Occupational Injury and Illness Recording and Reporting Requirements-NAICS Update and Reporting Revisions, 36414-36438 [2011-15277]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36414-36438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15277]


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

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


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

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

ACTION: Proposed rule.

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SUMMARY: OSHA is proposing to update Appendix A to Subpart B of its 
Injury and Illness Recording and Reporting regulation. Appendix A 
contains a list of industries that are partially exempt from 
maintaining records of occupational injuries and illnesses, generally 
due to their relatively low rates of occupational injury and illness. 
The current list of industries is based on the Standard Industrial 
Classification (SIC) system. In 1997, the North American Industry 
Classification System (NAICS) was introduced to classify establishments 
by industry. The proposed rule would update Appendix A by replacing it 
with a list of industries based on NAICS and more recent injury and 
illness data.
    The proposed rule would also require employers to report to OSHA, 
within eight hours, all work-related fatalities and all work-related 
in-patient hospitalizations; and within 24 hours, all work-related 
amputations. The current regulation requires an employer to report to 
OSHA, within eight hours, all work-related fatalities and in-patient 
hospitalizations of three or more employees.

DATES: Written comments: Comments must be submitted by September 20, 
2011.

ADDRESSES: Written comments: You may submit comments, identified by 
docket number OSHA-2010-0019, or regulatory information number (RIN) 
1218-AC50, by any of the following methods:
    Electronically: You may submit comments electronically at https://www.regulations.gov, which is the Federal e-rulemaking portal. Follow 
the

[[Page 36415]]

instructions on the Web site for making electronic submissions;
    Fax: If your submission, including attachments, does not exceed 10 
pages, you may fax it to the OSHA docket office at (202) 693-1648; or
    Mail, hand delivery, express mail, messenger, or courier service: 
You must submit three copies of your comments and attachments to the 
OSHA Docket Office, Docket Number OSHA-2010-0019, U.S. Department of 
Labor, Room N-2625, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone (202) 693-2350 (OSHA's TTY number is (877) 889-5627). 
Deliveries (hand, express mail, messenger, and courier service) are 
accepted during the Department of Labor's and docket office's normal 
business hours, 8:15 a.m.-4:45 p.m.
    Instructions for submitting comments: All submissions must include 
the docket number (Docket No. OSHA-2010-0019) or the RIN (RIN 1218-
AC50) for this rulemaking. Because of security-related procedures, 
submission by regular mail may result in significant delay. Please 
contact the OSHA docket office for information about security 
procedures for making submissions by hand delivery, express delivery, 
and messenger or courier service.
    All comments, including any personal information you provide, are 
placed in the public docket without change and may be made available 
online at https://www.regulations.gov. Therefore, OSHA cautions you 
about submitting personal information such as social security numbers 
and birthdates.
    Docket: To read or download submissions in response to this Federal 
Register notice, go to docket number OSHA-2010-0019, at https://regulations.gov. All submissions are listed in the https://regulations.gov index, however, some information (e.g., copyrighted 
material) is not publicly available to read or download through that 
Web site. All submissions, including copyrighted material, are 
available for inspection and copying at the OSHA docket office.
    Electronic copies of this Federal Register document are available 
at https://www.regulations.gov. This document, as well as news releases 
and other relevant information, is available at OSHA's Web site at 
https://www.osha.gov.

FOR FURTHER INFORMATION CONTACT: For press inquiries: OSHA Office of 
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Washington, DC 20210; telephone (202)-693-1999.
    For general and technical information on the proposed rule: OSHA 
Office of Statistical Analysis, Room N-3641, U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, DC 20210; telephone (202) 
693-2400.

SUPPLEMENTARY INFORMATION: OSHA's current regulation at Section 1904.2 
partially exempts certain lower-hazard industries classified in 
Standard Industrial Classification (SIC) codes 52 through 89 from 
injury and illness recordkeeping requirements. Lower hazard industries 
are those industries with an average Days Away, Restricted, or 
Transferred (DART) rate at or below 75 percent of the national average 
DART rate. The DART rate represents the total non-fatal injuries and 
illnesses resulting in days away from work, restricted work activity, 
and/or job transfer per 100 full-time employees for a given period of 
time (usually 1 year). The current list of partially exempt industries, 
which is included in Appendix A to Subpart B, is based on injury and 
illness data compiled by the Bureau of Labor Statistics (BLS) for 1997, 
1998 and 1999.
    OSHA is proposing to revise the list of partially exempt industries 
in Appendix A using the North American Industry Classification System 
(NAICS). The revised list in proposed Appendix A is based on DART rates 
compiled by BLS for 2007, 2008 and 2009. Industries listed in proposed 
Appendix A would still be required to keep records if requested to do 
so by BLS in connection with its Annual Survey (29 CFR 1904.42), or by 
OSHA in connection with its Data Initiative (29 CFR 1904.41).
    OSHA is also proposing to revise Section 1904.39, which currently 
requires an employer to report to OSHA, within eight hours, all work-
related fatalities and in-patient hospitalizations of three or more 
employees. The proposed rule would require an employer to report to 
OSHA, within eight hours, all work-related fatalities and all work-
related in-patient hospitalizations; and within 24 hours, all work-
related amputations.
    This regulation was developed in accordance with the principles of 
Executive Order 12866 and Executive Order 13563. Executive Order 12866 
requires that OSHA estimate the benefits, costs, and net benefits of 
proposed regulations. The Agency estimates the regulation will cost 
approximately $8.5 million, on an annualized basis. As discussed 
elsewhere in this preamble, the Agency believes the annual benefits, 
while unquantified, are significantly in excess of the annual costs.

I. Legal Authority

    OSHA is issuing this proposed revision of the Recordkeeping 
regulation pursuant to authority expressly granted by sections 8 and 24 
of the Occupational Safety and Health Act (the ``OSH Act'' or ``Act) 
(29 U.S.C. 657, 673). Section 8(c)(1) requires each employer to ``make, 
keep and preserve, and make available to the Secretary [of Labor] or 
the Secretary of Health and Human Services, such records regarding his 
activities relating to this Act as the Secretary, in cooperation with 
the Secretary of Health and Human Services, may prescribe by regulation 
as necessary or appropriate for the enforcement of this Act or for 
developing information regarding the causes and prevention of 
occupational accidents and illnesses.'' Section 8(c)(2) directs the 
Secretary to prescribe regulations ``requiring employers to maintain 
accurate records of, and to make periodic reports on, work-related 
deaths, injuries and illnesses 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. 657(c)(2). Section 8(g)(2) of the OSH Act broadly 
empowers the Secretary to ``prescribe such rules and regulations as 
[s]he may deem necessary to carry out [her] responsibilities under the 
Act'' (29 U.S.C. 657(g)(2)).
    Section 24 of the OSH Act contains a similar grant of authority. It 
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 
she 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)).

[[Page 36416]]

    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 
discrimination of records of occupational injuries and illnesses. 
Courts of appeal have held that OSHA recordkeeping rules are 
regulations and not standards (Louisiana Chemical Ass'n v. Bingham, 657 
F.2d 777, 782-785 (5th Cir. 1981); Workplace Health & Safety Council v. 
Reich, 56 F.3d 1465, 1467-1469 (DC Cir. 1995).

II. Summary and Explanation of the Proposed Rule

A. Section 1904.2--Partial Exemption for Establishments in Certain 
Industries

Background
    Although the OSH Act gives OSHA the authority to require all 
employers covered by the Act to keep records of employee injuries and 
illnesses, major classes of employers are partially exempted from Part 
1904. First, as provided in Section 1904.1, employers with 10 or fewer 
employees are partially exempt from keeping OSHA injury and illness 
records. Second, as provided in section 1904.2, establishments in 
certain lower-hazard industry classifications are also partially 
exempt.
    The partial exemption based on lower-hazard industry classification 
has been part of the OSHA recordkeeping regulations since 1982. OSHA 
exempted establishments in a number of service, finance, and retail 
industries from the duty to regularly maintain the OSHA Log and 
Incident Report (47 FR 57699). This industry exemption to recordkeeping 
requirements was intended to ``reduce paperwork burden on employers 
without compromising worker safety and health.'' See, 47 FR 57700.
    The 1982 list of partially exempt industries was established by 
identifying major industry groups with relatively low rates of 
occupational injuries and illnesses in the SIC codes encompassing 
retail trade, finance, insurance and real estate, and the service 
industries (SICs 52-89). Major industry groups were defined at the 2-
digit classification level from the SIC manual published by the U.S. 
Office of Management and Budget (OMB). Industries in these major 
industry groups were partially exempted from coverage by Part 1904 if 
their average lost workday injury (LWDI) rate for 1978-80 was at or 
below 75 percent of the overall private sector annual LWDI rate. 
Industries that involved more serious occupational hazards, comprising 
the industry divisions of agriculture, construction, manufacturing, 
utilities, mining, and wholesale trade, remained subject to the full 
recordkeeping requirements. Although the 1982 Federal Register notice 
discussed the possibility of revising the exempt industry list on a 
routine basis, the list remained unchanged until 2001.
    On January 19, 2001, OSHA published a final rule (66 FR 5916) which 
comprehensively revised the Part 1904 recordkeeping regulations. As 
part of this revision, OSHA updated the list of lower-hazard industries 
that are partially exempted from the recordkeeping requirements. The 
list of lower-hazard industries established in the 2001 final rule is 
the current list set forth in Appendix A to Subpart B.
    The 2001 final rule updated the 1982 list of industries by applying 
the same approach for identifying affected industries. Industries were 
selected for the list based on two criteria. First, only industries 
classified in SIC codes 52 through 89 were considered eligible for 
inclusion on the list. Second, industries were included if they had an 
average DART rate, based on the most recent three years of available 
data, at or below 75 percent of the most recent national rate. The 2001 
list differed from the 1982 list in two respects: (1) The injury/
illness rate data supporting the final rule's industry exemption were 
based on BLS statistics for 1996, 1997, and 1998, and (2) the 
industries were defined at the 3-digit rather than 2-digit SIC code 
level.
    The issue of converting from SIC to NAICS codes was addressed in 
the 2001 rulemaking (66 FR 5916). Although the NAICS had been formally 
adopted by 2001, several statistical agencies had not converted their 
systems to the new codes. In fact, BLS did not publish its first 
occupational injury and illness rates using the NAICS codes until 2004, 
when it published the rates for calendar year 2003. As a result, OSHA 
stated in the preamble to the 2001 final rule that it used the SIC 
system to determine the list of partially exempted industries. The 
agency also stated its intention to conduct a future rulemaking to 
update the list using NAICS codes. (66 FR 5944).
    Presently, NAICS is the standard system used by Federal statistical 
agencies in classifying business establishments for the purpose of 
collecting, analyzing, and publishing statistical data related to the 
U.S. economy. NAICS was developed under the auspices of OMB, and 
adopted in 1997 to replace the SIC system. It was developed jointly by 
the United States, Canada, and Mexico to allow for a high level of 
compatibility in business statistics among the North American 
countries.
    The official 2007 U.S. NAICS Manual includes definitions for each 
industry, background information, tables showing changes between 2002 
and 2007, and a comprehensive index. The official 2007 NAICS Manual is 
available in print and CD Rom from the National Technical Information 
Service (NTIS) at (800) 553-6847, or through the NTIS Web site at 
https://www.ntis.gov.
Description of Proposed Revisions
    OSHA proposes to update Appendix A to Subpart B in two ways. First, 
the list of partially exempted industries would be converted from one 
based on SIC codes to one based on NAICS codes. Second, the DART rates 
used to determine which NAICS code industries qualify for the lower-
hazard partial exemption would be based on more recent BLS data.
    Consistent with OSHA's longstanding policy, individual industry 
classifications in major industry sectors generally considered to 
involve greater occupational hazards, are not included on the proposed 
partially exempt list. As with the current regulation, industries 
ineligible for the partial exemption under the proposed rule include 
those in the agriculture, utilities, construction, manufacturing, and 
wholesale trade sectors.
    For industries in the remaining sectors, the most recent three 
years (2007, 2008 and 2009) of available BLS data were used to 
calculate the average rate of serious injuries and illnesses for each 
industry, as represented by the DART rate. Industries with an average 
DART rate equal to or less than 75 percent of the average national DART 
rate from 2007 through 2009 are included on the list of partially 
exempt lower-hazard industries in proposed Appendix A, with one 
exception.
    Under the existing regulation, establishments in Personnel Supply 
Services (SIC 736) are currently required to maintain injury and 
illness logs; this industry is not included in the existing Appendix A. 
For many employees working for establishments in this industry, their 
actual place of work may be in an establishment that is part of another 
industry. OSHA is proposing that establishments in the corresponding 
NAICS industry, NAICS 5613 Employment Services, continue to

[[Page 36417]]

be required to maintain logs for the employees under their supervision 
as they are currently required to do. Thus, NAICS 5613 Employment 
Services is not included in the proposed Appendix A.
    According to the data published by BLS, the average national 
private sector DART rate for 2007-2009 was 2.0. Thus, specific 
industries, as defined by 4-digit NAICS codes, which had an average 
DART rate for 2007-2009 of 1.5 or less, and which are in the eligible 
broad industry sectors, were included in the list in proposed Appendix 
A (except NAICS 5613 Employment Services).
    The industries included in proposed Appendix A were identified as 
follows.

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

[[Page 36418]]

 
6117................................  Educational Support Services.
6211................................  Offices of Physicians.
6212................................  Offices of Dentists.
6213................................  Offices of Other Health Practitioners.
6214................................  Outpatient Care Centers.
6215................................  Medical and Diagnostic Laboratories.
6244................................  Child Day Care Services.
7114................................  Agents and Managers for Artists, Athletes, Entertainers, and Other Public
                                       Figures.
7115................................  Independent Artists, Writers, and Performers.
7213................................  Rooming and Boarding Houses.
7221................................  Full-Service Restaurants.
7222................................  Limited-Service Eating Places.
7224................................  Drinking Places (Alcoholic Beverages).
8112................................  Electronic and Precision Equipment Repair and Maintenance.
8114................................  Personal and Household Goods Repair and Maintenance.
8121................................  Personal Care Services.
8122................................  Death Care Services.
8131................................  Religious Organizations.
8132................................  Grantmaking and Giving Services.
8133................................  Social Advocacy Organizations.
8134................................  Civic and Social Organizations.
8139................................  Business, Professional, Labor, Political, and Similar Organizations.
----------------------------------------------------------------------------------------------------------------

    For a more thorough discussion regarding the specific industries 
which would be newly exempted or newly covered by the proposed rule, 
please refer to Section III of this preamble.
    This rulemaking also fulfills a commitment made by OSHA to the 
Government Accountability Office (GAO). In October 2009, GAO published 
a report entitled: ``Enhancing OSHA's Records Audit Process Could 
Improve the Accuracy of Worker Injury and Illness Data'' (GAO-10-10). 
One of the recommendations made by GAO was to update the list of 
industries used by OSHA to select worksites for records audits. In its 
response to GAO, OSHA agreed to conduct a rulemaking that would update 
the coverage of the relevant recordkeeping requirements from the old 
SIC-based system to one based on the NAICS codes.
    In conjunction with any final rule resulting from this rulemaking 
that may result in some establishments being newly required to comply 
with OSHA recordkeeping requirements, OSHA will conduct outreach and 
training, and offer other types of compliance assistance, to facilitate 
compliance and help ensure more complete and accurate recording and 
reporting. OSHA welcomes suggestions from the public regarding the 
types of outreach, training, and assistance that would be particularly 
helpful.
Issues and Potential Alternatives
    OSHA welcomes comments and data from the public regarding any 
aspect of the proposed lower-hazard industry partial exemption. More 
specifically, the following questions and issues are relevant to this 
rulemaking:
    1. Should any additional industries be exempt from any of the 
recordkeeping requirements in Part 1904?
    2. Should OSHA base partial exemptions on more detailed or more 
aggregated industry classifications, such as two-digit, three-digit, or 
six-digit NAICS codes?
    3. Which industry sectors, if any, should be ineligible for partial 
exemption?
    4. Instead of using an average DART rate of 75 percent of the most 
recent national DART rate, is there a better way to determine which 
industries should be included in Appendix A?
    5. Should OSHA consider numbers of workers injured or made ill in 
each industry in addition to industry injury/illness rates in 
determining eligibility for partial exemption?
    6. Are there any other data that should be applied as additional or 
alternative criteria for purposes of determining eligibility for 
partial exemption?
    7. Should OSHA regularly update the list of lower-hazard exempted 
industries? If so, how frequently should the list be updated?
    8. Are there any specific types of training, education, and 
compliance assistance OSHA could provide that would be particularly 
helpful in facilitating compliance with the recordkeeping requirements?

B. Section 1904.39--Reporting Fatality, In-Patient Hospitalization, and 
Amputation Incidents to OSHA

Background
    Virtually since its inception, OSHA has required employers to 
report certain incidents involving employee fatality or 
hospitalization. The regulatory requirements adopted in 1971 in 29 CFR 
1904.8 required employers to report, within 48 hours after the 
occurrence, work-related incidents resulting in at least one fatality 
or the hospitalization of at least five employees.
    In 1994, the Agency revised its reporting requirements to require 
employers to report to OSHA, within eight hours, work-related events or 
exposures involving fatalities or the in-patient hospitalization of 
three or more employees (59 FR 15594). OSHA stated in the preamble to 
the final rule that more prompt reporting enables OSHA to inspect the 
site of the incident and interview personnel while their recollections 
are immediate, fresh and untainted by other events, thus providing more 
timely and accurate information about possible causes of the incident. 
See, 59 FR 15595. The requirements from the 1994 rulemaking have 
remained substantially unchanged since then, and are currently codified 
at 29 CFR 1904.39.
Description of Proposed Revisions
    The proposed rule would require employers to report to OSHA, within 
eight hours, work-related incidents that result in the death of an 
employee or in

[[Page 36419]]

the in-patient hospitalization of one or more employees, and within 24 
hours, a work-related amputation suffered by an employee. The proposed 
revision is intended to provide information necessary to help ensure 
America's workers have safe and healthful workplaces.
    Prompt investigation of incidents causing serious injury is a key 
element in OSHA's ability to enforce existing standards, evaluate the 
effectiveness of current standards, and identify a need for new 
standards. OSHA believes that the eight-hour requirement for work-
related fatalities, the eight-hour requirement for work-related in-
patient hospitalizations, and the 24-hour requirement for amputations 
will enable the additional potential benefits of reporting to be 
realized without creating unreasonable burdens on employers.
    Making all in-patient hospitalizations and amputations reportable 
will provide OSHA with additional information on the causes of 
workplace incidents and lead to greater prevention of injuries. The 
additional information would be obtained cost-effectively, involve 
relatively minimal burdens on employers, and would provide OSHA with 
critical information to facilitate the timely investigation of harmful 
incidents and quick mitigation of hazards. The information will also 
help OSHA target scarce resources to the most dangerous workplaces and 
to prevent future injuries at these workplaces.
    OSHA believes that the value of this additional information easily 
justifies the relatively minor additional reporting burden estimated to 
be an average of 15 minutes per reported incident. See Section III of 
this preamble for a more detailed discussion of the estimated 
compliance costs.
    The hospitalization of a worker due to a work-related incident is a 
serious and significant event. Requiring the reporting of every in-
patient hospitalization would ensure that OSHA will be informed about 
many more of these serious occurrences. Greater awareness regarding the 
extent and nature of such cases helps in the development and 
prioritization of various OSHA enforcement programs and initiatives. It 
also serves the public interest by enabling OSHA to more effectively 
and efficiently target occupational safety and health hazards.
    Another benefit associated with the expansion of the reporting 
requirements would be the increased value and utility of the resulting 
data. Incidents involving an in-patient hospitalization or an 
amputation often involve serious hazards. The proposed reporting 
requirements would help establish a comprehensive database that would 
more accurately reflect hazards that cause hospitalizations and 
amputations as well as identify the associated industries, processes, 
and other relevant factors. Such a database could prove especially 
useful for study and research into the causes and prevention of 
occupational hazards.
    For purposes of OSHA recordkeeping, in-patient hospitalization 
occurs when a person is ``formally admitted'' to a hospital or clinic 
for at least one overnight stay. Out-patient treatment generally refers 
to patients that are seen by a physician or other licensed health care 
professional and leave the hospital the same day. Of course, in order 
for in-patient hospitalization to be reportable, the injury or illness 
must be work-related as defined by Section 1904.5.
    The proposed reporting requirements would apply only to work-
related deaths, in-patient hospitalizations, and amputations occurring 
within 30 days of a work-related incident. As provided in proposed 
paragraph (b)(7) of section 1904.39, employers would generally not be 
required to report fatalities, hospitalizations, or amputations of 
which they were not aware.
    The proposed addition of amputations to the reporting requirements 
would ensure that these incidents involving serious injury are promptly 
reported. Amputations include some of the most serious types of 
injuries and tend to result in a greater number of lost workdays than 
most other injuries. According to data available from BLS for 2008, the 
median number of days away from work for all injuries involving days 
away from work was 8, while the median number of days away from work 
for amputations was 26. Furthermore, amputations differ from other 
types of serious injuries because they tend to have long-term or 
permanent consequences. Although information reported regarding 
amputations will not necessarily result in an inspection, OSHA can use 
this information to better target inspections to workplaces with 
serious hazards in order to prevent any further workplace injuries. 
Thus, the benefits associated with the reporting of amputations would 
be comparable to those associated with the reporting of 
hospitalizations.
    For purposes of classifying occupational injuries and illnesses, 
amputations are defined by the Bureau of Labor Statistics in their 
Occupational Injury and Illness Classification Manual. 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). A reportable 
amputation under the proposed rule would include those that occur at 
the workplace as well as those that occur in a hospital as a result of 
a work-related event.
    The proposed reporting requirements would generally bring OSHA 
requirements more in line with those of other types of safety and 
health investigations. Federal regulations require aircraft pilots or 
operators to notify the National Transportation Safety Board (NTSB) of 
aviation accidents, certain incidents, and the occurrence of a variety 
of other conditions or events. The Federal Railroad Administration 
(FRA) requires railroads to report whenever they learn of the 
occurrence of anything on a list of types of accidents, incidents, 
events, or exposures.
    In some states that administer their own occupational safety and 
health regulations, elements similar to this proposed regulation are 
already being enforced. For example, California requires employers to 
report any employee death or serious injury or illness. The phrase 
``serious injury or illness'' includes the in-patient hospitalization 
of an employee, as well as when an employee suffers the loss of any 
part of the body. Alaska and Washington require notification when at 
least one employee is fatally injured or requires in-patient 
hospitalization. Utah requires notification of any disabling, serious, 
or significant injury, and of any occupational disease incident. In 
Kentucky, employers are required to report work-related incidents that 
result in the hospitalization of at least one employee, or in an 
amputation. In Oregon, incidents resulting in at least one employee 
needing overnight hospitalization for medical treatment are required to 
be reported.
Issues and Potential Alternatives
    OSHA requests comments on the potential benefits and burdens 
associated with the proposed revisions to the reporting requirements in 
Section 1904.39. As noted above, under current state regulations, many 
businesses are already required to make reports of work-related 
incidents resulting in death or serious injury, and many more are 
already required to report all work-related in-patient hospitalizations 
and amputations within eight hours.

[[Page 36420]]

    OSHA welcomes comments and data from the public regarding any 
aspect of the proposed reporting requirements. More specifically, the 
following questions and issues are relevant to this rulemaking:
    1. What types of incidents and/or injuries and illnesses should be 
reported to OSHA and why?
    2. Are there any injuries, illnesses, or conditions that should be 
reported to OSHA and are not included among in-patient 
hospitalizations?
    3. Should amputations that do not result in in-patient 
hospitalizations be reported to OSHA?
    4. Should OSHA require the reporting of all amputations?
    5. Should OSHA require the reporting of enucleations?
    6. Are there additional data or estimates available regarding the 
number of work-related incidents involving in-patient hospitalizations? 
Is there information available on how many work-related 
hospitalizations occur more than 30 days after the report of an injury 
or illness?
    7. Should OSHA allow reports to be made by means other than a 
telephone, such as by e-mail, fax, or a Web-based system?
    8. Are the reporting times of eight hours for fatalities, eight 
hours for in-patient hospitalizations, and 24 hours for amputations 
generally appropriate time periods for requiring reporting? What 
advantages or disadvantages would be associated with these or any 
alternative time periods?

III. Preliminary Economic Analysis and Regulatory Flexibility 
Certification

    This proposed rule is not a ``significant regulatory action'' 
within the context of Executive Order 12866 or the Unfunded Mandates 
Reform Act (UMRA) (2 U.S.C. 1532(a)), or a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.). This rulemaking has 
net costs of $8.5 million and costs between $50 and $100 per affected 
establishment. Thus, this rulemaking imposes far less than $100 million 
in annual costs on the economy, and does not meet any of the other 
criteria specified for a significant regulatory action or major rule in 
Executive Order 12866, the UMRA or the Congressional Review Act.
    This Preliminary Economic Analysis (PEA) addresses the costs, 
benefits, and economic impacts of the proposed rule. The proposed rule 
and the PEA were developed in accordance with the principles of 
Executive Order 12866 and Executive Order 13563. The proposed rule 
would make two changes to the existing recording and reporting 
requirements in Part 1904. It would change which industries are 
partially exempted from keeping records and would change the 
requirements for reporting certain work-related injuries. The affected 
establishments are only partially exempt because BLS may require any 
establishment to respond to its survey. The costs to those firms 
required to respond to the BLS survey are covered in the BLS survey 
paperwork package.
    The existing regulation partially exempts all employers with 10 or 
fewer employees and all establishments in specific lower-hazard 
industry sectors from routinely keeping OSHA records. The existing 
industry partial exemptions were determined by identifying industries 
with relatively low DART rates at the 3-digit SIC code level. This 
proposed rule would retain the partial exemption for employers with 10 
or fewer employees. It also would update the list of partially exempted 
industries to reflect the latest data on DART rates and to convert the 
industry classifications to the NAICS classification system. These 
changes would lead to new costs for employers who are currently 
partially exempt from recordkeeping requirements but would be newly 
required to keep records; there would also be cost savings for 
employers who would no longer be required to keep records.
    The existing rule requires that all work-related fatalities and 
work-related incidents involving three or more hospitalizations be 
reported to OSHA within eight hours. The proposed rule would retain the 
requirement that all fatalities be reported to OSHA within eight hours 
and would require that all work-related in-patient hospitalizations be 
reported to OSHA within eight hours and that all work-related 
amputations be reported to OSHA within 24 hours. The proposed rule 
would thus increase the number of incidents that are to be reported to 
OSHA.
    The remaining sections of this PEA provide estimates of the 
establishments that would be newly required to keep records or would be 
newly partially exempt from keeping records, and estimates of the 
numbers of reports of in-patient hospitalizations or amputations that 
would be required (the industrial profile section); the costs and costs 
savings associated with the proposed requirements; the benefits of the 
proposed rule; and the economic and small business impacts of the 
proposed changes.

Industrial Profile

    The purpose of this industrial profile section is to provide 
information about which industries would be affected by the proposed 
rule, the number of affected establishments in each affected industry, 
employment in establishments affected by the proposed rule, and 
estimates of the numbers of in-patient hospitalizations and amputations 
that would be required to be reported by the proposed rule. (There is 
no need to estimate the number of fatalities to be reported as current 
regulations already require the reporting of fatalities.)

Partial Exemption

    In regards to the partial exemption for certain lower hazard 
industries, OSHA identified which establishments would be newly 
required to keep records, and which establishments would be newly 
partially exempt from keeping records. This identification was 
complicated by the fact that the current rule classifies employers by 
SIC codes, a classification system dating to the 1930s which is no 
longer used in government statistics. OSHA had to convert employers 
classified by SIC code to the newer NAICS codes. In many cases, a 
single SIC code was divided into several NAICS codes, and conversely, a 
single NAICS code might contain establishments from multiple SIC codes. 
This analysis was conducted at the six-digit NAICS level. The data 
resulting from this analysis at the six-digit NAICS level are presented 
in the Appendix to this Preliminary Economic Analysis.
    To identify those employers that would no longer be partially 
exempt from OSHA recordkeeping requirements under the proposed rule, 
OSHA examined the 1997 Economic Census: Bridge between SIC and NAICS 
Tables (https://www.census.gov/epcd/naics02/S87TON02.HTM). These tables 
show, for 1997, the best available data on what percentage of the 
establishments in each SIC code transferred into each NAICS code. 
Affected establishments in an SIC code exempted under the existing rule 
but classified in a non-exempted NAICS code under the proposed rule 
would be newly subject to the recordkeeping requirements. These 
establishments, not exempted under the proposed rule, would incur new 
recordkeeping costs.
    Having used the bridge table to identify the portions of the 
industries by 6-digit NAICS code that would be newly required to keep 
records, OSHA used 2006 County Business Patterns to determine the 
corresponding numbers of establishments and employees (https://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls). This 
data source provides not only the total number of establishments and 
employees in an industry, but also a breakdown of employees and

[[Page 36421]]

establishments by the size of the firm that owns the establishment. 
These data permit a straightforward calculation of the number of 
establishments with 10 or more employees. However, both the current and 
proposed rules cover employers with 11 or more employees. To deduct 
those employers with exactly 10 employees, OSHA estimated that 
employers with exactly ten employees represent one tenth of all 
employers with between 10 and 19 employees. This approach will 
overestimate the number of covered firms because there tend to be a 
more than proportional number of firms at smaller size classes.
    OSHA then estimated the number of 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 as described above.
    OSHA then estimated the number of newly recordable injuries and 
illnesses by dividing the number of injuries and illness recorded per 
industry by BLS in 2006 (BLS https://www.bls.gov/iif/oshbulletin2006.htm) by the total employment in the industry, and 
multiplied the resulting rate by the number of affected employees in 
the industry as derived using the 1997 SIC-NAICS bridge tables. OSHA 
used BLS data at the four-digit NAICS level since more detailed injury 
and illness data were not available for all NAICS codes.
    Table III-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. OSHA estimates that as a result of the proposed 
rule's revision to partial exemptions, 199,000 establishments with 5.3 
million employees not previously required to record injuries would need 
to do so and that those establishments are would record an estimated 
173,000 injuries and illnesses per year.
    Having used the bridge table to identify the portions of the NAICS 
code industries that would be newly required to keep records, OSHA used 
the same methodology and data sources described above to determine the 
number of establishments, employees, and injuries and illnesses for 
establishments who would no longer be required to regularly keep 
records. Table III-2 shows the four-digit NAICS code, industry name, 
number of affected establishments, number of affected employees, and 
the estimated number of injuries and illnesses that would no longer be 
recorded in each affected industry. OSHA estimates that as a result of 
the revision to the list of partially exempt industries, 119,000 
establishments with 4.0 million employees and an estimated 76,000 
injuries and illnesses per year would no longer need to keep records 
regularly.

                            Table III-1-- Industries That Include Establishments That Would Be Newly Required to Keep Records
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Estimated
                 NAICS Code                          Title of NAICS Code              Affected          Affected       Affected firms     injuries and
                                                                                     employment      establishments                         illnesses
--------------------------------------------------------------------------------------------------------------------------------------------------------
3118.......................................  Bakeries and Tortilla Manufacturing            42,294             1,932             1,766               571
4411.......................................  Automobile Dealers.................         1,204,566            23,351            19,156            48,989
4413.......................................  Automotive Parts, Accessories, and              5,207               426                84               204
                                              Tire Stores.
4441.......................................  Building Material and Supplies                260,363            21,310             4,215            18,577
                                              Dealers.
4452.......................................  Specialty Food Stores..............            88,133             7,339             3,044             2,759
4453.......................................  Beer, Wine, and Liquor Stores......            69,011             6,109             2,878             2,356
4539.......................................  Other Miscellaneous Store Retailers           160,152            11,505             4,301             4,611
4543.......................................  Direct Selling Establishments......             1,569                69                43                67
5313.......................................  Activities Related to Real Estate..           490,941            19,341             9,881            13,864
5322.......................................  Consumer Goods Rental..............           130,839            14,186             1,158             1,114
5324.......................................  Commercial and Industrial Machinery            13,963               807               295               676
                                              and Equipment Rental and Leasing.
5419.......................................  Other Professional, Scientific, and           249,160            10,889             3,770             1,853
                                              Technical Services.
5612.......................................  Facilities Support Services........           162,384             3,293               865             8,955
5617.......................................  Services to Buildings and Dwellings             2,140               104                50               134
5619.......................................  Other Support Services.............           308,984             6,238             4,152             8,150
6219.......................................  Other Ambulatory Health Care                  105,656             2,688               859             5,734
                                              Services.
6241.......................................  Individual and Family Services.....           995,856            30,230            15,915            20,988
6242.......................................  Community Food and Housing, and               138,272             7,369             4,258             3,536
                                              Emergency and Other Relief
                                              Services.
7111.......................................  Performing Arts Companies..........           116,043             1,994             1,864             4,483
7113.......................................  Promoters of Performing Arts,                  93,738             1,183               973             2,421
                                              Sports, and Similar Events.
7121.......................................  Museums, Historical Sites, and                 77,933             1,610             1,352             2,860
                                              Similar Institutions.
7139.......................................  Other Amusement and Recreation                 73,447             2,912             2,244             1,254
                                              Industries.
7223.......................................  Special Food Services..............           510,294            22,379             3,802            18,164
8129.......................................  Other Personal Services............            42,254             1,498             1,117               914
                                                                                 -----------------------------------------------------------------------
  Total....................................  ...................................         5,343,199           198,763            88,040           173,233
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis.
Source: 2006 County Business Patterns: https://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls.
Source: 2006 Bureau of Labor Statistics, U.S. Department of Labor, Survey of Occupational Injuries and Illnesses, in cooperation with participating
  State agencies. https://www.bls.gov/iif/oshwc/osh/os/osnr0028.pdf.


[[Page 36422]]


                      Table III-2: Industries That Include Establishments That Would Be Newly Partially Exempt From Keeping Records
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Estimated
                 NAICS Code                          Title of NAICS Code              Affected          Affected       Affected firms     injuries  and
                                                                                     employment      establishments                         illnesses
--------------------------------------------------------------------------------------------------------------------------------------------------------
4412.......................................  Other Motor Vehicle Dealers........            80,441             3,794             2,594             3,757
4431.......................................  Electronics and Appliance Stores...            66,902             3,699             1,702             1,538
4461.......................................  Health and Personal Care Stores....            15,620             1,440               425               244
4471.......................................  Gasoline Stations..................           128,972            12,220             2,575             3,634
4511.......................................  Sporting Goods, Hobby, and Musical              1,271                65                16                37
                                              Instrument Stores.
4532.......................................  Office Supplies, Stationery, and               98,855             4,626               873             2,160
                                              Gift Stores.
4812.......................................  Nonscheduled Air Transportation....            37,807               763               580               855
4861.......................................  Pipeline Transportation of Crude                7,472               352                35               175
                                              Oil.
4862.......................................  Pipeline Transportation of Natural             22,080             1,303                68               510
                                              Gas.
4869.......................................  Other Pipeline Transportation......             9,348               881                51               219
4879.......................................  Scenic and Sightseeing                          2,155                45                39                80
                                              Transportation, Other.
4885.......................................  Freight Transportation Arrangement.           166,549             7,126             2,709             3,045
5111.......................................  Newspaper, Periodical, Book, and              654,211            10,912             4,896            16,037
                                              Directory Publishers.
5122.......................................  Sound Recording Industries.........            14,059               426               197               206
5151.......................................  Radio and Television Broadcasting..           251,523             7,186             2,084             4,931
5172.......................................  Wireless Telecommunications                   236,243            10,087               530             2,274
                                              Carriers (except Satellite).
5173.......................................  Telecommunications Resellers.......            27,652               800               533               499
5179.......................................  Other Telecommunications...........             9,365               204               104               191
5181.......................................  Internet Service Providers and Web             20,957               210               157               174
                                              Search Portals.
5191.......................................  Other Information Services.........            10,406               211                96               164
5221.......................................  Depository Credit Intermediation...            81,130             5,063               356               640
5239.......................................  Other Financial Investment                      8,158               115                77                19
                                              Activities.
5241.......................................  Insurance Carriers.................             8,946               251                55                63
5259.......................................  Other Investment Pools and Funds...            20,268               924               226               129
5413.......................................  Architectural, Engineering, and                31,953             1,144             1,008               508
                                              Related Services.
5416.......................................  Management, Scientific, and                    80,566             1,651               927               440
                                              Technical Consulting Services.
5418.......................................  Advertising and Related Services...            48,061             1,096               764               691
5511.......................................  Management of Companies and                 1,015,532            14,229             6,983            20,526
                                              Enterprises.
5614.......................................  Business Support Services..........           166,454             2,937             2,172             1,868
5615.......................................  Travel Arrangement and Reservation            167,398             7,106             2,054             1,385
                                              Services.
5616.......................................  Investigation and Security Services             6,361               386               332               148
6116.......................................  Other Schools and Instruction......            49,500             2,142             1,961               372
7213.......................................  Rooming and Boarding Houses........             6,313               350               280                60
8112.......................................  Electronic and Precision Equipment             61,789             2,047             1,182             1,179
                                              Repair and Maintenance.
8114.......................................  Personal and Household Goods Repair            42,582             2,131             1,146             1,163
                                              and Maintenance.
8122.......................................  Death Care Services................            24,515             1,730               551               606
8134.......................................  Civic and Social Organizations.....           131,301             4,233             3,141             2,473
8139.......................................  Business, Professional, Labor,                148,056             5,490             4,648             2,788
                                              Political, and Similar
                                              Organizations.
                                                                                 -----------------------------------------------------------------------
  Total....................................  ...................................         3,960,772           119,374            48,123            75,787
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: OSHA, Office of Regulatory Analysis.
Source: 2006 County Business Patterns: https://www2.census.gov/econ/susb/data/2006/us_6digitnaics_2006.xls.
Source: 2006 Bureau of Labor Statistics, U.S. Department of Labor, Survey of Occupational Injuries and Illnesses, in cooperation with participating
  State agencies. https://www.bls.gov/iif/oshwc/osh/os/osnr0028.pdf.

Reporting of Fatalities, In-Patient Hospitalizations and Amputations

    The proposed rule would require employers to report all work-
related in-patient hospitalizations and amputations to OSHA. This 
requirement would affect all industries, all employers, and all 7.5 
million establishments in OSHA's jurisdiction. Because OSHA already 
requires the reporting of work-related fatalities, this economic 
analysis focuses on the proposed new requirement for reporting all 
work-related in-patient hospitalization and amputations. The current 
regulation also requires the reporting of hospitalizations of three or 
more workers. The number of such multiple hospitalizations represents a 
trivial portion of all in-patient hospitalizations (For example, in 
Fiscal Year 2010, there were a total of 14 such reports. https://
www.osha.gov/dep/fatcat/fatcat--regional--rpt--

[[Page 36423]]

09252010.html ). OSHA therefore proceeded to estimate the total number 
of work-related in-patient hospitalizations without deducting the 
number of multiple hospitalizations that already must be reported.
    It is difficult to estimate the number of in-patient 
hospitalizations that would need to be reported under the proposed 
rule. NIOSH has estimated that in 2004, a total of 68,000 work-related 
Emergency Department visits resulted in hospitalization (MMWR Weekly, 
April 27 2007 (56(16):393-397--``Nonfatal Occupational Injuries and 
Illnesses--United States, 2004'' https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5616a3.htm (Note: no author given). By contrast, Dembe et al 
(Dembe AE, Mastroberti MA, Fox SE, Bigelow C, Banks SM. Inpatient 
hospital care for work-related injuries and illnesses. Am J Ind Med. 
2003 Oct; 44(4):331-42.) estimate that from 1997 to 1999 there were 
210,000 in-patient hospital admissions per year paid for by workers' 
compensation insurance. More recent studies in Massachusetts (1996-
2001) and Louisiana (1998-2007) come up with figures ranging from 
150,000 to 275,000 per year when extrapolated to the nation as a whole.
    One possible reconciliation for these different estimates of work-
related hospitalizations is that many workers' compensation-related 
hospitalizations are not emergencies but are scheduled or planned 
hospitalizations. This possibility is supported by the fact that 
musculoskeletal disorders represent only 10 percent of work-related 
emergency room hospitalizations in the NIOSH emergency department data, 
but 34 to 45 percent of hospitalizations that are paid for by workers' 
compensation insurance according to the workers' compensation related 
studies. If many of these hospitalizations are scheduled 
hospitalizations, they may not need to be reported as Section 1904.39 
does not require reporting of fatalities, hospitalizations or 
amputations that occur more than 30 days after an incident has 
occurred. However, the rule would require the reporting of in-patient 
hospitalizations occurring within 30 days of the original event. 
Nevertheless, OSHA will use 210,000 hospitalizations per year as a 
preliminary estimate for purposes of examining the costs of this rule.