[Federal Register Volume 79, Number 181 (Thursday, September 18, 2014)]
[Rules and Regulations]
[Pages 56129-56188]
[FR Doc No: 2014-21514]

Vol. 79

Thursday,

No. 181

September 18, 2014

Part II

Department of Labor

-----------------------------------------------------------------------

Occupational Safety and Health Administration

-----------------------------------------------------------------------

29 CFR Part 1904

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

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

-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1904

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

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

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

ACTION: Final rule.

-----------------------------------------------------------------------

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

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

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

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

1. Background

A. Table of Contents

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

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

B. References and Exhibits

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

C. Introduction

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

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

D. Regulatory History

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

II. Legal Authority

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

III. Section 1904.2--Partial Exemption for Certain Industries

A. Background

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

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

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

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

B. The Proposed Rule

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

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

C. Comments on the Proposed Rule

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

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

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

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

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

were 155 industry groups (classified by four-digit NAICS) in the
analysis. For 135 of these groups (87%), the exemption status remained
constant; partially-exempt industry groups remained partially exempt
throughout the period, and non-exempt industry groups remained non-
exempt. Of the remaining 20 industry groups, 10 (6%) changed status
once, either from non-exempt to partially-exempt or from partially-
exempt to non-exempt; seven (5%) changed status twice; and three (2%)
changed status three times. Although this final rule does not include a
regularly-scheduled update of the partial exemption list, the Agency is
planning a retrospective review of OSHA's recordkeeping regulations.
The Occupational Safety and Health Act itself requires the Secretary to
``develop and maintain an effective program of collection, compilation,
and analysis of occupational safety and health statistics'' and
specifies the underlying criteria for defining recordability. After the
passage of the Act, OSHA issued Part 1904, Recording and Reporting
Occupational Injuries and Illnesses. These regulations included
provisions on the industry and size of establishments exempted from the
recordkeeping requirements. Part 1904 was modified in 2001, following a
national process in which a large group of stakeholder representatives
and experts conducted a year-long dialogue on occupational injury and
illness recordkeeping. Among the recommendations that came out of this
dialogue that were incorporated into Part 1904 in the 2001 rulemaking
were the elimination of the requirement to record injuries and
illnesses that were viewed as irrelevant for evaluating the safety and
health environment of the work-place, and the addition of criteria to
capture newly recognized occupational safety and health conditions.
    OSHA believes there is value in a new re-examination of the
Agency's recordkeeping regulations. First, there is extensive evidence
that many work-related injuries and illnesses are currently not being
recorded on the Injury and Illness Logs maintained by employers. It has
long been recognized that most work-related illnesses, particularly
those chronic diseases which do not appear until years after first
exposure, are not recorded on these logs. In recent years, academic
researchers have performed numerous studies, comparing work-related
injuries recorded on employer-maintained logs with work-related
injuries identified through workers' compensation or hospital records.
These studies have demonstrated that a sizable proportion of work-
related injuries are not being recorded on employer-maintained logs.
Further, changes in the structure of employment, exemplified by the
increased presence of temporary and contractor workers in many
establishments, raise important questions about the effectiveness of
the current requirements and suggest that new approaches to injury
tracking may be warranted. Finally, in recent years there has been
little evaluation of the benefits and costs of the rule. With these
issues in mind, OSHA plans to undertake a retrospective review of the
effectiveness of the Agency's injury and illness recordkeeping
regulations.
    This retrospective study will be conducted in accordance with the
Department of Labor's Plan for Retrospective Analysis of Existing Rules
which complies with Executive Order (E.O.) 13563 ``Improving Regulation
and Regulatory Review'' (76 FR 3821). E.O. 13563 requires agencies to
develop and submit to the Office of Information and Regulatory Affairs
a preliminary plan, consistent with law and its resources and
regulatory priorities, under which the agency will periodically review
its existing significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving the regulatory objectives. [76 FR 3822].
    In addition to the retrospective review, OSHA will engage the
public to assess the impact of the changes implemented under this
rulemaking. The Agency will conduct a stakeholder meeting to discuss
the burdens associated with the new coverage and reporting requirements
and the utility and use of the new information collected. We anticipate
conducting such a meeting after the new requirements have been in place
for two years to allow for a sufficient impact to be considered.
8. Training, Education, and Compliance Assistance to Facilitate
Compliance With the Recordkeeping Requirements
    In the NPRM, OSHA asked, ``Are there any specific types of
training, education, and compliance assistance OSHA could provide that
would be particularly helpful in facilitating compliance with the
recordkeeping requirements?''
    The UAW commented that ``OSHA should do more training and
dissemination of information about employee rights and employer
obligations related to recordkeeping, especially for small employers
and their employees'' (Ex. 77).
    OSHA has recently put two tools on its public Web site to help
employers comply with recordkeeping requirements: A 15-minute on-line
tutorial (training module) on completing the recordkeeping forms, and
an interactive e-tool (Recordkeeping Advisor) that uses employer
responses to questions to help employers determine whether or not (and
how) they need to record/report specific injuries and illnesses. Both
are available on OSHA's recordkeeping Web page at http://www.osha.gov/recordkeeping/index.html. In addition, the recordkeeping forms booklet
includes general instructions, instructions for each OSHA recordkeeping
form, and contact information for recordkeeping assistance from
Regional and State Plan offices.
Other Issues Raised by Comments
    The National Association of Real Estate Investment Trusts (NAREIT)
``encourage[d] OSHA to recalculate its [Preliminary Economic Analysis
(PEA)] of the proposed rule utilizing 2007 NAICS codes, rather than
pre-2007 NAICS codes'' (Ex. 41).
    The PEA in the NPRM was based on the 1997 Economic Census Bridge
between SIC and NAICS tables (http://www.census.gov/epcd/naics02/S87TON02.HTM), 2006 data from County Business Patterns (CBP) on number
of establishments (http://www2.census.gov/econ/susb/data/2006/
us6digitnaics2006.xls), and 2006 data from BLS on
numbers of injuries and illnesses.
    Bridges between SIC and NAICS are available for 1987 SIC-1997 NAICS
and 1987 SIC-2002 NAICS. No bridge is available for 1987 SIC-2007
NAICS, although a bridge is available for 2002 NAICS -2007 NAICS.
    In the final rule, the Final Economic Analysis (FEA) is based on
2010 data from CBP and 2007-2009 data from BLS. 2010 CBP data were
based on the 2007 NAICS. 2007 and 2008 BLS data were based on the 2002
NAICS; 2009 BLS data were based on the 2007 NAICS.
    For industry sectors (two-digit NAICS) eligible for partial
exemption under both the proposed rule and the final rule, the 2002
NAICS differs from the 2007 NAICS as follows (see http://www.census.gov/eos/www/naics/faqs/faqs.html):
    Sector 51, Information--Major changes were made in the Information
sector. Telecommunications Resellers and Cable and Other Program

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

D. The Final Rule

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

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

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

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

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

A. Background

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

B. The Proposed Rule

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

C. Comments to the Proposed Rule

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

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

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

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

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

It is not likely that an amputation would occur that would not result
in a hospitalization and if it didn't, it would not be a serious enough
injury to warrant a follow-up by OSHA'' (Ex. 80). The National Grain
and Feed Association (NGFA) commented that `. . . minor incidents that
do not require hospitalization--including loss of the fingertip to the
bone--should not be [reportable]. However, we do agree that significant
incidents such as loss of a limb, which would require hospitalization,
should be reportable'' (Ex. 96). The RILA recommended requiring the
reporting only of amputations ``necessitating in-patient hospital
treatment'' and not of ``incidents in which the injury necessitates
minor treatment in an emergency room or out-patient facility'' (Ex.
102).
    Other commenters, however, supported the requirement to report all
amputations, regardless of whether they resulted in in-patient
hospitalizations. Most of these commenters provided data showing the
prevalence and significance of amputations that did not involve in-
patient hospitalization.
    NIOSH commented that ``[o]f the 2.6 million [emergency department
(ED)] visits for work-related injuries and illnesses in 2009 [in the
NIOSH-NEISS-Work dataset], approximately 15,000 workers were diagnosed
as having sustained an amputation (includes injuries with bone loss,
possibly without bone loss, severe avulsions, and near amputations). Of
these, 78% were treated and released while 22% were admitted to the
hospital or transferred to another facility.'' NIOSH continued, ``. . .
given that over \3/4\ of ED treated work-related injuries and illnesses
were treated and released, collecting the less severe injuries that are
simply treated and released may identify areas that need further
investigation.'' NIOSH recommended that employers be required to report
all amputations to OSHA (Ex. 66).
    The UAW commented that ``[n]inety six percent of amputations
involve a finger. These amputations may have a permanently disabling
impact on their victims' lives, but may, in some cases be treated by
outpatient surgery and not lead to inpatient hospitalization. They
should nevertheless be reported to OSHA'' (Ex. 77). The United Food and
Commercial Workers International Union (UFCW) made a similar comment
(Ex. 81).
    Finally, Letitia Davis cited data collected by the Massachusetts
Department of Public Health (MDPH) showing that ``there were 696 work-
related amputations treated in Massachusetts hospitals during 2007-
2008, an average of 348 amputations per year. The majority of these
cases were treated in the emergency department only (N = 501; 71%); a
small number (N = 28; 4%) were first treated in emergency departments
and hospitalized at a later date; 22% (N = 156) were first treated as
inpatients. These findings suggest that restricting reporting to
amputations treated only an inpatient basis would substantially reduce
number of cases identified and miss important opportunities for
intervention'' (Ex. 84).
    OSHA finds that amputations are significant workplace injuries and
that the data show that the majority of amputations do not involve in-
patient hospitalizations. As a result, like the proposed rule, the
final rule will require employers to report all amputations to OSHA,
whether or not they involve in-patient hospitalization (see Sec.
1904.39(a)(2)). (Note that, for amputations involving in-patient
hospitalization, employers will only have to make a single report.)
4. Required Reporting of Amputations
    In the preamble to the proposed rule, OSHA asked: ``Should OSHA
require the reporting of all amputations?''
    Commenters responding to this question primarily focused on two
main topics:
    1. The seriousness and significance of amputations.
    2. The definition of amputations.
    On the topic of the seriousness and significance of amputations,
many commenters opposed the requirement in the proposed rule to report
all amputations. Spurlock and Higgins commented that ``the mere
occurrence of an amputation can often be attributed to numerous hazards
for which OSHA has no standard, or there are few, practical hazard
controls at an employer's disposal'' (Ex. 24); Safety Compliance
Services made a similar comment (Ex. 29). The IADC commented that
``[r]eporting amputations, such as the tip of a finger, is overly
burdensome and again offers little value in protecting workers from
occupational hazards'' (Ex. 39). The PIA commented that ``in most
cases, especially in the printing industry, singular cases [of
amputations] are not associated with a significant event or a high
gravity situation'' (Ex. 45). The American Society of Safety Engineers