendix contains a list of industries that are partially exempt from requirements to keep records of work-related injuries and illnesses due to relatively low occupational injury and illness rates. The updated appendix is based on more recent injury and illness data and lists industry groups classified by the North American Industry Classification System (NAICS). The current appendix lists industries classified by Standard Industrial Classification (SIC).

The final rule also revises the requirements for reporting work-related fatality, injury, and illness information to OSHA. The current regulation requires employers to report work-related fatalities and in-patient hospitalizations of three or more employees within eight hours of the event. The final rule retains the requirement for employers to report work-related fatalities to OSHA within eight hours of the event but amends the regulation to require employers to report all work-related in-patient hospitalizations, as well as amputations and losses of an eye, to OSHA within 24 hours of the event.

DATES:

The final rule becomes effective January 1, 2015.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

For press inquiries:

Frank Meilinger, OSHA, Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202)-693-1999; email:

meilinger.frank@dol.gov

For general and technical information:

Miriam Schoenbaum, OSHA, Office of Statistical Analysis, Room N-3507, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-1841; email:

schoenbaum.miriam@dol.gov

SUPPLEMENTARY INFORMATION:

1. Background

A. Table of Contents

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

I. Background

A. Table of Contents

B. References and Exhibits

C. Introduction

D. Regulatory History

II. Legal Authority

III. Section 1904.2—Partial Exemption for Certain Industries

A. Background

B. The Proposed Rule

C. Comments on the Proposed Rule

D. The Final Rule

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

A. Background

B. The Proposed Rule

C. Comments on the Proposed Rule

D. The Final Rule

V. Final Economic Analysis and Regulatory Flexibility Analysis

A. Introduction

B. Industrial Profile

C. Costs of the Final Regulation

D. Benefits

E. Technological Feasibility

F. Economic Feasibility and Impacts

G. Regulatory Flexibility Certification

H. Appendix

VI. Environmental Impact Assessment

VII. Federalism

VIII. Unfunded Mandates

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

X. State Plan Requirements

XI. Consultation and Coordination With Indian Tribal Governments

B. References and Exhibits

In this preamble, OSHA references documents in Docket No. OSHA-2010-0019, the docket for this rulemaking. The docket is available at

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

1998. Establishments in the industry groups listed in Appendix A to Subpart B do not need to keep OSHA injury and illness records unless they are asked to do so in writing by OSHA, BLS, or a state agency operating under the authority of OSHA or BLS.

This final rule replaces the list of partially-exempt industry groups in SIC 52-89, based on 1996-1998 injury/illness data, with a list of partially-exempt industry groups in NAICS 44-81, based on 2007-2009 injury/illness data. Because overall injury and illness rates have been declining, the threshold Days Away, Restriction, or Transfer (DART) rate for partial exemption is 1.5 (75% of the 2007-2009 average private industry DART rate of 2.0), down from the previous 2.325 (75% of the 1998 average private industry LWDII rate of 3.1).

Additionally, OSHA's current regulation at 29 CFR 1904.39(a) requires employers to report all work-related fatalities and all in-patient hospitalizations of three or more employees to OSHA within eight hours. This final rule leaves in place the current requirement that employers report all work-related fatalities to OSHA within eight hours. However, the final rule amends the current regulation by requiring employers to report all work-related in-patient hospitalizations that require care or treatment, all amputations, and all losses of an eye to OSHA within 24 hours.

All employers covered by the OSH Act, including employers who are partially exempt from maintaining injury and illness records, are required to comply with OSHA's reporting requirements at 29 CFR 1904.39.

This rulemaking has net annualized costs of $7.7 million, with total annualized new costs of $19.2 million to employers and total annualized cost savings of $11.5 million for employers who no longer have to meet certain recordkeeping requirements. The Agency believes that the rulemaking will improve access to information about workplace safety and health, with potential benefits that could include:

• Allowing OSHA to use its resources more effectively by enabling the Agency to identify the workplaces where workers are at greatest risk, in general and/or from specific hazards, and target its compliance assistance and enforcement efforts accordingly.

• Increasing the ability of employers, employees, and employee representatives to identify and abate hazards that pose serious risks to workers at their workplaces.

D. Regulatory History

OSHA's regulations on recording and reporting occupational injuries and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 12612, July 2, 1971). On December 28, 1982, OSHA amended these regulations to partially exempt establishments in certain lower-hazard industries from the requirement to record occupational injuries and illnesses (47 FR 57699). In 1994, the Agency issued a final rule revising the requirements for employers to report work-related fatalities and certain work-related hospitalizations to OSHA (59 FR 15594, April 1, 1994). On January 19, 2001, OSHA issued a final rule that comprehensively revised its Part 1904 recordkeeping regulations (66 FR 5915). As part of this revision, OSHA updated the list of industries eligible for partial exemption (Section 1904.2, 66 FR 5939-5945) and amended the requirements for reporting work-related fatalities and certain hospitalizations to OSHA (Section 1904.39, 66 FR 6062-6065).

In this rulemaking, OSHA issued the proposed rule on June 22, 2011 (75 FR 36414). No public hearings were held for this rulemaking. OSHA received 125 comments on the proposed rule. These comments are addressed below.

II. Legal Authority

Section 24 of the OSH Act requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” and “compile accurate statistics on work injuries and illnesses which shall include all disabling, serious, or significant injuries and illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job” (29 U.S.C. 673(a)). Section 24 also requires employers to “file such reports [of work injuries and illnesses] with the Secretary” as the Secretary may prescribe by regulation (29 U.S.C. 673(e)).

In addition, the Secretary's responsibilities under the OSH Act are defined largely by its enumerated purposes, which include “[p]roviding appropriate reporting procedures that will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem” (29 U.S.C. 651(b)(12)).

The OSH Act authorizes the Secretary to issue two types of occupational safety and health rules; standards and regulations. Standards, which are authorized by section 6 of the OSH Act, specify remedial measures to be taken to prevent and control employee exposure to identified occupational hazards; while regulations are the means to effectuate other statutory purposes, including the collection and dissemination of records of occupational injuries and illnesses. Courts of appeal have held that OSHA recordkeeping rules are regulations and not standards (Louisiana Chemical Ass'n v. Bingham, 657 F.2d 777, 782-785 (5th Cir. 1981); Workplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467-1469 (D.C. Cir. 1995).

III. Section 1904.2—Partial Exemption for Certain Industries

A. Background

Although the OSH Act gives OSHA the authority to require all employers covered by the Act to keep records of employee injuries and illnesses, two classes of employers are partially exempted from the recordkeeping requirements in Part 1904. First, as provided in Section 1904.1, employers with 10 or fewer employees at all times during the previous calendar year are partially exempt from keeping OSHA injury and illness records. Second, as provided in Section 1904.2, establishments in certain lower-hazard industries are also partially exempt. Partially-exempt employers are not required to maintain OSHA injury and illness records unless required to do so by OSHA under Section 1904.41 (OSHA Data Initiative) or by BLS under Section 1904.42 (Annual Survey).

The partial exemption based on industry has been part of the OSHA recordkeeping regulation since 1982. OSHA established the 1982 list of partially-exempt industries by identifying major industry groups with relatively low rates of occupational injuries and illnesses in the divisions for retail trade; finance, insurance and real estate; and the service industries (SICs G, H, and I). Establishments were partially exempted from routinely keeping injury and illness records if the three-year-average lost workday case injury rate (LWCIR) for their major industry group was 75 percent or less of the overall three-year average LWCIR for private industry, using BLS data from 1978, 1979, and 1980. Major industry groups in the divisions for agriculture, forestry and fishing; mining; construction; manufacturing; transportation and utilities; and wholesale trade (SIC Divisions A-F) were not eligible for the industry partial exemption. Although the 1982

Federal

Register

notice discussed the possibility of revising the list of partially-exempt industries, the list remained unchanged until 2001.

On January 19, 2001, OSHA published a final rule (66 FR 5916) that comprehensively revised the Part 1904 recordkeeping regulations. As part of this revision, OSHA updated the list of industries that are partially exempt from the recordkeeping requirements. The list in the current regulation at Appendix A to Subpart B is the list of industries established in the 2001 final rule.

The 2001 final rule revised the 1982 list by using a similar method for identifying eligible industries. As in 1982, only industries in the major divisions for retail trade; finance, insurance and real estate; and the service industries (SICs G, H, and I) were eligible for inclusion, and the injury/illness rate threshold was 75 percent or less of the three-year-average rate for private industry. However, the 2001 list differed from the 1982 list in two respects. First, OSHA used BLS injury/illness data from 1996, 1997, and 1998, rather than data from 1978, 1979, and 1980. As a result, the threshold injury/illness rate for industries eligible for partial exemption was 2.325 in the 2001 rule, compared to 3.0 in the 1982 rule. Second, the revised list showed industry groups (three-digit SIC), rather than major industry groups (two-digit SIC).

OSHA currently lists the partially-exempt industries as follows:

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

services, and professional employer organizations. In the 2001 rulemaking, the corresponding industry group (Personnel Supply Services (SIC 736)) was ineligible for partial exemption based on its three-year-average DART rate (using data from 1996, 1997 and 1998). In the preamble to the proposed rule, OSHA explained that the Employment Services industry was below the 75 percent threshold, based on 2007, 2008, and 2009 data. However, OSHA nonetheless proposed non-exemption of this industry on grounds that, for many employees in this industry, their actual place of work may be in an establishment that is part of a different, possibly higher-hazard industry. Therefore, NAICS 5613 Employment Services was not included in proposed Appendix A to Subpart B.

In the preamble to the proposed rule, OSHA estimated that 199,000 establishments that had previously been partially exempt would have become non-exempt. These establishments employed 5.3 million employees and accounted for an estimated 173,000 injuries and illnesses per year. In addition, 119,000 establishments that were previously non-exempt would have become partially exempt. These establishments employed 4.0 million employees and accounted for an estimated 76,000 injuries and illnesses per year.

C. Comments on the Proposed Rule

In general, OSHA's decision to convert the listing of partially-exempt employers from SIC to NAICS drew widespread support from commenters on the proposed rule (Exs. 24, 52, 59, 69, 77, 78, 81, 85, 86, 90, 93, 99, 100, 112, 119, 120, 122, 124). OSHA received only one comment expressing concern about the conversion, and stating it would not be possible to compare data between the years covered by SIC and the years covered by NAICS (Ex. 29).

OSHA notes that continued use of the SIC system would make injury and illness data incomparable with other types of contemporary industry data, and would make the use of injury and illness information in coordination with other economic data extremely difficult. Further, OSHA agrees with commenters whose expectation is that switching to NAICS from the seldom-used SIC system will decrease uncertainty in classification, save time, reduce confusion and lower the opportunity for errors in reporting the industry to which an employer belongs (Ex. 24, 59, 85). Moreover, OSHA believes that the change to NAICS will improve the quality of injury and illness data because NAICS represents a more modern industry classification than the SIC system.

OSHA received multiple comments on whether Part 1904 should include a partial exemption for lower-hazard industries. On the side of support for including a partial exemption, the National Association of Home Builders (NAHB) commented that, during the course of multiple rulemakings, OSHA has consistently found that the partial exemption for low-hazard industries (as well as for employer size) is consistent with the OSH Act, OSHA recordkeeping requirements, and national injury and illness statistics (Ex. 113).

On the other hand, several comments generally opposed the partial exemption for lower-hazard industries and recommended that all industries should be subject to recordkeeping requirements (Exs. 69, 74, 77, 81, 85, 86, 112). The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) opposed the exemption of any industries from the Part 1904 requirement on the basis of comparatively low injury and illness rates. The UAW commented that “

no industries whatsoever

should be exempt from any of the recordkeeping requirements in Part 1904,” because “[s]o-called `lower-hazard' industries are not free from serious hazards that can kill or disable workers.” As examples, the UAW cited four industries—gasoline stations (NAICS 4471) jewelry, luggage, and leather goods stores (NAICS 4483), investigation and security services (NAICS 5616), and drinking places (NAICS 7224)—that were on the partially-exempt list in the proposed rule but had fatality rates higher than the national average (Ex. 77).

In addition, Dow Chemical commented that “this practice of partial exemption has questionable value, may be counterproductive or even unworkable, and should perhaps be discontinued.” For the partial exemption for low-hazard industries, Dow Chemical stated that “[a]n injury is an injury, regardless of the industry in which it occurs”; even establishments with comparatively low injury/illness rates can benefit from recordkeeping data to guide safety programs; “[m]oving industries into and out of partially exempt status may be unworkable” due to the need for expertise and procedures for correct recordkeeping; and OSHA recordkeeping data are “a useful tool in efforts to reduce injuries” (Ex. 64).

In the final rule, OSHA has maintained its longstanding practice of partially exempting certain lower-hazard industry groups from the recordkeeping requirements in Part 1904. This partial exemption allows OSHA to concentrate recordkeeping requirements in sectors and industry groups that will provide the most useful data. The partial exemption also reduces the paperwork burden for employers in establishments in lower-hazard industries.

OSHA acknowledges that the partial exemption by industry group inevitably means that some high-hazard establishments will be partially exempt from recordkeeping, while other, low-hazard establishments will be required to keep records. However, OSHA notes that the partial exemption only applies to industry groups whose injury/illness rates are 75 percent or less of the private-sector average, as well as only to industry groups in comparatively lower-hazard sectors (NAICS 52-88).

The approach taken in this final rule regarding partial exemption is consistent with OSHA's current regulation. Although employers in partially-exempt industry groups are not required to routinely keep injury and illness records, they must keep such records if requested to do so by BLS for the BLS Annual Survey of Occupational Injuries and Illnesses (Section 1904.42), or by OSHA for the OSHA Data Initiative (Section 1904.41). Finally, in accordance with Section 1904.39, all employers covered by the OSH Act, regardless of partial exemptions due to industry group or company size, must report all work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye to OSHA.

The preamble to the proposed rule listed eight questions to the public about the partial-exemption part of this rulemaking. Each question is repeated below, followed by public comments and OSHA's response to the comments.

1. Exemption of Additional Industries From the Recordkeeping Requirements in Part 1904

In the preamble to the proposed rule, OSHA asked, “Should any additional industries be exempt from any of the recordkeeping requirements in Part 1904?”

The American Road and Transportation Builders Association (ARTBA) commented that, as a result of the 75 percent threshold, there were previously partially-exempt industries, such as construction and planning design firms, that would now be “penalized with new recordkeeping and reporting burdens” despite declining injury and illness rates. ARTBA stated that these industries should remain exempt (Ex. 114).

OSHA disagrees with this comment for two reasons. First, eligibility should be based on a threshold for partial exemption using timely data. The list in the current regulation is based on data from 1996-1998. The list in the final rule is based on data from 2007-2009, which were the most recent data available at the time of the proposed rule. Second, while OSHA recognizes that injury and illness recordkeeping creates a paperwork burden for employers, OSHA believes that the benefits of keeping such records are substantial. Informed employers can use the injury and illness records to discover and prevent occupational hazards in their workplaces, thereby reducing the numbers of injuries and illnesses. Thus, the purpose of requiring previously partially-exempt industries to keep records is not to “penalize” these industries, but rather to ensure that OSHA's recordkeeping requirements apply to the industries where the requirements have the greatest potential benefit, according to objective standards and timely data.

2. Detail and Aggregation of NAICS Codes for Partial Exemptions

In the preamble to the proposed rule, OSHA asked, “Should OSHA base partial exemptions on more detailed or more aggregated industry classifications, such as two-digit, three-digit, or six-digit NAICS codes?”

Many commenters supported the use of industry classification by four-digit NAICS code (Exs. 29, 62, 68, 69, 70, 74, 75, 81, 86, 112, 119). For example, Safety Compliance Services commented that four-digit NAICS codes represent “the best compromise between data integrity and usefulness” (Ex. 29). Mercer ORC HSE Networks commented that four-digit NAICS codes “provide sufficient granularity” (Ex. 68). The National Council for Occupational Safety and Health (NCOSH) commented that four-digit NAICS codes “allow for more accurate assessment of the degree of hazards in a given industry sector than if broader categories were used” (Ex. 75).

There were also commenters recommending the use of industry classifications by six-digit NAICS code (Exs. 24, 45, 52, 107). For example, Printing Industries of America commented that, because an industry “has multiple segments and levels of operations . . . partial exemptions should be based on the more detailed industry classifications indicated by the six-digit NAICS codes” (Ex. 45). The Kentucky Labor Cabinet's Department of Workplace Standards commented that six-digit NAICS codes would allow “precise identification of the specific industries to be exempted” (Ex. 52).

The final rule, like the proposed rule, bases partial exemption for industry on industry group (four-digit NAICS code). The Agency finds that classification at this level has three advantages over the industry level (five-digit or six-digit NAICS code), which is more detailed. First, occupational injury and illness data are available from BLS for most industry groups (four-digit NAICS), while there are many industries (five-digit or six-digit NAICS) for which BLS data are not available. Second, establishments are more likely to remain in the same industry group (four-digit NAICS) over time than in the same industry (six-digit NAICS), reducing the chance that an establishment will go back and forth between non-exempt and partially-exempt status. Third, because industry group (four-digit NAICS) is more general than industry (six-digit NAICS), employers are less likely to encounter confusion when trying to determine whether or not their establishments are partially exempt due to industry.

3. Industry Sectors Ineligible for Partial Exemption

In the preamble to the proposed rule, OSHA asked, “Which industry sectors, if any, should be ineligible for partial exemption?”

For specific industry sectors that should be ineligible for partial exemption, the AFL-CIO, NCOSH, the UAW, the USW, and Worksafe supported the continued ineligibility of the agriculture, manufacturing, construction, utilities, and wholesale trade sectors (Exs. 69, 75, 77, 86, 112). The Association of Flight Attendants-CWA, AFL-CIO (AFA) commented that the transportation sector should not be eligible for partial exemption (Ex. 85).

In addition, for specific industry groups or industries, NCOSH recommended that the newspapers, periodical, book, and directory publishers industry group (NAICS 5111) should be ineligible for partial exemption because the newspaper publishing industry (NAICS 51111) had high fatality rates between 2003 and 2008 (Ex. 66). (The overall hours-based fatality rate for private industry, published by the Census of Fatal Occupational Injuries (CFOI) at BLS, ranged from 3.7 to 4.3 deaths per 100,000 full-time equivalent workers during 2006-2008; the rate for the newspaper publishing industry ranged from 5.1 to 10.0. CFOI did not publish a rate for this industry in 2009.)

UNITE HERE commented that contracted food services (NAICS 72231) and caterers (NAICS 72232) should be ineligible because “injury and illness prevention and hazard reduction . . . requires regular maintenance of OSHA logs and OSHA log data by the employer” (Ex. 70).

The UAW commented that gas stations (NAICS 4471), jewelry, luggage, and leather stores (NAICS 4483), investigation and security services (NAICS 5616), and drinking places (NAICS 7224) should be ineligible because of high fatality rates (Ex. 77). According to published data from 2009 from CFOI, the fatality rate for private industry was 3.7 deaths per 100,000 full-time equivalent workers, while the fatality rates for gas stations, investigation and security services, and drinking places were 8.3, 5.1, and 15.5, respectively. CFOI did not publish a fatality rate for jewelry, luggage, and leather stores.

The UFCW commented that clothing stores (NAICS 4481) should be ineligible because the BLS total case rate (TCR) in that industry group increased by 25 percent from 2008 to 2009 (Ex. 81). The TCRs were 2.9 and 3.2, respectively, for 2008 and 2009. The 2010 and 2011 TCRs were both 3.0.

The AFA commented that industries that include one or more occupational classifications at high risk for injuries or illnesses, such as flight attendants in nonscheduled air transportation (NAICS 4812), should be ineligible (Ex. 85).

Consistent with the proposed rule and OSHA's longstanding policy, the final rule designates certain industry sectors as ineligible for partial exemption. Since 1982, it has been OSHA policy not to partially exempt certain industry divisions generally considered to involve greater occupational hazards. In the final rule, as in the proposed rule, agriculture, forestry, fishing and hunting (NAICS 11); mining, quarrying, and oil and gas extraction (NAICS 12); utilities (NAICS 22); construction (NAICS 23); manufacturing (NAICS 31-33); and wholesale trade (NAICS 42) are ineligible for partial exemption.

In addition, in the final rule, as in the proposed rule, industry groups (by four-digit NAICS) in the transportation sector (NAICS 48) are eligible for partial exemption. This is a change from the current regulation, in which industry groups (by three-digit SIC) in the division that includes transportation (SIC E—Transportation, Communications, Electric, Gas, and Sanitary Services) were ineligible for partial exemption due to industry. The reason for this change is the different structure of NAICS versus the SIC system.

In the final rule, Appendix A lists six partially-exempt industry groups in the transportation sector: non-scheduled air transportation (NAICS 4812); pipeline transportation of crude oil (NAICS 4861); pipeline transportation of natural gas (NAICS 4862); other pipeline transportation (NAICS 4869); scenic and sightseeing transportation, other (NAICS 4879); and freight transportation arrangement (NAICS 4885).

According to 2010 County Business Patterns data from the U.S. Census, there were 208,474 establishments with 4,011,989 employees in the transportation and warehousing sector (NAICS 48-49). The six partially-exempt industry groups in the transportation sector accounted for 26,013 establishments (12%) and 299,165 employees (7%), with freight transportation arrangement (NAICS 4885) as the single biggest industry group. Thus, although the transportation sector (NAICS 48) is eligible for partial exemption under the final rule, most establishments and employees in the transportation and warehousing sector (NAICS 48-49) will not be partially exempt due to industry. In addition, in non-scheduled air transportation (NAICS 4812), 72 percent of establishments had 1-9 employees, suggesting that many employers in this industry group will be partially exempt anyway due to size, regardless of the transportation sector's eligibility for partial exemption.

Also under the final rule, as in the proposed rule, establishments in the employment services industry group (NAICS 5613) are ineligible for partial exemption due to industry. Under the current regulation, establishments in the corresponding SIC industry group (Personnel Supply Services (SIC 513)) were required to keep OSHA injury and illness records. OSHA has decided to continue this policy on grounds that, for many employees in this industry, their actual place of work may be in an establishment that is part of a different, possibly higher-hazard, industry. No comments were submitted to the docket on this issue.

There were also several comments on OSHA's current partial exemption in Section 1904.1 for employers with 10 or fewer employees. Unions (the AFL-CIO, the UAW, the USW, and Worksafe), a safety professional firm (Safety Compliance Services), and Dow Chemical Company all commented that employers should not be partially exempt on this basis (Exs. 29, 59, 64, 69, 86, 77, 112).

In particular, Dow Chemical commented that “[t]he partial exemption is especially unlikely to work for small employers,” who may wrongly conclude that they are completely exempt from all OSHA regulations, rather than partially exempt from OSHA recordkeeping regulations (Ex. 64).

The AFL-CIO commented that employees at small workplaces get injured/ill, as do employees in industries with comparatively low injury/illness rates (Ex. 69), and that the small-employer exclusion especially affects the high-risk construction industry, since 80% of construction employers are partially exempt due to small employment size (Ex. 59). According to the AFL-CIO, “The purpose of recording [injuries and illnesses] is to permit workers and employers to gather worksite data that will enhance the identification and elimination of hazards that pose serious risks to workers. As a consequence, there is great value in requiring the recording of these incidents” (Ex. 69).

The partial exemption for employers with 10 or fewer employees is beyond the scope of this rulemaking. However, OSHA continues to believe that its longstanding practice of partially exempting employers with 10 or fewer employees is appropriate because it minimizes the paperwork burden on small employers. This is consistent with the direction provided in Section 8(d) of the OSH Act to minimize the burden of information collection upon employers, “especially those operating small businesses.”

4. Alternatives To Using an Average DART Rate of 75 Percent of the Most Recent Three-Year-Average National DART Rate

In the NPRM, OSHA asked, “Instead of using an average DART rate of 75 percent of the most recent national DART rate, is there a better way to determine which industries should be included in Appendix A?”

Multiple commenters recommended using the total case rate (TCR) as well as the DART rate. The TCR includes all recordable cases, while the DART rate includes only cases that result in days away from work, restriction, or job transfer. Seth Turner proposed a partial exemption for industries with both a TCR and a DART rate at or below 85% of the most recent three-year national averages for private industry (Ex. 23). The UFCW proposed using the TCR and/or total number of cases (Ex. 81). The USW proposed using the TCR as well as the DART rate, because “[a]ll injuries are important to note that a hazard is present” (Ex. 86). Change to Win proposed using the TCR as well as the DART rate in order to “reduce any unintended incentives to manipulate the treatment of workers after injuries (such as inappropriate assignment to the same tasks) in order to avoid the `restricted activity' . . .” (Ex. 90).

NIOSH commented that the severity of injuries and illnesses should also factor into the method for determining partial exemption. NIOSH stated that severity could be measured by using the number of injury/illness cases involving three or more days away from work, since “three days . . . is the most common waiting period . . . necessary for injuries and illnesses to become sufficiently recognized and thus qualify injured workers to file claims which impose costs on private employers . . .” In addition, NIOSH commented that “OSHA might also consider which industries account for a disproportionate number of work loss days and not just work loss cases” (Ex. 66).

The AFL-CIO commented that, according to 2009 BLS data, 18% of total cases of injuries and illnesses (594,000 cases) and 13% of DART cases (217,000 cases) occurred in industry groups that were partially exempt under the criteria in the proposed rule (Exs. 69, 74). According to the AFL-CIO, “[a]s a consequence, the 75% DART rate threshold exempts far too many injuries and illnesses, as well as industries, from OSHA's recording requirements.” The AFL-CIO proposed three alternatives:

1. Lowering the threshold to 50 percent, using both DART and total case data. This method would reduce the number of partially-exempt industries listed in the proposed rule by one-third, from 82 industries to 55.

2. raising the threshold to 85 percent of the overall average DART rate, and setting an upper limit for number of total cases at 10,000 or fewer. This method would reduce the number of partially-exempt industries listed in the proposed rule by 21 percent, from 82 industries to 65.

3. lowering the threshold to 50 percent, using both DART and total case data, plus setting a limit for number of total cases at 10,000 or fewer. This method would reduce the number of partially-exempt industries listed in the proposed rule by 37 percent, from 82 industries to 52.

The AFL-CIO recommended the third alternative.

The Small Business Administration's Office of Advocacy (SBA-OA) recommended raising the threshold from 75 percent to 80 percent, 85 percent, or 90 percent of the overall average DART rate, as well as making more industry sectors eligible for partial exemption, or increasing the number of

employees an employer could have and still be partially exempt under Section 1904.1. The SBA-OA noted that “[s]mall business representatives have complained that industries that have had declining injury and illness rates over many years will essentially be penalized with new recordkeeping . . . burdens because their injury and illness rates have declined, but not as fast as other industries” (Ex. 94).

OSHA disagrees with this recommendation for two reasons. First, although the Agency recognizes that injury and illness recordkeeping creates a paperwork burden for employers, the Agency does not agree that the requirement to keep records “penalizes” industries. Rather, OSHA agrees with the AFL-CIO's comment that “[t]he purpose of recording [injuries and illnesses] is to permit workers and employers to gather worksite data that will enhance the identification and elimination of hazards that pose serious risks to workers” (Ex. 69).

Second, the purpose of the industry partial exemption is to balance the benefits of injury and illness recordkeeping, on the one hand, and the paperwork burden associated with injury and illness recordkeeping, on the other. OSHA believes that the potential benefits of injury and illness recordkeeping for workplace safety and health are greater in industries that are comparatively more hazardous than in industries that are comparatively less hazardous. Although it is true that injury and illness rates have been declining since 1992, both overall and in most industry sectors and groups, the rates in some industries have declined faster than the rates in other industries. As a result, some industries that used to have lower rates, relative to other industries and rates overall, now have higher rates, relative to other industries and rates overall. This shifts the balance for these industries towards greater relative benefits from recordkeeping. Conversely, industries that used to have higher relative rates and now have lower relative rates now have relatively fewer benefits from recordkeeping than other industries. OSHA therefore believes that raising the threshold for partial exemption from 75% would not properly balance the benefits and burden of recordkeeping. With a higher threshold, a class of industries that would potentially benefit greatly from recordkeeping would remain partially exempt from recordkeeping—namely, industries whose efforts to lower injury and illness rates have been relatively less successful, compared to other industries where rates have declined more.

The National Federation of Independent Business (NFIB) made a comment similar to the SBA-OA's, noting that some industries had higher injury/illness rates when they qualified for partial exemption under the 2001 final rule than when they were proposed for non-exemption under this rulemaking. As a result, they proposed maintaining the partial exemption for any industry that was partially exempt in the 2001 rulemaking and had declining DART rates. Alternatively, they proposed raising the threshold higher than 75 percent, “to a level that captures only the most dangerous industries” (Ex. 117).

The ARTBA added to this point, commenting that, given the decline in overall injury and illness rates and the Administration's charge “to federal agencies to reduce unneeded regulatory burden,” the number of partially-exempt establishments should have been higher, rather than lower, under this rulemaking (Ex. 114).

Also noting the decline in overall injury and illness rates, the National Automobile Dealers Association (NADA) proposed that the threshold “should be increased incrementally to compensate” as “the overall average DART rate for private employers continues to trend down.” For example, raising the threshold to 80 percent would have put automobile dealers (NAICS 4411) on the list of partially-exempt industry groups. Alternatively, the Agency could raise the threshold to 100 percent, which would still result in a threshold DART rate lower than the rates in the 1982 and 2001 final rules. (Note that a 100 percent threshold, using the 2007-2009 BLS data in the final rule, would be 2.0 cases per 100 full-time workers. The 75 percent thresholds in the 2001 and 1981 rulemakings were 2.2 and 3.1, respectively.) The Agency could also “backstop” the increased threshold by removing the partial exemption for an industry group if an OSHA review of injury/illness data showed that the industry group's DART rate had increased over the most recent three years of data (Ex. 119).

Spurlock & Higgins and Safety Compliance Services proposed a survey of the hazards present in a particular industry, followed by “a risk analysis process utilizing a risk matrix to score various NAICS codes on likelihood and severity of injury from the identified hazards”, with industries “scoring below a pre-determined threshold . . . deemed partially exempt.” This method would “largely alleviate the need for periodic updates to the list of partially exempt industries because of fluctuations in injury statistics” (Exs. 24, 29).

Finally, Mercer ORC HSE Networks commented that “applying a three-year average and using the DART rate . . . make sense. Setting the cut off at or below 75 percent . . . and limiting eligibility to sectors that have historically experienced lower injury and illness rates also seem reasonable” (Ex. 68).

Finding the appropriate balance between the need for injury and illness information, on the one hand, and the paperwork burden created by recording obligations, on the other, is central to this rulemaking. OSHA believes that the use of the same criteria over the past 30 years of coverage demonstrates that these criteria achieve the desired balance. Therefore, OSHA has decided to use the selection criteria in the proposed rule, which are consistent with the criteria used in the 2001 and 1982 rulemakings. In the final rule, with one exception, industry groups meeting the following two criteria are included in the list of partially-exempt industry groups in Appendix A: A sector classification of NAICS 44-81, and a DART rate of 75 percent or less of the overall three-year-average DART rate for private industry, using the most recent BLS data available at the time of the proposed rule (2007, 2008, and 2009). As noted earlier, the sole exception is for Employment Services (NAICS 5613), which is not partially exempt under the final rule. OSHA acknowledges that injuries and illnesses will also occur in industries that are partially exempt from recordkeeping. However, continuing OSHA's longstanding practice of using a threshold of 75 percent of the DART rate for private industry ensures that only industries with relatively low injury/illness rates will be partially exempt.

5. Using Numbers of Workers Injured or Made Ill in Each Industry in Addition to Industry Injury/Illness Rates

In the NPRM, OSHA asked, “Should OSHA consider numbers of workers injured or made ill in each industry in addition to industry injury/illness rates in determining eligibility for partial exemption?”

NIOSH, the AFL-CIO, the UAW, the UFCW, and the USW answered yes to this question (Exs. 66, 69, 74, 77, 81, 86). NIOSH commented that “[c]onsideration should be given to potential uses for site-specific targets (e.g., silicosis, other pneumoconiosis, dermatitis, cancers), as well as the potential use of these data by NIOSH . . . in sentinel case follow-up and evaluation” (Ex. 66). The AFL-CIO commented that BLS data from 2009

show that 594,000 total cases (18% of total) and 217,000 DART cases (13% of total) occurred in industries proposed for partial exemption (Ex. 69). The UAW commented that “OSHA should require recording by employers in all industries in which at least one worker has been injured or made ill” (Ex. 77).

For the final rule, OSHA has decided to use the same selection criteria as in the proposed rule. These criteria are consistent with the criteria used in the 2001 and 1982 rulemakings. This decision balances the need for injury and illness data with the paperwork burden on the regulated community. OSHA believes the incidence rate is the appropriate criterion to use because it shows the relative level of injuries and illnesses among different industries. Incidence rates allow for comparisons of industries that are vastly different in size and demographic make-up. Relying on the numbers of injuries and illnesses would bias the decision towards including industries that are very large but at the time relatively safe. As discussed elsewhere, in the final rule, with one exception, industry groups meeting the following two criteria are included in the list of partially-exempt industry groups in Appendix A: A sector classification of NAICS 44-81, and a DART rate of 75 percent or less of the overall three-year-average DART rate for private industry, using the most recent BLS data available at the time of the proposed rule (2007, 2008, and 2009). The one exception is for employment services (NAICS 5613), which is not partially exempt.

6. Additional or Alternative Criteria for Determining Eligibility for Partial Exemption?

In the preamble to the proposed rule, OSHA asked, “Are there any other data that should be applied as additional or alternative criteria for purposes of determining eligibility for partial exemption?”

Multiple commenters proposed additional criteria not addressed in previous questions. The Marshfield Clinic proposed that establishments with less than a specified number of employees be partially exempt regardless of NAICS (Ex. 15). The Building and Construction Trades Department of the AFL-CIO suggested that OSHA consider fatality rates; they commented that “fatality rates provide useful and, for the construction industry, better criteria because of problems associated with the underreporting of non-fatal injuries” (Ex. 59). (Note that the construction industry is not eligible for partial exemption.)

NIOSH suggested three additional data types. The first was work-related fatalities, because “a sudden increase in the number of fatalities in a particular industry may suggest a growing problem that needs further investigation and/or potential failures in prevention.” The second was current labor force estimates for the industry, because “establishments within small industry subsectors have a very low probability of experiencing the necessary number of cases to satisfy BLS statistical reporting guidelines.” The third was establishment size, which is “an important factor in aspects of management, health and safety education, prevention, and workers' compensation services” (Ex. 66). (Note that OSHA's regulation at Section 1904.39 requires all employers covered by the OSH Act, regardless of their partial-exemption status under Section 1904.2, to report all fatalities, in-patient hospitalizations, amputations, and losses of an eye to OSHA.)

In the final rule, OSHA has decided to use the selection criteria in the proposed rule, which are consistent with the criteria used in the 2001 and 1982 rulemakings. OSHA reviewed BLS fatality rate data from the Census of Fatal Occupational Injuries. The majority of industries with fatality rates greater than the private industry fatality rate are not exempted under the final rule. As discussed above, all work-related fatalities are required to be reported to OSHA, and these data are captured in the OSHA Information System (OIS). OSHA concludes that the use of fatality data as a criterion is not warranted because it identifies the same industries as the DART rate distribution and because the site-specific fatality data are captured through the fatality reporting requirements.

OSHA also concludes that labor force estimates are not a necessary criterion. BLS DART rate data were available for all industries because OSHA conducted the analysis at the 4-digit NAICS level.

As noted above, in the final rule, with one exception, industry groups meeting the following two criteria are included in the list of partially-exempt industry groups in Appendix A: A sector classification of NAICS 44-81, and a DART rate of 75 percent or less of the overall three-year-average DART rate for private industry, using the most recent BLS data available at the time of the proposed rule (2007, 2008, and 2009). The sole exception is for employment services (NAICS 5613), which is not partially exempt.

7. Regular Updates of the List of Lower-Hazard Exempted Industries

In the preamble to the proposed rule, OSHA asked, “Should OSHA regularly update the list of lower-hazard exempted industries? If so, how frequently should the list be updated?”

Multiple commenters supported regular updates of the list of lower-hazard partially-exempt industries. Worksafe recommended that “the Agency [be] required to review BLS injury rate data at least every two years, to re-determine exempt industries” (Ex. 112). The Occupational Health Section of the American Public Health Association (APHA), the AFL-CIO, UNITE HERE, the TWU, the UAW, the UFCW, and the USW recommended updating the list every three years (Exs. 62, 69, 70, 74, 77, 81, 86). Mercer ORC HSE Networks commented that “the list could be renewed every five years or so to maintain its relevance and insure a sense of fairness” (Ex. 68). NADA commented that “OSHA should initiate a review of the [list of partially-exempt industries] soon after the results of a new economic census become available” (Ex. 119). NCOSH commented that OSHA should update the list “regularly” because “[i]ndustry conditions and work environments change over time and it is important that this list reflect current conditions to the greatest extent possible” (Ex. 75).

In contrast, the Dow Chemical Company commented that “moving industries into and out of partially exempt status may be unworkable”, because “considerable expertise is necessary in order to correctly make determinations under OSHA's recordkeeping regulations”, “[d]etailed procedures must also be created, taught, and practiced . . .”, and “[p]artially exempt industries must still be able to record injuries accurately if BLS or OSHA make a request” (Ex. 64).

OSHA has decided not to provide for regular updates of the list of lower-hazard partially-exempt industries in the final rule. First, historically, the list of industries meeting the criteria for partial exemption has changed very little from year to year. Second, OSHA agrees with Dow Chemical Company (Ex. 64) that moving industries in and out of partially-exempt status would be confusing. An analysis of NAICS-based BLS injury and illness data shows that exemption status tends to remain relatively constant over time. The analysis grouped the eight years of annual data from 2003 to 2010 into six groups of three-year averages (2003-2005, 2004-2006, 2005-2007, 2006-2008, 2007-2009, 2008-2010). There

were 155 industry groups (classified by four-digit NAICS) in the analysis. For 135 of these groups (87%), the exemption status remained constant; partially-exempt industry groups remained partially exempt throughout the period, and non-exempt industry groups remained non-exempt. Of the remaining 20 industry groups, 10 (6%) changed status once, either from non-exempt to partially-exempt or from partially-exempt to non-exempt; seven (5%) changed status twice; and three (2%) changed status three times. Although this final rule does not include a regularly-scheduled update of the partial exemption list, the Agency is planning a retrospective review of OSHA's recordkeeping regulations. The Occupational Safety and Health Act itself requires the Secretary to “develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics” and specifies the underlying criteria for defining recordability. After the passage of the Act, OSHA issued Part 1904, Recording and Reporting Occupational Injuries and Illnesses. These regulations included provisions on the industry and size of establishments exempted from the recordkeeping requirements. Part 1904 was modified in 2001, following a national process in which a large group of stakeholder representatives and experts conducted a year-long dialogue on occupational injury and illness recordkeeping. Among the recommendations that came out of this dialogue that were incorporated into Part 1904 in the 2001 rulemaking were the elimination of the requirement to record injuries and illnesses that were viewed as irrelevant for evaluating the safety and health environment of the work-place, and the addition of criteria to capture newly recognized occupational safety and health conditions.

OSHA believes there is value in a new re-examination of the Agency's recordkeeping regulations. First, there is extensive evidence that many work-related injuries and illnesses are currently not being recorded on the Injury and Illness Logs maintained by employers. It has long been recognized that most work-related illnesses, particularly those chronic diseases which do not appear until years after first exposure, are not recorded on these logs. In recent years, academic researchers have performed numerous studies, comparing work-related injuries recorded on employer-maintained logs with work-related injuries identified through workers' compensation or hospital records. These studies have demonstrated that a sizable proportion of work-related injuries are not being recorded on employer-maintained logs. Further, changes in the structure of employment, exemplified by the increased presence of temporary and contractor workers in many establishments, raise important questions about the effectiveness of the current requirements and suggest that new approaches to injury tracking may be warranted. Finally, in recent years there has been little evaluation of the benefits and costs of the rule. With these issues in mind, OSHA plans to undertake a retrospective review of the effectiveness of the Agency's injury and illness recordkeeping regulations.

This retrospective study will be conducted in accordance with the Department of Labor's Plan for Retrospective Analysis of Existing Rules which complies with Executive Order (E.O.) 13563 “Improving Regulation and Regulatory Review” (76 FR 3821). E.O. 13563 requires agencies to develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives. [76 FR 3822].

In addition to the retrospective review, OSHA will engage the public to assess the impact of the changes implemented under this rulemaking. The Agency will conduct a stakeholder meeting to discuss the burdens associated with the new coverage and reporting requirements and the utility and use of the new information collected. We anticipate conducting such a meeting after the new requirements have been in place for two years to allow for a sufficient impact to be considered.

8. Training, Education, and Compliance Assistance to Facilitate Compliance With the Recordkeeping Requirements

In the NPRM, OSHA asked, “Are there any specific types of training, education, and compliance assistance OSHA could provide that would be particularly helpful in facilitating compliance with the recordkeeping requirements?”

The UAW commented that “OSHA should do more training and dissemination of information about employee rights and employer obligations related to recordkeeping, especially for small employers and their employees” (Ex. 77).

OSHA has recently put two tools on its public Web site to help employers comply with recordkeeping requirements: A 15-minute on-line tutorial (training module) on completing the recordkeeping forms, and an interactive e-tool (Recordkeeping Advisor) that uses employer responses to questions to help employers determine whether or not (and how) they need to record/report specific injuries and illnesses. Both are available on OSHA's recordkeeping Web page at

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

Distribution were moved, Internet Service Providers and Web Search Portals industries were restructured, and a new six-digit industry was created in the Other Information Services subsector.

Sector 53, Real Estate and Rental and Leasing—2002 NAICS code 525390- Real Estate Investment Trusts (REIT), was deleted and portions of it were reclassified as follows: (1) Equity REITs is classified in the Real Estate subsector in NAICS Industry Group 5311- Lessors of Real Estate, under individual national industries based on the content of the portfolio of real estate operated by a particular REIT; and (2) Mortgage REITs is moved to NAICS 525990, Other Financial Vehicles.

Sector 54, Professional, Scientific, and Technical Services—Research and Development in Biotechnology was added as a 6-digit industry.

Sector 56, Administrative & Support and Waste Management & Remediation Services—Establishments that primarily provide executive search consulting services were moved to a new 6-digit industry, Executive Search Services.

OSHA finds that the differences between the 2002 NAICS and the 2007 NAICS are not significant to the rulemaking. This is further discussed in Section V Final Economic Analysis of this preamble.

OSHA also received comments about the estimates in the PEA for recordkeeping costs at establishments in industry groups that are partially exempt under the current regulation but will no longer be partially exempt under this final rule. The Dow Chemical Company commented that the PEA underestimates the cost of the proposed rule at these establishments for three reasons. First, “decisions on recordability . . . may involve physicians, industrial hygienists, personnel in the supervisory chain of the injured individual, safety professionals, attorneys, and recordkeeping subject-matter experts, all of whom are salaried, degreed professionals at salaries considerably higher” than the $56,000 annual salary for a human resources specialist that the PEA used to estimate costs. Second, the PEA does not include the cost of “set[ting] up the procedures and systems that are utilized for implementation of [OSHA recordkeeping] regulations.” Third, “the process of developing a competent OSHA recordkeeper is far more time-intensive than” the time for training and re-training estimated in the PEA (Ex. 64).

The SBA-OA commented that OSHA should “consider whether its wage rate assumption is valid for many small businesses.” The PEA uses the assumption that recordkeeping will be performed by a human resources specialist with a compensation cost of $40.04 per hour, but “many small businesses do not employ such personnel and it is often the small business owner or other senior person who conducts these activities” (Ex. 94).

NADA commented that the PEA “significantly underestimates” the cost to establishments in the automobile dealer industry group (NAICS 4411), which was partially exempt under the 2001 rulemaking but would not have been partially exempt under the proposed rule. (Note that the industry group will also not be partially exempt under the final rule.) According to NADA, each automobile dealer will “hav[e] to train at least one person on Form 300 injury and illness recordkeeping/” For training costs, NADA cites the $300 cost of the National Safety Council's one-day course on OSHA recordkeeping, in addition to “travel, lost income, and other related expenses.” There are also ongoing costs due to employee turnover and “compliance responsibilities”, including “monitoring for workplace related injuries and illnesses, and completing, certifying, and posting the log” (Ex. 119).

OSHA's response to these comments is in Section V of this supplementary information.

Four commenters (the NAHB, the Associated General Contractors of America, the National Federation of Independent Business (NFIB), and the US Chamber of Commerce) stated that it would have been a good idea for OSHA to convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel (Exs. 113, 115, 117, 120). The NFIB also commented that “OSHA did not do enough outreach to the small-business community in developing this rule” (Ex. 120).

OSHA did not convene a SBREFA panel because the Agency determined this rule will not have a significant economic impact on a substantial number of small entities. For a more thorough discussion of this issue, please refer to Section V of this supplementary information.

The NAHB commented that “OSHA's proposal is not consistent with Executive Order 13563, `Improving Regulation and Regulatory Review',” because “[n]othing in OSHA's proposal indicates how the rule is intended to streamline regulatory requirements and reduced burdens on industry” and because the Agency “should consider the impacts of this proposal on small businesses and consider conducting additional outreach before moving forward” (Ex. 113). The SBA-OA and the ARTBA made similar comments (Exs. 94, 114). OSHA's response to these comments is in Section V of this supplementary information.

Executive Order 13563 requires regulatory agencies to consider the effect of new regulations on economic growth, competitiveness, and job creation. OSHA notes that, as discussed below in Section V-E, Economic Impacts, the compliance costs for each affected firm are too small to have any significant economic impacts, including impacts on economic growth, competitiveness, and job creation. In addition, OSHA's use of a partial exemption from recordkeeping requirements for specified industries embodies the principle that asks agencies to identify and use the best and least burdensome tools for achieving regulatory ends. The exemption both reduces the impact of regulatory requirements on industry overall and minimizes paperwork burden for many small employers. Also, as noted above, switching from the outdated SIC system to NAICS will reduce uncertainty, confusion, and errors, as well as save time. Therefore, the Agency believes that the approach taken in this rulemaking to update the list of partially-exempt industries is consistent with, and promotes the primary objectives of, Executive Order 13563.

United Support and Memorial for Workplace Fatalities commented that “employers should be required to include on their injury, illness and fatality incident and reports and logs, the BLS standard occupational classification code for the affected worker's job title” (Ex. 93). This is beyond the scope of this rulemaking.

The US Chamber of Commerce commented that OSHA's use of BLS injury and illness data in the criteria for partial exemption for low-hazard industry groups “is at odds with other OSHA efforts and comments that indicate a lack of faith in the credibility of this data since it is generated by employers self reporting” (Ex. 120). OSHA's response is that, while academic researchers, OSHA, and BLS are studying the comprehensiveness and accuracy of BLS data, the BLS data are still the most comprehensive body of occupational injury and illness data available.

D. The Final Rule

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

criteria are partially exempt from the recordkeeping requirements in Part 1904:

1. Sector classification of NAICS 44-81.

2. a DART rate of 75 percent or less of the overall three-year-average DART rate for private industry, using BLS data from 2007, 2008, and 2009. The average national DART rate for private industry for 2007-2009 was 2.0. Thus, the threshold for partial exemption for eligible industry groups (classified by four-digit NAICS) was a DART rate of 1.5 or less.

Like the proposed rule, the one exception is for Employment Services (NAICS 5613), which is not partially exempt. The three-year-average DART rate for the Employment Services industry group, using BLS data from 2007, 2008, and 2009, was 1.1, which is below the 75 percent threshold of 1.5. However, this industry group is nonetheless ineligible for partial exemption on grounds that, for many employees in this industry, their actual place of work may be in an establishment that is in a different, non-partially-exempt industry group or sector, such as manufacturing. Therefore, NAICS 5613 Employment Services is not included in the final Appendix A to Subpart B. OSHA received no comments from the public about this exception.

In the issues section of the preamble to the proposed rule, OSHA asked the public to comment on the appropriateness of the proposed exemption procedure; whether alternative procedures for determining partial exemption should be used; and whether specific industries should be included or excluded from the list of partially-exempt industries. OSHA notes that the final rule, like the proposed rule, is based on the most recent BLS injury and illness data available at the time of the proposed rule (2007-2009). Because OSHA is using the same criteria and same injury/illness data to establish the list of partially-exempt industry groups, the industry groups in the proposed Appendix A to Subpart B and the final Appendix A to Subpart B are the same.

Under the final rule, employers are not required to keep OSHA injury and illness records for any establishment classified in an industry group listed in Appendix A to Subpart B, unless they are asked in writing to do so by OSHA, BLS, or a state agency operating under the authority of OSHA or BLS. All employers covered by the OSH Act, including employers who are partially exempt from recordkeeping based on size or industry classification, must report all work-related fatalities, in-patient hospitalizations, amputations, or losses of an eye to OSHA, as required by Section 1904.39.

For a more thorough discussion of the specific industry groups that are newly partially exempted or newly covered by the final rule, please refer to Section V of this supplementary information.

Because the final rule will require some establishments that had been partially exempt from OSHA recordkeeping requirements to now comply completely with these requirements, OSHA will offer compliance assistance, including outreach and training, to help these establishments keep complete and accurate records and comply with the recordkeeping regulation.

The partially-exempt industry groups are:

NAICS

code

Industry

4412

Other Motor Vehicle Dealers.

4431

Electronics and Appliance Stores.

4461

Health and Personal Care Stores.

4471

Gasoline Stations.

4481

Clothing Stores.

4482

Shoe Stores.

4483

Jewelry, Luggage, and Leather Goods Stores.

4511

Sporting Goods, Hobby, and Musical Instrument Stores.

4512

Book, Periodical, and Music Stores.

4531

Florists.

4532

Office Supplies, Stationery, and Gift Stores.

4812

Nonscheduled Air Transportation.

4861

Pipeline Transportation of Crude Oil.

4862

Pipeline Transportation of Natural Gas.

4869

Other Pipeline Transportation.

4879

Scenic and Sightseeing Transportation, Other.

4885

Freight Transportation Arrangement.

5111

Newspaper, Periodical, Book, and Directory Publishers.

5112

Software Publishers.

5121

Motion Picture and Video Industries.

5122

Sound Recording Industries.

5151

Radio and Television Broadcasting.

5172

Wireless Telecommunications Carriers (except Satellite).

5173

Telecommunications Resellers.

5179

Other Telecommunications.

5181

Internet Service Providers and Web Search Portals.

5182

Data Processing, Hosting, and Related Services.

5191

Other Information Services.

5211

Monetary Authorities—Central Bank.

5221

Depository Credit Intermediation.

5222

Nondepository Credit Intermediation.

5223

Activities Related to Credit Intermediation.

5231

Securities and Commodity Contracts Intermediation and Brokerage.

5232

Securities and Commodity Exchanges.

5239

Other Financial Investment Activities.

5241

Insurance Carriers.

5242

Agencies, Brokerages, and Other Insurance Related Activities.

5251

Insurance and Employee Benefit Funds.

5259

Other Investment Pools and Funds.

5312

Offices of Real Estate Agents and Brokers.

5331

Lessors of Nonfinancial Intangible Assets (except Copyrighted Works).

5411

Legal Services.

5412

Accounting, Tax Preparation, Bookkeeping, and Payroll Services.

5413

Architectural, Engineering, and Related Services.

5414

Specialized Design Services.

5415

Computer Systems Design and Related Services.

5416

Management, Scientific, and Technical Consulting Services.

5417

Scientific Research and Development Services.

5418

Advertising and Related Services.

5511

Management of Companies and Enterprises.

5611

Office Administrative Services.

5614

Business Support Services.

5615

Travel Arrangement and Reservation Services.

5616

Investigation and Security Services.

6111

Elementary and Secondary Schools.

6112

Junior Colleges.

6113

Colleges, Universities, and Professional Schools.

6114

Business Schools and Computer and Management Training.

6115

Technical and Trade Schools.

6116

Other Schools and Instruction.

6117

Educational Support Services.

6211

Offices of Physicians.

6212

Offices of Dentists.

6213

Offices of Other Health Practitioners.

6214

Outpatient Care Centers.

6215

Medical and Diagnostic Laboratories.

6244

Child Day Care Services.

7114

Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures.

7115

Independent Artists, Writers, and Performers.

7213

Rooming and Boarding Houses.

7221

Full-Service Restaurants.

7222

Limited-Service Eating Places.

7224

Drinking Places (Alcoholic Beverages).

8112

Electronic and Precision Equipment Repair and Maintenance.

8114

Personal and Household Goods Repair and Maintenance.

8121

Personal Care Services.

8122

Death Care Services.

8131

Religious Organizations.

8132

Grantmaking and Giving Services.

8133

Social Advocacy Organizations.

8134

Civic and Social Organizations.

8139

Business, Professional, Labor, Political, and Similar Organizations.

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

A. Background

OSHA has required employers to report work-related fatalities and certain work-related hospitalizations since 1971, the year the OSH Act went into effect. The initial regulation in 29 CFR 1904.8 required employers to report, within 48 hours, an employment incident resulting in the fatality of one or more employees or the hospitalization of five or more employees. Employers were required to report by telephone or telegraph to the nearest OSHA Area Office.

In 1994, the Agency revised the regulation to require reporting, within eight hours, of any work-related fatality or hospitalization of three or more employees (59 FR 15594, April 1, 1994). OSHA explained in the preamble to the final rule that “[r]educing the reporting period from 48 hours to 8 hours enables OSHA to inspect the site of the incident and interview personnel while their recollections are more immediate, fresh and untainted by other events, thus providing more timely and accurate information.” In addition, OSHA stated that reducing the reporting time increased the chances that the site of the incident would remain undisturbed and also “coincided with a `standard work shift' for most employers.”

The 1994 rulemaking also addressed several other issues. First, OSHA explained that hospitalization meant in-patient admission and excluded admission solely for observation. Second, OSHA added regulatory language stating that if employers did not learn of a reportable incident when it occurred, they were required to report within eight hours of learning of the incident. Third, OSHA specified that employers were required to report any fatality or in-patient hospitalization of three or more people occurring within 30 days of the incident. Fourth, OSHA added the option of reporting via OSHA's centralized toll-free telephone number.

The requirements from the 1994 rulemaking have remained substantially unchanged and are currently codified at 29 CFR 1904.39.

B. The Proposed Rule

The proposed rule would have made two major changes to OSHA's reporting requirements. First, the proposed rule would have required employers to report the work-related in-patient hospitalization of one or more employees to OSHA. The current regulation requires reporting only if three or more employees are hospitalized. The reporting time would have been eight hours, the same as the current regulation. Second, the proposed rule would have required employers to report all work-related amputations to OSHA, within 24 hours. The current regulation does not specifically require the reporting of amputations.

For the reporting of in-patient hospitalizations of fewer than three employees, OSHA explained that “[t]he hospitalization of a worker due to a work-related incident is a serious and significant event” (76 FR 36419). The preamble to the proposed rule explained that, for OSHA recordkeeping purposes, in-patient hospitalization occurs when a person is “formally admitted” to a hospital or clinic for at least one overnight stay.

For the reporting of amputations, OSHA explained that “[a]mputations include some of the most serious types of injuries and tend to result in a greater number of lost workdays than most other injuries . . . Furthermore, amputations differ from other types of serious injuries because they have long-term or permanent consequences” (76 FR 36419). The proposed rule defined amputations in proposed Section 1904.39(b)(8) according to the definition in the 2007 release of the Occupational Injury and Illness Classification (OIICS) Manual of the Bureau of Labor Statistics (BLS). This definition of amputations excluded traumatic injuries without bone loss, as well as losses of an eye.

In the NPRM, OSHA explained that the changes in the proposed rule would have made OSHA's reporting requirements more similar to the requirements of other agencies, as well as to the requirements of some states that administer their own occupational safety and health programs.

C. Comments to the Proposed Rule

Many comments supported the reporting requirements included in OSHA's proposed rule. Letitia Davis, ScD, EdM, the Director of the Occupational Health Surveillance Program at the Massachusetts Department of Public Health, noted: “Case reporting of health events is a well-established approach to public health surveillance and intervention. Serious occupational injuries are urgent sentinel health events indicating that prevention efforts have failed and that intervention to remediate hazards may be warranted” (Ex. 84). However, OSHA also received multiple comments that the proposed rule would not prevent injuries and illnesses and is redundant, premature, and not supported by data.

The Steel Manufacturers Association commented that “[d]ata in itself has never prevented any type of occurrence [of injuries]” and that “[t]he information required to be provided . . . while good at identifying basic information, does not collect any data that will serve in preventing future injuries or illnesses. The only possible preventative action that can be taken is for OSHA to conduct an inspection. The results are citations and press releases that provide little preventative effect beyond the employer involved” (Ex. 36).

Mercer ORC HSE Networks commented that “merely establishing [a `comprehensive database' of information about the reportable events] may not be the best way, or even a very good way, to better determine how to better focus OSHA's resources on high-hazard workplaces. Put another way, it is not at all clear that employers experiencing the new case categories identified in the rulemaking . . . pose increased future risk to workers, or are any more likely than other employers to experience future serious cases. OSHA makes that implicit assumption without support. For example, a study conducted by Rand several years ago for the Duke Energy Foundation found that sites experiencing fatalities usually posed less risk to workers for future serious injury, not more” (Ex. 68).

In response, OSHA notes that the OSHA recordkeeping regulation has included requirements for employers to report certain work-related events to OSHA since 1971. These requirements have always been an important part of the Agency's statutory mission to assure safe and healthful working conditions for working men and women. Timely reporting of work-related fatalities, as well as certain other serious work-related events, allows OSHA to assess whether an intervention is necessary and to target hazardous workplaces for inspection.

In addition, OSHA is able to use information gained from the investigations of work-related fatalities

and other serious work-related events to identify workplace hazards and prevent similar incidents, both at the inspected workplace and at other workplaces. This information also can also be used to support the issuance of new safety and health standards and regulations, as well as the revision of existing OSHA standards and regulations.

The Tree Care Industry Association commented, “Why would OSHA not work with State Workers Compensation programs and/or the State Plan OSHA's that already collect hospitalization data before it imposes redundant reporting requirements on employers under federal OSHA jurisdiction?” (Ex. 37).

In response, OSHA notes that one of the reasons for the reporting requirement in Section 1904.39 is to allow the Agency to conduct, if necessary, a prompt investigation of the incident leading to the serious occupational injury and illness event. OSHA also notes that six states with OSHA-approved State Plans currently require employers to report the in-patient hospitalization of fewer than three employees. As a result, OSHA concludes that the requirement to report in-patient hospitalizations of fewer than three employees would not be redundant even if OSHA had systematic access to hospitalization data from state workers' compensation programs.

Gruber Hurst Johansen Hail Shank commented, “If amputations and most incidents that require hospitalization are already recordable, then why is there a compelling need for additional reporting? . . . OSHA is already informed about these instances through recordkeeping” (Ex. 60). Similarly, the Joint Poultry Industry Safety and Health Council commented that “[t]he DART rate, calculated from existing injury and illness data, already identifies those workplaces with frequent, severe injuries. We fail to see why this currently available data is not sufficient to meet the goal of identifying `the most dangerous workplaces' and why OSHA needs this type of additional injury data” (Ex. 61).

Likewise, Mercer ORC HSE Networks commented that “[a]ll of the cases that would be reported under the new OSHA criteria should already be captured on the OSHA log. To target inspections, OSHA already collects summary data that includes these cases from a census of sites in portions of the private sector that the Agency feels tend to involve higher risk. BLS also captures the same information in more detailed form in a parallel . . . data collection effort. In addition to its annual survey that produces incidence rates and detailed case characteristics across industry, BLS also conducts a Census of Fatal Occupational Injuries (CFOI) that produces accurate counts and very detailed descriptive data on fatal work related injuries. So data on fatalities and amputations should clearly be accessible from existing data collections. Granted it might be harder to capture data on some in-patient hospitalizations. But some of that information could be obtained from existing OSHA supplementary records. Data that could not be extracted from existing OSHA records could be obtained by less burdensome means than proposed, such as conducting follow-back studies of a small sample of employers” (Ex. 68).

In response, OSHA notes the distinction between the employer's obligation to record an injury or illness and the employer's obligation to report. Since OSHA's founding, the reporting requirement has been separate from the recording requirement. As a rule, OSHA obtains the detailed, case-specific information recorded by employers under Part 1904 only when OSHA conducts an on-site inspection. And OSHA inspects only a small percentage of all establishments subject to OSHA authority each year. For example, in 2010, OSHA and its state partners inspected approximately 1 percent of establishments subject to OSHA authority (approximately 98,000 inspections, out of 7.5 million total establishments).

On November 8, 2013, OSHA also published a notice of proposed rulemaking (NPRM) on Improve Tracking of Workplace Injuries and Illnesses, which would expand its collection of injury and illness data (FR 78 67254-67283). In that NPRM, OSHA proposed collecting case-specific information from approximately 38,000 establishments with 250 or more employees in industries subject to the recordkeeping requirements in Part 1904. Again, this is only a small percentage of all establishments subject to OSHA authority. OSHA notes the proposed rule on improving tracking of workplace injuries and illnesses would not add to or change any employer's obligation to complete and retain injury and illness records under OSHA's regulations for recording and reporting occupational injuries and illnesses. The proposed rule also would not add to or change the recording criteria or definitions for these records. The proposed rule would only modify employers' obligations to transmit information from these records to OSHA or OSHA's designee.

In addition, although all employers are subject to the requirement to report fatalities and specified non-fatal injury/illness events, many employers are partially exempt from the Part 1904 requirement to record injuries and illnesses. As a result, it is incorrect to assume that all amputations and most hospitalization incidents are captured in employer injury and illness records. As noted by the AFL-CIO, BLS data from 2009 show that 217,000 DART cases (13% of total) occurred in industries that would have been partially exempt from recordkeeping due to industry classification under the NAICS update part of this proposed rule (Ex. 69). Work-related amputations and hospitalizations suffered by employees of employers with ten or fewer employees are also not required to be recorded.

OSHA further notes that injury and illness summary information collected by OSHA for inspection targeting purposes through the OSHA Data Initiative (ODI) does not enable the Agency to identify specific hazards or problems at individual workplaces. Further, the ODI data are not timely because inspection targeting is based on injury/illness data from the previous year's ODI, which is collected from the prior year. As a result, OSHA's targeting is typically based on injury/illness data that are two or three years old. In addition, the group of 80,000 establishments in each year's ODI is not a statistically-representative sample, either of establishments eligible to be included in the ODI, or of establishments overall.

Finally, for data collected by BLS, OSHA notes that, while the BLS Survey of Occupational Injuries and Illnesses (SOII) provides information about industries with frequent, severe injuries and illnesses, it does not identify specific workplaces with frequent, severe injuries and illnesses. Industries with frequent, severe injuries and illnesses may include workplaces where injuries and illnesses are rare and minor, just as industries with rare, minor injuries and illnesses may include workplaces where injuries and illnesses are frequent and severe. In any event, the Confidential Information Protection and Statistical Efficiency Act of 2002 (Pub. L. 107-347, Dec. 17, 2002) (CIPSEA) prohibits BLS from releasing establishment-specific data to the general public or to OSHA. As a result, for employer-specific, workplace-specific information about fatalities, OSHA relies on its own information, obtained through the current Part 1904 requirement for employers to report fatalities to OSHA.

The American Chemistry Council commented that “[s]everal ongoing

OSHA programs, such as the National Emphasis Program on Recordkeeping (NEP-R), target data reporting, including amputations . . . For example, NEP-R is relatively new (September 10) and was intended to address inaccuracies in recording of occupational illness and injury. The analysis of the results of this program would be useful in assessing whether continuation of NEP-R satisfies the intent of the [proposed rule]” (Ex. 76). They added, “OSHA currently has two programs, the National Emphasis Program on Amputations (NEP-A), and the Severe Violator Enforcement Program (SVEP), which specifically target amputations . . . The overall intent of both NEP-A and SVEP are identical to that of the [proposed rule]: `to target scarce resources to the most dangerous workplaces and prevent future injuries at these workplaces' (76 FR 36419). Until a holistic evaluation of these existing amputation-focused programs is conducted, we recommend that OSHA exclude reporting of amputations [in the proposed rule] . . .”

In response, OSHA notes, as above, the distinction between recording and reporting; the recordkeeping NEP was about recording injuries and illnesses, while this final rule in Section 1904.39 is about reporting. OSHA also notes that there are multiple OSHA programs, including the amputations NEP and the SVEP, whose intent is to target scarce resources to the most dangerous workplaces and prevent future injuries at these workplaces. (Similarly, OSHA has multiple programs whose purpose is to assure safe and healthful working conditions for working men and women.) Neither the amputations NEP, nor the SVEP, provide the case reporting of sentinel occupational safety and health events that this final rule will provide. As a result, OSHA does not agree that the recordkeeping NEP, the amputations NEP, and/or the SVEP make this rulemaking premature.

Mercer ORC HSE Networks commented that “[w]ith 40 years of rich agency `fat-cat' investigation experience and data, it would have been reasonable to expect OSHA to have provided some (any) demonstration of how those investigations and the information gleaned from them have resulted in safer workplaces and how, with some specificity, the collection of the proposed substantially increased reports of incidents is expected to improve the agency's effectiveness. As the proposal stands, there is almost no evidence (or data) in the record to support OSHA's `belief' that collecting this new information will make a positive difference in Agency efficiency or in serious injury reduction” (Ex. 68).

The National Roofing Contractors Association commented that “OSHA offers no evidence, data or research that shows a beneficial effect on workplace safety based on either the arbitrary timeframes it suggests or other timeframes it may have considered or analyzed” (Ex. 118). They added, “The history of reporting requirements . . . could be valuable for the agency to investigate further to determine the potential effectiveness of its proposed revisions. In 1971, employers were required to report, within 48 hours, any worker fatality or in-patient hospitalization of 5 or more workers. This reporting requirement was revised 23 years later in 1994 to require reporting, within 8 hours, of any workplace fatality or in-patient hospitalization of three or more workers . . . What methodologies and metrics were employed to assess the impact on worker safety of the regulatory requirements immediately after those two reporting revisions became effective? Analysis of prior history of similar action taken by the agency should provide a better answer as to how this action will enhance worker safety than the cryptic OSHA statement that benefits are not quantified but are `significantly in excess of annual costs'.”

In response, OSHA notes that the Agency did not have metrics and methodologies when these regulations were implemented to allow OSHA to evaluate the effects of the revisions. It was therefore not possible within the timeframe of this rulemaking to provide an analysis singling out the effect of the 1971 reporting requirement and the 1994 rulemaking from among the enormous number of variables related to the decrease in number and rate of injuries, illnesses, and fatalities since OSHA's founding. Further, OSHA notes that case reporting of health events is a well-established approach to public health surveillance and intervention. Serious occupational injuries and illnesses are urgent sentinel health events indicating that prevention efforts have failed and that intervention to remediate hazards may be warranted. OSHA further discusses the benefits of the rule in the Final Economic Analysis in Section V of this supplementary information.

Specific Questions Asked in the Proposed Rule

The preamble to the proposed rule included eight questions relevant to the reporting part of this rulemaking. Each question is repeated below, followed by public comments and OSHA's response to the comments.

1. Types of Incidents and/or Injuries and Illnesses for Required Reporting

In the preamble to the proposed rule, OSHA asked, “What types of incidents and/or injuries and illnesses should be reported to OSHA and why?”

Comments responding to this question primarily focused on three main topics:

1. The seriousness and significance of the in-patient hospitalization of a single worker.

2. The definition of in-patient hospitalization.

3. The potential complications resulting from a requirement to report the in-patient hospitalizations of fewer than three employees.

There were many comments about the seriousness and significance of the in-patient hospitalization of a single worker. Many commenters stated that it is not necessarily a serious or significant event (Exs. 19, 24, 26, 27, 29, 31, 35, 51, 55, 60, 72, 82, 94, 100, 102, 104, 110, 111, 114, 115, 125). Many other commenters stated that it is (Exs. 59, 62, 69, 74, 75, 77, 86, 93, 112).

Spurlock and Higgins commented that “there are numerous circumstances surrounding a decision to hospitalize a single employee . . . that do not necessarily stem from an employer's failure to identify and/or control a particular hazard” (Ex. 24). Safety Compliance Services commented that “[w]hether a person is hospitalized is not related to whether there are hazards in the workplace or poor employer controls” (Ex. 29). Similarly, the International Fragrance Association North America (IFRA-NA) commented that “the decision to hospitalize a single employee can be influenced by factors that are not connected to work place hazards” (Ex. 51). The Healthcare Distribution Management Association (HDMA) commented that “[a] single [non-fatal] injury does not indicate a major workplace issue” (Ex. 55). Gruber Hurst Johansen Hail Shank commented that “the hospitalization of one employee may or may not be considered significant, depending on the circumstances” (Ex. 60). Ameren commented that “[single in-patient hospitalizations] do not always represent a serious injury or illness” (Ex. 72). Stericycle commented that “single hospitalizations may not be a good indicator of serious hazards in the workplace” and that “. . . many workplace hospitalizations occur due to non work-related events” (Ex. 82). The Small Business Administration Office of Advocacy (SBA-OA) commented that “. . . single employee hospitalizations

often do not signify an emergency situation . . .” (Ex. 94). The Pacific Maritime Association commented that “th[e] injury could be purely accidental” or be an “isolated [incident] that may have nothing to do with workplace safety . . .” (Ex. 100). The Retail Industry Leaders Association (RILA) commented that in-patient hospitalizations “potentially would include a wide variety of situations, ranging from minor incident to a significant workplace accident” (Ex. 102); the Shipbuilders Council of America made a similar comment (Ex. 104). The National Utility Contractors Association (NUCA) commented that “[e]mployees are commonly hospitalized for evaluation of injuries including chest pain or mild concussions which are often not serious” (Ex. 110). The American Supply Association commented that “[e]ach and every day, workers have mishaps such as joint dislocations or concussions which may result in a hospitalization, perhaps solely because of the injury or possibly secondary to underlying medical conditions. These injuries may not even be related to workplace conditions but rather to something as simple as a lapse in concentration” (Ex. 111). The American Road and Transportation Builders Association (ARTBA) commented that “a single injury or illness often does not indicate an unsafe workplace” (Ex. 114); the Associated General Contractors of America (AGC) made a similar comment (Ex. 115).

Commenters arguing that the in-patient hospitalization of a single worker is a serious and significant event for occupational safety and health included the Department of Workplace Standards in the Kentucky Labor Cabinet (Kentucky), stating that “Kentucky believes, for several reasons, the hospitalization of

any

employee or

any

number of employees due to a work-related injury or illness . . . are significant events that must be reported. Most importantly, reporting allows for prompt investigation, if needed, to ensure the prevention of additional injury or illness” (Ex. 52). The AFL-CIO commented that “the need to hospitalize a single worker after a workplace incident is a clear indication that it was a serious event” (Ex. 59) and that “[c]ollecting this information . . . will greatly assist OSHA in developing data and understanding about the causes of injuries and illnesses responsible for the incident, provide the agency with an opportunity to conduct an inspection if it chooses, and help in assessing the adequacy of the standards” (Ex. 69). The Transport Workers Union (TWU) commented that “work-related incidents resulting in in-patient hospitalizations . . . are extremely serious events resulting in significant burden, and often subsequent impairment, to employees who suffer them. Understanding the root causes and workplace factors which contributed to these events' occurrence is a prerequisite to eliminating hazards and preventing workers from encountering further illness and injury” (Ex. 74). The National Council for Occupational Safety and Health (NCOSH) commented that “[g]iven that even fairly serious work-related injuries may not result in a hospital admission, OSHA should be notified promptly of all incidents requiring the hospitalization of any worker” (Ex. 75). The United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW) commented that the requirement for reporting single in-patient hospitalizations “is an improvement over the current requirement” that will “provid[e] a significant increase in vitally useful information available to OSHA” (Ex. 77); the United Steelworkers (USW) made a similar comment (Ex. 86). Letitia Davis commented that “[c]ase reporting of health events is a well-established approach to public health surveillance and intervention. Serious occupational injuries are urgent sentinel health events indicating that prevention efforts have failed and that intervention to remediate hazards may be warranted” (Ex. 84). United Support and Memorial for Workplace Fatalities (USMWF) commented that “OSHA needs to be informed about every work-related hospitalization to decide whether other workers are at-risk” (Ex. 93).

OSHA agrees with the commenters who stated that the in-patient hospitalization of an employee after a work-related incident is a serious and significant event. The hospitalization indicates that serious hazards may exist in the workplace and that an intervention to abate these hazards and prevent further injury or illness may be warranted. OSHA will develop internal guidance for determining which incidents to inspect and which to handle using other interventions. Even when OSHA determines that an inspection is not warranted, OSHA will follow up with the employer about the hospitalization event. OSHA may follow up via email, phone, or fax, with regular reminders and deadlines.

In addition, employers' reports the event help OSHA gather information about serious workplaces injuries and illnesses to help focus agency resources and assess the adequacy of its safety and health standards. For example, the reports on amputations will provide the Agency with information it currently does not have to further focus the scope of its Amputation NEP and to evaluate any deficiencies of its machine guarding standards. As a result, like the proposed rule, Section 1904.39(a)(2) of the final rule requires employers to report the work-related in-patient hospitalization of one or more employees.

There were also many comments about the definition of an in-patient hospitalization. The preamble to the proposed rule explained that, for OSHA recordkeeping purposes, an in-patient hospitalization occurs when a person is “formally admitted” to a hospital or clinic for at least one overnight stay. Some commenters recommended excluding hospitalization for observation or diagnostic testing only from the reporting requirement for in-patient hospitalization (Ex. 15, 38). They also asked OSHA to clarify the meanings of “formal admission” and “overnight stay” (Ex. 17, 38, 51, 76, 79, 100, 103, 115, 120). In addition, some commenters recommended excluding scheduled hospitalization admissions for the treatment of chronic conditions (for a discussion of this issue, see Question 6).

In response to these comments, the final rule includes both a definition of in-patient hospitalization and a clarification about hospitalization for observation and diagnostic testing. OSHA will define in-patient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment (see sections 1904.39(b)(9) and (b)(10) of the final rule).

There were also comments about the complications that might result from a requirement to report the in-patient hospitalizations of fewer than three employees. For example, the American Iron and Steel Institute commented that the “requirement to make notification of an isolated case within 8 hours, particularly for these ambiguous cases, will be burdensome to both the employer and OSHA” (Ex. 108); the International Association of Drilling Contractors (IADC) and Stericycle made similar comments (Exs. 39, 82). The HDMA commented that the “vast majority of states do not have this type of requirement, and it would be a significant shift in policy for them to adopt it” (Ex. 55). Verizon commented that the requirement will result in over-reporting of non-work-related hospital admissions by compliant employers, “caus[ing] these employers to incur unnecessary costs and burdens

associated with over-reporting” (Ex 78); similarly, Ingalls Shipbuilding warned of the risk that “the data may disproportionately `point the finger' toward major manufacturers who aggressively implement programs to control safety and health hazards while leading OSHA to bypass smaller entities who demonstrate `plain indifference to employee safety and health' ” (Ex. 103). The Pacific Maritime Association commented that employers may not be able to acquire the necessary information in time: “Has OSHA ever tried to contact a hospital to gather information on an employee? . . . The reply that we often receive is that we cannot provide you with any information due to privacy concerns. Despite being entitled to know if an employee has been `admitted' to the hospital, this does not always occur” (Ex. 100); Stericycle and the RILA made similar comments (Exs. 82, 102).

Other commenters, however, pointed out that requirements similar to the proposed rule already exist, without causing undue burdens or complications. The State of Kentucky commented that their “regulation has served the employers and employees very effectively. The Kentucky OSH program believes its requirements support the prevention of additional injuries or illnesses, effectively direct OSH Program resources, and reduce the state's occupational injury and illness rates. Experience has established that Kentucky's requirements do not exert an increase in the burden of regulatory compliance” (Ex. 52). The AFL-CIO commented that the “existence of similar reporting requirements in state-administered occupational safety and health plans in Alaska, California and Washington demonstrates that the proposed change is feasible to comply with and to administer” (Ex. 59). The UAW made a similar comment, adding that Oregon also requires reporting of hospitalizations of one or two employees, within 24 hours (Ex. 77). The Occupational Health Section of the American Public Health Association (APHA) commented that “[i]n an era of electronic recordkeeping, which in the occupational health arena includes workers compensation reports to and from insurers as well as BLS/OSHA logs, it should be a minor cost to enable broad and prompt reporting across a range of industries” (Ex. 62). Worksafe commented that their experience with reporting requirements in California, as well as “that of other states with similar requirements (as well as those of other countries) is one indication of how feasible they are to implement” (Ex. 112).

OSHA finds that many employers are already subject to the requirement to report in-patient hospitalizations of fewer than three employees. Alaska, California, Kentucky, Oregon, Utah, and Washington currently require reporting of single in-patient hospitalizations. According to 2009 data from County Business Patterns at the U.S. Census Bureau, these states accounted for over 1.3 million establishments (18 percent of the national total) and 19.4 million paid employees (17 percent of the national total). One of these states, Kentucky, specifically commented that “[e]xperience has established that Kentucky's requirements do not exert an increase in the burden of regulatory compliance” (Ex. 52).

OSHA therefore concludes that the requirement to report in-patient hospitalizations of fewer than three employees is feasible and practicable and will not impose an undue burden on employers.

In addition, as explained elsewhere in this document, this final rule at Section 1904.39(a)(2) requires employers to report all work-related in-patient hospitalizations to OSHA within 24 hours, rather than within 8 hours, as in the proposed rule. This change gives employers more time to determine whether the employee has been formally admitted for in-patient hospitalization and whether the hospitalization results from a work-related event.

This final rule requires employers to report to OSHA, within 24 hours, all work-related in-patient hospitalizations within 24 hours of the incident (§ 1904.39(a)(2) and (b)(6)).

2. Non-Hospitalization Injuries, Illnesses, or Conditions for Required Reporting

In the preamble to the proposed rule, OSHA asked: “Are there any injuries, illnesses, or conditions that should be reported to OSHA and are not included among in-patient hospitalizations?”

The UAW commented that Legionnaires' disease and hypersensitivity pneumonia “are potentially indicative of serious and correctible hazards in the workplace and should be reported to OSHA upon physician diagnosis regardless of whether or not they result in inpatient hospitalization” (Ex. 77).

OSHA does not agree that the final rule should include a specific requirement for employers to report work-related cases of Legionnaires' disease and hypersensitivity pneumonitis. The work relationship of Legionnaires' is generally established by a cluster of cases. When clusters do occur, they are reported to state and local public health departments, which conduct investigations of the problem. Severe cases of work-related Legionnaires' disease would result in hospital admission and therefore would trigger the reporting requirement in Section 1904.39.

OSHA believes a specific diagnosis of hypersensitivity pneumonitis does not necessarily indicate work-relatedness or an emergency situation that requires immediate OSHA intervention. Clusters of this condition (captured on the OSHA Log) would indicate intervention is needed, but a single reported case would be considered a sentinel health event. Again, it should be noted that a severe work-related case would likely result in in-patient hospitalization and therefore would trigger the reporting requirement.

3. Non-Hospitalization Amputations for Required Reporting

In the preamble to the proposed rule, OSHA asked: “Should amputations that do not result in in-patient hospitalizations be reported to OSHA?”

Some commenters stated that OSHA should not require employers to report amputations that do not involve in-patient hospitalization. The Printing Industries of America (PIA) commented that “it is not known what sort of amputation could be experienced without an in-patient hospitalization. However, if such an amputation would occur and did not require an in-patient hospitalization it would be reasonable to assume that such an incident was not severe enough to require hospitalization and therefore should not be subject to a reporting requirement” (Ex. 45). The IADC commented that “this only adds burdensome reporting for the employer. It is confusing and will result in employers spending valuable early incident investigation time attempting to determine the reportability of an incident” (Ex 39). The American Chemistry Council commented that “OSHA could avoid ambiguity by eliminating independent reporting of amputations (i.e., separate from in-patient hospitalizations), as severe amputations would be captured in in-patient hospitalization statistics” (Ex. 76). Ameren commented that “[c]ases of amputation . . . that do not result in hospitalization of the employee would not likely warrant OSHA's examination” (Ex 72). The National Petrochemical and Refiners Association (NPRA) commented that “. . . reporting all work-related amputations is redundant if the requirement for reporting all hospitalizations is adopted.

It is not likely that an amputation would occur that would not result in a hospitalization and if it didn't, it would not be a serious enough injury to warrant a follow-up by OSHA” (Ex. 80). The National Grain and Feed Association (NGFA) commented that `. . . minor incidents that do not require hospitalization—including loss of the fingertip to the bone—should not be [reportable]. However, we do agree that significant incidents such as loss of a limb, which would require hospitalization, should be reportable” (Ex. 96). The RILA recommended requiring the reporting only of amputations “necessitating in-patient hospital treatment” and not of “incidents in which the injury necessitates minor treatment in an emergency room or out-patient facility” (Ex. 102).

Other commenters, however, supported the requirement to report all amputations, regardless of whether they resulted in in-patient hospitalizations. Most of these commenters provided data showing the prevalence and significance of amputations that did not involve in-patient hospitalization.

NIOSH commented that “[o]f the 2.6 million [emergency department (ED)] visits for work-related injuries and illnesses in 2009 [in the NIOSH-NEISS-Work dataset], approximately 15,000 workers were diagnosed as having sustained an amputation (includes injuries with bone loss, possibly without bone loss, severe avulsions, and near amputations). Of these, 78% were treated and released while 22% were admitted to the hospital or transferred to another facility.” NIOSH continued, “. . . given that over

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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 § 1904.39(a)(2)). (Note that, for amputations involving in-patient hospitalization, employers will only have to make a single report.)

4. Required Reporting of Amputations

In the preamble to the proposed rule, OSHA asked: “Should OSHA require the reporting of all amputations?”

Commenters responding to this question primarily focused on two main topics:

1. The seriousness and significance of amputations.

2. The definition of amputations.

On the topic of the seriousness and significance of amputations, many commenters opposed the requirement in the proposed rule to report all amputations. Spurlock and Higgins commented that “the mere occurrence of an amputation can often be attributed to numerous hazards for which OSHA has no standard, or there are few, practical hazard controls at an employer's disposal” (Ex. 24); Safety Compliance Services made a similar comment (Ex. 29). The IADC commented that “[r]eporting amputations, such as the tip of a finger, is overly burdensome and again offers little value in protecting workers from occupational hazards” (Ex. 39). The PIA commented that “in most cases, especially in the printing industry, singular cases [of amputations] are not associated with a significant event or a high gravity situation” (Ex. 45). The American Society of Safety Engineers (ASSE) commented that “[w]hile not underestimating the serious nature of any amputation, it must be noted that an amputation of a part of a finger may, in the reasonable person's mind, is not as serious or traumatic an event as the amputation of an arm, hand, leg or foot. Further, other injuries like multiple broken bones, crushed vertebra, head injuries can be more serious and life-altering than an amputation. From that viewpoint, singling out amputations makes little sense other than the perception that they are more easily recordable. However, even that is questioned by our members” (Ex. 46); Newport News Shipbuilding made a similar comment (Ex. 125). The American Foundry Society commented that the reporting requirement should be limited to amputations involving at least one joint (Ex. 101). NUCA commented that “[w]ith respect to all amputations as severe injuries, . . . amputations . . . do not amount to a fatality or catastrophic event” (Ex. 110).

In addition, the American Chemistry Council commented that rulemaking on the reporting of amputations be postponed “[u]ntil a holistic evaluation of [the National Emphasis Program (NEP) on amputations and the Severe Violator Enforcement Program (SVEP)] is conducted” (Ex. 76). Similarly, the Associated General Contractors of America (AGC) commented that the reporting requirement for amputations is “unnecessary” because “[o]ver the past five years since the effective date of the [amputations NEP] the agency has had an opportunity to collect the necessary data to enforce and evaluate the effectiveness of existing standards” (Ex. 115).

However, many other commenters supported the requirement in the proposed rule to report all work-related amputations (Exs. 34, 112). The Phylmar Regulatory Roundtable (PRR) commented that “an amputation as defined in the proposal [to include loss of bone] indicates a serious traumatic injury and is thus properly included under the reporting regulation” (Ex. 38). NIOSH commented, “Given the high probability that most amputations require some form of medical care through hospitals or emergency departments, OSHA should require the reporting of all amputation cases” (Ex. 66). NCOSH commented that “[a]mputations are serious injuries with permanent consequences; thus, it is important all of these cases be reported to OSHA” (Ex. 75). The USW commented that “[l]essons can be learned from this amputation while the events leading up to the incident are clear to the witnesses. Amputees don't just happen, there were unsafe condition(s), change in procedure, equipment or a number of other factors. This person's life is changed forever” (Ex. 86).

The AFL-CIO referred to BLS data to support their statement that an “amputation is a serious, severe, and significant event that can result in some permanent impairment.” According to BLS data from 2009, the median number of days away from work (DAFW) for an amputation was 21 days, compared to a median of 8 days for all work-related injuries and illnesses. The AFL-CIO added that the number of amputations involving days away from work was 5,930, representing 0.6% of all DAFW injuries/illnesses. The AFL-CIO commented that the proportion of amputations among total injuries/illnesses is “similar to, or less than, 0.6% reported for injuries involving [DAFW] (given that most amputations are likely to involve some number of [days away from work]” and concluded that “[t]hus, it's evident to us that, given the numbers of amputations that occur annually in the U.S., reporting all amputations to OSHA would pose nothing more than a minimal burden on employers” (Ex. 69). In addition, the AFL-CIO stated that “California and Kentucky already require the reporting of amputations as part of their state-administered plans, proving that such a requirement is feasible” (Ex. 59); the UAW made a similar comment (Ex. 77).

Finally, Letitia Davis's comments also included data on amputations, specifically the results of the referral of work-related amputations to OSHA in Massachusetts (Ex. 84). “In July 2010, the Massachusetts Public Health Department initiated a protocol referring work-related amputations with logically consistent body part codes to OSHA for follow-up. In 2010, 22 private employers were referred to one of three OSHA area offices. The 22 referrals resulted in 13 on-site inspections and additional phone/fax initiatives. Among the 13 inspections, OSHA had already been notified about two of the injuries (from city police or fire departments that responded to the site) and had already initiated inspections at the time of the referrals. Nine of the referrals leading to onsite inspections resulted in citations, indicating shortcomings or failures of occupational health and safety programming. These included citations related to lockout/tagout, lack of machine guarding, failure to conduct a hazard assessment and the general duty clause . . . Notably amputations were verified in nine of the 13 onsite investigations. Four were found to be other injuries. Even when amputations did not occur, OSHA found hazardous conditions that were associated with other serious injuries. These findings indicate that OSHA investigations prompted by case reports of amputations are productive, and well-targeted, leading to identification of serious workplace hazards and concrete steps to eliminate hazards that cause or contribute to injuries. They suggest that direct reporting of amputations to OSHA by employers would be an effective means of targeting limited enforcement resources to high priority problems.”

Although these results are limited to the experience of OSHA's area offices in Massachusetts, OSHA believes it is reasonable to expect comparable findings and results in its other area offices across the country. OSHA area offices operate using standardized procedures. Reviews of OSHA inspection data have shown that inspections conducted by area offices under national programs routinely have similar results across the country.

OSHA agrees with commenters who stated that amputations are serious events. OSHA refers to BLS data showing that in 2010, half of fingertip amputations involved 18 or more days away from work. OSHA finds that all amputations are severe and significant workplace injuries, including amputations of fingertips and fingers as well as amputations of large body parts, such as hands, arms, and feet, and that reports of amputations to OSHA can be an effective way of targeting workplace hazards. In addition, the requirement to report work-related amputations will help OSHA determine the causes of these injuries and develop enforcement strategies and guidance to help prevent them.

In addition, OSHA notes the existing California and Kentucky state requirements to report work-related amputations, which are similar to the requirements under this final rule, show that such requirements are feasible.

Finally, OSHA believes that comments such as those by Spurlock and Higgins (Ex. 24), saying that amputations can often be attributed to numerous hazards for which OSHA has no standard, or there are few, practical hazard controls at an employer's disposal, actually support OSHA's decision to require the reporting of work-related amputations. Section 5(a)(1) of the OSH Act requires employers to “. . . furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Section 5(a)(1) does not make exceptions for hazards for which OSHA has no standards or employers have few practical controls. In addition, reports of amputations will provide OSHA with data to identify hazards and support the development of further standards and practical controls. Thus, employer reports of amputations, and OSHA intervention in workplaces where amputations occurred, are both critical for complying with Section 5(a)(1) of the OSH Act and preventing further serious injury or death.

The final rule requires employers to report to OSHA, within 24 hours, all amputations that result from a work-related incident within 24 hours of the incident (see § 1904.39(a)(2) and (b)(6)).

On the topic of the definition of an amputation, there were comments on the definition in the proposed rule, as well as requests for clarification. The proposed rule defined amputations according to the 2007 release of the OIICS Manual published by BLS, as follows: “An amputation is the traumatic loss of a limb or other external body part, including a fingertip. In order for an injury to be classified as an amputation, bone must be lost. Amputations include loss of a body part due to a traumatic incident, a gunshot wound, and medical amputations due to irreparable traumatic injuries. Amputations exclude traumatic injuries without bone loss and exclude enucleation (eye removal).”

Nonetheless, several commenters requested a definition of “amputation” (Ex. 14, 17, 60, 101, 108).

There were also comments about both the wording of the definition and the implementation of the definition. Colony Tire Corporation asked about reporting a finger that had been amputated, reattached, and then later removed (Ex. 35). Dow Chemical Company commented that “[t]he proposed wording of Section 1904.39(b)(8) defines `amputation' in a manner that is extremely unclear” (Ex. 64). The American Chemistry Council recommended that OSHA use the definition of amputations in the 2010 release of the OIICS Manual “and clarify whether avulsions are included, to avoid ambiguity” (Ex. 76). IPC-Association Connecting Electronics Industries (IPC) “encourage[d] OSHA to amend the Field Operations Manual (FOM) to include the definition” in the proposed rule (Ex. 47), and Kentucky “recommend[ed] and respectfully request[ed] that OSHA include a definition of amputation in 29 CFR 1904.46”, the definitions subpart of Part 1904 (Ex. 52).

Finally, there were comments about whether the definition of “amputation” should require bone loss. The American Trucking Associations (ATA) commented that “the definition of an

`amputation' should require `loss of bone' (Ex. 65); NPRA made a similar comment (Ex. 80). However, both David Bonauto M.D. M.P.H. (Ex. 56) and Letitia Davis Sc.D. Ed.M. (Ex. 84) provided data to support their comments that the definition of amputations should not require loss of bone because of the difficulties of identifying bone loss.

David Bonauto's data (Ex. 56) consisted of 3,000 claims with suspected amputation injuries in the Washington state fund workers compensation claims data for the period 2006-2008; medical record review validated 1,885 of these claims as amputations. Bonauto is the occupational medicine physician and interim research director with the Safety and Health Research Assessment Program in the Washington State Department of Labor and Industries. He commented that “. . . about 90% had loss of the protruding body part from the injury. We could determine bone loss in nearly 3 of 4 cases; however, this could only be done retrospectively based on review of the medical records. Determination of the injury resulting in bone loss could not be done based on the initial report of injury. Most lower extremity amputations resulted from surgical treatment of the injury (e.g., surgical removal of a crushed foot) which often occurred after the initial injury event. More than two thirds of the injuries resulting in the loss of a protruding body part were not characterized as an `amputation' on the initial report of accident by the health care provider. These cases were often characterized as contusions, lacerations, and fractures but ultimately resulted in the loss of a protruding body part . . . From these data, the proposed rule might benefit by defining amputations as `any injury resulting in the temporary or permanent loss of a protruding body part'. Due to the poor initial documentation of the injury, a requirement for bone loss in reports will lead to significant underreporting.”

Similarly, Letitia Davis's comments were based on amputation data collected by the Massachusetts Department of Public Health, with 696 work-related amputations treated in Massachusetts hospitals in 2007-2008 (Ex. 84). She commented that “[s]some amputations by definition include bone loss, e.g. amputation of finger, foot, hand, but if only the tip of a finger or toe is amputated, involvement of bone loss at time of injury is not necessarily apparent and involves determination by clinical review. Even upon clinical review, bone loss can be ambiguous. In our experience reviewing amputation cases reported by employers on OSHA logs and in workers' compensation claim reports for amputations, bone loss is most often not specified. Thus we advise against bone loss as a criterion for reporting or at least specifying that cases with uncertain bone loss should be reported.”

After careful consideration, OSHA finds that using the definition of amputation in the 2010 release (OIICS Version 2.0) of the BLS OIICS Manual will provide the greatest possible clarity and consistency. This change from the proposed rule responds to commenters who recommended that OSHA use the 2010 release of the OIICS manual, as well as to commenters who recommended that the definition not include bone loss. Thus, Section 1904.39(b)(11) of this final rule defines amputations as the traumatic loss of a limb or other external body part (see Section 1904.39(b)(11) of this final rule). According to this definition, an amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; and amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.

5. Required Reporting of Enucleations

In the preamble to the proposed rule, OSHA asked: “Should OSHA require the reporting of enucleations?”

Several commenters responded that OSHA should not specifically require the reporting of enucleations (i.e., losses of an eye). The PRR commented that an enucleation “indicates a severe and traumatic injury has occurred to the employee” but that “[t]here is some question whether a severe injury leading to an enucleation would ever not fit under the definition of in-patient hospitalization . . . and thus it may be unnecessary to explicitly include this procedure” (Ex. 38). The PIA commented that “[PIA] does not feel that the reporting of enucleations would be appropriate . . . as the cause and circumstances surrounding these types of incidents are vast and may or may not be work related and in most cases within the printing industry would not be the result of a work related” event (Ex. 45). Ameren commented that “Cases of . . . enucleation that do not result in hospitalization of the employee would not likely warrant OSHA's examination” (Ex. 72).

Other commenters responded that OSHA should specifically require the reporting of enucleations. NIOSH commented that “[a]lthough enucleations of the eye are an infrequent occurrence, reporting would serve as a sentinel event for identifying workplaces at risk for other preventable injuries including intraocular foreign bodies, penetrating eye injuries, and other eye injuries where eye protective equipment may not be used” (Ex. 66). The AFL-CIO commented that “the loss of an eye is an extremely serious injury that can have significant impact on a worker and leave him or her with a substantial impairment . . .[T]o the extent that an enucleation event does not result in an in-patient hospitalization, we believe OSHA should require employers to report all work-related enucleations to ensure that every enucleation incident is captured” (Ex. 69). The Building and Construction Trades Department (BTCD) of the AFL-CIO (Ex. 59), the UAW (Ex. 77), and the USW (Ex. 86) made similar comments, as did the TWU, which added that “adding enucleations to the events requiring report would likely not result in greater burden to employers since one would anticipate most of these injuries to require, and be accounted for by requirements related to, in-patient hospitalizations” (Ex. 74).

OSHA finds that the loss of an eye is a severe and significant injury and that a requirement to report such injuries, irrespective of in-patient hospitalization, can help identify workplaces where serious eye hazards are present. Based on comments submitted to the proposed rule, Section 1904.39(a)(2) of this rule includes a new requirement for employers to report, within 24 hours, all losses of an eye resulting from a work-related incident. Section 1904.39(b)(6) provides that this reporting requirement applies only when the loss of the eye occurs within 24 hours of the work-related incident.

6. Number of Work-Related Incidents Involving In-Patient Hospitalizations, Including More Than 30 Days Afterwards

In the preamble to the proposed rule, OSHA asked: “Are there additional data or estimates available regarding the number of work-related incidents involving in-patient hospitalizations? Is there information available on how many work-related hospitalizations occur more than 30 days after the report of an injury or illness?”

Comments on this question addressed three main topics.

1. Work-related incidents involving in-patient hospitalization.

2. Hospitalizations occurring more than 30 days after the report of the injury/illness.

3. Amputations occurring more than 30 days after a work-related incident. The third issue arises from the requirement in Section 1904.39(b)(6) of the proposed rule for requiring employers to report amputations that occurred up to 30 days after the work-related incident.

On work-related incidents involving in-patient hospitalizations, commenters provided comments, as well as data and suggestions for data sources.

The U.S. Chamber of Commerce commented that even within a thirty-day limit, “the employee may be hospitalized after he or she is no longer employed by the employer which would significantly complicate an employer's ability to know about the hospitalization” (Ex. 120).

Stericycle commented that “[r]ather than use data from OSHA logs or Workers Compensation data to estimate single hospitalization reports, OSHA should have collected data from emergency responders to determine how many emergency calls were to the workplace” (Ex. 82).

NIOSH provided data on the patients with occupational injuries or illnesses who were seen in the ED (Ex. 66): “The NIOSH NEISS-Work data provide national estimates of the number of patients treated in an ED and released, treated and transferred, treated and admitted, held for observation, and an estimate of patients that left without being seen or left against medical advice . . . For 2009, it is estimated that approximately 81,500 (3%) patients with occupational injuries or illnesses seen in the ED were either admitted or transferred and another 5,600 (0.2%) were held for observation. It is not known if those held for observation were admitted or released. These data do not include the length of time that passed between the injury or onset of illness and ED treatment.”

Letitia Davis provided data on work-related in-patient hospitalizations in Massachusetts in FY 2008 (Ex. 84): “There were 3,448 work-related hospitalizations in Massachusetts during October 2007-September 2008. The largest number was for injuries and poisonings (N=1595; 46%) followed by musculoskeletal disorders (N=1184; 34%). Information about time between workplace incident and hospitalization was not available but information about admission type is informative. Notably, 59% of work-related hospitalizations were for emergent or urgent care; 1,337 (39%) were for elective procedures, most of which (N-935; 70%) were for musculoskeletal disorders.”

On work-related hospitalizations occurring more than 30 days after the report of an injury or illness, David Bonauto provided data on 9,262 claims to the Washington State Fund workers compensation program that resulted in in-patient hospitalization from 2006-2008 (Ex. 56). He commented, “Of these hospitalizations, 36% occurred within one day following the occupational injury or illness event and nearly 50% occurred greater than 31 days following the occupational injury or illness. When differentiating the type of injury or illness using the primary ICD-9 code on the hospital bill, nearly 90% of all inpatient hospitalizations occurring within one day of the injury or illness event were billed with an injury or poisoning diagnosis as opposed to a disease diagnosis. Conversely, nearly 93% of all hospitalizations occurring 31 days after the injury or illness event had a disease diagnosis listed as the primary diagnosis on the bill.”

In addition, there were comments about the proposed requirement to report in-patient hospitalizations occurring within 30 days of the incident. The Marshfield Clinic commented that `[t]he proposed changes also give a 30 day period where hospitalization needs to be reported. Since some surgeries require inpatient hospitalization; this will require that surgeries be reported that . . . are not related to an acute work injury. It would not appear that OSHA is interested in getting notified of every employee that may be hospitalized due to a need for a routine surgery that may be related to a work injury” (Ex. 15). The American Chemistry Council commented that the reporting requirement for in-patient hospitalization should “exclude hospitalization for chronic cases (such as carpal tunnel)” if “OSHA's intent is to obtain information about acute injuries resulting from serious, incident-specific hazards”; in addition, the final rule “should clarify how in-patient hospitalizations for treatment of acute injuries for which rehabilitation was unsuccessful (for example, a tendon injury in the hand or knee that ultimately requires surgery to repair, or back injuries that require later surgery) will be reported” (Ex. 76). Stericycle commented that “[the 30-day] timeframe may be too long as with strains and sprains, 2-4 weeks of physical therapy or other conservative treatment may be administered before an injured worker may determine surgery is the best option. Then if surgery and hospitalization occurs within the 30 days, the reporting requirement is triggered . . . After 30 days, OSHA's quick response may be too late and the employer may have already abated the hazard” (Ex. 82).

On the other hand, the UAW commented that “[s]everal states, including Alaska, Oregon, and Washington have established a 30 day reporting period” (Ex. 77).

For the third issue, related to the requirement in the proposed rule for reporting amputations occurring up to 30 days after the work-related incident, the PIA commented that “if amputations are to be included as a reporting requirement, a reasonable scope should only require reporting if the amputation occurs at the time of the incident or at most, at the initial diagnosis of the attending medical provider” (Ex. 45).

Both David Bonauto (Ex. 56) and Letitia Davis (Ex. 84) provided data on this issue. David Bonauto provided data on 1,885 validated amputations among Washington State Fund workers compensation claims with medical record review in 2006-2008 (Ex. 56). He found that 89% of amputations occurred at the time of injury, while 11% of the amputations resulted from surgery after the injury (including on the same day). However, while 92% of the 1,796 amputations to upper extremities occurred at the time of injury, only 38% of the 91 amputations of lower extremities occurred at the time of injury. He commented that “specific provisions requiring reporting of late amputations will more effectively capture lower extremity amputations.”

Letitia Davis provided data on work-related amputations treated in Massachusetts hospitals in 2007-2008 (Ex. 84). She commented that “the great majority (92%) of work-related amputations involving hospital treatment were treated within one day of injury incident. Only 4.1% were treated more than 30 days after the injury incident. Again, OSHA might consider limiting reporting to amputations that occur within 24 hours of the precipitating incidents. These data suggest that in doing so, they would capture the great majority of the cases.”

OSHA finds that limiting the reporting requirement to the hospitalizations, amputations, and losses of an eye most likely to require urgent or emergent care best serves OSHA's purposes of surveillance and appropriate timely investigations of these events, while limiting the burden on employers. The final rule requires employers to report work-related in-patient hospitalizations, amputations, and losses of an eye only if the event occurs within twenty-four hours of the

work-related incident (see § 1904.39(b)(6)).

7. Non-Telephone Methods of Reporting (Email, Fax, or Web-Based System)

In the preamble to the proposed rule, OSHA asked: “Should OSHA allow reports to be made by means other than a telephone, such as by email, fax, or a Web-based system?”

Many commenters supported additional options for reporting. For example, the Marshfield Clinic supported “[a] system that allows computer notification (either email or on-line)” (Ex. 15). Safety Compliance Services commented that “OSHA should allow for computerized reporting of incidents. However this capability needs to be standardized so that systems can report the information directly without requiring additional work or effort on the part of those reporting” (Ex. 29). Justin Barnes supported “means such as email, fax, and a web-based system” (Ex. 34). The PIA commented that “OSHA should allow and make considerations of all means available with today's technology including telephone, text, email, fax, or through a web-based system” (Ex. 45). The HDMA supported “alternative methods of reporting, such email, fax or Internet” (Ex. 55). Gruber Horst Johansen Hail Shank commented that “it would be a great idea for OSHA to add the ability to report fatalities and applicable incidents through their Web site. Any system should include a verification and email confirmation of the report for employers to save and/or print out, so that they can demonstrate compliance. Development of smartphone apps by OSHA . . . would also assist employers to quickly report fatalities and applicable incidents” (Ex. 60). The ATA commented that “employers need flexibility in the method of reporting (i.e., phone calls, emails, faxes, and web based systems)” (Ex. 65). NIOSH recommended that OSHA “allow reports to be made by means other than telephone, such as by email, fax, or a web-based system” (Ex. 66). Ameren commented that “a web-based system would allow employers to report while at the same time give OSHA an opportunity to capture data for automatic analysis and trending” (Ex. 72). The American Chemistry Council commented that “a mobile application, web or email based reporting system would be appropriate, including the application of formal controls to prevent false reporting” (Ex. 76). The UAW commented that “OSHA should permit reporting by any communication method that exists now or may exist in the future, provided that the content of the report meets all existing OSHA requirements” (Ex. 77). Verizon supported “the addition of electronic means as an option for serious incident notification to OSHA, including email, facsimile and web-based reporting tools” (Ex. 78). NPRA recommended “electronic reporting in addition to phone, fax, and email” (Ex. 80). Letitia Davis commented that “OSHA should allow employers to report by means other than a telephone as long as confidentially of personal identifiable health information can be maintained, e.g. by confidential fax or secure electronic transmission” (Ex. 84). The Pacific Maritime Association commented that “[i]n addition to the 800 number, an email, Web site reporting tool or similar application would create a time stamped record that both the employer and OSHA could find of use” (Ex. 100). The RILA suggested that “employers should be allowed flexibility to report whether it is via phone, email or fax” (Ex. 102). Ingalls Shipbuilding “urge[d] OSHA to expand reporting options to permit electronic transmissions, including fax, email or a web-based system” (Ex. 103); Newport News Shipbuilding made a similar comment (Ex. 125). The U.S. Chamber of Commerce commented that “OSHA should allow for reporting via email, interactive Web site, texting and faxing to provide maximum flexibility for employers and give them a record they can use to demonstrate compliance” (Ex. 120).

On the other hand, a few commenters opposed additional options for reporting. The AFL-CIO commented that “the current requirement that permits reporting . . . only by reporting the incident via a telephone or in person should be retained in the final rule . . . We have concerns that passive approaches such as email, fax or a Web-based system, as opposed to an active oral reporting requirement, would not assure the agency that all of the required information is obtained from an employer and thus would result in incomplete reports” (Ex. 69). The USW “strongly urge[d] OSHA to maintain the requirement that a phone call is necessary to that the information is reported as soon as possible to OSHA” (Ex. 86). USMWF commented that, for hospitalizations for acute, traumatic injuries and illnesses, “notifications should be made by telephone to ensure that OSHA receives all the key pieces of information regarding the incident” (Ex. 93).

OSHA agrees with the comments supporting additional options for reporting. However, OSHA also agrees with the comments on the importance of obtaining all of the required information from the employer. Therefore, Section 1904.39(a)(3) of this final rule provides flexibility by allowing employers to choose among three options for reporting a work-related fatality, in-patient hospitalization, amputation, or loss of an eye to OSHA.

First, as in the current regulation, an employer may report by telephone or in person to the OSHA Area Office that is nearest to the site of the incident.

Second, as in the current regulation, an employer may report by telephone to the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).

Third, as a new option, an employer may report by electronic submission using a fatality/injury/illness reporting application that will be located on OSHA's public Web site at

www.osha.gov.

The reporting application will include mandatory fields for the required information. If the report does not include the required information in the mandatory fields, the reporting application will not accept the report. The mandatory fields, as specified in Section 1904.39(b)(2), are the establishment name; the location of the work-related incident; the time of the work-related incident; the type of reportable event (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye); the number of injured employees; the names of the injured employees; the employer's contact person and his or her phone number; and a brief description of the work-related incident. The public will be given the opportunity to comment on this new electronic submission option through the Paperwork Reduction Act (PRA) approval process when OSHA applies to reauthorize the information collection.

Section 1904.39(b)(1) makes clear that if the Area Office is closed, the employer must report the work-related event by using either the OSHA toll-free central telephone number or the reporting application on OSHA's public Web site.

The final rule does not include options for reporting by email, fax, or text, because OSHA would not be able to ensure that employers who reported using these options provided all of the required information.

8. Time Periods for Required Reporting

In the NPRM, OSHA asked: “Are the reporting times of eight hours for fatalities, eight hours for in-patient hospitalizations, and 24 hours for amputations generally appropriate time periods for requiring reporting? What advantages or disadvantages would be

associated with these or any alternative time periods?”

Comments primarily focused on four topics:

1. The circumstances under which OSHA would consider that the employer knew, or should have known, about the reportable event;

2. When the reporting clock would start—with the occurrence of the work-related incident, or with the occurrence of the reportable event;

3. The appropriate reporting time period for in-patient hospitalizations;

4. The appropriate reporting time period for other events employers would be required to report.

For the circumstances under which OSHA would consider that the employer knew, or should have known, about the reportable event, Section 1904.39(b)(7) of the proposed rule provided that if employers did not learn about a fatality, in-patient hospitalization, or amputation right away, they would have been required to report it within the specified time period after the fatality, in-patient hospitalization, or amputation was reported to “[the employer] or to any of [the employer's] agent(s) or employee(s)”. Commenters on this topic had two concerns. First, that OSHA might require employers to report events they did not know about. Second, that OSHA might unfairly penalize employers for not reporting events they did not know about.

Related to an employer being required to report an event the employer did not know about, Morganite Industries commented that “[i]t is not clear that an appropriate member of management would have the information, allowing the required reporting to OSHA, just because any individual employee has that information. For example, the injured employee himself might know that he has been hospitalized, but his knowing it does not mean that anyone with authority or ability to make the report has that information” (Ex. 20). Ingalls Shipbuilding made a similar comment (Ex. 103), as did Dow Chemical (Ex. 64) and the Pacific Maritime Association (Ex. 100). Dow Chemical commented that “the `clock' [should] start only when the incident,

and

the fact the worker was hospitalized, have been communicated to the employee's supervisor or to other employees whose responsibilities and position qualify them to recognize the reporting requirement” (Ex. 64). The Pacific Maritime Association commented in addition that “[i]njuries should be reported to a direct supervisor or management. This is the only means in which an employer can be in knowledge of the injury” (Ex. 100).

Related to an employer being penalized for not reporting an event the employer did not know about, the Joint Poultry Industry Safety and Health Council commented, “While we recognize the 8 hour provision is from the time the incident is reported to the employer, its agents or employees, we believe the interpretation of what constitutes notice, particularly notice to “

any of your agent(s) or employee(s)”

will simply generate another cause of litigation if OSHA chooses to cite an employer for failing to meet the 8 hour time requirement” (Ex. 61). The ATA commented that “there is no provision for the Agency to NOT impute knowledge of an injury to an employer—i.e., “should have been aware”—as in other OSHA rules. Companies may find themselves in a position of being expected to know about an employee's private medical information or a hospitalization outside of the purview of the employer” (Ex. 65); Fed Ex made a similar comment (Ex. 67). The National Association of Manufacturers (NAM) commented, “The employer may never know of the hospitalization until days or weeks later. Would the employer be in violation for not reporting this incident to OSHA when there was no knowledge of when the hospitalization took place? Additionally, a worker could be injured on a weekend or overnight shift and the employer is not notified of the worker's hospitalization until the next business day. Would that employer be in violation for not reporting the incident within eight hours?” (Ex. 71). The Pacific Maritime Association (Ex. 100) and the Shipbuilders Council of America (Ex. 104) made similar comments. To address this concern, Verallia suggested that the rule be amended to require notification “within [the specified time period] of the

employer becoming aware”

of the reportable event (Ex. 91).

OSHA acknowledges commenters' concern about defining employer notification to include reporting to “any of [the employer's] employee(s)”. Therefore, this rule removes this provision. Under Section 1904.39(b)(7) of the final rule, employers are required to report within the specified time period after the fatality, in-patient hospitalization, amputation, or loss of an eye is reported to the employer or to any of the employer's agent(s).

OSHA does not agree with the comments about employers being unfairly penalized for not reporting hospitalizations that they did not know about.

First, the current regulation, the proposed rule, and the final rule all have a specific provision for employers who do not know about an in-patient hospitalization or other reportable event. Under the current regulation, if an employer does not learn about a reportable incident right away, the employer must make the report within eight hours of the time the incident is reported to the employer (see Section 1904.39(b)(7)). Under the proposed rule, if the employer did not learn about a reportable incident right away, the employer would have to make the report within eight hours for a fatality or in-patient hospitalization, or twenty-four hours for an amputation, of the time the incident was reported to the employer (see proposed Section 1904.39(b)(7)).

Under the final rule, if the employer does not learn about a reportable event (fatality, in-patient hospitalization, amputation, or loss of an eye) right away, the employer must make the report within eight hours for a fatality, or twenty-four hours for an in-patient hospitalization, amputation, or loss of an eye, of the time the event is reported to the employer (see Section 1904.39(b)(7) of the final rule).

Second, as discussed above, employers at over 1.3 million establishments in six states are already subject to the requirement to report in-patient hospitalizations of fewer than three employees. If these employers were being penalized for not reporting events they did not know about, it seems likely that at least a few of them, or their industry organizations, would have submitted comments on this issue during this rulemaking. Instead, the only non-hypothetical comment received by OSHA on this issue came from one of these six states, which specifically commented that “[e]xperience has established that Kentucky's requirements do not exert an increase in the burden of regulatory compliance” (Ex. 52).

OSHA therefore concludes that the requirement in the final rule to report in-patient hospitalizations will not result in an unfair penalty for employers. Under the final rule, as in the current regulation, employers are only required to report work-related events that have been reported to them or their agent(s).

For the issue in the proposed rule of whether the reporting clock would start with the occurrence of the work-related incident or with the occurrence of the reportable event (fatality, in-patient hospitalization,

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