Reporting of Fatality or Multiple Hospitalization Incidents; Final Rule DEPARTMENT OF LABOR

SUMMARY: This final rule revises regulation on Reporting of Fatality or

Multiple Hospitalization Accidents. Along with numerous clarifications

and several minor modifications, this revision makes three major

changes to the former reporting requirements: First, whereas the former

regulation applied to employment accidents which resulted in one or

more fatalities or hospitalizations of five or more employees, the

regulation is expanded to require the reporting of work related

incidents resulting in the death of an employee or the hospitalization

of three or more employees. Second, the regulation requires the

employer to verbally report such incidents within 8 hours after the

employer learns of it, instead of 48 hours by either written or verbal

communication. Third, whether or not an incident is immediately

reportable, if it results in the death of an employee or the in-patient

hospitalization of 3 or more employees within 30 days of the incident,

OSHA requires that the employer report the fatality/multiple

hospitalization within 8 hours after learning of it.

The materials upon which OSHA has relied in drafting this final

rule are available for review and copying in the OSHA Docket Office.

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

1994.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates

for receipt of petitions for review of the regulation, the Associate

Solicitor for Occupational Safety and Health, Office of the Solicitor,

room S4004, U.S. Department of Labor, 200 Constitution Avenue NW.,

Washington, DC 20210.

FOR FURTHER INFORMATION, CONTACT: Mr. James F. Foster, U.S. Department

of Labor, Occupational Safety and Health Administration, Office of

Information and Consumer Affairs, room N-3647, 200 Constitution Avenue

NW., Washington, DC 20210, phone (202) 219-8148.

SUPPLEMENTARY INFORMATION: In this preamble, OSHA identifies sources of

information submitted to the record by an exhibit number (Ex. 2). When

applicable, comment numbers follow the exhibit in which they are

contained (Ex. 2: 1). If more than one comment within an exhibit is

cited, the comment numbers are separated by commas (Ex. 2: 1, 2, 3).

For quoted material, page numbers are cited if other than page one (p.

2).

I. Background

The requirements in 29 CFR 1904.8, Reporting of fatality or

multiple hospitalization accidents--often referred to as FATCAT

(fatality/catastrophe) reports--have remained essentially unchanged

since they were initially adopted in 1971. The present requirements

read as follows:

Within 48 hours after the occurrence of an employment accident

which is fatal to one or more employees or which results in

hospitalization of five or more employees, the employer of any

employees so injured or killed shall report the accident either

orally or in writing to the nearest office of the Area Director of

the Occupational Safety and Health Administration, U.S. Department

of Labor. The reporting may be by telephone or telegraph. The report

shall relate the circumstances of the accident, the number of

fatalities, and the extent of any injuries. The Area Director may

require such additional reports, in writing or otherwise, as he

deems necessary, concerning the accident.

OSHA, or States operating OSHA-approved State plans, investigate

such incidents in order to provide the Agency with information on the

causes of employment fatalities, injuries and illnesses to identify and

require correction of serious hazards and to prevent the occurrence of

such incidents in the future. Such information can also be a source of

support for new and revised safety and health standards. Investigators

will determine whether there was a violation of OSHA standards, and, if

so, whether the violation may have contributed to the incident. In

addition, the Agency determines whether OSHA standards adequately cover

the hazards which led to the incident. Therefore, such investigations

must be prompt and thorough if they are to provide valid, useful

information and achieve their intended purposes.

For many years, OSHA has considered whether changes are needed in

Sec. 1904.8 to enable the Agency to conduct more effective workplace

investigations. In October, 1979, OSHA published a notice of proposed

rulemaking (44 FR 59560) that contained several suggested changes to

the current requirements of Sec. 1904.8. The reporting changes included

in the proposal were the following: A reduction in reporting time from

48 hours to 8 hours; the establishment of a OSHA toll-free phone

number, to be used in reporting incidents which occur on evenings and

weekends; and a requirement for employers to report fatalities which

occur within 6 months of an employment incident. A 30-day written

comment period was established, which was later extended to December

17, 1979. OSHA received 258 written comments during the comment period.

During the review of the comments OSHA's priorities changed and work on

the final rule was suspended indefinitely. Consequently no final rule

was issued as a result of the 1979 rulemaking action.

Since that proposal was published, OSHA has determined that there

are many other provisions in part 1904, Reporting and Recording

Occupational Injuries and Illnesses, which should be considered for

amendment or revision, in order to improve the quality of the data

provided to the Agency and enhance OSHA's ability to gather useful

information on the causes of employment injuries and illnesses.

Accordingly, the Agency has decided to undertake a complete revision of

part 1904, to be accomplished in two steps: The first step involves

changes in Sec. 1904.8, dealing only with reporting of fatalities and

multiple hospitalizations. The second step will involve the issuance of

a proposal covering the remainder of part 1904. Separating the

Sec. 1904.8 proposal from the overall revision of part 1904 enables

OSHA to make the necessary changes in Sec. 1904.8 as soon as possible.

Because so much time had elapsed since the previous proposal was

published, the Agency was concerned that the record was outdated, and

more timely information was needed. Accordingly, OSHA withdrew the 1979

proposed rule in favor of the recent proposal for this final rule

published in the Federal Register on May 19, 1992 (57 FR 21222). Most

of the elements of the 1979 proposed rule were carried forward in the

recent proposal. OSHA received a total of 110 written comments in

response to the 1992 proposal and has subsequently drafted this final

rule.

II. Agency Action

OSHA believes that reducing the reporting period and increasing the

number of serious incidents reported is critical for the Agency to

respond quickly and inspect for hazardous conditions that may pose a

risk to other workers at the worksite. Moreover, prompt inspections

will enable OSHA to determine whether its current standards adequately

cover the hazards involved in the incident. OSHA will also gather

better information on the causes of incidents which can be used to

identify serious hazards, prevent incidents in the future, and form the

basis for revised standards. Increasing the number of serious incidents

reported will present OSHA the opportunity to inspect a greater number

of hazardous worksites. In conclusion, OSHA has determined that the

revision of the requirements of 29 CFR 1904.8, as reflected in this

final rule, will provide information necessary to help ensure American

workers safe and healthful workplaces.

III. Summary and Explanation of the Proposed Rule

This section contains an analysis of the evidence comprising the

official record, along with related policy decisions pertaining to the

various provisions of the regulation.

This rule makes a number of changes and clarifications in the

requirements of Sec. 1904.8 which are discussed below.

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

Employers are required to report, within 8 hours after their

occurrence, incidents which result in a worker fatality or multiple

hospitalizations. The previous requirement allowed 48 hours to elapse

before the fatality/catastrophe had to be reported.

Reducing the reporting period from 48 hours to 8 hours enables OSHA

to inspect the site of the incident and interview personnel while their

recollections are more immediate, fresh and untainted by other events,

thus providing more timely and accurate information pertaining to

possible causes (Ex. 2: 15, 47, 94). The shorter reporting time also

makes it more likely that the incident site will be undisturbed,

affording the investigating compliance officer a better view of the

worksite as it appeared at the time of the incident (Ex. 2: 11, 15, 47,

55, 94, 107). The 8-hour criteria also coincides with a ``standard work

shift'' for most employers and thus provides a logical cut-off point

for fulfilling the reporting requirement.

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

15) observed:

The current time reporting requirement of forty-eight hours

materially handicaps the capability of investigators to accurately

establish what transpired * * * the sooner a witness is interviewed

the better is his or her memory and the less likely that he or she

will color testimony to favor a particular position * * *. At our

request, the medical examiner and the police and fire departments

promptly notify our office of work site deaths and severe injuries *

* *. I firmly believe that (the) practice of prompt investigation in

Milwaukee County has been of great benefit to OSHA investigators in

Wisconsin as well as to our own investigators.

OSHA solicited comments on the proposed 8-hour time period, the

feasibility of a 4-hour time period, and other possible reporting

periods which might be of equal or greater effectiveness in improving

the Agency's information gathering capabilities.

The majority of comments received on this issue suggested that OSHA

adopt a 24-hour reporting period (Ex. 2: 1, 9, 18, 19, 28, 29, 34, 35,

39, 41, 43, 45, 48, 50, 57, 58, 60, 64, 73, 74, 75, 77, 78, 79, 83, 85,

87, 89, 90, 92, 93, 97, 99, 100, 101, 103, 106). The rationale

expressed by the Chevron Corporation (Ex. 2: 75, p. 2) is

representative of many of the comments received:

* * * If OSHA perceives a need to be notified in less time (than

the current 48 hours), then Chevron supports a 24-hour requirement

as being adequate and reasonable. A 24-hour requirement would also

be consistent with many state and U.S. Department of Transportation

Regulations (49 CFR 394.7).

An 8-hour requirement, however, would in some instances be

unreasonable and might create greater hazards for certain situations

encountered in our industry. An accident that involves a process

upset, significant potential for environmental damage or human

exposure to potentially harmful materials, requires the employer to

acquire and focus all available resources to stabilize and secure

the scene. These actions must come first and should not be altered

by regulatory reporting requirements.

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

stated:

NUCA considers the proposed 8-hour employer reporting deadline

inappropriate and unrealistic in the immediate aftermath of a

serious mishap. In the wake of a mishap, the employer has more

important responsibilities than the fulfillment of a federal

reporting requirement. For example, he or she must deal with

emergency services, anxious workers, and sometimes distraught family

members * * * NUCA suggests that the reporting period be reduced

from 48 to 24 hours, which would allow for more timely inspection,

without unnecessarily distracting the employer from other

responsibilities that are clearly preeminent.

On the other hand, several organizations requested a required

reporting period of 4 hours or less (Ex. 2: 13, 21, 84, 105). The

American Nurses Association (Ex. 2: 105, p. 1-2) observed:

We would support a Federal Policy which reflects the reporting

requirements of the California regulations which require immediate

reporting of every case involving a serious injury or illness

(medical treatment beyond first aid) or death. In many cases such

occurrences are serious threats to the health and safety of other

workers.

Immediate reporting and follow-up can significantly reduce risk

to others still in the environment. Moreover, such a requirement

would provide leadership to the states and send a clear signal of

OSHA's intent to collect data and develop standards to best protect

the American workforce.

Therefore, in response to your question related to a shorter

reporting requirement, ANA would support immediate reporting of the

incidents described. We note that California requires immediate

reporting and Utah has a 1-hour reporting requirement. We support

OSHA's concern that the current 48-hour reporting requirement

results in a delay which can hamper effectiveness. We agree that

prompt investigation is critical.

The National Institute for Occupational Safety & Health (Ex. 84, p.

2) remarked:

NIOSH supports a reduction in the time allowed to report the

occurrence of a serious incident. California OSHA requires the

``immediate'' reporting of ``every case involving serious injury or

illness (medical treatment beyond first aid) or death'' and Utah

OSHA requires reporting ``fatalities within one hour'' (58 FR

21224). If these states are achieving compliance with these

requirements, OSHA should consider a reporting requirement of less

than 8 hours. At a minimum, OSHA should require immediate reporting

of a serious incident, not to exceed the shortest time period OSHA

determines is reasonable.

In addition, several organizations suggested that the 48-hour

reporting requirement was sufficient to serve the purpose for reporting

serious incidents (Ex. 2: 2, 25, 44, 46, 52, 61, 63, 66, 71, 76, 82,

86, 89, 98, 109). Trinity Industries (Ex. 2: 61) stated:

When a fatality has occurred at the beginning of a second shift,

or on a weekend or holiday, it can take considerable time for the

job foreman to reach his plant manager or another responsible

management representative who is authorized to report the accident

to OSHA. Based on our own experience, it is not always possible to

report a fatality within 8 hours. We believe that changing the

reporting time to eight hours is unrealistic and will impose unfair

exposure to penalties for failure to report a fatality. For that

reason, we request that the reporting time not be changed.

Boise Cascade (Ex. 2: 2) noted:

Boise Cascade, as well as all American industry, has introduced

systems to ensure immediate notification of accidents. Employers

want and need to know in order to allow appropriate investigation

and corrective actions. The primary objective of employers is to

ensure the best medical care for the injured, the safety of other

employees involved in accidents, and avoidance of future and similar

accidents * * *. The current reporting time frame provides for

adequate time to handle the needs of injured employees, deal with

workers' compensation laws, control damage, counsel employees, and

handle reporting to OSHA.

Finally, of those who either supported or would support the 8-hour

rule under certain circumstances, S C Johnson Wax (Ex. 2: 7) noted the

following:

* * * Regarding the proposed 8-hour period for reporting. We

believe this should provide adequate time for a preliminary report

to be prepared by an employer; it would not be sufficient, however,

for performing an in-depth investigation as to the cause of the

accident. As long as preliminary information will fulfill OSHA's

requirement, this time limit should not be a significant problem for

an employer to meet.

OSHA strongly believes that the combination of cited benefits of

prompt investigation, the enforcement by states such as California and

Utah of more stringent requirements, and the minimal burden imposed on

American business by the proposed change as outlined in section IV of

this preamble, clearly justifies setting the required reporting time

frame at 8 hours. This will allow for more timely investigation and

provide for the possibility to more effectively reduce the risk of

injury to other workers, decrease the opportunity for circumstances at

the incident site to change, and witnesses' recollections of the

incident will be more fresh and clear. These factors will increase

OSHA's effectiveness in investigating the causes of reported workplace

incidents, and at identifying and controlling the hazards which caused

the fatalities or serious injuries or illnesses. Prompt investigation

of incidents is also a key element in OSHA's ability to enforce

existing standards and to evaluate the need for new standards.

2. Reducing the Reporting Threshold From Five Hospitalizations to Three

Hospitalizations

Incidents which result in three or more hospitalized employees are

to be reported. The former rule required the reporting of five or more

hospitalized employees. Of those who commented upon this change, the

majority supported OSHA's proposal (Ex. 2: 1, 9, 11, 13, 17, 18, 19,

21, 39, 41, 50, 55, 60, 63, 64, 68, 75, 76, 77, 83, 84, 87, 88, 90, 91,

94, 98, 99, 103, 107). Muscatine General Hospital (Ex. 2: 39, p. 3)

observed:

We feel that lowering the number of severely injured employees

from 5 to 3 is a positive step. This will, more than likely,

increase the number of reported cases; however, it should allow for

more accurate information to assist OSHA in determining the causes

of workplace accidents.

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

p. 2) stated:

AAOHN supports the proposed rule change that requires the

reporting of every employment accident that results in three or more

hospitalized employees. Three or more injuries are significant

enough to warrant early investigation.

In addition, several organizations called for the reporting of

fewer than three hospitalizations (Ex. 2: 11, 13, 21, 84, 88). NIOSH

(Ex. 2: 84, p. 2) offered this reasoning:

NIOSH recommends that all occupationally related incidents that

require hospitalization (including those that repeat over time from

the same source) be reported regardless of the number of workers

affected by any one incident. The proposed requirement by OSHA for

the employer to report incidents only when there are at least 3 or

more in-patient hospitalizations within an 8-hour period would not

cover many incidents that should be reportable. Under this

requirement, it is possible that one or two workers could be exposed

to hazardous conditions necessitating hospitalization, but the

incident would not have to be reported. Even if these one or two

workers were repeatedly hospitalized, the employer would not be

required to report the incidents * * * and the detection of this

pattern of injury would not be possible.

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

Extend reporting to cover the hospitalization of one or more

employees. In the proposed revisions, OSHA would limit reporting of

injuries to ``accidents'' which occurred at a single point in time

and affected three or more employees. This proposed revision ignores

repeated incidents in which there is only one affected employee.

On the other hand, there were a number of submitted comments

opposing the proposed requirement of reporting the hospitalization of

three or more employees (Ex. 2: 16, 51, 57, 62, 66, 89, 101). The

Pacific Maritime Association (Ex. 2: 51, p. 1-2) noted:

The urgency to investigate three or more hospitalizations, as

opposed to five or more, is not justified. We feel that this is a

totally arbitrary number. In the preamble to the current proposal,

OSHA states that ``the expanded reporting requirement is expected to

generate less than 200 additional reports per year.'' We fail to see

how this could significantly ``* * * provide OSHA with more accurate

information on the causes of workplace accidents * * *'' We suggest

that this number either be reconsidered with some justification, or

remain at five or more.

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

Lowering the minimum hospitalizations from five to three may

create problems with tracking employees, since some injured workers

are not immediately admitted to a hospital. An accident that sends

five employees to a hospital is a catastrophic accident. Employers

would likely be informed of and able to track such an occurrence.

This is not always the case with accidents resulting in three or

more hospitalizations, especially when employees may delay going to

the hospital.

The revised rule also clarifies that an employee is

``hospitalized'' when that employee is admitted to the hospital on an

``in-patient'' basis. Accordingly, emergency room and all other forms

of out-patient care are excluded from the reporting requirement. The

use of ``in-patient hospitalizations'' for reporting purposes assures

that only the more serious incidents are reported. These clarifications

received considerable support from the submitted comments (Ex. 2: 34,

35, 38, 39, 41, 59, 61, 63, 64, 75, 76, 77, 79, 80, 83, 85, 90, 91, 92,

93, 94, 98, 99, 101, 103, 109). The Chemical Manufacturers Association

(Ex. 2: 92, p. 2-3) observed:

Specifying that hospitalization refers to the admission to the

hospital on an ``in-patient'' basis helps to avoid confusion.

One way to further clarify this definition is to specify that

``hospitalization as an in-patient'' does not include admittance for

observation. Employees admitted for observation may not be injured,

but are usually being monitored on a precautionary basis * * * If,

during the observation period, it is determined that the employee is

injured and needs medical treatment, then that employee would be

considered hospitalized for purposes of reporting the accident to

OSHA.

CMA's recommendation is consistent with the current Bureau of

Labor Statistics' Recordkeeping Guidelines for Occupational Injuries

and Illnesses.

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

observation:

* * * we strongly recommend that employers not be required to

report in-patient hospitalizations for observation only.

OSHA already recognizes the validity of this approach in the

recordkeeping criteria, which do not require hospitalizations for

observation-only to be recorded on the OSHA log. API believes

Sec. 1904.8 and the OSHA recordkeeping requirements should be

consistent.

Meanwhile, two sets of comments called for a more stringent

criteria than ``in-patient'' hospitalization (Ex. 2: 54, 69). The

International Brotherhood of Painters & Allied Traders (Ex. 2: 69)

stated:

Due to the nature of many now treatable as out-patient, but

serious, injuries and illnesses, this proposal creates a void in

data that is imperative to have.

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

We would recommend an additional clarification to the term

``hospitalization'' include the wording ``on an in-patient basis or

recommended for in-patient treatment'' in that all persons that

admission is recommended as the most appropriate form of treatment

do not heed that advice.

OSHA believes that the term ``in-patient'' should not be further

qualified by an additional criteria regarding the kind of treatment an

employee requires after the admission. This additional burden upon the

employer to track activities after admission is not justified and would

likely lead to unnecessary confusion and delays in reporting.

Therefore, once three or more employees are admitted to the hospital as

in-patients the 8-hour requirement would begin.

In summary, OSHA believes the lowering of the reportable number of

hospitalizations from five to three will provide the Agency with

additional information on the causes of workplace incidents by

increasing the number and broadening the range of incidents which it

will investigate. This will assist OSHA in evaluating the effectiveness

of present regulations and the need for revised or new requirements.

OSHA also believes that any additional burden imposed by the

requirement will be minimal. OSHA estimates approximately 200

additional reports requiring 15 minutes per report will be generated by

the new requirements. This estimation is based on the evaluation and

extrapolation of data available from State Plan States with more

stringent reporting requirements (i.e. reports of one or more

hospitalizations).

3. Time Limits for Incident Reporting

If the employer does not learn of a reportable incident at the time

of its occurrence, the allotted reporting time begins as soon as the

employer does obtain this information. The previous rule did not

contain specific language to address this type of situation, which can

occur, for example, when an employee is traveling on company business

and is not in contact with the employer. OSHA received support for this

clarification (Ex. 2: 38, 60, 63, 76, 83, 84, 93, 101, 103, 109). The

American Subcontractors Association (Ex. 2: 109, p. 2) remarked:

* * * ASA strongly recommends that OSHA retain the language in

the proposed rule which states that an employer should report such a

fatality ``after learning of the fatality.'' This is a reasonable

request which alleviates the problem of requiring employers to

report a fatality about which they may have no knowledge.

Numerous organizations expressed their concern that the ``person

responsible'' for reporting incidents to OSHA or a person of authority

will not learn of the incident until after an eight hour period (Ex. 2:

12, 25, 28, 34, 38, 39, 40, 63, 68, 71, 82, 83). Many felt that the

reporting time frame should begin when such a person learns of the

incident. General Dynamics (Ex. 2:63, p. 2) stated:

It is suggested that the clarification should be ``* * * that

the allotted time begins as soon as the responsible representative

of the employer does obtain this information''. In large, complex

organizations the time for information flow within the employer in

these cases would easily exceed 8 hours from the first

representative of the employer to the one with responsibility to

inform OSHA, to obtain information.

Two organizations expressed the opinion that employers should

always have the capability to meet the reporting requirement.

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

Businesses should develop and communicate clear policies about

accident notification and reporting to which all employees must

adhere. For example, every one, through every level of

responsibility, must know what to do when accidents occur.

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

69) observed:

Ambiguous language would be addressed in the clarification on

reporting for an accident when an employer first learns of the

incident. However, we do insist that there should be a person made

responsible for notification during times of an employers absence as

the employer, even when not on site, always has a designated

authoritative representative present.

Under today's final rule, there is an obligation to report a

qualifying fatality or hospitalization to OSHA if any agent or employee

of the employer becomes aware of the incident. It is the employer's

responsibility to assure that appropriate instructions and procedures

are in place to assure that corporate officers, managers, supervisors,

medical/health personnel, safety officers, receptionists, switchboard

personnel, and other employees or agents of the company who may be in a

position to learn of employee deaths or hospitalizations are aware of

the company's responsibility to make a timely report. Given the minimal

amount of information required (establishment name, location of the

incident, time of the incident, number of fatalities or hospitalized

employees, contact person, phone number, and a brief description of the

incident), OSHA believes eight hours, a period roughly corresponding to

one complete shift during a typical industrial day, is more than

adequate time to fulfill this reporting requirement.

4. Time Limits for Fatalities/Multiple Hospitalizations Not Immediately

Reportable

Today's final rule specifies that even if an employment incident is

not immediately reportable, if such an incident results in a death of

an employee or the in-patient hospitalization of 3 or more employees

within 30 days after the incident occurs, the employer is required to

report such fatality/multiple hospitalization within 8 hours after

learning of it. This clarifies the previous version of 29 CFR 1904.8

which required that fatalities/multiple hospitalizations be reported,

but set no explicit outside time limit for the reporting of fatalities/

multiple hospitalizations which did not occur immediately.

OSHA solicited comment on whether the proposed six-month time frame

for reporting fatalities was appropriate and received a wide variety of

comments and recommendations.

The suggested time frames for reporting delayed deaths ranged from

1 week after the incident to indefinitely. Several organizations were

supportive of the proposed six month period (Ex. 2: 9, 15, 38, 60, 63,

69, 75, 77, 101) stating that six months is an appropriate time frame.

The majority of those who commented upon the subject, however,

called for a shorter time frame (Ex. 2: 19, 35, 39, 41, 51, 57, 59, 62,

64, 66, 82, 83, 85, 91, 92, 94, 98) ranging from one week to three

months. The American Trucking Associations (Ex. 2: 57, p. 6) remarked:

NHTSA studies found that 98% of traffic fatalities occur within

that 30-day period. ATA believes that this is also probably true of

fatalities in the workplace. A reporting requirement which captures

98% of the available data is adequate * * * ATA recommends that the

requirement for follow-up reporting of workplace fatalities be

limited to those fatalities which occur within 30 days of the

accident.

Many of those calling for a shorter time period, made the arguments

that investigations performed six months after the incident occurred

would reveal little useful information and work relationship would be

difficult to determine (Ex. 2: 19, 27, 39, 41, 45, 51, 59, 62, 64, 66,

68, 77, 82, 83, 85, 86, 87, 92, 94, 96, 101, 103). ChemDesign

Corporation (Ex. 2:82, p. 3) observed:

Surely after 1 month, the equipment, other physical

circumstances and witnesses' memories would have changed to such a

degree that subsequent investigation by OSHA would be of limited

usefulness. One month should also cover almost all directly related

fatalities as well as eliminate from consideration most of those

that would be questionable.

Only three organizations called for a longer time frame for

reporting delayed fatalities (Ex. 2: 13, 54, 84). The United University

Professions (Ex. 2:13, p. 2) called for an indefinite time frame for

the following reason:

* * * Because of present-day medical expertise, an expertise

that seems to be growing every day, life is being prolonged for

greater and greater periods of time. Because of such life-prolonging

techniques, cut-off periods for reporting will surely lapse in too

many cases. Therefore, the result will be that too many work-related

deaths will go unreported. Unfortunate as any death may be, all

workplace-related deaths must be reported and investigated.

After review of the comments submitted to the docket and further

analysis of the facts and opinions stated within the comments, OSHA now

feels that information gathering after a 30 day period would not be

productive for compliance and hazard identification purposes. The

``accident scene'' would likely be altered beyond the point of

providing any useful information for evaluation purposes. For

statistical purposes, OSHA believes that work related fatalities

delayed after a 30 day period will be identified by other government

information systems such as the National Traumatic Occupational

Fatalities and the Census of Fatal Occupational Injuries programs.

5. Applicability to Both Current and Former Employees

In the proposed rule, OSHA asked if the requirement should be

limited to injured workers who continue to be employed by the employer

where they were injured. Both supportive and opposing comments were

received (Ex. 2: 5, 29, 35, 54, 60, 64, 68, 77, 90). Gilbane Building

Company (Ex. 2: 5) expressed a concern for relating to problems

associated with tracking former employees in the construction industry:

There are many circumstances within the construction industry

that preclude knowledge by the employer that worker (at the time of

the accident) has died sometime following the accident. Particularly

in cases where the worker has gone on to other employment and

another employer may have been the cause of the fatality. OSHA is

presupposing that the employees are long-term employees of an

employer. In the construction industries, this is definitely not the

case.

I would suggest adding a line stating that this only applies if

the worker remains as an employee.

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

p.3) responded that former employees should be included:

The requirement should cover workers who continue to work for

the employer after the injury as well as former employees who no

longer work for the employer.

AAOHN believes that no extraordinary steps should be taken to

track injured employees once they leave the employer. However, until

workers' compensation and disability issues are resolved, employers

would be aware.

OSHA agrees with the assessment of the occupational health nurses

that reporting requirements under 29 CFR 1904.8 should apply whether or

not the affected worker is technically a current employee of the

employer for whom he worked when the incident occurred. OSHA believes

that in the vast majority of cases the employer would be notified via

worker's compensation or other insurance mechanisms of the subsequent

death of any former employees from causes arising during employment

with that company. Moreover, the reduction of the period during which

reporting is required from 6 months in the proposed rule to 30 days in

the final rule should greatly reduce concerns expressed in some of the

comments that the tracking of former employees would place an undue

burden on employers.

Some concern was expressed relating to the responsibilities of the

worker's current employer if different from the employer at the time of

the injury. These reporting requirements apply only to the employer at

the time of the injury.

Finally, a significant number of organizations expressed their

disagreement with the rationale used to require reporting of delayed

deaths within 8 hours of learning of such an occurrence (Ex. 2: 9, 18,

27, 29, 35, 38, 51, 60, 61, 62, 63, 64, 75, 76, 77, 82, 83, 87, 92, 96,

101). The Aluminum Company of America (Ex. 2: 27) observed:

ALCOA objects to the eight-hour reporting requirement for an

accident ``which results in a fatality within six months after'' the

accident, as this stringent time frame for reporting is not

consistent with the Agencies objectives.

The stated objectives of the revision are to assure more

complete and timely information, to assure that the circumstances at

the accident site don't change, and witness recollections don't

change, etc. When up to six (6) months may have passed, it is

unlikely that imposing an 8 hour vs. 48 hour time frame for

reporting would make a significant difference. Therefore, the

stringent reporting requirement should be modified accordingly to be

more realistic and impose less of an administrative burden on the

employer.

OSHA agrees with this assessment for the reasons stated. As

discussed above, OSHA has modified its original proposed requirement

for reporting deaths/multiple hospitalizations which are delayed from

six (6) months to thirty (30) days. OSHA feels that this reduction will

consequently alleviate much of the administrative burden discussed by

ALCOA above. The Agency also believes that the potential confusion

created by dual reporting requirements, i.e. 8 hours for one situation

and 48 hours for another, would outweigh the benefits gained by

extending the reporting time period for certain situations. Therefore,

if the fatality/multiple hospitalization occurs within thirty days of

the incident the employer is required to report the incident within 8

hours of learning of the fatality/multiple hospitalization.

6. Procedures for Making Reports to OSHA

In order to meet the reporting requirements in 29 CFR 1904.8, the

employer must either: (1) Make his or her report orally, by telephone

or in person, to the Area Office of the Occupational Safety and Health

Administration located nearest to the site of the incident, or (2)

contact OSHA using its toll free telephone number. It should be noted

that neither media coverage, nor reports to insurance carriers or

others constitute reporting to OSHA as required under this regulation.

The information that must be supplied in the report is as follows:

Establishment name, location of the incident, time of the incident,

number of fatalities or hospitalized employees, contact person, phone

number, and a brief description of the incident.

OSHA received comments suggesting the use of facsimiles and/or a

toll free number to meet the reporting requirements. Organizations also

called for OSHA to provide some form of documentation to the employer

showing proof of compliance.

Specifically, the availability of a toll free number for meeting

the reporting requirements received much support (Ex. 2: 5, 12, 13, 17,

19, 21, 27, 30, 45, 51, 57, 59, 65, 74, 76, 82, 83, 84, 85, 87, 91, 94,

99). Amoco (Ex. 2: 83, p. 2) stated:

We suggest that a single, centralized, toll-free, 24-hour

telephone number for the notification nationwide of reportable

incidents, similar to that used by the National Response Center for

environmental incidents, would serve the regulated public. OSHA's

central office would then transmit the pertinent information to the

correct area office, and to any other agencies with a need to know.

Such a system would facilitate error-free communication as a

consequence of its simplicity, particularly for smaller businesses

and facilities which may be functioning in a crisis mode at the time

of reporting. In addition, one centralized number would obviate the

need in each area office for a separate toll-free line or other

specialized communication equipment.

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

* * * NTF believes that a toll free 800 number will enhance the

reporting abilities of industry, particularly for those businesses

located in Areas not equipped to receive reports 24 hours per day.

Furthermore, it will become much easier for businesses to establish

company-wide policies which have a single phone number to use in

accident reporting.

Several organizations saw no need for instituting a toll-free

number (Ex. 2: 60, 75, 77, 90, 92, 98, 101, 103) for reporting

purposes. The American Petroleum Institute (Ex. 2: 90, p. 5) expressed

its opinion towards the use of a toll-free number as follows:

Reporting to the OSHA area office, as OSHA proposes, would seem

to be the more reasonable approach * * * It would provide

information directly to the office where action, if any, would be

taken. It would facilitate direct two-way communications between

those providing the information and those needing it, thereby saving

time for both employers and OSHA. It would preclude special handling

and the added expense for OSHA to relay information from a central

location to the area offices--a practice which could introduce

errors and omissions. And lastly, employers can easily obtain the

number of the nearest OSHA office from phone books or from directory

assistance. For the reasons above, we believe a toll-free number is

not needed.

In addition, reporting by the use of facsimile machines was an

option called for by many organizations (Ex. 2: 7, 16, 21, 27, 37, 38,

51, 57, 59, 61, 64, 65, 74, 75, 77, 79, 81, 82, 83, 85, 87, 90, 92, 96,

98, 101, 103, 109). The Society of the Plastics Industry, Inc. (Ex. 2:

81, p. 3) observed:

Permitting companies to report by facsimile--or by courier or

any other method with which the delivery of the written

communication within the specified time period could be verified--

would satisfy not only OSHA's objectives, but would give companies

the necessary flexibility to report most appropriately under varying

circumstances and to satisfy their own internal need for

documentation of compliance.

OSHA does not agree that reporting by facsimile will meet its

objectives in every case. If an incident occurred late on a Friday

evening, and the employer used the facsimile machine to meet the

reporting requirements, OSHA would most likely not learn of the

incident until the following Monday morning. Telephone answering

machines, if available, would be similarly deficient. For this reason,

OSHA requires that these reporting obligations be met through direct

verbal contact with the Area Office or by utilization of the OSHA toll-

free number. In this manner a timely decision can be made regarding

investigation of the scene.

Finally, a number of organizations requested that some sort of

verification of compliance be given to the employer upon reporting a

fatality or multiple hospitalization (Ex 2: 10, 17, 44, 57, 60, 64, 74,

75, 83, 89, 90, 93, 96). The Dow Chemical Company (Ex. 2: 93, p. 2)

remarked:

Dow is also concerned with receiving confirmation of reports

made to OSHA. With a shortened reporting period, reports may often

be made after working hours. The Dow Chemical Company would like

some method of verification that a report has been received by OSHA.

OSHA agrees with this assessment and while employers may certainly

fax, mail, hand deliver etc. the information to OSHA as a backup

procedure, the Agency will investigate other methods of providing proof

of compliance--e.g. assigning report confirmation numbers.

IV. Regulatory Impact Assessment

The revised regulation, like the present 1904.8, applies to all

employers within OSHA's jurisdiction, including general industry,

construction, shipyard employment, longshoring, marine terminals, and

agriculture.

OSHA has determined that a Regulatory Impact Analysis (RIA) is not

required for this regulation because the regulation is not a

``significant regulatory action'' as defined by E.O. 12866.

Under the Executive Order a significant regulatory action must meet

at least one of the following conditions:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof;

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

this Executive order.

Based on the paperwork requirements identified below in Section IX,

OSHA estimates the total national cost of this revision to the affected

employers will be approximately $1500 per annum (i.e. 200 additional

reports requiring 15 minutes each multiplied by $30.00 per hour, the

cost of a professional to complete the report). At this annual national

cost, this regulation does not meet the economic impact criteria of the

Executive order, nor does it present issues of the kind described in

the remaining criteria. Accordingly, this final rule is exempt from the

regulatory impact analysis requirements of Executive Order 12866.

V. Regulatory Flexibility Assessment

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),

the Assistant Secretary certifies that the rule will not have a

significant adverse impact on a substantial number of small entities.

OSHA estimates that of the additional 200 reports likely to be

generated nationwide, only 52 will fall upon small business (i.e. 200

multiplied by .26, the percentage of the employment population

represented by small businesses). OSHA estimates that the total cost to

small business employers will be about $400 (i.e. 52 additional reports

requiring 15 minutes each to complete multiplied by $30.00 per hour,

the cost of a professional to complete the report). Thus, the rule will

not have a significant adverse impact on a substantial number of small

businesses.

VI. Environmental Impact Assessment

In accordance with the requirements of the National Environmental

Policy Act (NEPA) (42 U.S.C. 4321 et seq.), Council on Environmental

Quality NEPA regulations (40 CFR part 1500 et seq.), and the Department

of Labor's NEPA regulations (29 CFR part 11), the Assistant Secretary

has determined that this rule will not have a significant impact on the

external environment.

VII. Federalism

This rule has been reviewed in accordance with Executive Order

12612 (52 FR 41685), regarding Federalism. Because this rulemaking

action involves a ``regulation'' issued under section 8 of the OSH Act,

and not a ``standard'' issued under section 6 of the Act, the rule does

not preempt State law, see 29 U.S.C. 667 (a).

VIII. State Plans

The 25 States and territories with their own OSHA approved

occupational safety and health plans must adopt a comparable rule.

These 25 States are: Alaska, Arizona, California, Hawaii, Indiana,

Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico,

North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah,

Vermont, Virginia, Virgin Islands, Washington, and Wyoming; and

Connecticut and New York (for state and local Government employees

only). 29 CFR 1952.4 requires that such States with approved State

plans under section 18 of the OSH Act (29 U.S.C. 677), must adopt

recordkeeping and reporting regulations which are ``substantially

identical'' to those set forth in 29 CFR part 1904. Therefore, the

definitions used must be identical to ensure the uniformity of

collected information. In addition, Sec. 1952.4 provides that employer

variances or exceptions to State recordkeeping or reporting

requirements in a State plan State must be approved by the Bureau of

Labor Statistics. Similarly, a State is permitted to require

supplemental reporting or recordkeeping data, but that State must

obtain approval from the Bureau of Labor Statistics to insure that the

additional data will not interfere with ``the primary uniform reporting

objectives.'' The responsibilities of the Bureau of Labor Statistics

for the reporting requirements covered by this final rule were

transferred to OSHA as part of a memorandum of understanding between

OSHA and BLS effective January 1, 1991.

In accordance with Sec. 1952.4, OSHA has allowed the States to vary

from the ``substantially identical'' requirement in certain, limited

circumstances, such as 1904.8 reports, as long as the State

requirements were at least as effective as the Federal requirements as

it relates to fatality and multiple hospitalization reporting. As

discussed above, a number of the States have adopted fatality/

catastrophe reporting requirements more stringent than those of OSHA.

IX. Paperwork Reduction Act

This rule contains a ``collection of information'' requirement

pertaining to the procedures for employers to report employment

fatalities and multiple hospitalizations. This requirement has been

submitted to the Office of Management and Budget for approval under the

Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and 5 CFR part 1320.

Reporting by employers under this collection of information

requirement is estimated to average 15 minutes per report. The time

involved is for calling either the OSHA Area Office or utilizing the

OSHA toll-free number and reporting the fatality or multiple

hospitalizations.

Interested persons may submit comments regarding this burden

estimate or other aspect of this collection of information to the OSHA

Docket Office, Docket No. R-01, Occupational Safety and Health

Administration, room N-2625, 200 Constitution Avenue NW, Washington, DC

20210, and to the OSHA Desk Officer (RIN 1218-AB28), Office of

Management and Budget, Washington, DC 20503.

X. List of Subjects in 29 CFR Part 1904

Fatality, Multiple hospitalization, Notification of fatality,

Occupational Safety and Health, Occupational Safety and Health

Administration, Recordkeeping.

XI. Authority

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health, U.S.

Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210.

Accordingly, pursuant to sections 8(c), 8(g) and 24 of the

Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673),

Secretary of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, 29

CFR part 1904 is hereby amended by revising Sec. 1904.8 as set forth

below.

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

Joseph A. Dear,

Assistant Secretary of Labor.

PART 1904--[AMENDED]

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

as follows:

Authority: Secs. 8, 24, Occupational Safety and Health Act of

1970 (29 U.S.C. 657, 673), Secretary of Labor's Order No. 12-71 (36

FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR

9033), as applicable.

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

2. Section 1904.8 is revised to read as follows:

Sec. 1904.8 Reporting of fatality or multiple hospitalization

incidents.

(a) Within 8 hours after the death of any employee from a work-

related incident or the in-patient hospitalization of three or more

employees as a result of a work-related incident, the employer of any

employees so affected shall orally report the fatality/multiple

hospitalization by telephone or in person to the Area Office of the

Occupational Safety and Health Administration (OSHA), U.S. Department

of Labor, that is nearest to the site of the incident, or by using the

OSHA toll-free central telephone number.

(b) This requirement applies to each such fatality or

hospitalization of three or more employees which occurs within thirty

(30) days of an incident.

(c) Exception: If the employer does not learn of a reportable

incident at the time it occurs and the incident would otherwise be

reportable under paragraphs (a) and (b) of this section, the employer

shall make the report within 8 hours of the time the incident is

reported to any agent or employee of the employer.

(d) Each report required by this section shall relate the following

information: Establishment name, location of incident, time of the

incident, number of fatalities or hospitalized employees, contact

person, phone number, and a brief description of the incident.

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

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