Occupational Injury and Illness Recording and Reporting Requirements–NAICS Update and Reporting Revisions
| Federal Information & News Dispatch, Inc. |
Final rule.
CFR Part: "29 CFR Part 1904"
RIN Number: "RIN 1218-AC50"
Citation: "79 FR 56130"
Document Number: "Docket No.
Page Number: "56130"
"Rules and Regulations"
SUMMARY:
The final rule also revises the requirements for reporting work-related fatality, injury, and illness information to
DATES: The final rule becomes effective
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2),
FOR FURTHER INFORMATION CONTACT:
For press inquiries:
For general and technical information:
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
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
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.
X. State Plan Requirements
XI. Consultation and Coordination With Indian Tribal Governments
B. References and Exhibits
In this preamble,
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,
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
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, <org>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
All employers covered by the OSH Act, including employers who are partially exempt from maintaining injury and illness records, are required to comply with
This rulemaking has net annualized costs of
* 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,
In this rulemaking,
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
III. Section 1904.2--Partial Exemption for
A. Background
Although the OSH Act gives
The partial exemption based on industry has been part of the
On
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 currently lists the partially-exempt industries as follows: GOES
SIC Industry description code 525 Hardware Stores. 542 Meat and Fish Markets. 544 Candy, Nut, and Confectionery Stores. 545 Dairy Products Stores. 546 Retail Bakeries. 549Miscellaneous 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. 592Liquor 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. 722Photographic Studios , Portrait. 723Beauty Shops . 724Barber 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. 78Motion Picture . 791Dance 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. 807Medical and Dental Laboratories . 809 Health and Allied Services, Not Elsewhere Classified. 81 Legal Services. 82 Educational Services (schools, colleges, universities and libraries). 832Individual 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.
Updating to NAICS also fulfills a commitment
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,
In the preamble to the proposed rule,
C. Comments on the Proposed Rule
In general,
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 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
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).
In addition,
In the final rule,
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,
The approach taken in this final rule regarding partial exemption is consistent with
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
1. Exemption of Additional Industries From the Recordkeeping Requirements in Part 1904
In the preamble to the proposed rule,
The American Road and
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
2. Detail and Aggregation of NAICS Codes for Partial Exemptions
In the preamble to the proposed rule,
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).
There were also commenters recommending the use of industry classifications by six-digit NAICS code (Exs. 24, 45, 52, 107). For example,
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,
For specific industry sectors that should be ineligible for partial exemption, the
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
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
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,
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
There were also several comments on
In particular,
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
The partial exemption for employers with 10 or fewer employees is beyond the scope of this rulemaking. However,
4. Alternatives To Using an Average DART Rate of 75 Percent of the Most Recent Three-Year-Average National DART Rate
In the NPRM,
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.
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 "
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
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,
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.
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
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.
5. Using Numbers of Workers Injured or Made Ill in Each Industry in Addition to Industry Injury/Illness Rates
In the NPRM,
NIOSH, the
For the final rule,
6. Additional or Alternative Criteria for Determining Eligibility for Partial Exemption?
In the preamble to the proposed rule,
Multiple commenters proposed additional criteria not addressed in previous questions. The
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
In the final rule,
OSHA also concludes that labor force estimates are not a necessary criterion. BLS DART rate data were available for all industries because
<p> 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
In the preamble to the proposed rule,
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
In contrast,
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 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,
This retrospective study will be conducted in accordance with the
In addition to the retrospective review,
8. Training, Education, and Compliance Assistance to Facilitate Compliance With the Recordkeeping Requirements
In the NPRM,
The UAW commented that "
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
Other Issues Raised by Comments
The National Association of Real Estate Investment Trusts (NAREIT) "encourage[d]
The PEA in the NPRM was based on the 1997
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
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 SBA-OA commented that
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
OSHA's response to these comments is in Section V of this supplementary information.
Four commenters (the NAHB, the
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 "
Executive Order 13563 requires regulatory agencies to consider the effect of new regulations on economic growth, competitiveness, and job creation.
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
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.
In the issues section of the preamble to the proposed rule,
Under the final rule, employers are not required to keep
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
The partially-exempt industry groups are: GOES
NAICS Industry code 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. 4532Office 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, andDirectory Publishers . 5112Software Publishers . 5121Motion Picture andVideo Industries . 5122Sound Recording Industries . 5151Radio 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 ComputerSystems Design and Related Services. 5416 Management, Scientific, and Technical Consulting Services. 5417Scientific Research and Development Services. 5418 Advertising and Related Services. 5511 Management of Companies and Enterprises. 5611 Office Administrative Services. 5614Business 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. 6117Educational Support Services . 6211 Offices of Physicians. 6212 Offices of Dentists. 6213 Offices of Other Health Practitioners. 6214 Outpatient Care Centers. 6215Medical 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. 7221Full-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,
The 1994 rulemaking also addressed several other issues. First,
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
For the reporting of in-patient hospitalizations of fewer than three employees,
For the reporting of amputations,
In the NPRM,
C. Comments to the Proposed Rule
Many comments supported the reporting requirements included in
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
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
In response,
In addition,
The Tree Care Industry Association commented, "Why would
In response,
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? . . .
Likewise, Mercer ORC HSE Networks commented that "[a]ll of the cases that would be reported under the new
In response,
On
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
OSHA further notes that injury and illness summary information collected by
Finally, for data collected by BLS,
The American Chemistry Council commented that "[s]everal ongoing
In response,
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
The National Roofing Contractors Association commented that "
In response,
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 <org>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,
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
Commenters arguing that the in-patient hospitalization of a single worker is a serious and significant event for occupational safety and health included the
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.
In addition, employers' reports the event help
There were also many comments about the definition of an in-patient hospitalization. The preamble to the proposed rule explained that, for
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.
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
Other commenters, however, pointed out that requirements similar to the proposed rule already exist, without causing undue burdens or complications. The
OSHA finds that many employers are already subject to the requirement to report in-patient hospitalizations of fewer than three employees.
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
This final rule requires employers to report to
2. Non-Hospitalization Injuries, Illnesses, or Conditions for Required Reporting
In the preamble to the proposed rule,
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 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
3. Non-Hospitalization Amputations for Required Reporting
In the preamble to the proposed rule,
Some commenters stated that
Other commenters, however, supported the requirement to report all amputations, regardless of whether they resulted in in-patient hospitalizations. Most of these commenters provided data showing the prevalence and significance of amputations that did not involve in-patient hospitalization.
NIOSH commented that "[o]f the 2.6 million [emergency department (ED)] visits for work-related injuries and illnesses in 2009 [in the NIOSH-NEISS-Work dataset], approximately 15,000 workers were diagnosed as having sustained an amputation (includes injuries with bone loss, possibly without bone loss, severe avulsions, and near amputations). Of these, 78% were treated and released while 22% were admitted to the hospital or transferred to another facility." NIOSH continued, ". . . given that over 3/4 of ED treated work-related injuries and illnesses were treated and released, collecting the less severe injuries that are simply treated and released may identify areas that need further investigation." NIOSH recommended that employers be required to report all amputations to
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
Finally,
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
4. Required Reporting of Amputations
In the preamble to the proposed rule,
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
In addition, the
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,
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
Finally,
Although these results are limited to the experience of
OSHA agrees with commenters who stated that amputations are serious events.
In addition,
Finally,
The final rule requires employers to report to
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.
Finally, there were comments about whether the definition of "amputation" should require bone loss. The
David Bonauto's data (Ex. 56) consisted of 3,000 claims with suspected amputation injuries in the
Similarly,
After careful consideration,
5. Required Reporting of Enucleations
In the preamble to the proposed rule,
Several commenters responded that
Other commenters responded that
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,
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
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
On work-related hospitalizations occurring more than 30 days after the report of an injury or illness,
In addition, there were comments about the proposed requirement to report in-patient hospitalizations occurring within 30 days of the incident. The
On the other hand, the UAW commented that "[s]everal states, including
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 provided data on work-related amputations treated in
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
7. Non-Telephone Methods of Reporting (Email, Fax, or Web-Based System)
In the preamble to the proposed rule,
Many commenters supported additional options for reporting. For example, the
On the other hand, a few commenters opposed additional options for reporting. The
OSHA agrees with the comments supporting additional options for reporting. However,
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
Third, as a new option, an employer may report by electronic submission using a fatality/injury/illness reporting application that will be located on
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
The final rule does not include options for reporting by email, fax, or text, because
8. Time Periods for Required Reporting
In the NPRM,
Comments primarily focused on four topics:
1. The circumstances under which
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
Related to an employer being required to report an event the employer did not know about,
Related to an employer being penalized for not reporting an event the employer did not know about, the
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 therefore concludes that the requirement in the final rule to report in-patient hospitalizations will not result in an unfair penalty for employers. Under the final rule, as in the current regulation, employers are only required to report work-related events that have been reported to them or their agent(s).
For the issue in the proposed rule of whether the reporting clock would start with the occurrence of the work-related incident or with the occurrence of the reportable event (fatality, in-patient hospitalization, or amputation), the PRR, the IADC, Gruber Hurst Johansen Hail Shank, NAM, and
For example, if an employee suffers a work-related injury (the work-related incident) at
This would also be the case if the employer needs time to determine whether a specific incident is work-related. For example, if an incident leads to an employee's death at
For the issue of the appropriate reporting time period for in-patient hospitalizations,
OSHA also received comments proposing alternate time periods, including 24 hours, 48 hours, 72 hours, and five days.
NPRA recommended "that
Dow Chemical recommended that " if the Agency decides to require reporting of every hospitalization, the deadline for reporting should be (preferably) three business days, or (at the very tightest) the following business day after the employer learns both that there was a hospitalization, and that the injury was work-related" (Ex. 64). The
On the other hand, USMWF commented that "8 hours is far too long a time period.
In addition, multiple commenters recommended requiring the same reporting time period of eight hours for non-fatal reportable events (in-patient hospitalizations, amputations, and losses of an eye) as for fatalities. The Building and
OSHA acknowledges the commenters' concern about the eight-hour reporting time for in-patient hospitalizations in the proposed rule. Accordingly, Section 1904.39(a)(2) of the final rule requires employers to report in-patient hospitalizations within 24 hours of learning of the in-patient hospitalization due to a work-related incident. Note that, as discussed below, this will simplify the reporting process by requiring a single reporting period (24 hours) for all of the non-fatal events that employers are required to report. Note also that, because the reporting time period for in-patient hospitalizations does not begin until the employee has been formally admitted to the in-patient service of a hospital or clinic for care or treatment (see
For the appropriate reporting time periods for other events employers would be required to report, many of the same comments about reporting time periods for in-patient hospitalizations applied.
However,
For amputations and losses of an eye, the USMWF commented that "[t]he reporting should be made by the employer no later than 24 hours after the employer learns that the amputation or eye loss occurred" (Ex. 93).
OSHA finds that a reporting time period of 24 hours for amputations and losses of an eye will simplify the reporting process by requiring a single reporting period (24 hours) for all of the non-fatal events that employers are required to report. Section 1904.39(a)(2)) of this rule requires employers to report amputations and losses of an eye to
Other Issues Raised by Commenters
OSHA received multiple comments that the Agency does not have enough resources to be able to collect, track, and use the additional data from the new reporting requirements for in-patient hospitalizations of one or two employees, amputations, and losses of an eye. For example,
Mercer ORC HSE Networks commented that they have "serious reservations about whether
The NAHB commented that it "does not seem feasible for
OSHA agrees that it would overwhelm the resources of Federal OSHA and the State Plan programs if the Agency conducted an inspection of every workplace reporting a serious occupational event under this rule. However,
This approach is similar to
Similarly,
Further,
OSHA also received multiple comments about the Preliminary Economic Analysis (PEA).
The SBA-OA commented that
The Pacific Maritime Association commented that "private sector workers . . . already work 40-hour weeks . . . [Unless]
OSHA's response to these comments is in Section V of this supplementary information.
OSHA received multiple comments about the PEA's estimate of the time required to report single in-patient hospitalizations and amputations.
In addition,
Finally,
OSHA's responses to these comments are in Section V of this supplementary information.
The HDMA commented that
The Agency notes that previous
The NAHB commented that "
Executive Order 13563 requires regulatory agencies to consider the effect of new regulations on economic growth, competitiveness, and job creation.
Mercer ORC HSE Networks commented that they "believe that [the proposed rule] is emblematic of a larger problem; that the national system for collecting and compiling data on occupational injuries and illnesses is really a hodge-podge of disparate data requirements developed by different Agencies to meet their own particular needs . . . Consequently . . . we have no real handle on the occurrence (or prevalence) of occupational illness in
OSHA agrees with Mercer ORC's assessment that improvement can and should be made to the current occupational injury and illness collecting and reporting system.
D. The Final Rule
The final rule is similar to the proposed rule in requiring employers to report all work-related fatalities, in-patient hospitalizations, and amputations. However, there are also several differences from the proposed rule. The differences include the time periods for reporting the event, the time periods between the work-related incident and the reportable event, definitions, and reporting options. In addition, the final rule adds work-related losses of an eye to the list of events that employers are required to report to
Under the final rule, employers must report the following events:
1. Each fatality resulting from a work-related incident, within 8 hours of the death. This requirement applies to all fatalities occurring within 30 days of a work-related incident. See
2. Each in-patient hospitalization resulting from a work-related incident, within 24 hours of the hospitalization. This requirement applies to all in-patient hospitalizations occurring within 24 hours of a work-related incident. See
3. Each amputation resulting from a work-related incident, within 24 hours of the amputation. This requirement applies to all amputations occurring within 24 hours of a work-related incident. See
4. Each loss of an eye resulting from a work-related incident, within 24 hours of the loss of an eye. This requirement applies to all losses of an eye occurring within 24 hours of a work-related incident. See
Other major differences between the final rule and the proposed rule include the following:
1. In the final rule, the regulatory text provides an explicit definition of in-patient hospitalization (see
2. In the final rule, the definition of amputations comes from the 2010 release (OIICS Version 2.0) of the BLS OIICS Manual (see
3. In the final rule, employers have three options for reporting the fatality, in-patient hospitalization, amputation, or loss of an eye (see
4. In the final rule, if employers do not learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye when the event happens, they must report to
Overall, the final rule will provide
In addition, the final rule will make
Finally, the changes will make
*
*
*
*
*
*
Note that, under the final rule, as under the proposed rule and the current regulation, employers are not required to report events resulting from motor vehicle accidents that occurred on a public street or highway, but not in a construction work zone (see Section 1904.39(b)(3)). Employers are required to report events resulting from motor vehicle accidents that occurred anywhere else, including in a construction work zone on a public street or highway, or on other roadways, or off-road.
A summary comparison of the proposed rule and the final rule is below: GOES
Proposed rule Final rule Fatalities Employers required to Employers required to report each fatality report each fatality within 8 hours of the within 8 hours of the death, for all fatalities death, for all fatalities occurring within 30 days occurring within 30 days of the work-related of the incident. incident Hospitalizations Employers required to Employers required to report each in-patient report each in-patient hospitalization within 8 hospitalization within 24 hours of the hours of the hospitalization, for all hospitalization, for all hospitalizations occurring hospitalizations occurring within 30 days of the within 24 hours of the work-related incident work-related incident. No definition of In-patient hospitalization in-patient hospitalization defined as a formal admission to the in-patient service of a hospital or clinic for care or treatment. Amputations Employers required to Employers required to report each amputation report each amputation within 24 hours of the within 24 hours of the amputation, for all amputation, for all amputations occurring amputations occurring within 30 days of the within 24 hours of the work-related incident work-related incident. Definition comes from BLS Definition comes from BLS OIICS Manual 2007 OIICS Manual 2010. Losses of an eye No requirement Employers required to report each loss of an eye within 24 hours of the loss of an eye, for all losses of an eye occurring within 24 hours of the work-related incident. Reporting options Two options: by telephone Three options: by or in person to OSHA Area telephone or in person to Office; or by telephone to OSHA Area Office; or by 1-800-321-OSHA telephone to 1-800-321-OSHA; or by electronic submission on OSHA.gov. Knowledge of event Employer required to Employer required to report if event (fatality, report if event (fatality, in-patient in-patient hospitalization, hospitalization, amputation) is reported to amputation, loss of an employer, employer's eye) is reported to agent(s), or employee(s) employer or employer's agent(s).
V. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
OMB has determined that this rule is a "significant regulatory action" within the context of Executive Order (E.O.) 12866. This rulemaking has net annualized costs of
This Final Economic Analysis (FEA) addresses the costs, benefits, economic impacts, and feasibility of the final rule as required by the OSH Act as interpreted by the courts. This FEA is also designed to meet the principles of E.O. 12866 and E.O. 13563. The final rule would make two changes to the existing recording and reporting requirements in 29 CFR part 1904. It would change the industries that are partially exempted from keeping records of occupationally-related injuries and illnesses, and it would change the requirements for reporting certain work-related injury and illness events. The affected establishments are only partially exempt from keeping these records because, while they are exempt from routine
The existing
The existing regulation requires employers to report all work-related fatalities and work-related incidents involving three or more hospitalizations to
The remaining sections of this FEA are: (B) the Industrial Profile; (C) Costs of the Final Regulation; (D) Benefits; (E) Technological Feasibility; (F) Economic Feasibility and Impacts; (G) Regulatory Flexibility Certification; and (H) Appendix.
OSHA received a variety of comments in response to the Preliminary Economic Analysis (PEA). The Agency responds to these comments in detail in the relevant sections; this introduction summarizes the nature of the comments.
OSHA received many comments on the Agency's estimated compliance costs.
One commenter, the
ARTBA argued that
Some commenters questioned whether
There were no comments on the discussion of environmental impacts.
B. Industrial Profile
The purposes of this section are to provide information about the industries that would be affected by the recordkeeping provisions of the final rule, including the number of affected establishments and the structure of employment within these industries, as well as to provide estimates of the numbers of additional in-patient hospitalizations, amputations, and losses of an eye that will be reported annually under the reporting provisions of the final rule. Because current regulations already require the reporting of work-related fatalities,
Partial Exemption
OSHA identified all of the affected establishments in industries that would be newly required to keep records and all of the affected establishments in industries that would be newly partially exempt from keeping records. This identification was complicated by the fact that the current regulation classifies employers by SIC codes, a classification system dating back to the 1930s that is no longer used in government statistics. There is not a simple one-to-one translation for industry classification codes between SIC and its replacement, NAICS. Some SIC industries were divided among several NAICS industries, while other SIC industries were combined to form a single NAICS industry. As a result,
OSHA's decision to convert the listing of partially-exempt employers from SIC codes to NAICS codes drew widespread support from participants in the rulemaking.
In many cases,
Because there were no objections to the methodology used in the PEA for converting SIC codes to NAICS codes,
After identifying by 6-digit NAICS code (2002) the portions of the industries that would be newly required to keep records,
The National Association of Real Estate Investment Trusts (Ex. 41) recommended that
The 2007 NAICS revision also reclassified a few industries. To assign these industries to the correct NAICS category,
Satellite telecommunications was classified as NAICS 517310 in the 2002 NAICS but was classified as NAICS 517911 in the 2007 NAICS. Other Telecommunications was classified as NAICS 517910 in the 2002 NAICS but as NAICS 517919 in the 2007 NAICS. NAICS 517310 and NAICS 517910 were both required to keep records under the 2001 rulemaking; were newly partially exempt from keeping records in the proposed rule, and will continue to be newly partially exempt from keeping records in the final rule.
SUSB data report establishments by employment size classification, with one class being all employers with 10 to 19 employees. However, the current regulation, proposed rule, and final rules cover employers with 11 or more employees. To deduct employers with exactly 10 employees,
OSHA then estimated the number of newly-affected establishments and employees in each industry by multiplying the total number of establishments and employees in the industry by the percentage of affected establishments that were identified using the SIC--NAICS bridge tables described above. Then, the Agency calculated the number of newly-recordable injuries and illnesses for 2010 by dividing the total number of injuries and illness reported per industry by the
Table V-1 presents data for the industries with establishments that would be newly required to keep records. The table shows the four-digit NAICS code, industry name, the number of affected establishments, the number of affected employees, and an estimate of the number of recordable injuries and illnesses, based on historical data, for newly-affected employers. Table V-1 shows that
See Illustration in Original Document.
Having used the bridge tables and other data sources described above to identify the segment of the NAICS industries that would be newly required to keep records,
Based on the ICR estimates (
See Illustration in Original Document.
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and Losses of an Eye
The final rule would require that employers report all work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye to
In the PEA,
In the PEA,
In the PEA,
Statistics compiled by BLS indicate that 20.1 million occupational injuries and illnesses were reported in 1997-1999 in
FOOTNOTE 1 20.1M BLS Injuries and Illnesses between 1997-1999/3 years = 6.7M.
6.7M Injuries and Illnesses x 3% of workplace injuries and illnesses resulting in hospitalization = 0.2M.
0.2M Hospitalizations x 53.2% non-elective hospitalizations = 107,000. END FOOTNOTE
One commenter thought that the hospitalizations estimate derived by Dembe et al. was too low (Ex. 82).
FOOTNOTE 2 Dembe's estimated hospitalizations: 210,000 x 53.2% non-elective hospitalizations = 112,000. END FOOTNOTE
FOOTNOTE 3 4.1M BLS Injuries and Illnesses for 2009 x 3% of workplace injuries and illnesses resulting in hospitalization = 123,000.
123,000 Hospitalizations x 53.2% non-elective hospitalizations = 65,436. END FOOTNOTE
Using Massachusetts data for FY 2008,
FOOTNOTE 4 MA Employment = 2.97M; U.S. Employment = 114.51M; MA Hospitalizations = 4,091.
Ratio MA Employment to U.S. Employment = 2.97M/114.51M = 2.59%.
Inflator MA to U.S. = 1/2.59% = 38.58.
U.S. Hospitalizations extrapolated from MA Hospitalizations = 4,901 x 38.58 = 157,843. END FOOTNOTE
In summary, a variety of methodologies were examined to estimate the number of non-elective hospitalization paid for by workers' compensation. The resulting estimates range from 66,000 (extrapolation of Dembe to 2009) to 96,000 (extrapolation from
It is also possible to make an estimate of the number of single in-patient hospitalizations reported in states that currently require reporting of single in- patient hospitalizations. There are six states /5/ that currently require employers to report occupationally-related single-patient hospitalizations. Employers in these states report a hospitalization to the relevant State Plan Area Office, which then completes an OSHA Form 36 based on that information.
FOOTNOTE 5 Alaska,
FOOTNOTE 6 6 State Employment = 19,381,966. 50 State Employment = 114,509,626.
Ratio 6 State Employment to total U.S. Employment = 16.93%.
6 State inflator to 50 states = 1/16.93% = 5.91.
Average 6 State hospitalizations from 2002-2010 = 4,222.
Average 6 State hospitalizations extrapolated to U.S. = 4,222 x 5.91 = 24,946. END FOOTNOTE
Under the final rule, employers would not have to report hospitalizations that occur more than 24 hours after the work-related incident. Therefore, scheduled or planned hospitalizations would not normally be reportable. As discussed above, Davis (Ex. 84) estimates that 39 percent of all hospitalizations are for elective procedures, while Dembe et al. estimate that 46.8 percent of all hospitalizations are for elective procedures. Whereas Davis is only examining
According to BLS, in 2009, there were 5,930 amputations that involved days away from work (BLS, 2010). In its preliminary estimates,
Amputations that result in in-patient hospitalizations (22 percent of all amputations) have been accounted for in the estimate of 112,000 total in-patient hospitalizations above, and therefore affected employers will not incur an additional reporting burden for amputations resulting in in-patient hospitalizations as a result of the requirement to report amputations. Amputations that occur more than 24 hours after the work-related incident that leads to the amputation (4 percent) will not be reportable under the final rule because they occur outside of the required time for amputations to be reported; therefore affected employers will not incur an additional reporting burden. The remaining 4,389 amputations (74 percent of 5,930 BLS-reported amputations) will require additional reporting to
To summarize,
C. Costs of the Final Regulation
Overview
This section presents
During the comment period of the proposed rule,
Some commenters (Exs. 64, 65, 67) suggested specific kinds of costs that might have been overlooked in
Another rulemaking participant,
Unit Costs
Initial training of recordkeepers is expected to require one hour per establishment and will apply only to current partially-exempt establishments that would be newly required to keep records (
Training of recordkeepers to account for turnover was estimated to take one hour per establishment, and a turnover rate of 20 percent per year was applied in the cost algorithm, resulting in an average of 0.2 hours per establishment per year to train newly-hired recordkeepers. This estimate applies to costs for current partially-exempt establishments that would be newly required to keep records and will contribute to cost savings for establishments that would no longer be required to keep records (
The final rule will require the completing, posting, and certifying of the OSHA Form 300A annually.
In addition to the per-establishment costs incurred to complete, post, and certify the OSHA Form 300A annually, there are also costs for each injury and illness recorded. These costs include the costs for completing the OSHA Form 301, entering each injury and illness on to the OSHA Form 300, and responding to requests for copies of the OSHA Form 301.
OSHA received several comments on its time estimate of 15 minutes for reporting in-patient hospitalizations and amputations to
Other commenters were concerned with the possibility that the required information would be difficult to obtain within the required time frame. Some commenters (see Exs. 65 and 67) asserted that elaborate procedures would need to be in place to assure that all hospitalizations were reported within eight hours of admission.
Other commenters were concerned that pre-call activities had not been included in the time estimate.
In response,
OSHA believes that 15 minutes is a reasonable approximation of the time required for the telephone call alone. In response to the comment from Mercer ORC HSE Networks (Ex. 68) about the difficulty of reaching
Many, if not most, employers will need no additional time beyond the time for the telephone call for the task of reporting a fatality, hospitalization, amputation, or loss of an eye, given they are both already required to obtain the information, and will frequently have the necessary information as a result of communications related to Workers' Compensation. However,
Dow argued that
For the PEA,
FOOTNOTE 7 BLS Occupational Employment Statistics (OES) code 13-1078. END FOOTNOTE
FOOTNOTE 8 BLS Occupational Employment Statistics (OES) code 29-9011. END FOOTNOTE
In
FOOTNOTE 9 The percentage of total wages attributed to employee benefits (0.301) divided by the percent of total wages attributed to base wages (0.699) = the fringe benefit factor (1.43). END FOOTNOTE
OSHA has also determined that, while an OHSS or equivalent employee will perform the recordkeeping duties, there is likely to be a more senior employee responsible for certifying the OSHA Form 300A (Annual Summary). In the recordkeeping ICR (
FOOTNOTE 10 BLS Occupational Employment Statistics (OES) code 11-3051. END FOOTNOTE
The Small Business Administration (SBA) Office of Advocacy urged
Another commenter asked that
Total Costs
Combining the unit time requirements, hourly wages, numbers of establishments, and injury and illness totals presented in Table V-1, Table V-3 shows
Combining the unit time requirements, hourly wages, number of establishments, and injury and illness totals presented in Table V-2, Table V-4 shows
Combining estimated costs and estimated savings, the net cost of the changes in the partial exemption part of the final rule is
See Illustration in Original Document.
See Illustration in Original Document.
To estimate the costs of reporting in-patient hospitalizations, amputations, and losses of an eye,
Table V-5 shows the total net costs of the final rule considering all three elements: costs incurred by current partially-exempt employers who would be newly required to keep records, cost savings to employers who would no longer be required to routinely keep records, and costs associated with the reporting of all in-patient hospitalizations, amputations, and losses of an eye.
Table V-5--Annualized Costs and Cost Savings for the Major Elements of the Rule Cost or cost savings element Value Costs to Employers Newly Required to Keep Records$17,920,888 Cost Savings to Employers Newly Exempt from Keeping Records (11,532,266) Costs of Additional Reporting of Hospitalizations, Amputations 2,639,520 and Losses of an Eye Net Costs 9,028,142
D. Benefits
OSHA believes that the conversion from SIC to NAICS and the revised reporting requirements have substantially different goals and thus different potential benefits.
Some commenters, such as the
OSHA's original justification in 1982 for providing a partial exemption to industries with injury and illness rates below 75 percent of the national average injury and illness rate was primarily based on two reasons, (1) that records would be available in establishments more likely to be inspected by
The changes to the partial exemption in this final rule have several benefits, two of which were explicitly recognized in the original 1982 rulemaking. First, because on average, the update in the data used to calculate the average DART rate partially exempts establishments with a lower average DART rate from the recording requirements, and adds establishments with a higher average DART rate to the recording requirements, there will be fewer facilities that will have to keep records even though they will never record an injury or illness. Second, the establishments that
In addition,
The employers newly required to keep records have an average costs of
Although OSHA lacks the information to determine the exact value of keeping
As noted above,
The requirement to report all work-related fatalities, in-patient hospitalizations, amputations, and losses of an eye assures that
There will also be potential benefits as a result of better inspection targeting, to the extent that
Six commenters (Exs. 68, 102, 108, 111, 113, 118) either argued that the proposed requirement to report hospitalizations and amputations had no benefits or urged
Having data on establishments that experience significant events and have higher injury and illness rates will improve inspection targeting. Studies have shown that
These studies show that inspections targeted to establishments with higher injury and illness rates have a greater potential for reducing injuries and illnesses. The revisions that
E. Technological Feasibility
Partial Exemption
There are a large number of establishments already recording injuries and illnesses in compliance with the existing Part 1904 regulation. Further, every year, some firms that were partially exempt from routinely keeping records under the existing regulation have had to report injury and illness data to BLS, which demonstrates that such firms are capable of keeping the required records.
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and Losses of an Eye
In six states, an estimated 1.3 million establishments under
F. Economic Feasibility and Impacts
In this section,
Partial Exemption
OSHA's primary estimate of economic impacts for this analysis is total annualized cost of compliance per establishment, calculated by dividing the total annualized incremental costs of compliance for each industry by the number of affected establishments in each industry. Table V-6 shows the costs per establishment for four-digit NAICS industries, and Table V-6A, in the appendix, shows the costs per establishment for six-digit NAICS industries. Costs per establishment average
See Illustration in Original Document.
Reporting of Fatalities, In-Patient Hospitalizations, Amputations, and Losses of an Eye
OSHA received many comments claiming that the provision requiring employers to report fatalities, hospitalizations, and amputations within a specified time period would be overly burdensome to employers and would cost more than
G. Regulatory Flexibility Certification
After the final rule becomes effective,
Most of the employers affected by the change in the partial exemption to the recordkeeping regulation are small firms. Even when considering the mix of small and large firms covered by this final rule, the average cost per establishment is well under
The Associated General Contractors of America stated that they believe that a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel would enable the Agency to better assess the impacts of this final rule on small businesses (Ex. 115).
The Associated General Contractors of America stated that the proposed rule on the MSD column showed that
As a result of these considerations, and in accordance with the Regulatory Flexibility Act,
H. Appendix: FEA Data at the Six-Digit NAICS Level
This appendix provides supporting material developed in support of this rule at the six-digit NAICS level.
Table V-1A presents data on industries with establishments that would be newly required to keep records. The table shows the six-digit NAICS code, industry name, number of affected employees, and estimate of the number of recordable injuries and illnesses, based on historical data, for newly affected employers.
Table V-2A presents data on industries with establishments that would be newly partially exempt from recordkeeping. The table shows the six-digit NAICS code, industry name, number of affected establishments per industry, number of employees, and estimated number of injuries and illnesses that would no longer be recorded in each affected industry.
Table V-3A shows
Table V-4A shows
Table V-6A shows the costs per establishment at the six-digit NAICS level.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
See Illustration in Original Document.
Dembe AE, Mastroberti MA, Fox SE., Bigelow C, and Banks SM 2003. "Inpatient hospital care for work-related injuries and illnesses".
Haviland AM, Burns RM, Gray W, Ruder T, and Mendeloff J 2008. "The Impact of OSHA Inspections on Lost Time Injuries in Manufacturing: Pennsylvania Manufacturing, 1998-2005". Working paper.
Leigh JP, Markowitz SB, Fahs M, and Landrigan PJ 2000. "Costs of Occupational Injuries and Illnesses".
Moshfeghi DM, Moshfeghi AA, and Finer PT 2000, "A Review of Enucleation". Survey of Ophthalmology. 44:277-301.
Murphy PL, Sorock GS, Courtney TK, Webster B, and Leamon TB 1996. "Injury and Illness in the American Workplace: A Comparison of Data Sources".
VI. Environmental Impact Assessment
OSHA has reviewed the provisions of this final rule in accordance with the requirements of the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.), the
VII. Federalism
The final rule has been reviewed in accordance with Executive Order 13132 regarding Federalism (52 FR 41685). The final rule is a "regulation" issued under Sections 8 and 24 of the OSH Act (29 U.S.C. 657, 673) and not an "occupational safety and health standard" issued under Section 6 of the OSH Act (29 U.S.C. 655). Therefore, pursuant to section 667(a) of the OSH Act, the final rule does not preempt State law (29 U.S.C. 667(a)). The effect of the final rule on
VIII. Unfunded Mandates
Section 3 of the Occupational Safety and Health Act makes clear that
Based on the evidence presented in this economic analysis,
IX.
The final rule contains collection of information (paperwork) requirements that are subject to review by the
OSHA's existing recordkeeping forms consist of the
The final rule affects the ICR estimates in four ways: 1) The number of establishments covered by the recordkeeping regulation increases by 60,210 establishments; 2) the number of injuries and illnesses recorded by covered establishments increases by 97,182 cases; 3) the number of reportable events (fatalities, in-patient hospitalizations, amputations, and losses of an eye) reported by employers increases by 117,000 reports, and 4) the time required to report a fatality or catastrophe to
The tables below present the various components of the rule that comprise the ICR estimates. Table IX-1 presents the estimated burden of the entire rule for the initial year. Table IX-2 presents the estimated burden for the entire rule in subsequent years. The estimated initial-year burden is greater because all newly-covered establishments must learn the basics of the recordkeeping system upon implementation of the final rule. In subsequent years, only establishments with turnover in the recordkeeper position will incur this burden.
Table IX-1--Estimated Burden Hours--Initial Year [Estimated burden hours] Current OMB approval Implementation of the final rule Actions Number of Unit Total Number of Unit Total entailing cases hours per burden cases hours per burden paperwork case hours case hours burden 1904.4-- 1,180,529 0.367 433,254 1,219,385 0.367 447,514 Complete OSHA 301 (Includes research of instructions and case details to complete the form) 1904.4--Line 2,613,635 0.233 608,977 2,710,817 0.233 631,620 entry on OSHA Form 300 other than needlesticks (Includes research of instructions and case details to complete the form) 1904.8--Line 337,645 0.083 28,025 337,645 0.083 28,025 entry on OSHA Form 300 for needlesticks (Includes research of instructions and case details to complete the form) 1904.29(b)(6)- 350,800 0.05 17,540 364,753 0.05 18,238 -Entry on privacy concern case confidential list 1904.32-- 1,585,374 0.967 1,533,057 1,645,494 0.967 1,591,193 Complete, certify and post OSHA Form 300A (Includes research of instructions) 1904.35-- 111,540 0.083 9,258 115,185 0.083 9,560 Employee Access to the OSHA Form 300 1904.35-- 287,980 0.083 23,902 304,846 0.083 25,302 Employee Access to the OSHA Form 301 1904.39-- 2,028 0.25 507 119,028 0. 5 59,514 Report fatalities/ catastrophes Learning 312,717 1 312,717 548,947 1 548,947 Basics of the Recordkeeping System--newly covered and turnover of personnel 1904.38-- 0 0 0 0 0 0 Request for variance Total Burden 2,967,236 3,359,913 Hours
Table IX-2--Estimated Burden Hours--Subsequent Years [Estimated burden hours] Current OMB approval Implementation of the final rule Actions Number of Unit Total Number of Unit Total entailing cases hours per burden cases hours per burden paperwork case hours case hours burden 1904.4-- 1,180,529 0.367 433,254 1,219,385 0.367 447,514 Complete OSHA 301 (Includes research of instructions and case details to complete the form) 1904.4--Line 2,613,635 0.233 608,977 2,710,817 0.233 631,620 entry on OSHA Form 300 other than needlesticks (Includes research of instructions and case details to complete the form) 1904.8--Line 337,645 0.083 28,025 337,645 0.083 28,025 entry on OSHA Form 300 for needlesticks (Includes research of instructions and case details to complete the form) 1904.29(b)(6)- 350,800 0.05 17,540 364,753 0.05 18,238 -Entry on privacy concern case confidential list 1904.32-- 1,585,374 0.967 1,533,057 1,645,494 0.967 1,591,193 Complete, certify and post OSHA Form 300A (Includes research of instructions) 1904.35-- 111,540 0.083 9,258 115,185 0.083 9,560 Employee Access to the OSHA Form 300 1904.35-- 287,980 0.083 23,902 304,846 0.083 25,302 Employee Access to the OSHA Form 301 1904.39-- 2,028 0.25 507 119,028 0. 5 59,514 Report fatalities/cat astrophes Learning 312,717 1 312,717 329,099 1 329,099 Basics of the Recordkeeping System-- turnover of personnel 1904.38-- 0 0 0 0 0 0 Request for variance Total Burden 2,967,236 3,140,065 Hours
As a new option, an employer may report to
OSHA received a number of comments pertaining to the estimated time necessary to meet the proposed paperwork requirements.
Initial training of recordkeepers is expected to require one hour per establishment and will apply to current partially-exempt establishments that would be newly required to keep records. A commenter (Ex. 17) noted that this requirement would signify the need for retraining of both human resource and safety professionals.
Dow, the
The vast majority of establishments in these low-rate industries do not experience large numbers of injuries and illnesses.
Dow commented that deciding whether the injury or illness is recordable takes more time and more people than
OSHA received several comments on its time estimate of 15 minutes for reporting in-patient hospitalizations and amputations to
In response,
Mercer ORC HSE Networks stated that it could take longer than 15 minutes to make a connection over the phone with
NUCA, a trade association representing utility construction and excavation contractors, expressed a concern that
The PRA specifies that Federal agencies cannot conduct or sponsor a collection of information unless it is approved by OMB and displays a currently valid OMB (44 U.S.C. 3507). Also, notwithstanding any other provision of law, respondents are not required to respond to the information collection requirements until they have been approved and a currently valid control number is displayed.
X. State Plan Requirements
Notice of intent and adoption required. The States with
States with
Per 29 CFR 1953.4(b), if a State Plan adopts or maintains recordkeeping requirements that differ from federal requirements, the State must identify the differences and may either post its policy on its Web site and provide the link to
XI. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order 13175 (65 FR 67249 (
List of Subjects in 29 CFR Part 1904
Health statistics, Occupational safety and health, Reporting and recordkeeping requirements.
Authority and Signature
This document was prepared under the direction of
Signed at
Assistant Secretary of Labor for Occupational Safety and Health.
Final Rule
Part 1904 of Title 29 of the Code of Federal Regulations is hereby amended as follows:
PART 1904--[AMENDED]
1. The authority citation for part 1904 continues to read as follows:
Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of Labor's Order No. 3-2000 (65 FR 50017), and 5 U.S.C. 533.
2. Amend
(a) Basic requirement. (1) If your business establishment is classified in a specific industry group listed in appendix A to this subpart, you do not need to keep
* * * * *
(b) Implementation --(1) Is the partial industry classification exemption based on the industry classification of my entire company or on the classification of individual business establishments operated by my company? The partial industry classification exemption applies to individual business establishments. If a company has several business establishments engaged in different classes of business activities, some of the company's establishments may be required to keep records, while others may be partially exempt.
(2) How do I determine the correct NAICS code for my company or for individual establishments? You can determine your NAICS code by using one of three methods, or you may contact your nearest
(i) You can use the search feature at the U.S. Census Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/. In the search box for the most recent NAICS, enter a keyword that describes your kind of business. A list of primary business activities containing that keyword and the corresponding NAICS codes will appear. Choose the one that most closely corresponds to your primary business activity, or refine your search to obtain other choices.
(ii) Rather than searching through a list of primary business activities, you may also view the most recent complete NAICS structure with codes and titles by clicking on the link for the most recent NAICS on the U.S. Census Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/. Then click on the two-digit Sector code to see all the NAICS codes under that Sector. Then choose the six-digit code of your interest to see the corresponding definition, as well as cross-references and index items, when available.
(iii) If you know your old SIC code, you can also find the appropriate 2002 NAICS code by using the detailed conversion (concordance) between the 1987 SIC and 2002 NAICS available in Excel format for download at the "Concordances" link at the U.S. Census Bureau NAICS main Web page: http://www.census.gov/eos/www/naics/.
3. Revise Non-Mandatory Appendix A to Subpart B of Part 1904 to read as follows:
Non-Mandatory Appendix A to Subpart B of Part 1904--
Employers are not required to keep
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. 4532Office 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, andDirectory Publishers . 5112Software Publishers . 5121Motion Picture andVideo Industries . 5122Sound Recording Industries . 5151Radio 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 ComputerSystems Design and Related Services. 5416 Management, Scientific, and Technical Consulting Services. 5417Scientific Research and Development Services. 5418 Advertising and Related Services. 5511 Management of Companies and Enterprises. 5611 Office Administrative Services. 5614Business 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. 6117Educational Support Services . 6211 Offices of Physicians. 6212 Offices of Dentists. 6213 Offices of Other Health Practitioners. 6214 Outpatient Care Centers. 6215Medical 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. 7221Full-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.
4. Revise
(a) Basic requirement. (1) Within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to the
(2) Within twenty-four (24) hours after the in-patient hospitalization of one or more employees or an employee's amputation or an employee's loss of an eye, as a result of a work-related incident, you must report the in-patient hospitalization, amputation, or loss of an eye to
(3) You must report the fatality, in-patient hospitalization, amputation, or loss of an eye using one of the following methods:
(i) By telephone or in person to the OSHA Area Office that is nearest to the site of the incident.
(ii) By telephone to the
(iii) By electronic submission using the reporting application located on
(b) Implementation --(1) If the Area Office is closed, may I report the fatality, in-patient hospitalization, amputation, or loss of an eye by leaving a message on
(2) What information do I need to give to
(i) The establishment name;
(ii) The location of the work-related incident;
(iii) The time of the work-related incident;
(iv) The type of reportable event (i.e., fatality, in-patient hospitalization, amputation, or loss of an eye);
(v) The number of employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;
(vi) The names of the employees who suffered a fatality, in-patient hospitalization, amputation, or loss of an eye;
(vii) Your contact person and his or her phone number; and
(viii) A brief description of the work-related incident.
(3) Do I have to report the fatality, in-patient hospitalization, amputation, or loss of an eye if it resulted from a motor vehicle accident on a public street or highway? If the motor vehicle accident occurred in a construction work zone, you must report the fatality, in-patient hospitalization, amputation, or loss of an eye. If the motor vehicle accident occurred on a public street or highway, but not in a construction work zone, you do not have to report the fatality, in-patient hospitalization, amputation, or loss of an eye to
(4) Do I have to report the fatality, in-patient hospitalization, amputation, or loss of an eye if it occurred on a commercial or public transportation system? No, you do not have to report the fatality, in-patient hospitalization, amputation, or loss of an eye to
(5) Do I have to report a work-related fatality or in-patient hospitalization caused by a heart attack? Yes, your local OSHA Area Office director will decide whether to investigate the event, depending on the circumstances of the heart attack.
(6) What if the fatality, in-patient hospitalization, amputation, or loss of an eye does not occur during or right after the work-related incident? You must only report a fatality to OSHA if the fatality occurs within thirty (30) days of the work-related incident. For an in-patient hospitalization, amputation, or loss of an eye, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident. However, the fatality, in-patient hospitalization, amputation, or loss of an eye must be recorded on your OSHA injury and illness records, if you are required to keep such records.
(7) What if I don't learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye right away? If you do not learn about a reportable fatality, in-patient hospitalization, amputation, or loss of an eye at the time it takes place, you must make the report to OSHA within the following time period after the fatality, in-patient hospitalization, amputation, or loss of an eye is reported to you or to any of your agent(s): Eight (8) hours for a fatality, and twenty-four (24) hours for an in-patient hospitalization, an amputation, or a loss of an eye.
(8) What if I don't learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident? If you do not learn right away that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident, you must make the report to OSHA within the following time period after you or any of your agent(s) learn that the reportable fatality, in-patient hospitalization, amputation, or loss of an eye was the result of a work-related incident: Eight (8) hours for a fatality, and twenty-four (24) hours for an in-patient hospitalization, an amputation, or a loss of an eye.
(9) How does OSHA define "in-patient hospitalization"? OSHA defines in-patient hospitalization as a formal admission to the in-patient service of a hospital or clinic for care or treatment.
(10) Do I have to report an in-patient hospitalization that involves only observation or diagnostic testing? No, you do not have to report an in-patient hospitalization that involves only observation or diagnostic testing. You must only report to OSHA each in-patient hospitalization that involves care or treatment.
(11) How does OSHA define "amputation"? An amputation is the traumatic loss of a limb or other external body part. Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.
[FR Doc. 2014-21514 Filed 9-17-14;
BILLING CODE 4510-26-P
| Copyright: | (c) 2014 Federal Information & News Dispatch, Inc. |
| Wordcount: | 48362 |
Mechanical and Digital Phonorecord Delivery Compulsory License
Advisor News
- EDITORIAL: Home insurance, tax increases harm county’s housing options
- Nationwide Financial Services President John Carter to retire at year end
- FINRA, FBI warn about generative AI and finances
- Prudential study: Babies born today will likely need nearly $2M to retire
- Economy performing better than expected, Morningstar says
More Advisor NewsAnnuity News
- Perspectives: Should I trust my retirement to an insurance company?
- Prudential Financial to Reinsure $7B Japanese Whole Life Block with Prismic Life
- Nationwide Financial Services President John Carter to retire at year end
- Pension Rights Center: PRT deals could lead to ‘nationwide catastrophe’ regulated
- Allianz Life Retirement Solutions Now Available Through Morgan Stanley
More Annuity NewsHealth/Employee Benefits News
- New administration puts Medicaid on chopping block
- UnitedHealthcare names new CEO after Brian Thompson's killing
- Reform or ban? Prior authorization for health insurance is under negotiation in NC
- State says agreement reached in contract dispute between Anthem, St. Joseph Hospital
- WA diverts benefits meant for foster youth. That practice may end
More Health/Employee Benefits NewsLife Insurance News
- Legals for January, 24 2025
- U-Haul Holding Company Schedules Third Quarter Fiscal 2025 Financial Results Release and Investor Webcast
- BetterLife, CSA merger brings organizations with Czech-Slovak roots together
- AM Best Affirms Credit Ratings of Nippon Life Insurance Company and Its Subsidiary
- Prudential Financial and Dai-ichi Life to Pursue Strategic Partnership
More Life Insurance News