[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)][Rules and Regulations][Pages 29623-29694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10443]
Vol. 81
Thursday,
No. 92
May 12, 2016
Part II
Department of Labor
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29 CFR Parts 1904 and 1902
Improve Tracking of Workplace Injuries and Illnesses; Final Rule
Federal Register / Vol. 81 , No. 92 / Thursday, May 12, 2016 / Rules
and Regulations
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904 and 1902
[Docket No. OSHA-2013-0023]
RIN 1218-AC49
Improve Tracking of Workplace Injuries and Illnesses
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is issuing a final rule to revise its Recording and
Reporting Occupational Injuries and Illnesses regulation. The final
rule requires employers in certain industries to electronically submit
to OSHA injury and illness data that employers are already required to
keep under existing OSHA regulations. The frequency and content of
these establishment-specific submissions is set out in the final rule
and is dependent on the size and industry of the employer. OSHA intends
to post the data from these submissions on a publicly accessible Web
site. OSHA does not intend to post any information on the Web site that
could be used to identify individual employees.
The final rule also amends OSHA's recordkeeping regulation to
update requirements on how employers inform employees to report work-
related injuries and illnesses to their employer. The final rule
requires employers to inform employees of their right to report work-
related injuries and illnesses free from retaliation; clarifies the
existing implicit requirement that an employer's procedure for
reporting work-related injuries and illnesses must be reasonable and
not deter or discourage employees from reporting; and incorporates the
existing statutory prohibition on retaliating against employees for
reporting work-related injuries or illnesses. The final rule also
amends OSHA's existing recordkeeping regulation to clarify the rights
of employees and their representatives to access the injury and illness
records.
DATES: This final rule becomes effective on January 1, 2017, except for
Sec. Sec. 1904.35 and 1904.36, which become effective on August 10,
2016. Collections of information: There are collections of information
contained in this final rule (see Section XI, Office of Management and
Budget Review Under the Paperwork Reduction Act of 1995).
Notwithstanding the general date of applicability that applies to all
other requirements contained in the final rule, affected parties do not
have to comply with the collections of information until the Department
of Labor publishes a separate document in the Federal Register
announcing that the Office of Management and Budget has approved them
under the Paperwork Reduction Act.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), OSHA designates Ann
Rosenthal, Associate Solicitor of Labor for Occupational Safety and
Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210, to receive petitions
for review of the final rule.
FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger,
OSHA, Office of Communications, Room N-3647, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email: meilinger.francis2@dol.gov
For general and technical information: Miriam Schoenbaum, OSHA,
Office of Statistical Analysis, Room N-3507, U.S. Department of Labor,
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1841; email: schoenbaum.miriam@dol.gov.
SUPPLEMENTARY INFORMATION:
I. 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 (Improving
tracking of workplace injuries and illnesses):
I. Background
A. Table of Contents
B. References and Exhibits
C. Introduction
D. Regulatory History
II. Legal Authority
III. Section 1904.41
A. Background
B. The Proposed Rule
C. Comments on the Proposed Rule
D. The Final Rule
IV. Section 1902.7--State Plan Requirements
V. Section 1904.35 and Section 1904.36
A. Background
B. The Proposed Rule
C. The Final Rule
VI. Final Economic Analysis and Regulatory Flexibility Analysis
A. Introduction
B. Costs
C. Benefits
D. Economic Feasibility
E. Regulatory Flexibility Certification
VII. Unfunded Mandates
VIII. Federalism
IX. State Plan States
X. Environmental Impact Assessment
XI. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
XII. Consultation and Coordination With Indian Tribal Governments
B. References and Exhibits
In this preamble, OSHA references documents in Docket No. OSHA-
2013-0023, 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-2013-0023-0001.
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 OSHA Form
300. 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.
This final rule amends OSHA's recordkeeping regulations to add
requirements for the electronic submission of injury and illness
information employers are already required to keep under part 1904.
First, the final rule requires establishments with 250 or more employees
to electronically submit information from their part 1904 recordkeeping
forms (Forms 300, 300A, and 301) to OSHA or OSHA's designee on an
annual basis. Second, the final rule requires establishments with 20 or
more employees, but fewer than 250 employees, in certain designated
industries, to electronically submit information from their part 1904
annual summary (Form 300A) to OSHA or OSHA's designee on an annual
basis. Third, the final rule requires, upon notification, employers to
electronically submit information from part 1904 recordkeeping forms to
OSHA or OSHA's designee.
The electronic submission requirements in the final rule do 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 final rule also does
not add to or change the recording criteria or definitions for these
records.
OSHA intends to post the establishment-specific injury and illness
data it collects under this final rule on its public Web site at
www.osha.gov. The publication of specific data fields will be in part
restricted by applicable federal law, including the Freedom of
Information Act (FOIA), as well as specific provisions within part
1904. OSHA does not intend to post any information on the Web site that
could be used to identify individual employees.
Additionally, OSHA's existing recordkeeping regulation requires
employers to inform employees about how to report occupational injuries
and illnesses (29 CFR 1904.35(a), (b)). This final rule amends OSHA's
recordkeeping regulations to require employers to inform employees of
their right to report work-related injuries and illnesses; clarifies
the existing implicit requirement that an employer's procedure for
reporting work-related injuries and illnesses must be reasonable and
not deter or discourage employees from reporting; and incorporates the
existing statutory prohibition on retaliating against employees for
reporting work-related injuries or illnesses.
OSHA estimates that this final rule will have economic costs of $15
million per year, including $13.7 million per year to the private
sector, with costs of $7.2 million per year for electronic submission
for affected establishments with 250 or more employees and $4.6 million
for electronic submission for affected establishments with 20 to 249
employees in designated industries. With respect to the anti-
discrimination requirements of this final rule, OSHA estimates a first-
year cost of $8.0 million and annualized costs of $0.9 million per
year. When fully implemented, the first-year economic cost for all
provisions of the final rule is estimated at $28 million. The rule will
be phased in, which moves the annual cost for reporting case
characteristic data from OSHA Forms 300 and 301 by 33,000
establishments from 2017 to 2018. This phase-in removes about $6.9
million from the first year costs, but those costs would reappear in
years two through 10.
The Agency believes that the annual benefits, while unquantified,
exceed the annual costs. These benefits include better compliance with
OSHA's statutory directive "to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions and
to preserve our human resources" (29 U.S.C. 651(b)). They also include
increased prevention of workplace injuries and illnesses as a result of
expanded access to timely, establishment-specific injury/illness
information by OSHA, employers, employees, employee representatives,
potential employees, customers, potential customers, and researchers.
The benefits of the final rule also include promotion of complete and
accurate reporting of work-related injuries and illnesses.
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). This regulation requires the recording of work-
related injuries and illnesses that involve death, loss of
consciousness, days away from work, restriction of work, transfer to
another job, medical treatment other than first aid, or diagnosis of a
significant injury or illness by a physician or other licensed health
care professional (29 CFR 1904.7).
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). OSHA also amended the recordkeeping regulations in 1994
(Reporting fatalities and multiple hospitalization incidents to OSHA,
29 CFR 1904.39) and 1997 (Annual OSHA injury and illness survey of ten
or more employers, 29 CFR 1904.41).
In 2001, OSHA issued a final rule amending its requirements for the
recording and reporting of occupational injuries and illnesses (29 CFR
parts 1904 and 1902), along with the forms employers use to record
those injuries and illnesses (66 FR 5916 (Jan. 19, 2001)). The final
rule also updated the list of industries that are partially exempt from
recording occupational injuries and illnesses. In 2014, OSHA again
amended the part 1904 regulations to require employers to report work-
related fatalities, in-patient hospitalizations, amputations, and
losses of an eye to OSHA and to allow electronic reporting (79 FR 56130
(Sept. 18, 2014)). The final rule also revised the list of industries
that are partially exempt from recording occupational injuries and
illnesses.
On November 8, 2013, OSHA issued a proposed rule to amend its
recordkeeping regulations to add requirements for electronic submission
of injury and illness information that employers are already required
to keep (78 FR 67254). In the preamble to the proposed rule, OSHA
explained that, consistent with applicable Federal law, such as FOIA
and specific provisions of part 1904, the Agency intended to post the
recordkeeping data it collects on its public Web site. A public meeting
on the proposed rule was held on January 9-10, 2014. A concern raised
by many meeting participants was that the proposed electronic
submission requirement might create a motivation for employers to
under-report injuries and illnesses. Some participants also commented
that some employers already discourage employees from reporting
injuries or illnesses by disciplining or taking other adverse action
against employees who file injury and illness reports. As a result, on
August 14, 2014, OSHA issued a supplemental notice to the proposed rule
seeking comments on whether to amend the part 1904 regulations to
prohibit employers from taking adverse action against employees for
reporting occupational injuries and illnesses. OSHA received 311
comments on the electronic submission section of the proposed rule and
142 comments on the supplemental notice to the proposed rule. The
comments for the proposed rule and the supplemental notice to the
proposed rule are addressed below.
II. Legal Authority
OSHA is issuing this final rule pursuant to authority expressly
granted by sections 8 and 24 of the Occupational Safety and Health Act
(the "OSH Act" or "Act") (29 U.S.C. 657, 673). Section 8(c)(1)
requires each employer to "make, keep and preserve, and make available
to the Secretary [of Labor] or the Secretary of Health and Human Services,
such records regarding his activities relating to this Act as the
Secretary... may prescribe by regulation as necessary or appropriate
for the enforcement of this Act or for developing information regarding
the causes and prevention of occupational accidents and illnesses"
(29 U.S.C. 657(c)(1)). Section 8(c)(2) directs the Secretary to prescribe
regulations "requiring employers to maintain accurate records of, and to
make periodic reports on, work-related deaths, injuries and illnesses
other than minor injuries requiring only first aid treatment and which do
not involve medical treatment, loss of consciousness, restriction of work
or motion, or transfer to another job" (29 U.S.C. 657(c)(2)). Finally,
section 8(g)(2) of the OSH Act broadly empowers the Secretary to
"prescribe such rules and regulations as he may deem necessary to
carry out [his] responsibilities under this Act" (29 U.S.C.
657(g)(2)).
Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant
of authority. This section 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..." (29
U.S.C. 673(a)). Section 24 also requires employers to "file such
reports with the Secretary as he shall prescribe by regulation" (29
U.S.C. 673(e)). These reports are to be based on "the records made and
kept pursuant to section 8(c) of this Act" (29 U.S.C. 673(e)).
Further support for the Secretary's authority to require employers
to keep and submit records of work-related illnesses and injuries can
be found in the Congressional Findings and Purpose at the beginning of
the OSH Act (29 U.S.C. 651). In this section, Congress declares the
overarching purpose of the Act to be "to assure so far as possible
every working man and woman in the Nation safe and healthful working
conditions" (29 U.S.C. 651(b)). One of the ways in which the Act is
meant to achieve this goal is "by providing for 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 of Labor to issue two types of
occupational safety and health rules: Standards and regulations.
Standards, which are authorized by section 6 of the 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. For
example, the OSHA requirements at 29 CFR 1910.95 are a "standard"
because they include remedial measures to address the specific and
already identified hazard of employee exposure to occupational noise.
In contrast, a "regulation" is a purely administrative effort
designed to uncover violations of the Act and discover unknown dangers.
Recordkeeping requirements promulgated under the Act are
characterized as regulations (see 29 U.S.C. 657 (using the term
"regulations" to describe recordkeeping requirements)). Also, courts
of appeal have held that OSHA recordkeeping rules are regulations and
not standards. See, Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1468 (D.C. Cir. 1995) (citing Louisiana Chemical Association v.
Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of
America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Standards aim to
correct particular identified workplace hazards, while regulations
further the general enforcement and detection purposes of the OSH Act.
Id.
This final rule does not infringe on employers' Fourth Amendment
rights. The Fourth Amendment protects against searches and seizures of
private property by the government, but only when a person has a
"legitimate expectation of privacy" in the object of the search or
seizure (Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is
little or no expectation of privacy in records that are required by the
government to be kept and made available (Free Speech Coalition v.
Holder, 729 F.Supp.2d 691, 747, 750-51 (E.D. Pa. 2010) (citing cases);
United States v. Miller, 425 U.S. 435, 442-43 (1976); cf. Shapiro v.
United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment interest in
required records)). Accordingly, the Fourth Circuit held, in McLaughlin
v. A.B. Chance, that an employer has little expectation of privacy in
the records of occupational injuries and illnesses kept pursuant to
OSHA regulations, and must disclose them to the Agency on request (842
F.2d 724, 727-28 (4th Cir. 1988)).
Even if there were an expectation of privacy, the Fourth Amendment
prohibits only unreasonable intrusions by the government (Kentucky v.
King, 131 S. Ct. 1849, 1856 (2011)). The information submission
requirement in this final rule is reasonable. The requirement serves a
substantial government interest in the health and safety of workers,
has a strong statutory basis, and rests on reasonable, objective
criteria for determining which employers must report information to
OSHA (see New York v. Burger, 482 U.S. 691, 702-703 (1987)).
OSHA notes that two courts have held, contrary to A.B. Chance, that
the Fourth Amendment requires prior judicial review of the
reasonableness of an OSHA field inspector's demand for access to injury
and illness logs before the Agency could issue a citation for denial of
access (McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock
v. Emerson Electric Co., 834 F.2d 994 (11th Cir. 1987)). Those
decisions are inapposite here. The courts based their rulings on a
concern that field enforcement staff had unbridled discretion to choose
the employers they would inspect and the circumstances in which they
would demand access to employer records. The Emerson Electric court
specifically noted that in situations where "businesses or individuals
are required to report particular information to the government on a
regular basis[,] a uniform statutory or regulatory reporting
requirement [would] satisf[y] the Fourth Amendment concern regarding
the potential for arbitrary invasions of privacy" (834 F.2d at 997,
fn.2). This final rule, like that hypothetical, establishes general
reporting requirements based on objective criteria and does not vest
field staff with any discretion. The employers that are required to
report data, the information they must report, and the time when they
must report it are clearly identified in the text of the rule and in
supplemental documents that will be published pursuant to the Paperwork
Reduction Act. The final rule is similar in these respects to the
existing regulation in Sec. 1904.41 that authorized reporting pursuant
to the OSHA Data Initiative and is reasonable under the Fourth
Amendment (see 62 FR 6434, 6437-38 (Feb. 11, 1997) for a discussion of
Fourth Amendment issues in the final rule on Reporting Occupational
Injury and Illness Data to OSHA). The existing regulation in Sec.
1904.41 required employers who received OSHA's annual survey form to
report the following information to OSHA for the year described on the
form: Number of workers the employer employed, the number of hours the
employees worked, and the requested information from the records that
the employers keep under part 1904.
The Act's various statutory grants of authority that address
recordkeeping provide authority for OSHA to prohibit employers from
discouraging employee reports of injuries or illnesses. If employers
may not discriminate against workers for reporting injuries or
illnesses, then discrimination will not occur to deter workers from
reporting their injuries and illnesses, and their employers' records
and reports may be more "accurate", as required by sections 8 and 24
of the Act. Evidence in the administrative record establishes that some
employers engage in practices that discourage injury and illness
reporting, and many commenters provided support for OSHA's concern that
the electronic submission requirements of this final rule and
associated posting of data could provide additional motivation for
employers to discourage accurate reporting of injuries and illnesses.
Therefore, prohibiting employers from engaging in practices that
discourage their employees from reporting injuries or illnesses,
including discharging or in any manner discriminating against such
employees, is "necessary to carry out" the recordkeeping requirements
of the Act (see 29 U.S.C. 657(g)(2)).
As noted by many commenters, section 11(c) of the Act already
prohibits any person from discharging or otherwise discriminating
against any employee because that employee has exercised any right
under the Act (29 U.S.C. 660(c)(1)). Under this provision, an employee
who believes he or she has been discriminated against may file a
complaint with OSHA, and if, after investigation, the Secretary has
reasonable cause to believe that section 11(c) has been violated, then
the Secretary may file suit against the employer in U.S. District Court
seeking "all appropriate relief," including reinstatement and back
pay (29 U.S.C. 660(c)(2)). Discriminating against an employee who
reports a fatality, injury, or illness is a violation of section 11(c)
(see 29 CFR 1904.36), so the conduct prohibited by Sec.
1904.35(b)(1)(iv) of the final rule is already proscribed by section
11(c).
The advantage of this new provision (Sec. 1904.35(b)(1)(iv)) is
that it provides OSHA with additional enforcement tools to promote the
accuracy and integrity of the injury and illness records employers are
required to keep under part 1904. For example, under section 11(c),
OSHA may not act against an employer unless an employee files a
complaint. Under Sec. 1904.35(b)(1)(iv) of the final rule, OSHA will
be able to cite an employer for taking adverse action against an
employee for reporting an injury or illness, even if the employee did
not file a complaint. Moreover, citations can result in orders
requiring employers to abate violations, which may be a more efficient
tool to correct employer policies and practices than the remedies
authorized under section 11(c), which are often employee-specific.
The fact that section 11(c) already provides a remedy for
retaliation does not preclude the Secretary from implementing
alternative remedies under the OSH Act. Where retaliation threatens to
undermine a program that Congress required the Secretary to adopt, the
Secretary may proscribe that retaliation through a regulatory provision
unrelated to section 11(c). For example, under the medical removal
protection (MRP) provision of the lead standard, employers are required
to pay the salaries of workers who cannot work due to high blood lead
levels (29 CFR 1910.1025(k); see United Steelworkers, AFL-CIO v.
Marshall, 647 F.2d 1189, 1238 (D.C. Cir. 1980)). And it is well
established that the Occupational Safety and Health Review Commission
may order employers to pay back pay as abatement for violations of the
MRP requirements (see United Steelworkers, AFL-CIO v. St. Joe
Resources, 916 F.2d 294, 299 (5th Cir. 1990); Dole v. East Penn
Manufacturing Co., 894 F.2d 640, 646 (3d Cir. 1990)). If the reason
that an employer decided not to pay MRP benefits was to retaliate for
an employee's exercise of a right under the Act, OSHA can still cite
the employer and seek the benefits as abatement, because payment of the
benefits is important to vindicate the health interests underlying MRP.
The mere fact that section 11(c) provides one remedial process does not
require that OSHA treat the matter as an 11(c) case (see St. Joe
Resources, 916 F.2d at 298 (stating that that 11(c) was not an
exclusive remedy, because otherwise the remedial purposes of MRP would
be undermined)). This would also be the case under the final rule. If
employers reduce the accuracy of their injury and illness records by
retaliating against employees who report an injury or illness, then
OSHA's authority to collect accurate injury and illness records allows
OSHA to proscribe such conduct even if the conduct would also be
proscribed by section 11(c).
III. Section 1904.41
A. Background
OSHA regulations at 29 CFR part 1904 currently require employers
with more than 10 employees in most industries to keep records of work-
related injuries and illnesses at their establishments. Employers
covered by these rules must prepare an injury and illness report for
each case (Form 301), compile a log of these cases (Form 300), and
complete and post in the workplace an annual summary of work-related
injuries and illnesses (Form 300A).
OSHA currently obtains the injury and illness data entered on the
three recordkeeping forms only through onsite inspections, which
collect only the data from the individual establishment being
inspected, or by inclusion of an establishment in a survey pursuant to
the previous 29 CFR 1904.41, Annual OSHA injury and illness survey of
ten or more employers. From 1997 to 2012, OSHA used the authority in
the previous Sec. 1904.41 to collect establishment-specific injury and
illness data through the OSHA Data Initiative (ODI). Through the ODI,
OSHA requested injury and illness data from approximately 80,000 larger
establishments (20 or more employees) in selected industries each year.
The ODI collected only the aggregate data from the 300A annual
summary form, and the data were not required to be submitted
electronically. OSHA used the information obtained through the ODI to
identify and target the most hazardous worksites.
The Department of Labor also collects occupational injury and
illness data through the annual Survey of Occupational Injuries and
Illnesses (SOII), which is conducted by the Bureau of Labor Statistics
(BLS) pursuant to 29 CFR 1904.42, Requests from the Bureau of Labor
Statistics for data. The SOII provides annual rates and numbers of
work-related injuries and illnesses, but BLS is prohibited from
releasing establishment-specific data to OSHA or the general public.
The final rule does not affect the SOII.
OSHA's recordkeeping regulation currently covers more than 600,000
employers with approximately 1,300,000 establishments. 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 Sec. 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 Sec. 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 the previous Sec. 1904.41 or by BLS
under Sec. 1904.42.
The records required by part 1904 provide important information to
OSHA, as well as to consultants in OSHA's On-Site Consultation Program.
However, OSHA enforcement programs currently do not have access to the
information in the records required by part 1904 unless the
establishment receives an onsite inspection from OSHA or is part of an
OSHA annual survey under the previous Sec. 1904.41. At the beginning
of an inspection, an OSHA representative reviews the establishment's
injury and illness records to help focus the inspection on the safety
and health hazards suggested by the records. (OSHA consultants conduct
a similar review when an establishment has requested a consultation.)
OSHA has used establishment-specific injury and illness information
obtained through the ODI to help target the most hazardous worksites.
1. OSHA Data Initiative (ODI)
In the past, OSHA has used the authority in previous Sec. 1904.41
to conduct injury and illness surveys of employers through the ODI. The
purpose of the ODI was to collect data on injuries and acute illnesses
attributable to work-related activities in private-sector industries
from approximately 80,000 establishments in selected high-hazard
industries. The Agency used these data to calculate establishment-
specific injury/illness rates, and in combination with other data
sources, to target enforcement and compliance assistance activities.
The ODI consisted of larger establishments (20 or more employees) in
the manufacturing industry and in an additional 70 non-manufacturing
industries. These are industries with historically high rates of
occupational injury and illness. Typically, there were over 180,000
unique establishments subject to participation in the ODI. The ODI was
designed so that each eligible establishment received the ODI survey at
least once every three-year cycle. In a given year, OSHA would send the
ODI survey to approximately 80,000 establishments (1.1 percent of all
establishments nationwide), which typically accounted for approximately
700,000 recordable injuries and illnesses (19 percent of injuries and
illnesses recorded by employers nationwide).
The ODI survey collected the following data from the Form 300A
(annual summary) from each establishment:
Number of cases (total number of deaths, total number of
cases with days away from work, total number of cases with job transfer
or restrictions, and total number of other recordable cases);
Number of days (total number of days away from work and
total number of days of job transfer or restriction);
Injury and illness types (total numbers of injuries, skin
disorders, respiratory conditions, poisonings, hearing loss, and all
other illnesses);
Establishment information (name, street address, industry
description, SIC or NAICS code, and employment information (annual
average number of employees, and total hours worked by all employees));
Contact information (Company contact name, title,
telephone number, and date).
Employers had the option of submitting their data on paper forms or
electronically. OSHA then calculated establishment-specific injury and
illness rates and used the rates in its Site-Specific Targeting (SST)
enforcement program and High Rate Letter outreach program. The Agency
also made the establishment-specific data available to the public
through its Web site at http://www.osha.gov/pls/odi/establishment_search.html and through President Obama's Open Government
Initiative at Data.gov (http://www.data.gov/raw/1461).
2. BLS Survey of Occupational Injuries and Illnesses (SOII)
The primary purpose of the SOII is to provide annual information on
the rates and numbers of work-related non-fatal injuries and illnesses
in the United States, and on how these statistics vary by incident,
industry, geography, occupation, and other characteristics. The
Confidential Information Protection and Statistical Efficiency Act of
2002 (Pub. L. 107-347, Dec. 17, 2002) prohibits BLS from releasing
establishment-specific data to the general public or to OSHA.
Each year, BLS collects data from the three recordkeeping forms
from a scientifically-selected probability sample of about 230,000
establishments, covering nearly all private-sector industries, as well
as state and local government. Employers may submit their data on paper
forms or electronically. As stated above, the final rule will not
affect the authority for the SOII.
3. OSHA Access to Establishment-Specific Injury and Illness Information
OSHA currently has only a limited ability to obtain part 1904
records, or the establishment-specific injury and illness information
included on these forms. Right now, OSHA can access the information in
three limited ways.
First, OSHA is able to obtain establishment-specific injury and
illness information from employers through workplace inspections. OSHA
inspectors examine all records kept under part 1904, including detailed
information about specified injuries and illnesses. However, each year,
OSHA inspects only a small percentage of all establishments subject to
OSHA authority. For example, in Fiscal Year 2014, OSHA and its state
partners inspected approximately 1 percent of establishments under OSHA
authority (approximately 83,000 inspections, out of approximately 8
million total establishments). As a result, the Agency is not able to
compile a comprehensive and timely database of establishment-specific
injury/illness information from inspection activities.
Second, OSHA has been able to obtain establishment-specific injury
and illness information from employers through the ODI. However,
because the ODI collected only summary data from the Form 300A, it did
not enable OSHA to identify specific hazards or problems in
establishments included in the ODI. In addition, the data were not
timely. The injury/illness information in each year's Site-Specific
Targeting Program came from the previous year's ODI, which collected
injury/illness data from the year before that. As a result, OSHA's
site-specific targeting typically was based on injury/illness data that
were two or three years old. Additionally, the group of 80,000
establishments in a given year's ODI was a very small fraction of
establishments subject to OSHA oversight.
Finally, OSHA is able to obtain limited establishment-specific
injury and illness information from employers through 29 CFR 1904.39,
Reporting fatalities, hospitalizations, amputations, and losses of an
eye as a result of work-related incidents to OSHA. OSHA's current
regulation requires employers to report work-related fatalities to OSHA
within 8 hours of the event. The regulation also requires employers to
report work-related in-patient hospitalizations, amputations, and
losses of an eye to OSHA within 24 hours of the event. These most
severe workplace injuries and illnesses are fortunately rare. OSHA
receives fewer than 2,000 establishment-specific reports of fatalities
each year. From January 1, 2015, to April 10, 2015, OSHA had received
roughly 2,270 reports of single in-patient hospitalizations, 750
reports of amputations, and 4 reports of a loss of an eye. These
fatality/severe injury reports do not include the establishment's
injury and illness records unless OSHA also collects these records
during a subsequent inspection.
Given the above, OSHA currently obtains limited establishment-
specific injury and illness information from an establishment in a
particular year only if the establishment was inspected or was part of
the ODI.
As noted above, OSHA does obtain aggregate information from the
injury and illness records collected through the BLS SOII. SOII data
have a time lag of almost a year, with data for a given year not
available until November of the following year.
d. Benefits of Electronic Data Collection
The main purpose of this section of the final rule is to prevent
worker injuries and illnesses through the collection and use of timely,
establishment-specific injury and illness data. With the information
obtained through this final rule, employers, employees, employee
representatives, the government, and researchers may be better able to
identify and mitigate workplace hazards and thereby prevent worker
injuries and illnesses.
This final rule will support OSHA's statutory directive to "assure
so far as possible every working man and woman in the Nation safe and
healthful working conditions and to preserve our human resources" (29
U.S.C. 651(b)) "by providing for appropriate reporting procedures with
respect to occupational safety and health which procedures 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 importance of this rule in preventing worker injuries and
illnesses can be understood in the context of workplace safety and
health in the United States today. The number of workers injured or
made ill on the job remains unacceptably high. According to the SOII,
each year employees experience more than 3 million serious (requiring
more than first aid) injuries and illnesses at work, and this number is
widely recognized to be an undercount of the actual number of
occupational injuries and illnesses that occur annually. As described
above, OSHA currently has very limited information about the injury/
illness risk facing workers in specific establishments, and this final
rule increases the agency's ability to target those workplaces where
workers are at greatest risk. However, even with improved targeting,
OSHA Compliance Safety and Health Officers can inspect only a small
proportion of the nation's workplaces each year, and it would take many
decades to inspect each covered workplace in the nation even once. As a
result, to reduce worker injuries and illnesses, it is of great
importance for OSHA to increase its impact on the many thousands of
establishments where workers are being injured or made ill but which
OSHA does not have the resources to inspect. The final rule may
accomplish this, through application of advances made in the field of
behavioral economics in understanding and influencing decision-making
in order to prevent worker injuries and illnesses. Specifically, the
final rule recognizes that public disclosure of data can be a powerful
tool in changing behavior. In this case, the objective of disclosure of
data on injuries and illnesses is to encourage employers to abate
hazards and thereby prevent injuries and illnesses, so that the
employer's establishment can be seen by members of the public,
including investors and job seekers, as one in which the risk to
workers' safety and health is low.
OSHA believes that disclosure of and public access to these data
will (using the word commonly used in the behavioral sciences
literature) "nudge" some employers to abate hazards and thereby
prevent workplace injuries and illnesses, without OSHA having to
conduct onsite inspections (see the book Nudge: Improving Decisions
About Health, Wealth, and Happiness, by Richard H. Thaler and Cass R.
Sunstein (Penguin Books, 2009)).
The application of behavioral science insights to the prevention
injuries and illnesses is consistent with Executive Order 13707 "Using
Behavioral Insights to Better Serve the American People," which
states, "(a) Executive departments and agencies (agencies) are
encouraged to (i) identify policies, programs, and operations where
applying behavioral science insights may yield substantial improvements
in public welfare, program outcomes, and program cost effectiveness."
This approach is also consistent with other Administration
policies, including:
Executive Order 13563, which states, "Where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, each agency shall identify and consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public. These approaches include warnings, appropriate
default rules, and disclosure requirements as well as provision of
information to the public in a form that is clear and intelligible."
The September 8, 2011 memorandum from Cass R. Sunstein,
Administrator of the Office of Information and Regulatory Affairs,
entitled "Informing Consumers through Smart Disclosure", which
provides guidance to agencies on how to promote smart disclosure,
defined as "the timely release of complex information and data in
standardized, machine readable formats in ways that enable consumers to
make informed decisions."
In addition, the rule is consistent with President Obama's Open
Government Initiative. In his Memorandum on Transparency and Open
Government, issued on January 21, 2009, President Obama instructed the
Director of the Office of Management and Budget (OMB) to issue an Open
Government Directive. On December 8, 2009, OMB issued a Memorandum for
the Heads of Executive Departments and Agencies, Open Government
Directive, which requires federal agencies to take steps to "expand
access to information by making it available online in open formats."
The Directive also states that the "presumption shall be in favor of
openness (to the extent permitted by law and subject to valid privacy,
confidentiality, security, or other restrictions)." In addition, the
Directive states that "agencies should proactively use modern
technology to disseminate useful information, rather than waiting for
specific requests under FOIA."
A requirement for the electronic submission of recordkeeping data
will help OSHA encourage employers to prevent worker injuries and
illnesses by greatly expanding OSHA's access to the establishment-
specific information employers are already required to record under
part 1904. As described in the previous section, OSHA currently does
not have systematic access to this information. OSHA has limited access
to establishment-specific injury and illness information in a
particular year. Typically, OSHA only had access if the establishment
was inspected or was part of an OSHA injury and illness survey. In
addition, the injury and illness data collected through the ODI were
summary data only and not timely.
The final rule's provisions requiring regular electronic submission
of injury and illness data will allow OSHA to obtain a much larger data
set of more timely, establishment-specific information about injuries
and illnesses in the workplace. This information will help OSHA use its
enforcement and compliance assistance resources more effectively by
enabling OSHA to identify the workplaces where workers are at greatest risk.
For example, OSHA will be better able to identify small and medium-
sized employers who report high overall injury/illness rates for
referral to OSHA's free on-site consultation program. OSHA could also
send hazard-specific educational materials to employers who report high
rates of injuries or illnesses related to those hazards, or letters
notifying employers that their reported injury/illness rates were
higher than the industry-wide rates. A recent evaluation by Abt
Associates of OSHA's practice of sending referral letters to high-
hazard employers identified by OSHA through the ODI confirmed the value
of these letters in increasing the number of workplaces requesting a
consultation visit (Ex. 1833). OSHA has also found that such high-rate
notification letters were associated with a 5 percent decrease in lost
workday injuries and illnesses in the following three years. In
addition, OSHA will be able to use the information to identify emerging
hazards, support an Agency response, and reach out to employers whose
workplaces might include those hazards.
The final rule will also allow OSHA to more effectively target its
enforcement resources to establishments with high rates or numbers of
workplaces injuries and illnesses, and better evaluate its
interventions. Prior to 1997, OSHA randomly selected establishments in
hazardous industries for inspection. This targeting system was based on
aggregated industry data. Relatively safe workplaces in high-rate
industries were selected for inspection as well as workplaces that were
experiencing high rates of injuries and illnesses. In 1997, OSHA
changed its method of targeting general-industry establishments for
programmed inspections. The Agency began using establishment-specific
injury and illness data collected through the OSHA Data Initiative
(ODI) to identify and target for inspection individual establishments
that were experiencing high rates of injury and illness. OSHA's Site-
Specific Targeting (SST) program has been OSHA's main programmed
inspection plan for non-construction workplaces from 1997 through 2014.
OSHA intends to use the data collected under this final rule in the
same manner for targeting inspections. This rule greatly expands the
number and scope of establishments that will provide the Agency with
their injury and illness data. As a result, the Agency will be able to
focus its inspection resources on a wider population of establishments.
The data collection will also enable the Agency to focus its Emphasis
Program inspections on establishments with high injury and illness
rates, as it did for the National Emphasis Program (NEP) addressing
hazards in Nursing Homes (see CPL 03-00-016, April 5, 2012).
The new collection will provide establishment-specific injury and
illness data for analyses that are not currently possible with the data
sets from inspections, the ODI, and reporting of fatalities and severe
injuries. For example, OSHA could analyze the data collected under this
system to answer the following questions:
1. Within a given industry, what are the characteristics of
establishments with the highest injury or illness rates (for example,
size or geographic location)?
2. Within a given industry, what are the relationships between an
establishment's injury and illness data and data from other agencies or
departments, such as the Wage and Hour Division, the Environmental
Protection Agency, or the Equal Employment Opportunities Commission?
3. Within a given industry, what are the characteristics of
establishments with the lowest injury or illness rates?
4. What are the changes in types and rates of injuries and
illnesses in a particular industry over time?
Furthermore, without access to establishment-specific injury and
illness data, OSHA has had great difficulty evaluating the
effectiveness of its enforcement and compliance assistance activities.
Having these data will enable OSHA to conduct rigorous evaluations of
different types of programs, initiatives, and interventions in
different industries and geographic areas, enabling the agency to
become more effective and efficient. For example, OSHA believes that
some employers who have not been inspected, but who learn about the
results (include monetary penalties) of certain OSHA's inspections in
the same industry or geographic area, may voluntarily abate hazards out
of concern that they will be the target of a future inspection. Access
to these data will allow OSHA to compare injuries and illnesses at non-
inspected establishments in the same industry or geographic areas as
the inspected ones.
Publication of worker injury and illness data will encourage
employers to prevent injuries and illnesses among their employees
through several mechanisms:
First, the online posting of establishment-specific injury and
illness information will encourage employers to improve workplace
safety and health to support their reputations as good places to work
or do business with. Many corporations now voluntarily report their
worker injury and illness rates in annual "Sustainability Reports",
in order to show investors, stakeholders, and the public that they are
committed to positive social values, including workplace safety and
health. Public access to these data will help address a well-known
information problem present in all voluntary reporting initiatives:
Voluntary disclosure tends to lead those with the worst records to
underreport outcomes. By requiring complete, accurate reporting,
interested parties will be able to gauge the full range of injury and
illness outcomes.
Second, these data will be useful to employers who want to use
benchmarking to improve their own safety and health performance. Under
OSHA's current recordkeeping regulation, employers have access only to
their own data, aggregate injury/illness data in the SOII, historic
summary data from establishments in the ODI, and other severe injury/
illness event reports. Using data collected under this final rule,
employers can compare injury and illness rates at their establishments
to those at comparable establishments, and set workplace safety/health
goals benchmarked to the establishments they consider most comparable.
Third, online availability of establishment-specific injury and
illness information will allow employees to compare their own
workplaces to the safest workplaces in their industries. Further, while
the current access provisions of the part 1904 regulation provide
employees the right to access the information on the part 1904
recordkeeping forms, evidence shows that few employees exercise this
right. During 2,836 inspections conducted by OSHA between 1996 and 2011
to assess the injury and illness recordkeeping practices of employers,
2,599 of the recordkeepers interviewed (92 percent) indicated that
employees never requested access to the records required under part
1904. OSHA believes that employees in establishments with 250 or more
employees will access and make use of the data more frequently when the
case-specific information is available without having to request the
information from their employers. Uninhibited access to the information
will allow employees in these establishments to better identify hazards
within their own workplace and to take actions to have the hazards
abated. In addition, if employees preferentially choose employment at
the safest workplaces in their industries, then employers may take steps
to improve workplace safety and health (preventing injuries and illnesses
from occurring) in order to attract and retain employees.
Fourth, access to these data will improve the workings of the labor
market by providing more complete information to job seekers, and, as a
result, encourage employers to abate hazards in order to attract more
desirable employees. Potential employees currently have access only to
the limited injury/illness information currently available to the
public, as discussed above. Injury and illness data for the vast
majority of establishments are not publicly available. Using data newly
accessible under this final rule, potential employees could examine the
injury and illness records of establishments where they are interested
in working, to help them make a more informed decision about a future
place of employment. This would also encourage employers with more
hazardous workplaces in a given industry to make improvements in
workplace safety and health to prevent injuries and illnesses from
occurring, because potential employees, especially the ones whose
skills are most in demand, might be reluctant to work at more hazardous
establishments. In addition, this would help address a problem of
information asymmetry in the labor market, where the businesses with
the greatest problems have the lowest incentive to self-disclose.
Fifth, access to data will permit investors to identify investment
opportunities in firms with low injury and illness rates. If investors
believe that firms that have low rates outperform firms with higher
rates, presumably because the low-rate firms are better managed, and
they preferentially invest in firms with low rates, then employers may
take steps to improve workplace safety and health and prevent injuries
and illnesses from occurring in order to attract investment.
Sixth, using data collected under this final rule, members of the
public will be able to make more informed decisions about current and
potential places with which to conduct business. For example, potential
customers might choose to patronize only the businesses in a given
industry with the lowest injury/illness rates. This is not possible at
present because, as noted above, the general public has access only to
very limited injury and illness data. Such decisions by customers would
also encourage establishments with higher injury/illness rates in a
given industry to improve workplace safety in order to become more
attractive to potential customers.
Finally, in large construction contracts, particularly those
involving work contracted for by state and local governments,
preference is often given to subcontractors with lower injury and
illness rates. In some cases, employers with rates above a certain
level are not eligible for the contract work. Public disclosure of
employers' injury and illness rates will be to enable corporate and
individual customers to consider these rates in the selection of
vendors and contractors. These data will also be useful to people who
believe that low injury rates are correlated with high production
quality, and who therefore prefer to purchase products made by
manufacturers with low injury rates (Paul S. Adler, 1997) (Ex. 1832).
Disclosure of and access to injury and illness data have the
potential to improve research on the distribution and determinants of
workplace injuries and illnesses, and therefore to prevent workplace
injuries and illnesses from occurring. Like the general public,
researchers currently have access only to the limited injury/illness
data described above. Using data collected under this final rule,
researchers might identify previously unrecognized patterns of injuries
and illnesses across establishments where workers are exposed to
similar hazards. Such research would be especially useful in
identifying hazards that result in a small number of injuries or
illnesses in each establishment but a large number overall, due to a
wide distribution of those hazards in a particular area, industry, or
establishment type. Data made available under this final rule may also
allow researchers to identify patterns of injuries or illnesses that
are masked by the aggregation of injury/illness data in the SOII.
The availability of establishment-specific injury and illness data
will also be of great use to county, state and territorial Departments
of Health and other public institutions charged with injury and illness
surveillance. In particular, aggregation of establishment-specific
injury and illness reports and rates from similar establishments will
facilitate identification of newly-emerging hazards that would not
easily be identified without linkage to specific industries or
occupations. There are currently no comparable data sets available, and
these public health surveillance programs must primarily rely on
reporting of cases seen by medical practitioners, any one of whom would
rarely see enough cases to identify an occupational etiology.
Workplace safety and health professionals might use data published
under this final rule to identify establishments whose injury/illness
records suggest that the establishments would benefit from their
services. In general, online access to this large database of injury
and illness information will support the development of innovative
ideas for improving workplace safety and health, and will allow
everyone with a stake in workplace safety and health to participate in
improving occupational safety and health.
Furthermore, because the data will be publicly available,
industries, trade associations, unions, and other groups representing
employers and workers will be able to evaluate the effectiveness of
privately-initiated injury and illness prevention initiatives that
affect groups of establishments. In addition, linking these data with
data residing in other administrative data sets will enable researchers
to conduct rigorous studies that will increase our understanding of
injury causation, prevention, and consequences. For example, by
combining these data with data collected in the Annual Survey of
Manufactures (conducted by the United States Census Bureau), it will be
possible to examine the impact of a range of management practices on
injury and illness rates, as well as the impact of injury and illness
rates on the financial status of employers.
Finally, public access to these data will enable developers of
software and smartphone applications to develop tools that facilitate
use of these data by employers, workers, researchers, consumers and
others. Examples of this in other areas is the use of OSHA and Wage and
Hour Division violation information in the "Eat/Shop/Sleep"
smartphone application and, in public transit, the wide-scale private
development of applications for real-time information on bus and subway
arrivals using public information.
This final rule will also improve the accuracy of the recorded
data. Section 1904.32 already requires company executives subject to
part 1904 requirements to certify that they have examined the annual
summary (Form 300A) and that they reasonably believe, based on their
knowledge of the process by which the information was recorded, that
the annual summary is correct and complete. OSHA recognizes that most
employers are diligent in complying with this requirement. However, a
minority of employers is less diligent; in recent years, one-third or
more of violations of Sec. 1904.32, and up to one-tenth of all
recordkeeping (part 1904) violations, have involved this certification
requirement. It is OSHA's belief that, if this minority of employers
knows that their data must be submitted to the Agency and may also be
examined by members of the public, then they will pay more attention to
the requirements of part 1904, which could lead both to improvements in
the quality and accuracy of the information and to better compliance with
Sec. 1904.32.
Finally, the National Advisory Committee on Occupational Safety and
Health (NACOSH), composed of representatives of employers, workers, and
the public, has expressed its support of the efforts of OSHA in
consultation with NIOSH to modernize the system for collection of
injury and illness data to assure that it is timely, complete, and
accurate, as well as both accessible and useful to employers,
employees, responsible government agencies, and members of the public.
e. Publication of Electronic Data
As discussed above, OSHA intends to make the data it collects
public. As discussed below, the publication of specific data elements
will in part be restricted by applicable federal law, including
provisions under the Freedom of Information Act (FOIA), as well as
specific provisions within part 1904. OSHA will make the following data
from the various forms available in a searchable online database:
Form 300A (Annual Summary Form)--All collected data fields will be
made available. In the past, OSHA has collected these data under the
ODI and during OSHA workplace inspections and released them in response
to FOIA requests. The annual summary form is also posted at workplaces
under Sec. 1904.32(a)(4) and (b)(5). OSHA currently posts
establishment-specific injury and illness rates calculated from the
data collected through the ODI on OSHA's public Web site at http://www.osha.gov/pls/odi/establishment_search.html. The 300A annual summary
does not contain any personally-identifiable information.
Form 300 (the Log)--All collected data fields on the 300 Log will
generally be made available on the Web site. Employee names will not be
collected. OSHA occasionally collects these data during inspections as
part of the enforcement case file. OSHA generally releases these data
in response to FOIA requests. Also, Sec. 1904.29(b)(10) prohibits
release of employees' names and personal identifiers contained in the
forms to individuals other than the government, employees, former
employees, and authorized representatives. OSHA does not currently
conduct a systematic collection of the information on the 300 Log.
Form 301 (Incident Report)--All collected data fields on the right-
hand side of the form (Fields 10 through 18) will generally be made
available. The Agency currently occasionally collects the form for
enforcement case files. OSHA generally releases these data in response
to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits employers from
releasing the information in Fields 1 through 9 (the left-hand side of
the form) to individuals other than the employee or former employee who
suffered the injury or illness and his or her personal representatives.
Similarly, OSHA will not publish establishment-specific data from the
left side of Form 301. OSHA does not release data from Fields 1 through
9 in response to FOIA requests. The Agency does not currently conduct a
systematic collection of the information on the Form 301. However, the
Agency does review the entire Form 301 during some workplace
inspections and occasionally collects the form for inclusion in the
enforcement case file. Note that OSHA will not collect or publish Field
1 (employee name), Field 2 (employee address), Field 6 (name of
treating physician or health care provider), or Field 7 (name and
address of non-workplace treating facility).
While OSHA intends to make the information described above
generally available, the Agency also wishes to emphasize that it does
not intend to release personally identifiable information included on
the forms. For example, in some cases, information entered in Column F
(Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill) of the 300 Log
contains personally-identifiable information, such as an employee's
name or Social Security Number. As a result, OSHA plans to review the
information submitted by employers for personally-identifiable
information. As part of this review, the Agency will use software that
will search for and de-identify personally identifiable information
before OSHA posts the data.
It should also be noted that other federal agencies post
establishment-specific health and safety data with personal
identifiers, including names. For example, the Mine Safety and Health
Administration (MSHA) publishes information gathered during the
agency's investigations of fatal accidents. MSHA's Preliminary Report
of Accident, Form 7000-13, provides information on fatal accidents
including the employee's name, age, and a description of the accident.
MSHA also publishes the written Accident Investigation Report, which
details the nature and causes of the accident and includes the names of
other employees involved in the fatal incident.
The Federal Railroad Administration (FRA) posts Accident
Investigation Reports filed by railroad carriers under 49 U.S.C. 20901
or made by the Secretary of Transportation under 49 U.S.C. 20902; in
the case of highway-rail grade crossing incidents, these reports
include personally identifiable information (age and gender of the
person(s) in the struck vehicle).
Finally, the Federal Aviation Administration (FAA) posts National
Transportation Safety Board (NTSB) reports about aviation accidents.
These reports include personally identifiable information about
employees, including job history and medical information.
B. The Proposed Rule
The proposed rule would have amended OSHA's existing recordkeeping
regulation at Sec. 1904.41 to add three new electronic reporting
requirements. First, OSHA would have required establishments that are
required to keep injury and illness records under part 1904, and had
250 or more employees in the previous calendar year, to electronically
submit information from these records to OSHA or OSHA's designee, on a
quarterly basis (proposed Sec. 1904.41(a)(1)--Quarterly electronic
submission of part 1904 records by establishments with 250 or more
employees).
Second, OSHA would have required establishments that are required
to keep injury and illness records under part 1904, had 20 or more
employees in the previous calendar year, and are in certain designated
industries, to electronically submit the information from the OSHA
annual summary form (Form 300A) to OSHA or OSHA's designee, on an
annual basis (proposed Sec. 1904.41(a)(2)--Annual electronic
submission of OSHA annual summary form (Form 300A) by establishments
with 20 or more employees in designated industries). This second
submission requirement would have replaced OSHA's annual illness and
injury survey, authorized by the then-current version of 29 CFR
1904.41.
Third, OSHA would have required all employers who receive
notification from OSHA to electronically submit specified information
from their part 1904 injury and illness records to OSHA or OSHA's
designee (proposed Sec. 1904.41(a)(3)--Electronic submission of part
1904 records upon notification).
As previously discussed, in addition to the new requirements for
electronic submission of part 1904 data, the preamble to the proposed rule
stated that OSHA intended to make the collected data public in order to make
the data useful to employers, employees, and the public in dealing with
safety and health issues. OSHA also stated in the preamble to the
proposed rule that the publication of specific data elements would have
been restricted in part by provisions under the Freedom of Information
Act (FOIA) and the Privacy Act, as well as specific provisions within
part 1904. OSHA proposed to make the following data from the various
forms available in a searchable online database:
Form 300A--All fields could have been made available. Form 300A
does not contain any personally identifiable information.
Form 300 (the Log)--All fields could have been made available
except for Column B (the employee's name).
Form 301 (Incident Report)--All fields on the right-hand side of
the form (Fields 10 through 18) could typically have been made
available.
C. Comments on the Proposed Rule
There were many comments supporting the proposed rule. Many
commenters commented that the collection of recordkeeping data would
allow OSHA to improve workplace safety and health and prevent injuries
and illnesses. Other commenters commented that publication of
information provided by the electronic submission of recordkeeping data
from covered establishments would allow employers, employees,
researchers, unions, safety and health professionals, and the public to
improve workplace safety and health. There were also comments that the
proposed rule was consistent with the actions of other federal and
state agencies, which already require the submission of health and
safety data.
However, many commenters also raised potential concerns about the
proposed rule. Some commenters expressed concerns about the
implications of the publication of safety and health data for employee
privacy. There were also comments about the implications of the
proposed rule for employer privacy, especially with regard to
confidential commercial information. Other commenters commented that
OSHA underestimated the cost to businesses of implementing the proposed
rule, especially the proposed requirement that would have required
large establishments to submit data on a quarterly basis. In addition,
some commenters commented that the data provided to OSHA and to the
public as a result of this rule would not be beneficial.
OSHA addresses all of the issues raised by commenters below.
Alternatives Included in the Proposed Rule
In the preamble to the proposed rule, in addition to providing
proposed regulatory text, OSHA stated that it was considering several
alternatives. [78 FR 67263-65270]. OSHA requested comment on the
following regulatory alternatives.
Alternative A--Monthly Submission Under Proposed Sec. 1904.41(a)(1)
In Alternative A, OSHA considered requiring monthly submission
instead of quarterly submission from establishments with 250 or more
employees.
However, almost all commenters opposed this alternative. Several
commenters expressed concerns about the burdens of monthly submission
on employers (Exs. 1211, 1112). Several commenters also expressed
concerns about the effects of monthly submission on data quality (Exs.
1211, 1385, 1397). Other commenters commented that monthly reporting
would not provide much, if any, benefit over quarterly reporting (Exs.
1384, 1391).
Ashok Chandran provided the only comment in support of this
alternative. He commented that "[m]ore frequent reporting will
actually prevent distortion, as fewer reports would increase the chance
of a limited sample misrepresenting the conditions of an establishment.
So long as OSHA does not use reports in isolation to trigger
investigation, this risk is low" (Ex. 1393).
OSHA agrees with commenters who stated that monthly reporting would
increase the burden on employers and could result in the submission of
less accurate recordkeeping data. Given the potential extra burden
without an added benefit, OSHA has decided not to adopt Alternative A
from the proposed rule. As explained below, the final rule requires
annual electronic submission of part 1904 records by establishments
with 250 or more employees.
Alternative B--Annual Submission Under Proposed Sec. 1904.41(a)(1)
In Alternative B, OSHA considered requiring annual submission for
establishments with 250 or more employees instead of quarterly
submission.
Most commenters supported Alternative B, on grounds that annual
reporting would provide better-quality, more useful data and would be
less burdensome for both employers and OSHA.
Commenters provided various reasons to support the idea that annual
reporting would provide better-quality data. First, some commenters
commented that one quarter is too short a period of time to generate
meaningful data (Exs. 0258, 1338, 1385, 1399, 1413). For example, the
American Meat Institute commented that "breaking the data into
quarterly 'bites' will produce numbers with no comparative value...
In fact, it is more likely to generate misleading, incorrect
information because injury and illness incidents typically occur on a
much more random basis than is reflected in what would amount to three-
month 'snapshots"' (Ex. 0258).
Second, some commenters commented that quarterly reporting was more
likely to lead to underreporting. The Allied Universal Corporation
commented that "[w]ith quarterly reporting, employers are unlikely to
record close cases because, in many instances, striking them later may
be impossible as the information has already been reported and posted
publicly by OSHA. Rather than assume such an additional burden,
employers will likely err on the side of not recording those incidents
where in doubt" (Ex. 1192). The American Chemistry Council, the
Association of Energy Service Companies (AESC), and the International
Association of Amusement Parks and Attractions (IAAPA) provided similar
comments (Exs. 1092, 1323, 1427).
Third, several commenters commented that quarterly reporting would
not provide enough time for employers to complete cases and catch data
mistakes (Exs. 0035, 0247, 1110, 1206, 1214, 1339, 1379, 1385, 1389,
1399, 1405, 1406). For example, the Glass Packaging Institute commented
that "[t]he data is not static but will be a moving data set and
consequently of little value for evaluation or decisions. Cases are
added, deleted, change with time as information and cases and/or
treatment improve or worsen" (Ex. 1405).
ORCHSE Strategies, LLC commented that "[employers] also review the
data at the end of the year to insure its accuracy before it is
included in company reports or submitted to OSHA or to BLS. They check
on outstanding cases; track day-counts for cases involving restricted
work activity, job transfer, and days away from work; check on ongoing
employee job limitations; prepare estimates of future days that will be
lost or restricted (beyond the end of the year) etc." (Ex. 1339). In
addition, the American Petroleum Institute commented that
"29 CFR 1904.32 requires annual certification of the 300 Forms and
the quarterly submittals would not be certified; thus, [OSHA] would
be relying on potentially inaccurate information" (Ex. 1214).
As for the usefulness of data provided by quarterly reporting, many
commenters stated that there is no evidence of benefits of quarterly
reporting over annual reporting for worker safety and health (Exs.
0156, 0258, 1110, 1126, 1206, 1210, 1221, 1225, 1322, 1339, 1406,
1412). For example, the North American Insulation Manufacturers
Association (NAIMA) commented that "OSHA has failed to demonstrate
that the increased frequency of reporting will improve worker safety,
especially by imposing a four-fold burden increase on both employer and
agency personnel for quarterly rather than annual reporting. Indeed, it
cannot document such a result because there is no connection between
quarterly reporting and improved worker safety" (Ex. 1221). NAIMA also
commented that "the delay for OSHA to scrub the data [of PII before
publication] will likely obviate any perceived 'timeliness' benefit
OSHA might make in attempting to justify quarterly rather than annual
data submission" (Ex. 1221). The Fertilizer Institute (TFI) and the
Agricultural Retailers Association (ARA) provided similar comments (Ex.
1412).
OSHA also received comments that quarterly reporting would be
overly burdensome for employers (Exs. 0247, 1112, 1126, 1206, 1210,
1214, 1221, 1332, 1338, 1339, 1379, 1389, 1390, 1405). For example,
ORCHSE Strategies, LLC commented that "[v]erification is often an
iterative process that involves back-and-forth between the corporate
safety department and the site, with involvement of medical
practitioners, the injured or ill employee, supervisors and others.
Shifting from a single data submission to four data submissions per
year would add substantially to the already significant cost and burden
for these employers (at least by a factor of four). It would also
complicate the process; employers would have to create estimated day
counts for cases that are not closed at the time of each reporting and
then correct them when the cases are finally resolved" (Ex. 1339).
The Association of Union Constructors (TAUC) commented that
"[w]ith a proposed quarterly reporting frequency, often cases in the
construction industry may not be resolved quickly and there is no
method of recourse if the employer is found not at fault once the raw
data is public... A lag in the period of time between updating and
posting of injury/illness data could impose punitive consequences to
the contractor if the public or customers are reviewing their data in
real time" (Ex. 1389). In addition, the Environmental, Health & Safety
Communications Panel (EHSCP) commented that quarterly reporting would
be a burden for safety and health professionals and "strongly
recommend[ed] that nothing more frequent than an annual submission be
considered so as to minimize the time that safety and health
professionals are required to devote to paperwork and data review
rather than on proactive safety efforts" (Ex. 1331).
Commenters commented particularly about the resources needed for
OSHA to remove PII from the collected data before publishing the data.
For example, the North American Insulation Manufacturers Association
(NAIMA) commented that "OSHA will tax its own resources to process,
review, and scrub the data four times per year. This data will contain
sensitive personal information, and OSHA will need to edit the data
before making it public. To do this on a quarterly basis will be time
consuming and resource intensive" (Ex. 1221). The Phylmar Regulatory
Roundtable (PRR) questioned whether OSHA has the capacity to analyze
quarterly data, commenting that "annual data submissions from 580,000
employers strike PRR as a large volume of data for OSHA to analyze.
Multiplying that number by quarterly submissions has more potential for
detriment than benefit" (Ex. 1110).
However, several commenters opposed Alternative B on grounds that
quarterly data would be more useful and would not increase the burden
on employers (Exs. 1211, 1381, 1384). The International Brotherhood of
Teamsters commented that "[q]uarterly submissions will help identify
emerging trends or serious incidents within a much more rapid timeframe
than annual reporting, and allow for rapid intervention to stop such
trends or respond to such incidents before they continue" (Ex. 1381).
Similarly, the International Union (UAW) commented that "annual
reporting would make it impossible to track seasonal variations in the
type or rate of injuries and illnesses" (Ex. 1384).
In response, OSHA agrees with commenters who stated that annual
reporting would lessen the burden on employers. OSHA believes that
companies' review of the data at the end of the year will help to
improve the accuracy of the submitted data, because employers are
already required to certify their records at the end of the calendar
year under current part 1904. In addition, OSHA agrees that annual
reporting will provide more meaningful data, as well as higher-quality
data, because employers will have more time to update and revise the
data before reporting to OSHA. Finally, OSHA agrees with the commenters
who stated that annual reporting would lessen the burden on OSHA, by
reducing both the total volume of data and the amount of personally
identifiable information to remove before publication. Therefore,
unlike the proposed rule, which would have required quarterly
submission by establishments with 250 or more employees, Sec.
1904.41(a)(1) of the final rule requires annual electronic submission
of part 1904 records by establishments with 250 or more employees.
Alternative C--One Year Phase-in of Electronic Reporting Under Proposed
Sec. 1904.41(a)(1)
In Alternative C, OSHA considered a phase-in of the electronic
reporting requirement, under which establishments with 250 or more
employees would have had the option of submitting data on paper forms
for the first year the rule would have been in effect.
Several commenters opposed Alternative C on grounds that large
companies affected by this rule should be able to electronically submit
data in the first year, especially the Form 300 (Log) and 300A (annual
summary). These commenters explained that submission of data in paper
form would delay the processing and publication of the data (Exs. 1211,
1345, 1350, 1381, 1384, 1387, 1424). The International Brotherhood of
Teamsters commented that "these companies are certainly large enough
to handle the responsibility, and will receive the analytic benefits
such a reporting system provides" (Ex. 1381). Other commenters stated
that there should not be a phase-in of the electronic submission
requirement because OSHA does not have the resources to process
thousands of submitted paper forms (Exs. 1395, 1211).
However, other commenters supported Alternative C to provide time
for employers and OSHA to come up with methods for protecting worker
confidentiality. The International Union (UAW) commented that "OSHA
may find it useful to have a phase-in period for submission of 301
reports by these employers to allow time for OSHA to come up with a
method for scrubbing data to ensure worker confidentiality" (Ex.
1384). The United Food & Commercial Workers International Union (UFCW)
and the Services Employees International Union (SEIU) provided similar
comments (Exs. 1345, 1387). FedEx Corporation commented that "if
employers are required to collect Form 301 data, then given that the
reporting of detailed injury and illness data is a wholly novel
recordkeeping requirement which will require an investment of
significant time and resources for implementation, FedEx supports a
phase-in period of at least one-year" (Ex. 1338).
In response, OSHA agrees with commenters who stated that larger
companies (those with 250 or more employees) have the resources to
electronically submit injury and illness data to OSHA in the first
year. According to commenters, in many cases, larger companies already
keep OSHA injury and illness records electronically, so a requirement
to submit such records electronically is not unduly burdensome (Exs.
1103, 1188, 1209, 1211, 1387, 1393, 1424) (see also Section VI Final
Economic Analysis and Regulatory Flexibility Analysis).
OSHA also agrees with commenters who stated that the Agency does
not have the resources to handle the large volumes of non-electronic
data that Alternative C would have produced. Based on OSHA's experience
with paper submissions to the ODI, the Agency estimates that processing
a paper submission might take 2 minutes for the data from Form 300A and
1 minute for processing the actual paper form. In addition, based on
BLS's experience with paper submissions to the SOII, the Agency
estimates that processing each reported case in a paper submission
might take 2 minutes. OSHA estimates that 33,000 establishments will be
subject to final Sec. 1904.41(a)(1), accounting for 713,000 reported
cases. In addition, roughly 30 percent of the establishments in the ODI
submitted their data on paper. Based on these estimates (3 minutes per
paper submission; 2 minutes per case; 30 percent of establishments
submit on paper; 33,000 establishments; 713,000 cases), OSHA estimates
that the one-year paper submission phase-in option in Alternative C
would account for 495 hours for the Form 300A and 7,130 hours for the
cases, for a total of 7,625 hours, or almost four full-time employees
at 2,000 hours per full-time employee. Under a more optimistic scenario
assuming 10 percent of establishments submitting on paper, the one-year
paper submission phase-in option in Alternative C would account for 165
hours for the Form 300A and 2,377 hours for the cases, for a total of
2,542 hours, or more than one full-time employee. Under either
scenario, OSHA would be unable to make timely use of the data.
Additionally, with respect to commenters who stated that a phase-in
would provide more time for employers and OSHA to develop methods to
protect employee confidentiality, OSHA notes that a requirement that
only provides for electronic submission of data will help the Agency
search for and redact confidential information. As noted elsewhere in
this preamble, OSHA will use existing software to remove personally
identifiable information before posting data on the publicly-accessible
Web site. Also as noted above, the proposed rule would have required
establishments with 250 or more employees to electronically submit data
on a quarterly basis, whereas Sec. 1904.41(a)(1) of the final rule
requires annual submission. This change will provide large employers
with additional time to prepare for the first electronic submission of
recordkeeping data on March 2, 2017. Accordingly, the final rule
requires electronic submission of part 1904 records by establishments
with 250 or more employees, without a phase-in period for paper
submission.
Alternative D--Three Year Phase-in of Electronic Reporting Under
Proposed Sec. 1904.41(a)(2)
In Alternative D, OSHA considered a phase-in of the electronic
reporting requirement, under which establishments with 20 or more
employees in designated industries would have had the option of
submitting data on paper forms for the first three years this rule
would have been in effect.
All of the commenters who specifically commented on Alternative D
supported a phased-in electronic submission requirement to allow
smaller companies to adjust to electronic reporting. Different
commenters supported a phase-in period of different lengths--one, two,
or three years, or an unspecified "reasonable" period of time (Exs.
1206, 1211, 1338, 1350, 1353, 1384, 1387, 1424).
OSHA also received a comment from the American College of
Environmental Medicine (ACEM) stating that OSHA should provide a phase-
in for "employers who do not have access to the Internet pending full
distribution of Internet services throughout the Nation" (Ex. 1327).
The Dow Chemical Company commented that "a phase-in period should be
provided for: At least one year after OSHA's web portal is created,
debugged, tested and operational. However, a phase-in should consist of
a period without a paper reporting requirement, so companies can deploy
their resources toward developing the systems and information that will
be necessary in order to report electronically" (Ex. 1189). The
National Ready Mixed Concrete Association (NRMCA), International
Association of Industrial Accident Boards and Commissions (IAIBC), and
Bray International made similar comments (Exs. 0210, 1104, 1401).
OSHA agrees with the comments for Alternative C, above, that OSHA
does not have the resources to handle the large volumes of non-
electronic data that Alternative D would produce. As above, based on
OSHA's experience with paper submissions to the ODI, the Agency
estimates that processing a paper submission might take 2 minutes for
the data from Form 300A and 1 minute for processing the actual paper.
OSHA estimates that 430,000 establishments will be subject to final
Sec. 1904.41(a)(2). In addition, OSHA estimated that roughly 30
percent of the establishments in the ODI submitted their data on paper.
Based on these estimates (3 minutes per paper submission; 30 percent of
establishments submit on paper; 430,000 establishments), OSHA estimates
that the three-year paper submission phase-in option in Alternative D
would account for 6,450 hours per year for three years, or 19,350 hours
total. Under a more optimistic scenario assuming 10 percent of
establishments submitting on paper, the three-year paper submission
phase-in option in Alternative D would account for 2,150 hours per year
for three years, or 6,450 hours total. Under either scenario, OSHA
would be unable to make timely use of the data.
As with Alternative C, immediate electronic reporting will make the
data available to employers, the public, and OSHA in a timelier manner,
because OSHA will not have to take the time to convert paper entries
into electronic format. Also, an electronic format will make it much
easier and faster for OSHA to prepare the data for publication.
Therefore, the final rule requires annual electronic submission of the
OSHA Form 300A by establishments with 20 or more employees, but fewer
than 250 employees, in designated industries, without a phase-in period
for paper submission.
With respect to commenters' concern about Internet availability,
OSHA believes that establishments with 20 or more employees are highly
likely to have access to the Internet, and the burden of electronic
reporting is low.
Alternative E--Widen the Scope of Establishments Required To Report
Under Proposed Sec. 1904.41(a)(1)
In Alternative E, OSHA considered widening the scope of
establishments required to report under this proposed section of the
rule from establishments with 250 or more employees to establishments
with 100 or more employees.
In support of Alternative E, commenters stated that increasing the
number of establishments required to report would in turn increase
public access to establishment-specific injury and illness data (Exs.
1211, 1395). There were also comments that lowering the size criterion
to 100 employees would pose little burden on medium-sized facilities,
because establishments of that size often already have standardized
recordkeeping (Exs. 1211, 1358).
However, there were also comments opposing Alternative E due to
employer burden and volume of data. For employer burden, the National
Automobile Dealers Association (NADA) commented that "[u]nder no
circumstances should the proposed threshold for quarterly reporting be
expanded to include establishments with 100 or more employees. As noted
above, the proposed mandate is unjustified at the proposed 250-employee
threshold. Any expansion would just exacerbate the burden for a much
larger universe of employers with no commensurate benefit" (Ex. 1392).
For volume of data, several commenters commented that OSHA should
assess the effect of lowering the size criterion to 200 employees and
that 250 employees should be the maximum size criterion. For example,
the AFL-CIO commented that "the 250 employee cut-off should be the
maximum cut-off for such reporting. We encourage the agency to examine
the effect of lowering the establishment threshold to 200 employees to
determine and assess the additional information that would be captured
by such as change, particularly information from higher hazard
industries that are of greater concern" (Ex. 1350). The International
Brotherhood of Teamsters and the International Union, United
Automobile, Aerospace and Agriculture Implement Workers of America
(UAW) provided similar comments (Ex. 1381, 1384). The Service Employees
International Union (SEIU) commented that "we believe 250 employees
should be the maximum. We would support a phased in lowering of this
number over several years to 100 employees as electronic reporting
becomes even more routine and as the workforce continues to fragment
into smaller units, as many expect" (Ex. 1387).
OSHA agrees with commenters who stated that reducing the size
criterion to 100 would increase the burden on employers with
diminishing benefit. The number of establishments that would be
required to report under this proposed section under Alternative E
would increase from 34,000 to 120,000. This alternative would also
increase the number of injury and illness cases with incident report
(OSHA Form 301) and Log (OSHA Form 300) data from 720,000 to 1,170,000.
Therefore, like the proposed rule, the final rule requires electronic
submission of all three recordkeeping forms by establishments with 250
or more employees.
Alternative F--Narrow the Scope of Establishments Required To Report
Under Proposed Sec. 1904.41(a)(1)
In Alternative F, OSHA considered narrowing the scope of
establishments required to report under this section of the rule from
establishments with 250 or more employees to establishments with 500 or
more employees.
Several commenters supported Alternative F, on grounds that it
would lower the burden of the rule. The National Council of Farmer
Cooperatives (NCFC) commented that "[w]e encourage OSHA to broaden the
scope of establishments that fall under this section from 250 to 500
employees, reducing the number of establishments burdened by quarterly
reporting requirements" (Ex. 1353). FedEx Corporation provided a
similar comment (Ex. 1338), adding that raising the size criterion to
500 employees would still provide OSHA with a "statistically
significant pool of injury and illness data" (Ex. 1338).
However, Logan Gowdey commented that raising the size criterion
from 250 employees to 500 employees would reduce "establishments
covered from 38,000 to 13,800 and reports from 890,000 to 590,000.
While the number of reports does not decrease that much, the number of
establishments decreases dramatically, which will limit the importance
of the data collected" (Ex. 1211).
OSHA agrees that Alternative F's great reduction in the number of
establishments and employees covered by Sec. 1904.41(a)(1) would
reduce the utility of the data. Under Alternative F, the number of
establishments that would be required to report under Sec.
1904.41(a)(1) would decrease from 34,000 to 12,000. This alternative
would also decrease the number of injury and illness cases with
incident report (OSHA Form 301) and Log (OSHA Form 300) data from
720,000 to 495,000. Therefore, like the proposed rule, the final rule
requires electronic submission of part 1904 records by establishments
with 250 or more employees.
Alternative G--Three-Step Process of Implementing the Reporting
Requirements Under Proposed Sec. 1904.41(a)(1) and (2)
In Alternative G, OSHA considered a three-step process of
implementing the reporting requirements under the proposed Sec.
1904.41(a)(1) and (2).
For this proposed alternative, high-hazard industry groups (four-
digit NAICS) would have been defined as having rates of injuries and
illnesses involving days away from work, restricted work activity, or
job transfer (DART) that are greater than 2.0. High-hazard industry
sectors (two-digit NAICS) would have been defined as agriculture,
forestry, fishing and hunting; utilities; construction; manufacturing;
and wholesale trade.
In the first step of this three-step implementation process,
reporting would have been required only from the establishments in
proposed Sec. 1904.41(a)(1) and (2) that are in high-hazard industry
groups (four-digit NAICS with a DART rate greater than or equal to
2.0).
In the second step of the three-step implementation process, OSHA
would have conducted an analysis, after a specified period of time, to
assess the effectiveness, adequacy, and burden of the reporting
requirements in the first step. The results of this analysis would then
have guided OSHA's next actions.
The third step of the three-step implementation process would
therefore have depended on the results of OSHA's analysis.
The only comment in support of Alternative G was from Southern
Company, which commented that "[a] smaller pilot group of employers in
historically the highest incident rates will allow OSHA to determine if
its system works as intended" (Ex. 1413). Other commenters opposed
Alternative G for various reasons, including scope, effectiveness, and
implementation (Exs. 1211, 1350, 1381, 1384, 1387). For example, the
International Brotherhood of Teamsters commented that "[w]e support
the proposed approach rather than this confusing 3-step alternative.
The current approach is a better means for capturing higher hazard
industries and establishments. The rule already has different requirements
for different size employers. OSHA should keep this rule as simple as
possible. Changing criteria through phase in would only complicate the
implementation of the rule" (Ex. 1381).
In response, OSHA agrees that Alternative G would reduce the
effectiveness of the rule, increase uncertainty for employers, and make
implementation more difficult. Therefore, like the proposed rule, the
final rule requires electronic submission of part 1904 records by
establishments with 250 or more employees, and annual electronic
submission of the Form 300A annual summary by establishments with 20 to
249 employees in designated industries, without the multi-step
implementation process in this alternative.
Alternative H--Narrow the Scope of the Reporting Requirements Under
Proposed Sec. 1904.41(a)(1) and (2)
The proposed Sec. 1904.41(a)(1) would have applied to all
establishments with 250 or more employees in all industries covered by
the recordkeeping regulation. The proposed Sec. 1904.41(a)(2) would
have applied to establishments with 20 or more employees in designated,
i.e., high-hazard industry groups (classified at the four-digit level
in NAICS) and/or high-hazard industry sectors (classified at the two-
digit level in NAICS). High-hazard industry groups (four-digit NAICS)
would have been defined as industries with DART rates that are greater
than or equal to 2.0. High-hazard industry sectors (two-digit NAICS)
would have included agriculture, forestry, fishing and hunting;
utilities; construction; manufacturing; and wholesale trade.
In Alternative H, OSHA considered an alternative approach to
defining the industry scope of these two sections of the proposed rule,
by limiting the industry coverage to include only industry groups that
meet a designated DART cut-off. This approach would not have included
coverage of designated industry sectors as a criterion.
Some commenters supported Alternative H as a way for OSHA to focus
its efforts on high-hazard industry groups. For example, FedEx
Corporation supported Alternative H with a DART cut-off rate of 3.0,
commenting that "this would focus OSHA's limited resources on high
hazard industries and employers with high DART rates" (Ex. 1338). The
American Coatings Association (ACA) and the Reusable Industrial
Packaging Association (RIPA) made similar comments (Exs. 1329, 1367).
The National Retail Federation (NRF) commented, "In NRF's view,
both the 2.0 as well as the 3.0 DART rate are too low. NRF believes
that, if OSHA is going to promulgate this standard at all, it should
revise the proposed threshold DART rate to ensure that this rule is
designed to focus attention on true high hazard industries... A DART
cut-off of 3.6 derives from current data and is reasonably connected to
the goal of the Proposed Regulation and any inspection plan that
originates from the data collection" (Ex. 1328).
However, other commenters opposed Alternative H because it would
greatly reduce the coverage of the rule (Exs. 1211, 1350, 1374 1381,
1384, 1387). The International Brotherhood of Teamsters commented, "We
support the proposed approach rather than the alternative. The current
approach is a better means for capturing higher hazard industries and
establishments. Lowering [coverage] to industries with a DART rate of
greater than/equal to 2.0 would reduce the number of smaller
establishments covered by about 100,000 and the number of larger
establishments covered by 16,000" (Ex. 1381).
The AFL-CIO commented that "[T]hese thresholds are too restrictive
and limited. Indeed, according to the preamble, employing a DART
threshold of 3.0 would cover fewer establishments (152,000) than are
covered under the current ODI (160,000). The current ODI has employed a
combination of 2 digit and 4 digit thresholds similar to the proposed
rule. There is no reason to change this approach" (Ex. 1350).
UNITE HERE also expressed concerns that Alternative H would leave
vulnerable workers at risk, commenting that "the alternative proposals
to limit coverage to a DART threshold of 3.0 at the four digit level
would result in excluding NAICS 7211--Traveler Accommodation. This
industry sector is a growing sector with a growing workforce. Certain
job titles are predominantly female, women of color and immigrant
workers. We believe excluding 7211 would result in increased workplace
injuries and illnesses and decreased prevention" (Ex. 1374).
OSHA believes that Alternative H would overly limit the scope of
the rule and agrees with commenters who stated that there is no
compelling reason to change the approach OSHA used in the ODI of using
a combination of industrial classification levels to identify high-
hazard industry sectors and groups. In addition, using a DART cut-off
of 3.0 would result in having less establishment-specific data for
establishments with 20 or more employees available to OSHA and the
public. As stated in the preamble to the proposed rule, the intention
of this rulemaking is to increase the amount of establishment-specific
data reported to OSHA. Therefore, like the proposed rule, the final
rule requires electronic submission of part 1904 records by
establishments with 250 or more employees, as well as annual electronic
submission of the OSHA Form 300A by establishments with 20 to 249
employees in designated high-hazard industries (four-digit NAICS) and
industry sectors (two-digit NAICS).
Alternative I--Enterprise-Wide Submission
In the preamble to the proposed rule, OSHA stated that it was
considering adding a provision that would have required some
enterprises with multiple establishments to collect and submit some
part 1904 data for those establishments. Alternative I would have
applied to enterprises with a minimum threshold number of
establishments (such as five or more) that are required to keep records
under part 1904. These enterprises would have been required to collect
OSHA Form 300A (annual summary) data from each of their establishments
that are required to keep injury/illness records under part 1904. The
enterprise would then have electronically submitted the data from each
establishment to OSHA. For example, if an enterprise had seven
establishments required to keep injury/illness records under part 1904,
the enterprise would have submitted seven sets of data, one for each
establishment.
OSHA also stated in the preamble to the proposed rule that
Alternative I would have applied to enterprises with multiple levels
within the organization. For example, if XYZ Chemical Inc. owns three
establishments, but is itself owned by XYZ Inc., which has several
wholly owned subsidiaries, then XYZ Inc. would have done the reporting
for all establishments it controls. These requirements would have only
applied to establishments within the jurisdiction of OSHA and subject
to OSHA's recordkeeping regulation. Establishments within the corporate
structure but located on foreign soil would not have been subject to
the requirement in Alternative I.
There were general comments supporting Alternative I, opposing
Alternative I, and providing suggestions about the implementation of
Alternative I. The proposed rule also asked 16 specific questions
related to Alternative I, and OSHA received comments addressing those
questions as well.
Commenters who generally supported Alternative I did so for a
variety of reasons, including more useful information, more corporate
involvement in establishment-level prevention of workplace injuries and
illnesses, and coordination with current OSHA enterprise-level efforts.
For more useful information, NIOSH commented that a 2006 study by
Mendeloff et al. found that "firm size (or enterprise size) may be
more important than establishment size in determining levels of risk... Theoretically, enterprise size may have a substantial impact on the
ability to prevent injuries and illnesses. Business policies,
practices, and strategies generally vary by size of employer, and large
businesses may have more resources for protecting employee safety and
health, and reducing workplace hazards and exposures compared with
small businesses. Enterprise-level differences in occupational safety
and health management systems may exist in specialization and
expertise, development of training and reporting systems, amount of
available data, and other factors" (Ex. 0216).
Several commenters commented that enterprise-level safety and
health data would be extremely useful to OSHA as well as other groups
(Exs. 0241, 1278, 1327, 1345, 1350, 1384, 1387). For example, Worksafe
commented that this data would be "extremely useful, not only to OSHA
but also to advocates, employers, employees, unions, and
representatives to ensure improved identification and resolution of
workplace health and safety hazards" (Ex. 1278). The National Safety
Council (NSC) added that "[t]he value of benchmarking would be
substantially enhanced if the Enterprise Wide Alternative is adopted.
This option would allow for the calculation of enterprise wide rates
and allow for more meaningful benchmarking among enterprises" (Ex.
0241).
There were also several comments about the scarcity of enterprise-
level data, especially for OSHA. NIOSH commented that "few data are
available at the enterprise level. This lack of data is a principal
source of imprecision in defining small business. Greater clarity in
measurement of both structure and size of employer would aid small
business research and prevention efforts such as those conducted by the
NIOSH Small Business Assistance and Outreach Program" (Ex. 0216). The
AFL-CIO and Change to Win provided similar comments (Exs. 1350, 1380).
With respect to corporate involvement in establishment-level
prevention of workplace injuries and illnesses, the American College of
Occupational and Environmental Medicine commented that "enterprise-
level reporting will increase the likelihood that the chief corporate
officers are aware of potential variations in the safety of different
business processes and establishment practices that put employees at
risk. Greater corporate awareness may enhance corporate oversight and
improve health and safety throughout all establishments" (Ex. 1327).
The AFL-CIO and the Service Employees International Union (SEIU)
provided similar comments (Exs. 1350, 1387).
For coordination with current OSHA enterprise-level efforts, the
AFL-CIO commented that "[t]he concept of corporate level
responsibility under the OSH Act is well-established. While the
majority of OSHA's enforcement efforts are focused at the establishment
level, the OSH Act itself and its obligations, including the
recordkeeping requirements, apply to employers. For decades, OSHA has
utilized corporate-wide settlements as a means to bring about
compliance on a corporate-wide basis, and recently OSHA has attempted
to utilize this corporate-wide approach in its initial enforcement
actions. Under the current Severe Violator Enforcement Program (SVEP),
violations at one establishment trigger expansion of oversight to other
establishments of the same employer" (Ex. 1350). The Service Employees
International Union (SEIU) provided a similar comment (Ex. 1387).
Finally, the United Steelworkers (USW) commented that
"[e]nterprise wide data must retain discernible facility
identification information so that stakeholders can determine which
facility each injury or illness entry occurred [in]. This will provide
stakeholders with the ability to determine where specific hazards exist
and engage in efforts to eliminate or reduce these hazards" (Ex.
1424).
On the other hand, several commenters generally opposed
implementation of Alternative I for various reasons, including the
comparative ineffectiveness of enterprises versus establishments in
promoting workplace health and safety, reduced data quality, employer
burden, and legality (Exs. 1198, 1206, 1221, 1338).
For the effectiveness of enterprises versus establishments in
promoting workplace health and safety, the Food Marketing Institute
commented that "there are many corporate hierarchies in which there
are 'enterprises' above 'establishments' that are not involved in or
responsible for the safety controls in place at the establishments.
Indeed, there are many instances in which a parent company may own 51%
of the stock of a subsidiary but is in no way involved in that
subsidiary's day-to-day activities" (Ex. 1198). The North American
Insulation Manufacturers Association (NAIMA) provided a similar comment
(Ex. 1221).
FedEx Corporation commented that "the safety resources in place at
each FedEx operating company... are in the closest proximity to the
unique day-to-day operations of their establishments, and are therefore
best equipped to enhance the workplace safety of their employees" (Ex.
1338). Similarly, the Interstate Natural Gas Association of America
(INGAA) also commented that "[i]t is well understood that separate
establishments, even separate establishments that operate as part of a
single larger enterprise, do not all operate the same: each
establishment has different personnel, procedures, processes and
protocols" (Ex. 1206).
There were also comments that enterprise-level data would not be
useful for improving workplace safety and health (Exs. 1198, 1279,
1338, 1408, 1412). For example, the National Association of Home
Builders (NAHB) commented that "OSHA claims that enterprise-wide
submission of establishment data to the enterprise will improve
communication and reporting between establishments and enterprises and
this will lead to enterprise's ability to solve establishment safety
and health problems... Again, the agency has failed to establish any
benefits for the proposed rulemaking... That is readily apparent
here with OSHA's proposed claims regarding the enterprise-wide
alternative. OSHA fails to cite any example, research paper, case
study, or journal article to support this claim" (Ex. 1408).
The National Association of Manufacturers (NAM) commented that
"[t]here is no evidence suggesting that there is currently a lack of
communication regarding safety and health between establishments and
enterprises, nor is there any evidence that this alleged benefit will
somehow reduce workplace injuries and illnesses" (Ex. 1279).
For data quality, the North American Insulation Manufacturers
Association (NAIMA) commented that "[w]ith certain umbrella
corporations holding levels upon levels of subsidiaries, it could
conceivably turn into a never-ending task... OSHA will undoubtedly
get multiple reports on the same sites, omitted reports, and have a
massive burden trying to audit all that information. At best, it is
impractical and imprudent to pursue enterprise-wide reporting (Ex.
1221). The International Association of Drilling Contractors (IADC)
commented that "[m]any member companies have establishments (rigs)
operating in multiple zip codes. Grouping them together in one enterprise
report would not allow for data separation into various states" (Ex. 1199).
Several commenters commented that enterprise-wide submission would
create confusion when applying OSHA's recordkeeping requirements (Exs.
1198, 1338, 1343, 1356, 1411). For example, the Food Marketing
Institute commented that "new definitions will have to be created for
all the core terminology (e.g., 'enterprise') and, as legal history has
demonstrated repeatedly, regardless of the definition, much litigation
will be generated before the true bounds of the terms are discovered.
Further, the opportunities for wide-scale confusion and error are
abundant" (Ex. 1198). Other commenters expressed similar concerns
about definitions (Exs. 1200, 1221).
In response, OSHA has decided not to include a requirement in the
final rule for enterprise-wide collection and submission of
recordkeeping data. OSHA based this decision on two main reasons.
First, OSHA agrees with commenters who stated that it would be
difficult to administer an enterprise-wide collection and submission
requirement. Specifically, because there are wide variations in
corporate structure, OSHA believes that it would be difficult to
establish a part 1904 definition of enterprise. This is particularly a
concern when some corporate structures include establishments that are
otherwise legally separate entities. Also, the question of enterprise
ownership or control of specific establishments can be an extremely
complex legal issue, especially when parent companies have multiple
divisions or subsidiaries. OSHA also believes that in some cases it may
be difficult for larger enterprises to identify all of the
establishments under its ownership or control.
Second, when the proposed rule for this rulemaking was issued in
November 2013, OSHA's recordkeeping regulation included a list of
partially-exempt industries based on the Standard Industrial
Classification (SIC) system. On September 18, 2014, OSHA published a
final rule in the Federal Register revising the list of partially-
exempt industries in appendix A to subpart B of part 1904. [79 FR
56130]. As part of this revision, partial exemption to OSHA's
recordkeeping regulation is now based on the North American Industry
Classification System (NAICS).
Compared to the SIC system, NAICS established several new industry
categories, including specific categories for establishments conducting
office or management activities. One of the industry classifications
newly partially exempt from OSHA recordkeeping requirements is NAICS
5511, Company Management and Enterprises. Because of this change, OSHA
believes it cannot now include a requirement in this final rule for
enterprise-wide collection and submission of part 1904 data.
OSHA also wishes to point out that nothing in this final rule
prevents enterprises or corporate offices from voluntarily collecting
and submitting part 1904 data for their establishments. Based on the
comments to Alternative I, as well as the Agency's own experience, OSHA
believes that there are benefits for enterprise-wide collection and
submission of recordkeeping data. As noted by commenters, large
companies generally have more resources for protecting employee safety
and health and reducing workplace hazards and exposures. Enterprise-
level collection and submission of part 1904 data increases the
likelihood that corporate offices will be aware of variations in
establishment processes and practices that place employees at risk.
OSHA believes that greater corporate involvement and oversight enhance
safety and health at all establishments. Accordingly, OSHA encourages
enterprises and corporate offices to voluntarily collect and
electronically submit part 1904 records for their establishments
required to submit such records under the final rule.
Questions in the NPRM
In addition to Alternatives A through I, the preamble to the
proposed rule included several questions about specific issues in this
rulemaking. Some of these issues are addressed elsewhere in this
preamble. The remaining issues are addressed below.
Implications of Required Electronic Data Submission
In the preamble to the proposed rule, OSHA asked, "What are the
implications of requiring all data to be submitted electronically? This
proposed rule would be among the first in the federal government
without a paper submission option." [78 FR 67271].
Several commenters supported mandatory electronic submission. The
Phylmar Regulatory Roundtable (PRR) commented that "PRR company
establishments currently collect and record injury and illness data
manually and electronically. Members prefer submitting data
electronically over paper submission" (Ex. 1110). The United Food &
Commercial Workers International Union (UFCW) commented that "large
employers (those greater than 250) can meet requirements for mandatory
electronic reporting once OSHA provides the technical means to do so"
(Ex. 1345).
The American Federation of Teachers (AFT) commented, "Once the
[electronic reporting] requirement is in place, OSHA will for the first
time have the most comprehensive and timely data base on large and high
hazard establishments. The agency will be able to do frequent and
systematic comparisons between like establishments and better target
consultation and enforcement. There will also be opportunities to track
patterns of specific injuries and illnesses as we have never had
before. This ability will be important for research as well as
enforcement... Electronic reporting will assist us in not only
identifying new hazards but also measuring their impact of in a timely
manner (Ex. 1358). The AFL-CIO made a similar comment (Ex. 1350).
However, many other commenters expressed concern that only allowing
electronic submission would burden small establishments without
Internet access, especially those in rural areas, and that OSHA should
continue to allow a paper-based reporting option (Exs. 0179, 0211,
0253, 0255, 1092, 1113, 1123, 1124, 1190, 1198, 1199, 1200, 1205, 1273,
1322, 1327, 1332, 1342, 1343, 1359, 1366, 1370, 1386, 1401, 1408, 1410,
1411, 1416, 1417). For example, the American Forest & Paper Association
commented that "OSHA must continue to allow a paper-based reporting
option. Many businesses, particularly small firms located in rural
areas, do not have ready access to the Internet or may find electronic
reporting burdensome because they currently have a paper-based record
system" (Ex. 0179). The Texas Cotton Ginners Association (TCGA) made a
similar comment (Ex. 0211). The Food Marketing Institute further
commented that "OSHA acknowledges that 30% of 2010 ODI establishments
did not electronically submit injury and illness information and that
"most agencies" currently allow paper submission of information. Id.
at 67273. This confirms that OSHA is aware that not all small
businesses will have the access necessary for electronic submission"
(Ex. 1198).
Several commenters expressed particular concern about the burden of
mandatory electronic submission on farmers. The California Farm Bureau
Federation (CFBF) commented that a recent USDA survey showed that "68 percent
of farmers (both livestock/poultry and crop producers) have a computer
and only 67 percent have internet access... the same USDA report shows
that only a mere 40 percent of farmers actually use a computer to conduct
their farming business. Should OSHA move forward with the rule, the agency
must give consideration to allowing paper submissions. Because submission of
these records will be mandatory, failing to do so will create a
hardship on agricultural employers, and increase the cost burden of the
rule for employers" (Ex. 1366). The American Farm Bureau Federation
(AFBF), Pennsylvania Farm Bureau (PFB), the New York Farm Bureau
(NYFB), and the Louisiana Farm Bureau Federation (LFBF) provided
similar comments (Exs. 1113, 1359, 1370, 1386).
OSHA agrees with the commenters who supported electronic
submission. Specifically, OSHA believes that electronic submission is
necessary if a data system is to provide timely and useful
establishment-specific information about occupational injuries and
illnesses. In addition, as discussed in Section VI Final Economic
Analysis and Regulatory Flexibility Analysis, OSHA believes that
establishments with 20 or more employees are highly likely to have
access to the Internet and that the burden of electronic reporting is
low even for the few employers for whom it may be more difficult to
access the Internet. Consequently, the final rule requires electronic
submission of injury and illness records to OSHA.
Commenters also expressed several technical concerns about the
electronic submission requirement. The Associated General Contractors
of New York, LLC (AGC NYS) expressed the concern that "those that
attempted to submit their information but failed due to a Web site that
does not function properly may also be considered to be non-compliant
with such regulations" (Ex. 1364). Both the National Ready Mixed
Concrete Association (NRMCA) and the American Subcontractors
Association (ASA) suggested that OSHA should maintain a paper
submission option for establishments experiencing temporary technical
difficulties with electronic submission (Exs. 0210, 1322).
In response, OSHA believes that there are more cost-effective ways
to deal with Web site problems than maintaining a paper submission
option. For example, OSHA plans to allocate resources to help employers
who have difficulty submitting required information because of
unforeseen circumstances. Specifically, OSHA intends to establish a
help desk to support data collection and submission under the final
rule. In addition, employers will be able to report the information
from a different location, such as a public library. Further, for the
data collection under the ODI, OSHA provided employers multiple chances
after the due date to submit their data before issuing citations for
non-response. OSHA expects to continue this practice when employers
have technical issues and are unable to submit their information under
this final rule.
In addition, OSHA will phase in implementation of the data
collection system. In the first year, all establishments required to
routinely submit information under the final rule will be required to
submit only the information from the Form 300A (by July 1, 2017). In
the second year, all establishments required to routinely submit
information under the final rule will be required to submit all of the
required information (by July 1, 2018). This means that, in the second
year, establishments with 250 or more employees that are required to
routinely submit information under the final rule will be responsible
for submitting information from the Forms 300, 301, and 300A. In the
third year, all establishments required to routinely submit under this
final rule will be required to submit all of the required information
(by March 2, 2019). This means that beginning in the third year (2019),
establishments with 250 or more employees will be responsible for
submitting information from the Forms 300, 301, and 300A, and
establishments with 20-249 employees in an industry listed in appendix
A to subpart E of part 1904 will be responsible for submitting
information from the Form 300A by March 2 each year. This will provide
sufficient time to ensure comprehensive outreach and compliance
assistance in advance of implementation.
Finally, OSHA will use feedback from users of the data collection
system from the first year of implementation to inform the development
and improvement of the data collection system. OSHA will incorporate
user experience and design improvements throughout the life of the data
collection system, based on user feedback and emerging technology.
Coverage of Industries in Sec. 1904.41(a)(2)
Section 1904.41(a)(2) of the proposed rule would have required
establishments with 20 or more employees, but fewer than 250 employees,
in designated industries, to electronically submit information from the
300A annual summary to OSHA or OSHA's designee on an annual basis. The
list of designated industries subject to the annual submission
requirement in proposed Sec. 1904.41(a)(2) was included in proposed
appendix A to subpart E. The designated industries in proposed Appendix
A to Subpart E represented all industries covered by part 1904 with a
2009 DART rate in the BLS SOII of 2.0 or greater, excluding four
selected transit industries where local government is a major employer.
In the preamble to the proposed rule, OSHA asked, "More current
BLS injury and illness data will be available at the time of the final
rulemaking. Use of newer data may result in changes to the proposed
industry coverage. Should OSHA use the most current data available in
determining coverage for its final rule? Would this leave affected
entities without proper notice and the opportunity to provide
substantive comment?" [78 FR 67271].
OSHA received several comments related to this question. Two
commenters supported using 2009 BLS injury and illness data for
determining coverage for high-hazard industries under the final rule,
on grounds that more current data would leave affected entities without
proper notice and the opportunity to provide comment (Exs. 1206, 1329).
One commenter, the California Department of Industrial Relations (DIR),
Office of the Director, recommended "ways of increasing the stability
of the system, namely, not changing industries required to report, not
using a phased in approach to reporting, and encouraging use of data
through a successful data sharing Web site" (Ex. 1395). The
International Brotherhood of Teamsters supported using the most current
data available for determining coverage in the final rule, commenting
that "[w]e recommend that OSHA use the latest BLS data. The results of
the Survey of Occupational Injuries and Illnesses (SOII) are one year
behind, but they may point to emerging or immediate hazards" (Ex.
1381). Another commenter supported OSHA's use of the most current BLS
data available for determining coverage, and stated that OSHA should be
able to use the new data without needing a new round of notice and
comment because it discussed this possibility in the proposed rule.
This commenter also commented that it would be counterproductive to
limit OSHA to the BLS data available at the time of the proposed rule
(Ex. 1211).
OSHA also received a comment from the National Automobile Dealers
Association (NADA) stating that "OSHA should drop the proposal's use
of a one year (2009) DART rate. Focusing on a single year risks
mischaracterizing the injury and illness rates for a given industry
and/or capturing an uncharacteristic decline or spike. A more
appropriate approach would be a rolling three year average similar to
what OSHA has used to periodically set partial exemptions from its
injury/illness recording mandates. Of course, any reporting mandate
should reset annually for each industry sector based on a three-year
average of its most current BLS SOII data" (Ex. 1392).
After carefully considering all of these comments, OSHA has decided
to use a three-year average of BLS data from 2011, 2012, and 2013 to
determine coverage for Sec. 1904.41(a)(2) of the final rule. This
three-year range represents the most current BLS data available at the
time of this final rule. OSHA agrees with the International Brotherhood
of Teamsters that using the most current BLS data available at the time
of the final rule, rather than outdated data, is the most effective way
to identify emerging workplace hazards, as well as the most effective
way to identify the list of high hazard industries for inclusion in
appendix A to subpart E. A three-year average will reduce the effects
of natural year-to-year variation in industry injury/illness rates, and
it is consistent with OSHA's current approach in determining the
partial exemption of industries under existing Sec. 1904.2. The
alternative would have been to use a single year of BLS data from 2009
for a final rule that will go into effect in 2017.
OSHA also agrees with commenters who stated that the Agency
provided sufficient notice and opportunity for comment in the NPRM by
explicitly asking whether the Agency should use the most current data
available when determining coverage for the final rule. The combination
of OSHA's request for comment on the approach that it ultimately
adopted in the final rule, and the comments and testimony received in
response to the proposed rule, provided the regulated community with
adequate notice regarding the outcome of the rulemaking. See, e.g.,
Nat'l Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699
(D.C. Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059
(11th Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v.
Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) ("a final rule may
properly differ from a proposed rule and indeed must so differ when the
record evidence warrants the change... . Where the change between
proposed and final rule is important, the question for the court is
whether the final rule is a 'logical outgrowth' of the rulemaking
proceeding"). The list of designated industries in Appendix A to
Subpart E of the final rule is a logical outgrowth of the proposal, and
the number of comments provides a clear indication that the affected
members of the public are not only familiar with the issue of using the
most current data, but also viewed the inclusion of such data as a
potential outcome of this rulemaking. As a result, unlike the proposed
rule, the final rule will use a three-year average (2011, 2012, 2013)
DART rate of 2.0 or greater for determining the list of industries
included in appendix A to subpart E.
Also in the preamble to the proposed rule, OSHA asked whether the
list of designated industries in appendix A to subpart E should remain
the same each year, or whether the list should be adjusted each year to
reflect the most current BLS injury and illness data. OSHA also asked
how OSHA could best inform affected establishments about the
adjustments, if the list were adjusted.
One commenter supported adjusting the list of designated industries
each year to reflect the most current BLS injury and illness data (Ex.
1211). Other commenters supported adjusting the list in other ways. For
example, the International Union (UAW) commented that "annual updating
is too frequent and would leave employers confused as to whether or not
they need to report. Updating every three years would be more
appropriate" (Ex. 1384). The International Brotherhood of Teamsters
and the Service Employees International Union (SEIU) provided similar
comments (Exs. 1381, 1387). The American Federation of Teachers (AFT)
commented that "[t]he AFT recommends that new establishments that meet
the requirement of a DART rate of 2.0 be added every year but that the
original list of high hazard establishments be maintained regardless of
changes to their DART that puts them below the threshold. Those
original establishments should continue reporting for a minimum of ten
years in order to ascertain if their DART rates are trending lower over
the long term" (Ex. 1358).
On the other hand, the California Department of Industrial
Relations (DIR), Office of the Director supported "increasing the
stability of the system, namely, [by] not changing industries required
to report" (Ex. 1395).
Finally, Thoron Bennett supported requiring establishments with 20
or more employees in all industries to report, rather than limiting the
requirement to establishments with 20 or more employees on a list of
designated high-hazard industries. He further commented that OSHA
should "[f]orget the tiered reporting based on employment numbers or
designated industries. Simply require electronic data submission for
all employers who have to fill out the OSHA 300/300A/301 logs" (Ex.
0035).
OSHA agrees with the commenters who stated that the list of
designated industries in appendix A to subpart E should not be updated
each year. OSHA believes that moving industries in and out of appendix
A to subpart E each year would be confusing. OSHA also believes that
keeping the same industries in appendix A to subpart E each year will
increase the stability of the system and reduce uncertainty for
employers. Accordingly, OSHA will not, as part of this rulemaking,
include a requirement to annually or periodically adjust the list of
designated industries to reflect more recent BLS injury and illness
data. Any such revision to the list of industries in appendix A to
subpart E in the future would require additional notice and comment
rulemaking.
The designated industries, which will be published in appendix A to
subpart E of the final rule, will be as follows:
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
11....................... Agriculture, forestry, fishing and hunting.
22....................... Utilities.
23....................... Construction.
31-33.................... Manufacturing.
42....................... Wholesale trade.
4413..................... Automotive parts, accessories, and tire
stores.
4421..................... Furniture stores.
4422..................... Home furnishings stores.
4441..................... Building material and supplies dealers.
4442..................... Lawn and garden equipment and supplies
stores.
4451..................... Grocery stores.
4452..................... Specialty food stores.
4521..................... Department stores.
4529..................... Other general merchandise stores.
4533..................... Used merchandise stores.
4542..................... Vending machine operators.
4543..................... Direct selling establishments.
4811..................... Scheduled air transportation.
4841..................... General freight trucking.
4842..................... Specialized freight trucking.
4851..................... Urban transit systems.
4852..................... Interurban and rural bus transportation.
4853..................... Taxi and limousine service.
4854..................... School and employee bus transportation.
4855..................... Charter bus industry.
4859..................... Other transit and ground passenger
transportation.
4871..................... Scenic and sightseeing transportation, land.
4881..................... Support activities for air transportation.
4882..................... Support activities for rail transportation.
4883..................... Support activities for water transportation.
4884..................... Support activities for road transportation.
4889..................... Other support activities for transportation.
4911..................... Postal service.
4921..................... Couriers and express delivery services.
4922..................... Local messengers and local delivery.
4931..................... Warehousing and storage.
5152..................... Cable and other subscription programming.
5311..................... Lessors of real estate.
5321..................... Automotive equipment rental and leasing.
5322..................... Consumer goods rental.
5323..................... General rental centers.
5617..................... Services to buildings and dwellings.
5621..................... Waste collection.
5622..................... Waste treatment and disposal.
5629..................... Remediation and other waste management
services.
6219..................... Other ambulatory health care services.
6221..................... General medical and surgical hospitals.
6222..................... Psychiatric and substance abuse hospitals.
6223..................... Specialty (except psychiatric and substance
abuse) hospitals.
6231..................... Nursing care facilities.
6232..................... Residential mental retardation, mental health
and substance abuse facilities.
6233..................... Community care facilities for the elderly.
6239..................... Other residential care facilities.
6242..................... Community food and housing, and emergency and
other relief services.
6243..................... Vocational rehabilitation services.
7111..................... Performing arts companies.
7112..................... Spectator sports.
7121..................... Museums, historical sites, and similar
institutions.
7131..................... Amusement parks and arcades.
7132..................... Gambling industries.
7211..................... Traveler accommodation.
7212..................... RV (recreational vehicle) parks and
recreational camps.
7213..................... Rooming and boarding houses.
7223..................... Special food services.
8113..................... Commercial and industrial machinery and
equipment (except automotive and electronic)
repair and maintenance.
8123..................... Dry-cleaning and laundry services.
------------------------------------------------------------------------
OSHA notes that 15 industries in appendix A to subpart E in the
final rule were not included in proposed appendix A to subpart E. These
industries are Specialty Food Stores (NAICS 4452), Vending Machine
Operators (NAICS 4542), Urban Transit Systems (NAICS 4851), Interurban
and Rural Bus Transportation (NAICS 4852), Taxi and Limousine Service
(NAICS 4853), School and Employee Bus Transportation (NAICS 4854),
Other Transit and Ground Passenger Transportation (NAICS 4859), Postal
Service (NAICS 4911), Other Ambulatory Health Care Services (NAICS
6219), Community Food and Housing, and Emergency and Other Relief
Services (NAICS 6242), Performing Arts Companies (NAICS 7111), Museums,
Historical Sites, and Similar Institutions (NAICS 7121), RV
(Recreational Vehicle) Parks and Recreational Camps (NAICS 7212),
Rooming and Boarding Houses (NAICS 7213), and Special Food Services
(NAICS 7223). Conversely, three industries that were included in
proposed appendix A to subpart E are not included in the final Appendix
A to Subpart E. These industries are Inland Water Transportation (NAICS
4832), Scenic and Sightseeing Transportation, Water (NAICS 4872), and
Home Health Care Services (NAICS 6216).
The following table summarizes the changes in affected industries
by using the three-year average of BLS data (2011, 2012, 2013) compared
to using 2009 BLS data and provides the expected number of affected
establishments in each industry based on the most recent 2012 County
Business Patterns data:
----------------------------------------------------------------------------------------------------------------
Expected No. of affected
NAICS Industry establishments
----------------------------------------------------------------------------------------------------------------
In appendix A to subpart E of the final rule (using three-year average of 2011, 20012, 2013 BLS data), but NOT
in appendix A to subpart E of the proposed rule (using 2009 BLS data)
----------------------------------------------------------------------------------------------------------------
4452.......................... Specialty food stores............................ 1221
4542.......................... Vending machine operators........................ 493
4851.......................... Urban transit systems............................ 374
4852.......................... Interurban and rural bus transportation.......... 184
4853.......................... Taxi and limousine service....................... 740
4854.......................... School and employee bus transportation........... 2025
4859.......................... Other transit and ground passenger transportation 918
4911.......................... Postal service................................... *
6219.......................... Other ambulatory health care services............ 3282
6242.......................... Community food and housing, and emergency and 2481
other relief services.
7111.......................... Performing arts companies........................ 1079
7121.......................... Museums, historical sites, and similar 1161
institutions.
7212.......................... RV (recreational vehicle) parks and recreational 392
camps.
7213.......................... Rooming and boarding houses...................... 67
7223.......................... Special food services............................ 7812
----------------------------------------------------------------------------------------------------------------
In Appendix A to Subpart E of the proposed rule (using 2009 BLS data), but NOT in Appendix A to Subpart E of the
final rule (using three-year average of 2011, 2012, 2013 BLS data)
----------------------------------------------------------------------------------------------------------------
4832.......................... Inland water transportation...................... 123
4872.......................... Scenic and sightseeing transportation, water..... 131
6216.......................... Home health care services........................ 12801
----------------------------------------------------------------------------------------------------------------
* Insufficient data.
Design of the Electronic Submission System
In the preamble to the proposed rule, OSHA asked, "How should the
electronic data submission system be designed? How can OSHA create a
system that is easy to use and compatible with other electronic systems
that track and report establishment-specific injury and illness data?"
[78 FR 67271].
There were many comments with suggestions about the overall design
of OSHA's electronic submission system. Several commenters commented
that OSHA's electronic data submission system should be compatible with
existing systems. The United Steelworkers (USW) commented that "[i]t
is important that OSHA ensure that electronic systems put in place for
this initiative are compatible with existing systems in common use. We
also encourage OSHA to update their system as necessary to keep up with
advances in technology and facilitate the transfer of employer data"
(Ex. 1424). Rachel Armont; the California Department of Industrial
Relations (DIR), Office of the Director; and Shawn Lewis provided
similar comments (Exs. 0198, 1320, 1395).
The International Union (UAW) commented that "such a system should
allow for employers [to] upload existing files" (Ex. 1384). Harvey
Staple commented that "the states and OSHA [could] work together to
develop a system whereby one entry into an electronic log could be used
for multiple information reporting (i.e., state and federal). It would
further enhance all parties involved if the system could be tied into
the workers compensation system to maximize the data already captured
without adding another paperwork burden" (Ex. 0154).
In response, OSHA notes that, because there are many commercial
software products on the market for recording and managing information
on workplace injuries/illnesses to support compliance with OSHA
recordkeeping requirements, OSHA plans to coordinate with trade
associations and health and safety consultants to identify the products
in widest use. OSHA would then review available information about these
products to help inform relevant considerations during development of
the OSHA system for ensuring ease-of-use and compatibility with
commercial products in common use.
When OSHA develops the data collection system, the Agency will
consider commercial systems used by establishments to maintain their
injury/illness records. This means that the Agency's system may provide
a mechanism and protocol for employers to transmit their data
electronically instead of completing online forms. For example, the
system could allow employers to securely transfer encrypted data over
the Web in an acceptable data file format (e.g., MS Excel, XML, or csv)
for validation and import into the electronic reporting system. OSHA
will provide users with easy-to-follow guidance that addresses required
data elements (a data dictionary), format and other technical
considerations, and steps involved in validation, transfer, and
confirmation. Routines will be programmed to automate as much of the
process as possible, with prompts for manual review as needed.
Quick Incidents suggested the use of an Application Programming
Interface (API), commenting that "Application Programming Interfaces
(APIs) have gained widespread usage in the corporate world... Having
this type of machine to machine communication ensures that data is
transferred securely, accurately and quickly without any human
intervention... An API would allow companies to connect their
incident recording software directly to the OSHA reporting system.
Incident reports would be transmitted seamlessly without any
redundancy. For companies with an existing incident recording system
this proposed API would allow OSHA submission without any additional
burden" (Ex. 1220).
OSHA will explore this suggestion during development of the data
collection system, in addition to the file transfer concept described
above.
The Risk and Insurance Management Society suggested another
approach, commenting that "[m]any employers have in place systems to
report their injury and illness data through the Electronic Data
Interchange... If OSHA decides to move forward with the proposed
rule, then an effort should be made to accept data submitted through
the current Electronic Data Interchange system" (Ex. 1222).
The International Association of Industrial Accident Boards and
Commissions (IAIABC) suggested that OSHA should "consider the benefits
of using the IAIABC's established First and Subsequent Reports of
Injury Standard (IAIABC EDI Claims Standard). Implementation of an
existing electronic standard would be much faster and easier than
developing a brand new electronic reporting protocol... All of the
IAIABC's EDI standards have been developed by workers' compensation
business and technical experts and are widely used and actively
supported. To date, 40 jurisdictions have implemented at least one of
the IAIABC's EDI standards" (Ex. 1104).
In response, OSHA notes that IAIABC's EDI claim standards are used
by many states for standardizing the submission of workers'
compensation claims information. When OSHA develops the data collection
system, the Agency will assess whether some variation of the standard
or its basic logic might be appropriate for ensuring consistency in the
submission and processing of data to OSHA.
However, the Dow Chemical Company commented that "[i]t is probably
literally impossible for OSHA to design its web portal to be compatible
with every electronic system that some employer may be using. Dow is
not aware of any web portal that is compatible with SAP-based systems,
Excel spreadsheets, Adobe Acrobat, Lotus Notes, Oracle, and the
multitude of other options for keeping electronic records" (Ex. 1189).
Several commenters also expressed specific concerns about the
electronic data submission system's compatibility with 301-equivalent
forms. The U.S. Poultry & Egg Association commented that "OSHA does
not appear to realize that many employers do not actually use the OSHA
301 Form. Instead, they use an equivalent form, often for workers
compensation purposes. Presumably, OSHA would require employers to
translate the information into the '301 Form' on the internet. This may
not be as straightforward as OSHA makes it seem and certainly it may be
more costly than OSHA anticipates. It also not only increases the risks
of errors occurring in the translation but eliminates the usefulness of
equivalent forms" (Ex. 1109). The National Association of
Manufacturers and Littler Mendelson, P. C. provided similar comments
(Exs. 1279, 1385).
OSHA's response is that, in developing the data collection system,
OSHA may consider aspects of the IAIABC EDI standards that might inform
and streamline data submission to the OSHA system, rather than
designing the system to accept the workers' compensation forms or
equivalent forms themselves. That is, because workers' compensation
forms are for a specific purpose and can vary by state, the workers'
compensation form data elements may not fit OSHA's reporting
requirements.
The Association of Occupational Health Professionals in Healthcare
(AOHP) commented about the importance of compatibility between existing
systems and OSHA's electronic data submission system because "[t]he
need to double enter the data is a significant concern. Double data
entry was a significant concern when NIOSH was proposing the
Occupational Safety Health Network (OHSN). NIOSH considered this
concern and was able to create an interface to eliminate double data
entry into this national database. Double data entry is costly in terms
of time and the use of scarce human resources to manage these record
keeping requirements (Ex. 0246). The Risk and Insurance Management
Society provided a similar comment (Ex. 1222).
Several other commenters provided comments about making the
electronic data submission system user-friendly. The Association of
Occupational Health Professionals in Healthcare (AOHP) commented that
"[c]onsideration should be given to a pilot to test the functioning of
the Web site and the ease with which the data can be entered and
submitted" (Ex. 0246). The California Department of Industrial
Relations (DIR), Office of the Director commented that "[c]urrent OSHA
guidelines for its forms are simple, easy-to-use, and are low-literacy
friendly... Any electronic reporting system must balance the needs
for uniform, easy to process data with the simplicity that paper
records provided" (Ex. 1395).
The Phylmar Regulatory Roundtable (PRR) commented that "[t]he
Proposed Rule calls for two methods of submitting data--use of online
forms or batch submission of Excel or XML files. PRR supports this
approach, as it appears to accommodate both establishment size (smaller
establishments would likely use the online form) and the diverse
software programs companies currently used to electronically manage
injury and illness data" (Ex. 1210). The International Brotherhood of
Teamsters provided a similar comment (Ex. 1381).
The Dow Chemical Company suggested that it is "vitally important
for employers to receive immediate feedback as to whether their data
entry was successful or unsuccessful. OSHA's web portal should respond
to each and every attempt at data entry, by providing a confirmation of
receipt or a confirmation of failure. The confirmation notice should
describe what was received (or not received) with sufficient detail to
be useful in resolving disputes in an enforcement context" (Ex. 1189).
The Allied Universal Corporation commented about potential
technical issues, suggesting that "OSHA must also consider the heavy
traffic flow as the submission deadline approaches, and ensure the Web
site to submit electronically does not crash or cause further reporting
problems" (Ex. 1192). Thoron Bennett noted another potential issue,
commenting that "many companies have security measures that cause
electronic reporting problems, particularly defense and research
companies that safeguard their electronic information" (Ex. 0035).
Several commenters suggested that OSHA should consult on this issue
with other governmental agencies that collect establishment-specific
injury and illness data. Senator Tom Harkin commented that "OSHA's
sister agency the Mine Safety and Health Administration (MSHA), along
with other agencies like the Federal Railroad Administration (FRA) and
Federal Aviation Administration (FAA), currently publish establishment-
specific accident and injury and illness data. We believe that OSHA
should consult with these agencies to learn about design problems and
potential best practices to adopt before creating its database" (Ex.
1371). The International Brotherhood of Teamsters provided a similar
comment (Ex. 1381).
In response, OSHA intends to use submitter registration, which
would enable OSHA to issue a unique ID for reporting establishments.
With user self-registration via an online submission form, the employer
would have to complete an online registration form (available from a
link on the electronic reporting system's home/login page) to obtain
login information before gaining access to the new electronic reporting
system for data submission. After the user submitted the online
registration form, the user would receive a system-generated email
confirming registration and providing login information. Registration for
submission would be needed because, unlike under the ODI, employers
required to submit data each year under this final rule will not receive
notification. Alternate account registration and authentication provisions
may be provided for electronic transmission of data. In contrast, special
OSHA data collections under Sec. 1904.41(a)(3) of this final rule will
involve OSHA notifications to affected employers.
Updates for the Electronic Data Submission System
In the preamble to the proposed rule, OSHA asked, "Should the
electronic data submission system be designed to include updates?
Section 1904.33(b) requires employers to update OSHA Logs to include
newly-discovered recordable injuries or illnesses and to show any
changes that have occurred in the classification of previously-recorded
injuries and illnesses." [78 FR 67271].
There were many comments about the benefits of allowing updates in
the electronic data submission system. Several commenters noted that
the data would be inaccurate without updates, because more information
about cases often becomes available over time, after investigation
(Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 1358, 1360, 1378,
1389, 1396, 1399, 1408). For example, the Pacific Maritime Association
commented that "[i]t is common for an employer to record an employee's
complaint at the time it is reported, prior to performing an evaluation
of whether an injury has actually occurred or whether it is indeed
workplace related. However, following an examination by a physician or
consideration of the recordkeeping factors in Section 1904, recorded
injuries regularly have to be removed or edited. The information
submitted to OSHA and included on its database will be no different.
Additionally, it is particularly troublesome that OSHA will base its
enforcement and targeting efforts on this information, while at the
same time conceding that there may be no way to update or amend
information to ensure that it is accurate. Accordingly, if OSHA
proceeds with this rule, PMA believes that it is imperative that this
system be designed to allow for amendments" (Ex. 1326).
The U.S. Chamber of Commerce further commented that "OSHA
acknowledges in its Notice for this Proposed Rule that the present
recordkeeping rules require that employers update their OSHA Form 300
for five years. See 78 FR at 67271. Those updates will affect the forms
described above which in turn would affect the accuracy of database
entries. Thus, it is not a question of whether employers will need to
update this information, but rather a question of how they will do so"
(Ex. 1396).
Several other commenters commented that companies will look bad
unfairly if an injury or illness is later found to be non-work-related
and updates are not allowed. The National Marine Manufacturers
Association commented that "it seems clear that companies will be held
accountable for recordable incidents where either the actual cause was
not under the employer's control or part of an employee's work or it is
later discovered the injury was due to other causes. Based on the
proposal, once these incidents are recorded and submitted to OSHA, NMMA
understands that the reports cannot be amended. Both OSHA and the
public would therefore have an inaccurate depiction of a company's
safety record" (Ex. 1217). The National Electrical Contractors
Association (NECA), Innovative Holdings of Iowa, Inc., and the
Association of Union Constructors provided similar comments (Exs. 1125,
1275, 1389).
Other commenters commented that not allowing updates could lead to
underreporting of marginally work-related cases. United Parcel Service,
Inc. (UPS) commented that "[without updates] an employer would not
want to err on the side of placing questionable entries onto the log.
There would be no mechanism for striking through this data once it is
publicly posted on OSHA's Web site. Rather than the rule promoting more
revelations of injury and illness data, it would likely result in less
data in circumstances where questions remained regarding recording of a
case" (Ex. 1391). The International Warehouse Logistics Association
(IWLA) provided a similar comment (Ex. 1360).
There were also commenters who opposed allowing updates. Several
commenters believed that updates would be burdensome to employers. The
Phylmar Regulatory Roundtable (PRR) commented that "updating quarterly
submissions would be a major burden to employers. Consider the time
involved for a record keeper at one establishment to communicate
changes in status regarding particular injury cases on a regular basis
to someone in an enterprise-level role who must then either access the
online log or records to modify them or modify the enterprise database
and resubmit it to the Web site" (Ex. 1110). The AFL-CIO, the
International Warehouse Logistics Association (IWLA), the International
Brotherhood of Teamsters, and the International Union (UAW) all
provided similar comments (Exs. 1350, 1360, 1381, 1384). The Puget
Sound Shipbuilders Association provided a comment that updates would be
especially burdensome for certain establishments, such as those located
on sea vessels (Ex. 1379).
The Dow Chemical Company commented that "[t]he system should not
be designed to accept updates. This is because allowing updates is only
half a step from requiring updates, and requiring updates would greatly
increase the burden of the rule... . if the Agency ever wishes to
see whether an employer has made any updates, OSHA already has the
authority to pose that question to the employer--without imposing a
universal obligation" (Ex. 1189).
The U.S. Chamber of Commerce commented that updates would also be
burdensome for OSHA, stating that "any suggestion that OSHA will be
able to keep up with this insurmountable task of maintaining an
immediately accessible, accurate database is not credible" (Ex. 1396).
The Pacific Maritime Association made a similar comment (Ex. 1326).
Finally, the Phylmar Regulatory Roundtable (PRR) suggested that the
benefits of updates might be insignificant overall, since "[f]or
large, established, legacy employers, many years of experience has
shown that while updates are required by law, they are usually of minor
consequence and/or correction and rarely, if ever, reflect a major and
significant change in the safety performance of a company" (Ex. 1110).
Several commenters provided OSHA with suggestions about how to
proceed with the question of whether or not the electronic data
submission system should include updates. The American College of
Occupational and Environmental Medicine (ACOEM) suggested that the
system should allow but not require updates. They commented that "the
accuracy of reported data could be optimized by permitting, though not
requiring, employers to update their data after submission as new
information becomes available about specific injuries, exposures, and
diseases" (Ex. 1327). The International Brotherhood of Teamsters and
Thoron Bennett provided similar comments (Exs. 0035, 1381).
Finally, the U.S. Chamber of Commerce commented that "if OSHA
insists on pressing forward with a rule of this type, it must start
over and reintroduce a proposed rule with an adequate system for
updating submitted data that stakeholders may meaningfully consider and
comment on" (Ex. 1396).
In response, OSHA agrees with the commenters who stated that
allowing updates but not requiring updates would improve the accuracy
of the data while limiting the burden on employers. Accurate data will
help OSHA, researchers, employers, employees, and the public in their
efforts to improve workplace safety and health. In addition, because
the final rule requires annual submission of records for establishments
with 250 or more employees, rather than quarterly submission as
proposed in the NPRM, employers will be able to update information
throughout the year before they certify the 300A. Annual reporting also
reduces the likelihood that employers will need to update information
after reporting to OSHA. Therefore, OSHA plans to design a reporting
system that will allow but not require updates.
Accuracy of the Collected and Published Data
In the preamble to the proposed rule, OSHA asked, "How can OSHA
use the electronic submission requirement to improve the accuracy of
injury and illness records by encouraging careful reporting and
recording of work-related injuries and illnesses?" [78 FR 67271].
Several commenters provided technical comments on ways for OSHA to
improve the accuracy of injury and illness records collected through
electronic submission. As mentioned in the previous section, many
commenters commented that allowing updates could improve the accuracy
of collected data (Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355,
1358, 1360, 1378, 1389, 1396, 1399, 1408). Rachel Armont further
commented that "[o]n the data management side of things, perhaps
[OSHA] could open up the site as a way to keep a real-time log of work-
related injuries so it's not a one-time submission process" (Ex.
0198).
The Council of State and Territorial Epidemiologists (CSTE)
commented that "[t]he proposed electronic collection of data, in the
longer run, offers the opportunity to provide employers with electronic
tools (prompts, definitions, consistency edits, and industry specific
drop down lists) that have the potential to improve the quality of the
data reported" (Ex. 1106). The American Federation of State, County,
and Municipal Employees (AFSCME) provided a similar comment (Ex. 1103).
ORCHSE Strategies, LLC commented that OSHA should develop "a
useful set of decision-making software to assist users in making
accurate recordkeeping decisions. The current OSHA software does little
more than summarize the text in the regulations. What is needed is
software that employers can use to correctly answer their "what if"
questions" (Ex. 1339).
The American College of Occupational and Environmental Medicine
(ACOEM) commented that OSHA could provide "an electronic tool for
employers to self-check their submitted information for recordkeeping
errors and for deviance from industry averages (Ex. 1327). The American
Federation of Teachers (AFT) provided a similar comment (Ex. 1358).
The American Federation of Teachers (AFT) also commented that
"[t]he agency could provide training through consultation to employers
on the importance and value of accurate record-keeping. Training could
also be provided to trade associations, labor unions and other advocacy
groups on the importance and value of encouraging employees to report
their injuries and illnesses. As well, the agency might consider a
special emphasis program of targeted inspections for record-keeping.
The agency could target those establishments with the highest rates as
well as the lowest rates to ascertain accuracy" (Ex. 1358).
Finally, the Phylmar Regulatory Roundtable (PRR) commented that
"if OSHA seeks to encourage careful, accurate reporting and recording
of injuries and illnesses, promulgating an annual submission
requirement (versus quarterly) makes the most sense. Companies will
have the time to review the quality of records, correct errors, and
obtain the approval of a senior company official before providing data
to OSHA. Requiring quarterly submission and updating is overly
burdensome for employers and likely to result in more errors in the
database, leaving OSHA with information that is less accurate" (Ex.
1110).
As mentioned in the previous section, OSHA agrees with the
commenters who stated that allowing updates but not requiring updates
would improve the accuracy of the data. Also as discussed above,
although the proposed rule would have required quarterly reporting from
companies with 250 or more employees, the final rule requires annual
reporting. In addition, when OSHA develops the data collection system,
the Agency will also incorporate a range of edit checks. Specifically,
OSHA will leverage and expand on form validation routines and
validation checks that were developed and refined over the years for
the ODI online submission version of OSHA Form 300A (Form 196B). Edit
checks can promote submission accuracy, for instance by alerting the
submitter when input to a particular data field is outside the expected
range or in conflict with other established parameters. The Agency also
plans to program the data collection system so that, when the user logs
in, the system will recognize the user and display appropriate user-
specific information. For instance, for a first-time user, the system
may present links for appropriate submission options (e.g., annual
summary data, special collections). For a return user, the system may
display a dashboard page that shows recent submission history in a
tabular format, including links to complete and draft (or in-process)
submissions. From the dashboard, the user would be able to view a
completed, executed form or continue with an in-progress submission. In
this way, the user will be able to prepare a submission over multiple
user sessions during the year before finalizing its submission to the
Agency.
Finally, OSHA notes that, as discussed above, Sec. 1904.32 already
requires company executives subject to part 1904 requirements to
certify that they have examined the annual summary (Form 300A) and
reasonably believe, based on their knowledge of the process by which
the information was recorded, that the annual summary is correct and
complete. OSHA recognizes that most employers are diligent in complying
with this requirement. However, a minority of employers is less
diligent; in recent years, one third or more of violations of Sec.
1904.32, and up to one tenth of all recordkeeping (part 1904)
violations, have involved this certification requirement. It is OSHA's
hope that, if this minority of employers knows that their data must be
submitted to the Agency and may also be examined by members of the
public, they may pay more attention to the requirements of part 1904,
which could lead both to improvements in the quality and accuracy of
the information and to better compliance with Sec. 1904.32.
In the preamble to the proposed rule, OSHA also asked, "How should
OSHA design an effective quality assurance program for the electronic
submission of injury and illness records?" [78 FR 67271].
Several commenters commented on how OSHA could design an effective
quality assurance program for the electronic submission of injury and
illness records. The Southern Poverty Law Center (SPLC) commented that
OSHA could improve data quality by "cross-checking [the data] with
records kept in employers' own medical staff's offices, with workers'
compensation records, and with any other available records" (Ex. 1388).
The International Union (UAW) commented that "[j]oint union-
management methods of validating data through computerized systems have
proven effective and can serve as a model for OSHA's modernization"
(Ex. 1384). The American College of Occupational and Environmental
Medicine (ACOEM) commented that OSHA should "increase medical record
audits to assure accurate recordkeeping and reporting" and "increase
the number of targeted inspections of companies deviating (positively
or negatively) from the industry--norm incident and DART rates" (Ex.
1327). The American Federation of Teachers (AFT) provided similar
comments (Ex. 1358).
The International Brotherhood of Teamsters commented that "OSHA
may discuss [a quality assurance and audit program] with other
government agencies that may have such programs. They would include
FMCSA (SMS), MSHA and FRA, but could include other government agencies
that receive electronic records as well" (Ex. 1381). Finally, the
Coalition for Workplace Safety (CWS) commented that OSHA should
implement "error screening and follow-back procedures to correct and/
or verify questionable data reported" (Ex. 1411).
In response, OSHA plans to look at examples from other federal
agencies. Two examples from the U.S. EPA are the Toxics Release
Inventory (TRI) Program and the Greenhouse Gas Reporting Program. The
TRI Program, which collects data from a wide range of facilities
nationwide, takes steps to promote data quality, including analyzing
data for potential errors, contacting TRI facilities concerning
potentially inaccurate submissions, providing guidance on reporting
requirements and, as necessary, taking enforcement actions against
facilities that fail to comply with TRI requirements. For the
Greenhouse Gas Reporting Program, quality assurance checks include
evaluating submitted data against an extensive array of electronic
checks that "flag" potential errors. For example, statistical checks
are used to evaluate data from similar facilities and identify data
that might be outliers. Also, algorithm checks consider the
relationships between different pieces of entered information and
compare the information to an expected value. These flags are then
manually reviewed to assess the cause of the flag; if EPA finds a
potential error, EPA follows up with the reporter. The GHGRP has given
some consideration to conducting on-site audits of reporting
facilities.
In addition, actions OSHA has taken in the past as part of data
collection for the ODI included running programmed routines that
checked establishment submissions and then, based on results, assigned
a submission status code indicating whether the data submitted passed
the edits and was considered usable or not usable. These routines were
informed by routines the BLS used for the Survey of Occupational
Injuries and Illnesses.
OSHA will form a working group with BLS to assess data quality,
timeliness, accuracy, and public use of the collected data, as well as
to align the collection with the BLS SOII.
Categories of Information That Are Useful To Publish
In the preamble to the proposed rule, OSHA asked, "Which
categories of information, from which OSHA-required form, would it be
useful to publish?" [78 FR 67271].
OSHA received many comments about the benefits that would result
from publishing all of the information that OSHA collects, except for
PII, including improved research and analysis of injury and illness
trends, improved motivation for employers to provide safe workplaces,
more information for employees and potential employees, more
information for customers and the public, injury and illness
prevention, and various other benefits.
For improved research and analysis of injury and illness trends,
there were many comments that publication of this information would
allow employers, workers, researchers, unions, and the public to
improve workplace safety by providing the data for better research and
analysis of injury and illness trends (Exs. 0245, 0254, 1110, 1203,
1207, 1208, 1219, 1278, 1345, 1350, 1354, 1371, 1380, 1381, 1387, 1388,
1393, 1395, 1424). For example, the United Food & Commercial Workers
International Union (UFCW) commented that publication of data would
"enable the public, unions, employees, and other employers to search
and analyze the data. Further, by making the data available
electronically from OSHA, interested parties can much more easily
analyze trends, assess effective health and safety programs and track
ongoing hazards by establishment, enterprise and industry" (Ex. 1345).
Andrew Sutton provided a similar comment (Ex. 0245).
There were also comments that publication of this data would
improve the occupational safety and health surveillance capacity of the
United States. The Council of State and Territorial Epidemiologists
(CSTE) commented that "OSHA's proposal to electronically collect and
make available the data employers already record on work-related
injuries and illnesses would substantially enhance occupational health
surveillance capacity in the United States" (Ex. 1106). The California
Department of Industrial Relations (DIR), Office of the Director
provided a similar comment (Ex. 1395).
Several commenters also commented that publication of the data
would particularly help with identifying emerging hazards (Exs. 1106,
1211, 1327, 1330, 1347, 1371, 1382). For example, the Council of State
and Territorial Epidemiologists (CSTE) commented that publication of
establishment-level data "has the potential to facilitate timely
identification of emerging hazards. These include both new and newly
recognized hazards. A relatively recent case example is illustrative.
In 2010, the Michigan Fatality Assessment and Control Evaluation
program identified three deaths associated with bath tub refinishing,
raising new concern about hazards of chemical strippers used in this
process... These findings led to the development of educational
information about the hazards associated with tub refinishing and
approaches to reducing risks that was disseminated nationwide to
companies and workers in the industry" (Ex. 1106).
For increased motivation for employers to provide safer workplaces,
there were several comments that publication of the data would allow
companies to benchmark their safety and health performance against
similar companies (Exs. 0241, 0245, 1106, 1126, 1278, 1327, 1341, 1358,
1371, 1381, 1387, 1393). For example, the American Industrial Hygiene
Association (AIHA) commented that data publication "should also enable
employers to benchmark against others in their industry. The sharing of
statistics could also identify solid performers who might help others
upgrade their processes and outcomes" (Ex. 1126). Senator Tom Harkin
made a similar comment (Ex. 1371).
Michael Houlihan further commented that "the disclosure
requirement may improve the performance of managers by drawing public
attention to the illness and injury rates at their facilities" (Ex. 1219).
Peter Strauss, Richard R, Sarah Wilensky, and Ashok Chandran provided
similar comments (Exs. 0187, 1209, 1382, 1393).
For more information for employees and potential employees, there
were multiple comments that publication of the data would allow
employees to use the data to make better decisions about where to work
(Exs. 0145, 1219, 1278, 1327, 1341, 1350, 1371, 1395). For example,
Worksafe commented that "electronic posting by OSHA of information
related to fatality and injury and illness incidents would allow
individuals who may be considering employment to assess the types,
severity, and frequency of injuries and illnesses of a particular firm
or workplace" (Ex. 1278). Professor Sherry Brandt-Rauf of the School
of Public Health at the University of Illinois at Chicago provided a
similar comment (Ex. 1341).
Many commenters stated that data publication would be especially
helpful because employees would be able to get safety and health data
from their workplace anonymously and without fear of retaliation (Exs.
1188, 1211, 1278, 1345, 1381, 1387, 1388, 1393, 1424). For example, the
Southern Poverty Law Center commented that "[e]ven an employee's
simple request to view an OSHA 300 log might be met by an employer in a
dangerous, low-wage industry such as poultry or meat processing with
suspicion, threats, or even termination. Given these realities in many
American workplaces, any steps the Department takes to increase
workers' access to records about health and safety in their own
workplaces will provide workers with better tools with which to protect
their bodies and their lives" (Ex. 1388).
For more information for customers and the public, there were
comments that publication of the data could help customers and the
public decide whom to do business with (Exs. 0248, 1114, 1278, 1327,
1341, 1371, 1395). For example, Worksafe commented that "there are
potential benefits for current or potential suppliers, contractors for,
and purchasers of a firm's goods or services. These parties would have
the opportunity to consider the information in their business
decisions, such as how a supplier's injury and illness experience would
reflect on their own business" (Ex. 1278). Senator Tom Harkin also
commented that data publication "may be of use not just to the public,
but also by contracting officers at federal agencies when assessing
prospective contractors' safety performance" (Ex. 1371).
For prevention of workplace injuries and illnesses, NIOSH commented
that "electronically-collected and stored injury and illness data can
be an asset to establishments/employers for planning prevention
intervention activities" (Ex. 0216). The AFL-CIO made a similar
comment (Ex. 1350).
The New York States Nurses Association commented that "having this
data and information would greatly improve the ability to research
trends which may contribute to preventing and mitigating workplace
violence injuries" (Ex. 0254). The AFL-CIO provided a similar comment
(Ex. 1350). The United Food & Commercial Workers International Union
(UFCW) emphasized the role that labor unions could play in such
research, commenting that "[a]nalysis of the information can identify
trends among and between companies, and at specific sites within one
company... Plant management in one location may be using effective
strategies that result in a decrease in injuries and illnesses; these
effective strategies can be passed on to sister plants in the same
company. By examining other establishments' OSHA injury and illness
data for those without declining injury rates, the [UFCW] has been able
to target areas for improved prevention strategies" (Ex. 1345). The
Service Employees International Union (SEIU) provided a similar comment
(Ex. 1387).
The California Department of Industrial Relations (DIR), Office of
the Director commented that the proposed rule "would specifically help
identify and abate workplace hazards by improving the surveillance of
occupational injury and illness. Complete and accurate surveillance of
occupational injury and illness is essential for informed policy
decisions and for effective intervention and prevention programs" (Ex.
1395). The Council of State and Territorial Epidemiologists (CSTE)
provided a similar comment (Ex. 1106).
There were also comments about various other benefits of data
publication. Lancaster Safety Consulting, Inc. commented that
"[o]nline access to the injury and illness data will provide a means
for occupational safety and health (OSH) professionals to reach out to
companies that are in apparent need of assistance with their OSH
programs" (Ex. 0022). The Council of State and Territorial
Epidemiologists (CSTE) and the International Brotherhood of Teamsters
provided similar comments (Exs. 1106, 1381).
Several commenters commented that data publication would make it
easier for labor unions to access safety and health data when
representing workers (Exs. 0245, 1209, 1350, 1381, 1387, 1424). For
example, the AFL-CIO commented that "[i]t will assist unions in their
efforts to collect injury and illness information from employers to
assess conditions in individual workplaces and across employers and
industries where they represent workers. Many unions already collect
this information under their rights of access under the recordkeeping
rule. But currently, this information must be requested and collected
establishment by establishment, making the collection and analysis of
this data difficult and time consuming and hindering prevention
efforts" (Ex. 1350). The Council of State and Territorial
Epidemiologists (CSTE) commented about the benefits for community
health planning, stating that "[t]he availability of establishment
specific information also offers a potential opportunity to incorporate
occupational health concerns in community health planning, which is
increasingly providing the basis for setting community health and
prevention priorities" (Ex. 1106). Finally, the International
Brotherhood of Teamsters commented that "[g]iven the difficulties that
both union and non-union workers face, and OSHA's inability to fully
enforce the 1904 rules, the public release of the data is actually
necessitated since it would allow workers to have a subsidiary role in
"enforcing" those requirements" (Ex. 1381).
On the other hand, the Interstate Natural Gas Association of
America commented the "[i]njury and illness data contained in 300-A
Summaries is the only information that may be useful, but this
information is limited" (Ex. 1206).
In response, OSHA agrees with the commenters above who commented
that the benefits that would result from publishing all of the
information that OSHA collects, except for PII, include improved
research and analysis of injury and illness trends, improved motivation
for employers to provide safe workplaces, more information for
employees and potential employees, more information for customers and
the public, and injury and illness prevention.
There were also many comments that publishing the data would not be
beneficial for various reasons, including the misleading nature of the
published data and a focus on lagging instead of leading indicators.
For the misleading nature of the published data, many commenters
commented that the published data will be misleading because the data
do not tell the whole story and do not provide any context (Exs. 0138,
0162, 0163, 0171, 0174, 0179, 0181, 0188, 0189, 0194, 0218, 0224, 0234,
0242, 0255, 0256, 0258, 1084, 1090, 1091, 1092, 1093, 1109, 1111, 1112,
1113, 1116, 1123, 1187, 1190, 1192, 1193, 1194, 1195, 1196, 1198, 1199,
1200, 1201, 1204, 1205, 1206, 1210, 1214, 1215, 1217, 1218, 1222, 1225,
1272, 1273, 1275, 1276, 1279, 1318, 1321, 1322, 1323, 1324, 1326, 1327,
1328, 1329, 1332, 1333, 1334, 1336, 1338, 1340, 1342, 1343, 1349, 1355,
1356, 1359, 1360, 1363, 1364, 1365, 1368, 1370, 1373, 1376, 1378, 1379,
1385, 1386, 1389, 1390, 1391, 1392, 1394, 1396, 1397, 1399, 1400, 1402,
1406, 1408, 1409, 1410, 1411, 1416, 1426).
For example, the Coalition for Workplace Safety (CWS) commented
that "[t]he data that OSHA will collect and make publicly available is
not a reliable measure of an employer's safety record or its efforts to
promote a safe work environment. Many factors outside of an employer's
control contribute to workplace accidents, and many injuries that have
no bearing on an employer's safety program must be recorded. Data about
a specific incident is meaningless without information about the
employer's injuries and illness rates over time as compared to
similarly sized companies in the same industry facing the same
challenges (even similar companies in the same industry may face
substantially different challenges with respect to workplace safety
based on climate, topography, population density, workforce
demographics, criminal activity in the region, proximity and quality of
medical care, etc.)" (Ex. 1411). The National Association of
Manufacturers (NAM) provided a similar comment (Ex. 1279).
Many commenters also commented on a related concern that OSHA
should not publish the data since the public will misinterpret the data
(Exs. 0027, 0143, 0152, 0159, 0160, 0189, 0197, 0210, 0211, 0218, 0224,
0239, 0240, 0242, 0251, 0253, 0255, 0256, 0258, 1084, 1090, 1091, 1092,
1093, 1109, 1111, 1112, 1113, 1123, 1124, 1125, 1191, 1192, 1194, 1197,
1199, 1200, 1205, 1210, 1214, 1215, 1217, 1218, 1224, 1225, 1272, 1273,
1275, 1276, 1279, 1322, 1326, 1327, 1329, 1332, 1333, 1334, 1336, 1338,
1340, 1343, 1344, 1359, 1368, 1370, 1372, 1379, 1389, 1391, 1396, 1397,
1399, 1400, 1408, 1410, 1413, 1415, 1416). For example, the American
Foundry Society commented that "[t]he public... could take the
injury and illness data out of context, as they would not be privy to
the details behind the injuries, the safety measures employers adopt,
or any other relevant information related to the circumstances of the
injury or illness" (Ex. 1397). The Puget Sound Shipbuilders
Association also commented that "[w]e are concerned about the level of
knowledge and understanding the general public has about OSHA
recordable cases and believe it is very limited" (Ex. 1379).
Finally, there were comments that recordkeeping data collected
under the proposed rule would not improve workplace safety and health
since they are lagging indicators (Exs. 0163, 0250, 1194, 1279, 1342,
1363, 1389, 1408, 1410) and that leading indicators are necessary to
improve future workplace safety and health outcomes (Exs. 0027, 0053,
0162, 0163, 0197, 1204, 1279, 1331, 1339, 1342, 1363, 1389, 1406, 1408,
1410, 1416, 1417).
For example, the Mechanical Contractors Association of America
(MCAA) commented that "that lagging indicators, such as OSHA Incidence
Rates, are poor indicators of safety performance. Many occupational
safety and health professionals share this belief. For example, The
American National Standards Institute's (ANSI) A10 Construction and
Demolition Operations Committee is currently working on a technical
report to help educate government agencies, construction owners, and
construction employers about the relative ineffectiveness of lagging
indicators" (Ex. 1363). The National Association of Manufacturers made
a similar comment (Ex. 1279).
The National Association of Home Builders (NAHB) commented that
"[l]eading indicators measure what's happening right now and may be a
better gauge of safety performance. The leading indicators attempt [to]
measure safety performance by utilizing tools such as tracking safe or
unsafe behaviors or workers, investigating near-miss incidents,
performing workplace audits and inspections, and conducting safety
training" (Ex. 1408).
The American Society of Safety Engineers (ASSE) commented that
"ASSE and other leading safety and health organizations have put
considerable work into developing resources and encouraging companies
to move away from 'trailing' and towards 'leading' indicators for
evaluating workplace safety. As OSHA itself knows, 'trailing'
indicators focus an organization on safety after the fact of an injury
or fatality. 'Leading' indicators better focus an organization on the
best practices that prevent injuries and fatalities" (Ex. 1204).
However, the Environmental, Health & Safety Communications Panel
(EHSCP) commented that OSHA should promote "a balance of leading and
lagging measures" to measure safety performance (Ex. 1331). The
National Rural Electric Cooperative Association (NRECA) provided a
similar comment (Ex. 1417).
Several commenters also commented that the proposed rule could harm
workplace safety and health by shifting employers' focus from leading
indicators to lagging indicators (Exs. 0027, 0157, 0163, 1109, 1124,
1194, 1204, 1372, 1389, 1406, 1408, 1410, 1416). For example, the
American Society of Safety Engineers (ASSE) commented that "[p]ublic
release of numbers and rates of injuries by establishment will cause
many employers to use their resources to address 'trailing,' not
'leading' indicators... ASSE is concerned that this proposal, and
the additional attention that a national database of injury rates and
numbers will attract, works against the professions' [sic] years of
effort in moving workplace safety towards 'leading' indicators" (Ex.
1204). The American Feed Industry Association made a similar comment
(Ex. 1372).
In response, OSHA does not agree that the publishing of
recordkeeping data under this final rule will be misleading or that the
public will misinterpret the data. The recordkeeping data represent
real injuries and illnesses (injuries and illnesses that required more
than first aid) that occurred at the workplace and were recordable
under part 1904. While they do not, by themselves, provide a complete
picture of workplace safety and health at that workplace, employers are
free to post their own materials to provide context and explain their
workplace safety and health programs. In addition, when OSHA publishes
the data, the Agency will provide links to resources, such as industry
rates from BLS, to help the public put the information in context. OSHA
will also include language explaining the definitions and limitations
of the data, as OSHA has done since the Agency began publishing
establishment-specific injury and illness data from the OSHA Data
Initiative on its public Web site in 2009. For the published ODI data,
OSHA has included the following explanatory note on data quality:
"While OSHA takes multiple steps to ensure the data collected is
accurate, problems and errors invariably exist for a small percentage
of establishments. OSHA does not believe the data for the establishments
with the highest rates on this file are accurate in absolute terms.
Efforts were made during the collection cycle to correct submission
errors, however some remain unresolved. It would be a mistake to say
establishments with the highest rates on this file are the "most dangerous"
or "worst" establishments in the Nation."
Similarly, OSHA does not agree that the part 1904 recordkeeping
data will not improve workplace safety and health due to being lagging
indicators instead of leading indicators. As stated above, the
recordkeeping data represent real injuries and illnesses that occurred
at the workplace and were recordable. In addition, as stated above,
employers are free to post their own materials--including leading
indicators--to provide context and explain their workplace safety and
health programs. However, perhaps in a future rulemaking related to
recordkeeping, OSHA might request information about leading indicators,
including which leading indicators (if any) it would be most useful to
add to the injury and illness records employers are required to keep
under part 1904.
As discussed above, OSHA intends to make the data it collects
public. The publication of specific data elements will in part be
restricted by applicable federal law, including provisions under the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904. OSHA will make the following data from the various
forms available in a searchable online database:
Form 300A (Annual Summary Form)--All collected data fields
will be made available. In the past, OSHA has collected these data
under the ODI and during OSHA workplace inspections and released them
in response to FOIA requests. The annual summary form is also posted at
workplaces under Sec. 1904.32(a)(4) and (b)(5). OSHA currently
publishes establishment-specific injury and illness rates calculated
from the data collected through the ODI on OSHA's public Web site at
http://www.osha.gov/pls/odi/establishment_search.html. The 300A annual
summary does not contain any personally-identifiable information.
Form 300 (the Log)--All collected data fields on the 300
Log will generally be made available on the Web site. Employee names
will not be collected. OSHA occasionally collects these data during
inspections as part of the enforcement case file. OSHA generally
releases these data in response to FOIA requests. Also, Sec.
1904.29(b)(10) prohibits release of employees' names and personal
identifiers contained in the forms to individuals other than the
government, employees, former employees, and authorized
representatives. OSHA does not currently conduct a systematic
collection of the information on the 300 Log.
Form 301 (Incident Report)--All collected data fields on
the right-hand side of the form (Fields 10 through 18) will generally
be made available. The Agency currently occasionally collects the form
for enforcement case files. OSHA generally releases these data in
response to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits
employers from releasing the information in Fields 1 through 9 (the
left-hand side of the form) to individuals other than the employee or
former employee who suffered the injury or illness and his or her
personal representatives. Similarly, OSHA will not publish
establishment-specific data from the left side of Form 301. OSHA does
not release data from Fields 1 through 9 in response to FOIA requests.
The Agency does not currently conduct a systematic collection of the
information on the Form 301. However, the Agency does review the entire
Form 301 during some workplace inspections and occasionally collects
the form for inclusion in the enforcement case file. Note that OSHA
will not collect or publish Field 1 (employee name), Field 2 (employee
address), Field 6 (name of treating physician or health care provider),
or Field 7 (name and address of non-workplace treating facility).
Helping Employers, Employees, and Potential Employees Use the Collected
Data
In the preamble to the proposed rule, OSHA asked, "What analytical
tools could be developed and provided to employers to increase their
ability to effectively use the injury and illness data they submit
electronically?" [78 FR 67271].
There were several comments about analytical tools that could be
developed and provided to employers to increase their ability to
effectively use the injury and illness data they submit electronically.
NIOSH commented about their current pilot project that provides
employers with a tool to analyze their safety and health data, stating,
"NIOSH developed a web-portal and information system that accepts
traumatic injury data electronically, including the fields/
characteristics recorded on OSHA Form 300... Participating
establishments send all data voluntarily. The system does not accept
personal data. Establishments are not identified and comparison data
are in aggregate form. After receipt, the data undergo quality checks
and are uploaded to an analyzable database that is available to the
establishment via the web-portal in seven to 10 days. The establishment
can use the online system to examine its injury patterns over time and
to compare its rates with other establishments by size, region, type,
and other variables. In addition, the system provides users with
information on best practices for the industry, injury-reduction
interventions, and other up-to-date health and safety information"
(Ex. 0216). The American College of Occupational and Environmental
Medicine (ACOEM) also commented about the desirability of a tool
similar to the one that NIOSH is piloting (Ex. 1327).
The International Brotherhood of Teamsters commented that "two of
our employers use injury/illness tracking systems to collect and record
all OSHA-recordable occupational injuries/illnesses. We would encourage
OSHA to provide tools that would bolster and enhance employer efforts
aimed at preventing injuries and illnesses. These tools could be useful
to our membership as well, especially at establishments that have joint
labor- management health and safety committees" (Ex. 1381).
The International Association of Industrial Accident Boards and
Commissions (IAIABC) commented that if OSHA "adopts an electronic
reporting requirement, the IAIABC urges OSHA to consider the benefits
of using the IAIABC's established First and Subsequent Reports of
Injury Standard (IAIABC EDI Claims Standard). Implementation of an
existing electronic standard would be much faster and easier than
developing a brand new electronic reporting protocol. The IAIABC EDI
Claims Standard fully supports differing types of transactions
including new reports, updates/corrections to previous submissions, and
even has the capacity to limit what data can be modified after it has
been submitted. Furthermore, the IAIABC EDI Claims Standard includes an
'upon request' type of report which OSHA has indicated a potential need
to support" (Ex. 1104).
In response, OSHA notes that, in 2011, IAIABC and NIOSH signed a
memorandum of understanding that outlined opportunities for
collaboration, including utilizing workers' compensation data to
identify emerging issues and trends in occupational safety and health.
In addition, EPA's Toxics Release Inventory (TRI) Program provides a
range of analytical tools that include the TRI Pollution Prevention
(P2) Tool (users can explore and compare facility and parent company
information on the management of toxic chemical waste, including
facilities' waste management practices and trends); TRI.NET (with this
desktop application, users can build customized TRI data queries, then
map results and overlay other data layers); and Envirofacts (an online
tool that provides access to all publicly available TRI data in a
searchable, downloadable format). Related analytical tools that make
use of TRI data include the DMR Pollutant Loading Tool (users can
determine what pollutants are being discharged into waterways and by
which companies, and can compare DMR data search results against TRI
data search results) and Enviromapper (users can generate maps that
contain environmental information, including TRI information).
Similarly, EPA's GHGRP provides a number of online tools for mapping,
charting, comparing, and otherwise analyzing facility reported data.
OSHA is considering including reporting capabilities in future
versions of the data collection system, so that employers can view
useful outputs from their submitted data (e.g., data visualizations of
trends, data table displays, reports with summary counts and
statistics). The intention, in part, will be to encourage employers to
consider injury/illness trends at or across their establishment(s), so
they can abate hazards without prompting by an OSHA intervention.
In the preamble to the proposed rule, OSHA also asked, "How can
OSHA help employees and potential employees use the data collected
under this proposed rule?" [78 FR 67271].
There were various comments about how OSHA could help employees and
potential employees use the data collected under this rule. Many
commenters supported provision of the data in a way that allows for
easy analysis of the information. For example, the California
Department of Industrial Relations (DIR), Office of the Director
commented that "data sharing needs to be timely, user-friendly, user-
accessible, and searchable by common fields including geography
(ideally to county level or smaller), employer, and industry. Industry
codes should be uniform and up-to-date. Posted data should ensure
entity resolution and easy searching by establishment name. Multiple
establishments that are the same company should be identifiable as a
single company. Employees, employers, researchers, and community
members all have different uses for the data, and each should be taken
into account. The underlying data (once cleaned of personally
identifiable information) should be downloadable (similar to American
Fact Finder) for manipulation and statistical calculations" (Ex.
1395). The AFL-CIO, Senator Tom Harkin, Change to Win, the Service
Employees International Union (SEIU), and the United Steelworkers
provided similar comments (Exs. 1350, 1371, 1380, 1387, 1424).
Senator Harkin also commented that OSHA's "sister agency the Mine
Safety and Health Administration (MSHA), along with other agencies like
the Federal Railroad Administration (FRA) and Federal Aviation
Administration (FAA), currently publish establishment-specific accident
and injury and illness data. We believe that OSHA should consult with
these agencies to learn about design problems and potential best
practices to adopt before creating its database" (Ex. 1371). The
Service Employees International Union (SEIU) provided a similar comment
(Ex. 1387).
Other commenters had other ideas. For example, the Council of State
and Territorial Epidemiologists (CSTE) commented that "[s]tandardized
feedback to establishments and potential reports of establishment
specific data could be programmed that would promote use of the data by
employers and workers to set health and safety priorities and monitor
progress in reducing workplace risks" (Ex. 1106).
The Building and Construction Trades Department, AFL-CIO commented
that "the data should be organized and made available in different
formats for different data users. For example, an individual employee
may be interested in the establishment for which he/she works, while a
researcher is more likely to get statistics in general. Therefore, the
new data collection should include multiple levels of data access to
meet different needs" (Ex. 1346).
In response, when OSHA develops the publicly-accessible Web site,
the Agency will make the raw data available in multiple formats (after
it has been scrubbed of PII) for use by employers, employees,
researchers, and the public in evaluating opportunities to address
workplace safety and health. The Agency may also provide reporting and
analytics tools for employers to view useful outputs from their
submitted data (e.g., data visualizations of trends, data table
displays, reports with summary counts and statistics). The intention,
in part, will be to encourage employers to consider injury/illness
trends at or across their establishment(s), so they can abate hazards
without prompting by an OSHA intervention. The Agency plans to provide
similar tools on the public Web site so that the data will be more
useful and accessible to members of the public who may not need or want
to download data and perform their own analysis.
Helping Small-Business Employers Comply With Electronic Data Submission
Requirements
In the preamble to the proposed rule, OSHA asked, "How can OSHA
help employers, especially small-business employers, to comply with the
requirements of electronic data submission of their injury and illness
records? Would training help, and if so, what kind?" [78 FR 67271].
There were five major issues addressed by commenters about how to
help small employers comply with electronic data submission
requirements: General characteristics of a system that would help
small-business employers comply with electronic data submission
requirements; capability for immediate feedback; connecting the
recordkeeping system with the reporting system; training and outreach;
and third-party capability.
For general characteristics, several commenters commented that
careful overall design of its Web site and other technical support
could help employers, especially small-business employers, comply with
the requirements of electronic data submission. The Phylmar Regulatory
Roundtable (PRR) commented that "the 'user friendliness' of the Web
site will be the key to success for this electronic data submission
program. It should have an extensive and strong help menu, as well as a
go-to phone number (as is currently provided in the BLS data request)
for help with the system. A universal data language must be provided
(e.g., XML) so that regardless of the platform used for recordkeeping,
the information may easily be uploaded to OSHA's Web site. OSHA's
system must have sufficient capacity and be robust enough to handle the
massive quantities of data that 580,000 employers will be submitting
within roughly the same time frame" (Ex. 1110). The American
Subcontractors Association provided a similar comment (Ex. 1322).
For immediate feedback after data submission, the Dow Chemical
Company commented that "OSHA is proposing to require electronic
reporting by strict deadlines. It is therefore vitally important for
employers to receive immediate feedback as to whether their data entry
was successful or unsuccessful. OSHA's web portal should respond to
each and every attempt at data entry, by providing a confirmation of
receipt or a confirmation of failure. The confirmation notice should
describe what was received (or not received) with sufficient detail to
be useful in resolving disputes in an enforcement context" (Ex. 1189).
The Phylmar Regulatory Roundtable (PRR) provided a similar comment (Ex.
1110).
For connecting the recordkeeping and reporting systems, the AFL-CIO
commented that "[t]o assist smaller employers in reporting workplace
injury and illness data electronically, it would helpful for OSHA to
provide basic software for workplace injury and illness recordkeeping
from which the data can be easily uploaded/reported to OSHA through a
secure Web site as OSHA envisions" (Ex. 1350). Ashok Chandran provided
a similar comment, suggesting that OSHA provide "a mobile application
that employers could use to submit their records" and "a web portal
that allows employers to enter data directly" (Ex. 1393).
For outreach and training, the Allied Universal Corporation
commented that "OSHA should also develop a training program [about the
requirements of electronic data submission], hosting webinars or
similar events across the United States and reach out to many trade
associations" (Ex. 1192). The International Association of Industrial
Accident Boards and Commissions (IAIABC) and the American
Subcontractors Association (ASA) provided similar comments (Exs. 1104,
1322).
Other commenters commented that training on current OSHA
requirements would also be helpful. The California Department of
Industrial Relations (DIR), Office of the Director commented that
"many employers could benefit from outreach and education on how and
what to report, including reference to 29 CFR 1904.31, employees
covered by the OSHA recordkeeping standard" (Ex. 1395). The Associated
General Contractors of America (AGC) provided a similar comment (Ex.
1416).
For third-party capability, Veriforce also commented that third-
party electronic submission capabilities could be helpful for
employers. They commented that pipeline industry contractors could be
helped if "3rd party companies with contractor permission [could]
electronically upload [the contractor's] data into the new OSHA
Injuries and Illnesses reporting Web site[.] It will become more
difficult for contractors to have to continue to report electronically
to 3rd party companies and then now have to enter the same information
into this new OSHA system when the 3rd party companies which have a
contract with the contractor can just electronically forward the
information to the this new OSHA Web site" (Ex. 0243).
In addition to the comments related to the five major issues, some
commenters commented with other ideas about how OSHA could help small-
business employers comply with the new requirements. The United Food &
Commercial Workers International Union (UFCW) commented that they
support "making the new reporting requirements as simple as possible...
In the UFCW's experience, keeping the requests as simple as possible for
all of our employers (including those who fall into the smaller business
category), results in greater data acquisition" (Ex. 1345). In addition,
some commenters included comments about a phase-in period being helpful
to employers, which were addressed above in comments to Alternatives C and D
(Exs. 0210, 1104, 1322, 1401).
In response to these comments, when OSHA develops the data
collection system, the Agency will make every effort to ensure ease of
use with small-business employers in mind. To the extent possible,
features will be incorporated to minimize the number of keystrokes and
mouse-clicks required to complete a form (e.g., pick-lists and
widgets). Also, forms will be programmed to prefill establishment
information where appropriate (e.g., establishment name and address
from registration or prior submissions) as well as to auto-calculate
and/or carry totals over from associated forms (e.g., Form 300 column
totals will auto-calculate and be programmed to pre-populate Form
300A). Additional functionality will be provided to help avoid some
types of entry errors, (e.g., if column G [death] is selected, then
disable controls for columns K [away from work] and L [on job transfer/
restriction]).
In addition, OSHA plans to incorporate as many helper features as
possible (e.g. help text, instruction sheets, etc.) to guide users
through the data submission process. This information will be readily
accessible from the collection system. Further, OSHA plans to implement
an email/phone help line for providing quick-response user support.
For third-party capability, if a small business, for instance,
enlists a third-party (e.g., a consultant) to act as its representative
in submitting its injury/illness information to OSHA's data collection
system, the third-party would also provide their own contact
information on the submission system as a representative of the
business.
Finally, OSHA will phase in implementation of the data collection
system. In the first year, all establishments required to routinely
submit information under the final rule will be required to submit only
the information from the Form 300A (by July 1, 2017). In the second
year, all establishments required to routinely submit under the final
rule will be required to submit all of the required information (by
July 1, 2018). This means that, in the second year, establishments with
250 or more employees that are required to routinely submit information
under the final rule will be responsible for submitting information
from the Forms 300, 301, and 300A. In the third year, all
establishments required to routinely submit under this final rule will
be required to submit all of the required information (by March 2,
2019). This means that beginning in the third year (2019),
establishments with 250 or more employees will be responsible for
submitting information from the Forms 300, 301, and 300A, and
establishments with 20-249 employees in an industry listed in appendix
A to subpart E of part 1904 will be responsible for submitting
information from the Form 300A by March 2 each year. This will provide
sufficient time to ensure comprehensive outreach and compliance
assistance in advance of implementation.
Scope of Data Collection
In the preamble to the proposed rule, OSHA asked, "Should this
data collection be limited to the records required under Part 1904? Are
there other required OSHA records that could be collected and made
available to the public in order to improve workplace safety and
health?" [78 FR 67271].
Some commenters commented that OSHA should limit this rule to the
collection of part 1904 data while making the rule flexible enough to
allow for the collection of other information in the future. For
example, the International Brotherhood of Teamsters commented that
"[t]his rule should be limited to the 1904 data. However, OSHA should
consider making this rule flexible enough to allow it to require
reporting the other kinds of information in the future, particularly
specific records (such as employee exposure data) that are already
required by various OSHA standards. This would provide a better
measure/indication of health risks faced by workers. In addition, OSHA
may also wish to require employers to report other records currently
mandated under other existing OSHA standards, such as employer reports
of incidents investigated under the Process Safety Management (PSM)
standard. The system should be designed to accommodate such expansions
in the future" (Ex. 1381). Change to Win and the International Union (UAW)
provided similar comments (Exs. 1380, 1384).
The American College of Occupational and Environmental Medicine
(ACOEM) also commented about the collection of more data in the future,
stating that "[OSHA should] collaborate with the Bureau of Labor
Statistics and The Council for State and Territorial Epidemiologists to
publicize a broader suite of occupational health indicators, which,
taken together, would provide a better picture of the true burden of
occupational safety and health in the United States" (Ex. 1327).
However, the Phylmar Regulatory Roundtable (PRR) commented that
"data collection should be limited to the records required under Part
1904" (Ex. 1110).
OSHA agrees that the scope of the final rule should be the same as
the scope of the proposed rule and include only the records required
under part 1904. While OSHA notes some advantages for the collection of
other data, the Agency believes that it did not receive enough
information on this issue during this rulemaking to include such a
requirement in the final rule. However, OSHA is open to considering
additional data collection ideas for future rulemakings.
OSHA's Statutory Authority To Promulgate This Final Rule
Several commenters stated that OSHA lacks the statutory authority
under the OSH Act to make raw injury and illness data available to the
general public (Exs. 0218, 0224, 0240, 1084, 1093, 1123, 1198, 1218,
1225, 1272, 1279, 1332, 1336, 1342, 1344, 1356, 1359, 1360, 1372, 1385,
1393, 1394, 1396, 1404, 1408, 1411, 1412). These commenters
acknowledged that Sections 8 and 24 of the OSH Act provide the
Secretary of Labor with authority to issue regulations requiring
employers to maintain accurate records of work-related injuries and
illnesses. However, according to these commenters, nothing in the OSH
Act authorizes OSHA to publish establishment-specific injury and
illness records outside the employer's own workplace.
The U.S. Chamber of Commerce commented:
A fundamental axiom of the regulatory process is that an agency
must have statutory authority for any rule which it wishes to
promulgate. See, Am Library Ass'n v. FCC, 406 F.3d 689, 708 (D.C.
Cir. 2005)... OSHA has stated that it has authority for this
Proposed Rule under sections 8 (c)(1), (c)(2), (g)(2) and 24 of the...
OSH Act... None of these sections, however, provide OSHA with the
statutory authority required to promulgate this Proposed Rule.
Each of these sections upon which OSHA relies states that the
information that OSHA is empowered to collect is for the use of the
Secretary of Labor and the Secretary of Health and Human Services...
Conspicuously absent from these provisions is any mention, let
alone express or implied authority, that OSHA may create an online
database meant for the public dissemination of an employer's injury
and illness records containing confidential and proprietary
information. Had Congress envisioned or intended that the Secretary
of Labor would have the authority to publish this information it
surely would have so provided. But of course, it did not and has
not. (Ex. 1396)
The National Association of Manufacturers commented that Section
8(g)(1) of the OSH Act specifically and uniquely limits the information
OSHA may publish to information that is "'compiled and analyzed.' This
does not mean that OSHA can publish raw data from employer injury and
illness records, but rather that it can compile information, analyze
it, and then publish its analysis of the information in either summary
or detailed form" (Ex. 1279).
NAM also commented that while the OSH Act does explicitly give OSHA
the authority to release some information, the Act does not expressly
permit the public release of recordkeeping data:
Section 8(c)(2) merely grants the Secretary the authority to
promulgate regulations requiring employers to maintain injury and
illness records. Nothing in this section expressly grants authority
for the public dissemination of such information. 29 U.S.C. 657(c).
Moreover, had Congress intended to make such information
available to the public they know how to do so. In various other
sections of the OSH Act Congress explicitly granted authority
requiring that other types of records be made available to the
public. For example, section 12(g) requires the U.S. Occupational
Safety and Health Review Commission records to be made publicly
available. 29 U.S.C. 661(g). U.S. v. Doig, 950 F.2d 411, 414-15
(1991) ("Where Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion") (internal citation omitted).
(Ex. 1279).
In contrast, several commenters stated that the OSH Act does
provide OSHA with authority to issue this final rule (Exs. 1208, 1209,
1211, 1219, 1371, 1382, 1424). Specifically, OSHA received comments
from four members of Congress on this issue. A letter signed by Senator
Tom Harkin, Senator Robert Casey, Representative George Miller, and
Representative Joe Courtney stated:
When Congress passed the OSH Act, it expressly stated that the
purpose of the law was 'to assure so far as possible every working
man and woman in the Nation safe and healthful working conditions.'
29 U.S.C. 651(b). In order to effectuate this purpose, the Secretary
of Labor was given the authority to issue regulations 'requiring
employers to maintain accurate records of, and to make periodic
reports on, work-related deaths, injuries and illnesses.' 29 U.S.C.
657(c)(2). Additionally, the Secretary 'shall develop and maintain
an effective program of collection, compilation, and analysis of
occupational safety and health statistics.' 29 U.S.C. 673(a).
It is clear from the plain language of the OSH Act that Congress
intended for OSHA to acquire and maintain accurate records from
employers regarding workplace injuries and illnesses for the purpose
of protecting workers' safety and health. This proposed rule not
only improves upon the current system of reporting and tracking
injuries and illnesses, it further strengthens the ability of OSHA
to live up to its statutory mandate to ensure that workers have
healthy and safe workplaces...
We agree with OSHA's proposal to post reported injury and
illness data online so that employees, employers, researchers,
consumers, government agencies, and other interested parties have
easy access to that important information. This increased access to
injury and illness data will allow employers to measure themselves
against other employers' safety records so they know when they need
to make improvements. Employees will similarly have greater
knowledge about the hazards in their workplace and their employer's
previous health and safety history... (Ex. 1371).
Additionally, Ashok Chandran commented, "The proposed regulation
in no way expands the substantive information employers must provide to
OSHA. 29 CFR 1904 already requires employers to report injuries
resulting in death, loss of consciousness, days away from work,
restriction of work, transfer to another job, medical treatment other
than first aid, or diagnosis of a significant injury or illness by a
physician or other licensed health care professional. For over 40 years
now, OSHA has been collecting injury reports without incident. Thus any
challenges to the legality of this data collection must fail" (Ex.
1393).
OSHA believes that the OSH Act provides statutory authority for
OSHA to issue this final rule. As explained in the Legal Authority
section of this preamble, the following provisions of the OSH Act give
the Secretary of Labor broad authority to issue regulations that
address the recording and reporting of occupational injuries and
illnesses.
Section 2(b)(12) of the Act states that one of the purposes of the
OSH Act is to "assure so far as possible... safe and healthful working
conditions... by providing for appropriate reporting procedures... which
will help achieve the objective of th[e] Act and accurately describe the
nature of the occupational safety and health problem." 29 U.S.C. 651(b)(12).
Section 8(c)(1) requires each employer to "make, keep and
preserve, and make available to the Secretary... such records...
prescribe[d] by regulation as necessary or appropriate for the
enforcement of th[e] Act or for developing information regarding the
causes and prevention of occupational accidents and illnesses." 29
U.S.C. 657(c)(1). The authorization to the Secretary to prescribe such
recordkeeping regulations as he considers "necessary or appropriate"
emphasizes the breadth of the Secretary's discretion in implementing
the OSH Act. Section 8(c)(2) further provides that the "Secretary...
shall prescribe regulations requiring employers to maintain accurate
records of, and to make periodic reports on, work-related deaths,
injuries and illnesses." 29 U.S.C. 657(c)(2).
Section 8(g)(1) authorizes the Secretary "to compile, analyze, and
publish, whether in summary or detailed form, all reports or
information obtained under this section." Section 8(g)(2) of the Act
generally empowers the Secretary "to prescribe such rules and
regulations as he may deem necessary to carry out his responsibilities
under th[e] Act." 29 U.S.C. 657(g)(2).
Section 24 contains a similar grant of regulatory authority.
Section 24(a) states that "the Secretary... shall develop and
maintain an effective program of collection, compilation and analysis
of occupational safety and health statistics... [and] shall compile
accurate statistics on work injuries and illnesses." 29 U.S.C. 673(a).
Section 24(e) provides that "[o]n the basis of the records made and
kept pursuant to section 8(c) of th[e] Act, employers shall file such
reports with the Secretary as he shall prescribe by regulation, as
necessary to carry out his functions under th[e] Act." 29 U.S.C.
673(e).
OSHA has made the determination that the provisions in this final
rule requiring electronic submission and publication of injury and
illness recordkeeping data are "necessary and appropriate" for the
enforcement of the OSH Act and for gathering information regarding the
causes or prevention of occupational accidents or illnesses. Where an
agency is authorized to prescribe regulations "necessary" to
implement a statutory provision or purpose, a regulation promulgated
under such authority is valid "so long it is reasonably related to the
enabling legislation." Morning v. Family Publication Service, Inc.,
441 U.S. 356, 359 (1973).
The Supreme Court recognizes a "familiar canon of statutory
construction that remedial legislation should be construed broadly to
effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332, 336
(1967). And reading the statute in light of its protective purposes
further supports the Secretary's interpretation that the Act calls for
electronic submission and publication of injury and illness
recordkeeping data. See, e.g., United States v. Advance Mach. Co., 547
F.Supp. 1085 (D.Minn. 1982) (requirement in Consumer Product Safety Act
to "immediately inform" the government of product defects is read as
creating a continuing obligation to report because any other reading
would frustrate the statute's goal of protecting the public from
hazards). In addition, injury and illness records "are a cornerstone
of the Act and play a crucial role in providing the information
necessary to make workplaces safer and healthier." Sec'y of Labor v.
Gen. Motors Corp., 8 BNA OSHC 2036, 2041 (Rev. Comm'n 1980).
OSHA notes that not only are such recordkeeping regulations
expressly called for by the language of Sections 8 and 24, but they are
also consistent with Congressional intent and the purpose of the OSH
Act. The legislative history of the OSH Act reflects Congress' concern
about harm resulting to employees in workplaces with incomplete records
of occupational injuries and illnesses. Most notably, a report of the
Senate Committee on Labor and Public Welfare stated that "[F]ull and
accurate information is a precondition for meaningful administration of
an occupational safety and health program." S. Rep. No. 91-1282, at 16
(1970), reprinted in Subcomm. on Labor of the Comm. on Labor and Public
Welfare, Legislative History of the Occupational Safety and Health Act
of 1970, at 156 (1971). Additionally, a report from the House of
Representatives shows that Congress recognized "comprehensive [injury
and illness] reporting" as playing a key role in "effective safety
programs." H.R. Rep. No. 91-1291, at 15 (1970), reprinted in Subcomm.
on Labor of the Comm. on Labor and Public Welfare, Legislative History
of the Occupational Safety and Health Act of 1970, at 845 (1971). As
explained elsewhere in this preamble, the electronic submission and
publication requirements of the final rule will lead to more accurate
and complete occupational injury and illness records.
OSHA further notes that, contrary to comments made by some
commenters, and as explained elsewhere in this preamble, the final rule
will not result in the publication of raw injury and illness
recordkeeping data or the release of records containing personally
identifiable information or confidential commercial and/or proprietary
information. The release or publication of submitted injury and illness
recordkeeping data will be conducted in accordance with applicable
federal law. (See discussion below).
Constitutional Issues
The First Amendment
Some commenters stated that the proposed rule would violate the
First Amendment of the U.S. Constitution because it would force
employers to submit their confidential and proprietary information for
publication on a publicly available government online database (Exs.
1360, 1396). These commenters noted that the First Amendment protects
both the right to speak and the right to refrain from speaking.
The U.S. Chamber of Commerce commented:
While OSHA's stated goal of using the information it collects
from employers "to improve workplace safety and health," 78 FR at
67,254, is unobjectionable, "significant encroachments on First
Amendment rights of the sort that compelled disclosure imposes
cannot be justified by a mere showing of some legitimate
governmental interest." Buckley v. Valeo, 424 U.S. 1, 64 (1976)
(per curiam). Instead, where the government seeks to require
companies to engage in the type of speech proposed here, the
regulation must meet the higher standard of strict scrutiny: Meaning
that it must be narrowly tailored to promote a compelling
governmental interest. See United States v. Playboy Entm't Grp.,
Inc., 529 U.S. 803, 819 (2000).
Once subjected to strict scrutiny, the publication provision of
this Proposed Rule must fail because it is not narrowly tailored
towards accomplishing a compelling government interest. See Playboy,
529 U.S. at 819. Under the narrow tailoring prong of this analysis,
the regulation must be necessary towards accomplishing the
government's interest. See, e.g., Republican Party of Minn. v.
White, 536 U.S. 765, 775 (2002) ("[T]o show that the [requirement]
is narrowly tailored, [the government] must demonstrate that it does
not 'unnecessarily circumscrib[e] protected expression."' (fourth
alteration in original) (quoting Brown v. Hartlage, 456 U.S. 45, 54
(1982))).
On the other hand, Logan Gowdey commented that recordkeeping data
has been collected by OSHA in the past through the OSHA Data Initiative
(ODI). He adds, "Furthermore, if there were a realistic claim to be made
of First Amendment grounds, it surely would have been made against the
EPA in relation to the Toxic Release Inventory (TRI) program, where toxic
releases are published and include business names, far more 'speech'
than will be required under this rule." (Ex. 1211).
In response, OSHA disagrees with the Chamber's comment that this
rulemaking violates the First Amendment. OSHA notes that, contrary to
the Chamber's comment, the decision in Buckley v. Valeo only applies to
campaign contribution disclosures, and does not hold that other types
of disclosure rules are subject to the strict scrutiny standard. See,
42 U.S. 1, 64 (reasoning that campaign contribution disclosures "can
seriously infringe on privacy of association and belief guaranteed by
the First Amendment"). Later cases also clarify that disclosure
requirements only trigger strict scrutiny "in the electoral context."
See, John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010).
In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 653
(1985), the Supreme Court upheld Ohio state rules requiring disclosures
in attorney advertising relating to client liability for court costs.
The Court declined to apply the more rigorous strict scrutiny standard,
because the government was not attempting to "prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein." 471 U.S. 626, 651. Because it concluded the disclosure at
issue would convey "purely factual and uncontroversial information,"
the rule only needed to be "reasonably related to the State's interest
in preventing deception of consumers." Id. Recently, in American Meat
Institute v. U.S. Dept. of Agriculture, the U.S. Court of Appeals for
the DC Circuit held that the Zauderer case's "reasonably related"
test is not limited to rules aimed at preventing consumer deception,
and applies to other disclosure rules dealing with "purely factual and
uncontroversial information." 760 F.3d 18, 22 (D.C. Cir. 2014)
(finding that the speakers' interest in non-disclosure of such
information is "minimal"); see also NY State Restaurant Ass'n v. NYC
Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009) (accord),
Pharmaceutical Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 310 (1st Cir.
2005) (accord).
This final rule only requires disclosure of purely factual and
uncontroversial workplace injury and illness records that are already
kept by employers. The rule does not violate the First Amendment
because disclosure of workplace injury and illness records is
reasonably related to the government's interest in assuring "so far as
possible every working man and woman in the Nation safe and healthful
working conditions." 29 U.S.C. 651(b). The remainder of the Chamber's
comment deals with "essential rights" that do not encompass an
employer's minimal interest in non-disclosure of purely factual and
uncontroversial information.
The Fourth Amendment
The U.S. Chamber of Commerce commented that, while OSHA addressed
some issues related to the Fourth Amendment to the U.S. Constitution in
the preamble to the proposed rule, the Agency neglected to consider
other issues. Specifically, the Chamber stated that:
The Notice for this Proposed Rule cites several cases that OSHA
asserts confirm that the requirement to report injury and illness
records comports with the Fourth Amendment's prohibition against
unreasonable searches and seizures. 78 FR at 67,255-56. In making
this preemptive defense, however, OSHA has neglected to address the
more pressing Fourth Amendment problem with this Proposed Rule: That
OSHA's use of the information collected for enforcement purposes
will fail to constitute a "neutral administrative scheme" and will
thus violate the Supreme Court's holding in Marshall v. Barlow's
Inc., 436 U.S. 307 (1978).
Additionally, the Chamber stated that the raw data to be collected
under the proposed rule would fail to provide any defensible neutral
predicate for enforcement decisions: "Under this Proposed Rule, OSHA
will be able to target any employer that submits a reportable injury or
illness for any reason the agency chooses, or for no reason at all,
under this unlimited discretion it has sought to grant itself to
'identify workplaces where workers are at great risk"' See, 78 FR
67,256." (Ex. 1396).
In response, OSHA notes that Barlow's concerned the question of
whether OSHA must have a warrant to inspect a worksite if the employer
does not give consent. Section 1904.41 of this final rule involves
electronic submission of injury and illness recordkeeping data; no
entry of premises or compliance officer decision-making is involved.
Thus, the Barlow's decision provides very little support for the
commenter's sweeping Fourth Amendment objections. See, Donovan v. Lone
Steer, Inc., 464 U.S. 408, 414 (1984) (reasonableness of a subpoena is
not to be determined on the basis of physical entry law, because
subpoena requests for information involve no entry into nonpublic
areas).
Moreover, the final rule is limited in scope and leaves OSHA with
limited discretion. The recordkeeping information required to be
submitted is highly relevant to accomplishing OSHA's mission. The
submission of recordkeeping data is accomplished through remote
electronic transmittal, without any intrusion of the employer's
premises by OSHA, and is not unduly burdensome. Also, all of the injury
and illness information required to be submitted is taken from records
employers are already required to create, maintain, post, and provide
to employees, employee representatives, and government officials upon
request, which means the employer has a reduced expectation of privacy
in the information.
With respect to the issue of enforcement, OSHA disagrees with the
Chamber's Fourth Amendment objection that the Agency will target
employers "for any reason" simply because they submit injury and
illness data. Instead, OSHA plans to continue the practice of using a
neutral-based scheme for identifying industries for closer inspection.
More specifically, the Agency will use the data submitted by employers
under this final rule in the same manner OSHA has used data from the
ODI over the last 15 years. In the past, OSHA's Site-Specific Targeting
(SST) program and Nursing Home and Recordkeeping National Emphasis
Programs (NEPs) all used establishment-specific injury and illness
rates as selection criteria for inspection. In the future, OSHA plans
to analyze the recordkeeping data submitted by employers to identify
injury and illness trends and make appropriate decisions regarding
enforcement efforts.
OSHA also notes that the Agency currently uses establishment-
specific fatality, injury, and illness reports submitted by employers
under Section 1904.39 to target enforcement and compliance assistance
resources. As with the SST and NEP programs, a neutral-based scheme is
used to identify which establishments are inspected and which fall
under a compliance assistance program. Accordingly, OSHA's targeting of
employers for inspection will not be arbitrary or unconstitutional
under the Fourth Amendment.
Due Process
Two commenters raised concerns about the proposed rule potentially
violating an employer's due process protection under the Fifth
Amendment of the U.S. Constitution. (Exs. 0245, 1360). Andrew Sutton
commented "There is the possibility of a substantial due process claim
lurking here. It is long settled law that "where a person's good name,
reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be heard are
essential. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). But
whether the same due process protections are warranted when government
action threatens a business' goodwill is less clear" (Ex. 0245).
The International Warehouse Logistics Association commented that
the proposed rule would deny their members the right to due process:
Citations will no doubt be issued under this standard for
failures to report arguably work related injuries and illnesses
accurately. Since the data reported will be published by OSHA, there
will be a presumption of guilt attached to those injury reports. The
proposed rulemaking acknowledges that this reporting may result in
prospective employees and customers shunning businesses who report
injuries and illnesses, so clearly the Department contemplates that
the reported injuries create a presumption of guilt. Therefore, in
every case where the employer is faced with an injury or illness
that is not clearly recordable--and that is often the case--OSHA
will violate an employer's right to due process under the Fifth
Amendment of the United States Constitution. This violation of
employer due process rights will result from the mandatory recording
of injuries and illnesses within six days of their occurrence and
their subsequent mandatory electronic reporting. The employer will
be subjected to citation for failing to report questionable alleged
injuries and illnesses, on the one hand, and will face the prospect
of losing customers by reporting, on the other. Given the prospect
of the reported injury and illness data being published by OSHA, the
proposed rule does not provide a reasonable time frame for the
employer to conduct an adequate evaluation of its legal obligations
and exposures with respect to each case. And, in each such case, it
will be faced with the catch-22 of either losing customers or
employees or facing civil penalties. This evaluation and decision
will have to be made four times per year and will be particularly
onerous in the case of injuries and illnesses that occur in the
third month of each quarter (Ex. 1360).
In response, OSHA disagrees with commenters who suggested that this
rulemaking will violate an employer's right to due process under the
Fifth Amendment. The due process clause of the Fifth Amendment provides
that no person shall be "deprived of life, liberty, or property,
without due process of law." The case cited above by the commenter,
Wisconsin v. Constantineau, involved the posting of notices in liquor
stores forbidding the sale of liquor to designated individuals for one
year. A state statute provided for the posting, without notice or
hearing, of the names of individuals who had exhibited specified
traits, such as becoming "dangerous to the peace of the community,"
after consuming excessive amounts of alcohol. The Supreme Court held
that because the posting of such information would result in harm to an
individual's reputation, procedural due process requires notice and an
opportunity to be heard. 400 U.S. 433 at 436-437.
In this circumstance, however, OSHA disagrees that the mere posting
of injury and illness recordkeeping data on a publicly available Web
site will adversely impact an employer's reputation. As the Note to
Sec. 1904.0 of OSHA's recordkeeping regulation makes clear, the
recording or reporting of a work-related injury, illness, or fatality
does not mean that an employer or employee was at fault, that an OSHA
rule has been violated, or that the employee is eligible for workers'
compensation or other benefits. OSHA currently publishes establishment-
specific information on its Web site about reported work-related
fatalities and hospitalizations. [http://www.osha.gov/dep/fatcat/dep_fatcat.html]; establishment-specific injury and illness rates
calculated from the ODI [http://www.osha.gov/pls/odi/establishment_search.html]; and OSHA routinely publishes information
about citations issued to employers for violations of OSHA standards
and regulations. [http://www.osha.gov/oshstats/index.html]. Also, other
agencies post establishment-specific health and safety data. For
example, the Mine Safety and Health Administration (MSHA) publishes
coded information about each accident, injury or illness reported to
MSHA. The Federal Railroad Administration (FRA) posts headquarters-
level Accident Investigation Reports filed by railroad carriers. OSHA
also notes that employers have been given notice and an opportunity to
comment through this rulemaking process.
With respect to the issue of whether employers have adequate time
to record and report injuries and illnesses, Sec. 1904.29(b)(3) of
OSHA's recordkeeping regulation provides that employers must enter each
recordable injury or illness on the OSHA 300 Log and 301 Incident
Report within seven (7) calendar days of receiving information that a
recordable injury or illness has occurred. In the vast majority of
cases, employers know immediately or within a short time that a
recordable case has occurred. In a few cases, however, it may be
several days before the employer is informed that an employee's injury
or illness meets one or more of the recording criteria. This regulation
also allows employers to revise an entry simply by lining it out or
amending it if further information justifying the revision becomes
available. Accordingly, OSHA believes that the existing seven-calendar-
day requirement provides employers with sufficient time to receive
information and record a case. OSHA has resources, including
information on its Web site at www.osha.gov/recordkeeping designed to
assist employers in the accurate recording of injuries and illnesses.
Additionally, as explained elsewhere in this document, unlike the
proposed rule, the final rule does not require employers to submit
their injury and illness data to OSHA on a quarterly basis. The final
rule's requirement for the electronic submission of recordkeeping data
on an annual basis should reduce the burden on all employers when they
make decisions on whether to record certain cases.
Administrative Issues
Public Meeting
A few commenters disagreed with OSHA's decision to hold an informal
public meeting for this rulemaking. (Exs. 1332, 1396). Instead, these
commenters recommended that, considering both the burden on employers
and the far-reaching implications of publishing confidential
information, OSHA should have held a formal public hearing pursuant to
the Administrative Procedure Act (APA).
OSHA disagrees with these comments. The recordkeeping requirements
promulgated under the OSH Act are regulations, not standards.
Therefore, this rulemaking is governed by the notice and comment
requirements in the APA (5 U.S.C. 553) rather than Section 6 of the OSH
Act (29 U.S.C. 655) and 29 CFR part 1911. Section 6(b)(3) of the OSH
Act (29 U.S.C. 655(b)(3)) and 29 CFR 1911.11, both of which state the
requirement for OSHA to hold a public hearing on proposed rules, only
apply to promulgating, modifying or revoking occupational safety and
health "standards."
Section 553 of the APA, which governs this rulemaking, does not
require a public hearing; instead, it states that the agency must
"give interested persons an opportunity to participate in the
rulemaking through submission of written data, views, or arguments with
or without opportunity for oral presentation" (5 U.S.C. 553(c)). As
discussed elsewhere in this document, OSHA held a public meeting
for this rulemaking on January 9 and 10, 2014. OSHA believes that
interested parties had a full and fair opportunity to participate in
the rulemaking and comment on the proposed rule. OSHA also believes
that the written comments submitted during this rulemaking, as well as
the information obtained during the public meeting, greatly assisted
the Agency in developing the final rule.
Advisory Committee on Construction Safety and Health (ACCSH)
The National Association of Home Builders commented that OSHA must
seek input from the Advisory Committee on Construction Safety and
Health (ACCSH) during this rulemaking: "NAHB strongly urges OSHA to
seek input from ACCSH to better understand the impacts and consequences
of its proposal" (Ex. 1408).
In response, and as pointed out by NAHB in their comments, ACCSH is
a continuing advisory body established under Section 3704, paragraph
(d), of the Contract Work Hours and Safety Standards Act (40 U.S.C.
3701 et seq., commonly known as the Construction Safety Act), to advise
the Secretary of Labor and Assistant Secretary for Occupational Safety
and Health in the formulation of construction safety and health
standards, and policy matters affecting federally financed or assisted
construction. In addition, OSHA's regulation at 29 CFR 1912.3 provides
that OSHA must consult with ACCSH regarding the setting of new
construction standards under the OSH Act.
OSHA notes that both the Construction Safety Act and 29 CFR 1912.3
only require OSHA to consult with ACCSH regarding the setting of new
construction "standards." As discussed above, the requirements in 29
CFR part 1904 are regulations, not standards. In addition, and as
discussed elsewhere in this preamble, OSHA did consult and received
advice from NACOSH prior to issuing the proposed rule. NACOSH has
indicated its support for OSHA's efforts in consultation with NIOSH to
modernize the system for collection of injury and illness data to
assure that the data are timely, complete, and accurate, as well as
accessible and useful to employees, employers, responsible government
agencies and members of the public.
Open Government Initiative
In the preamble to the proposed rule, OSHA stated that OSHA plans
to post the injury and illness data online, as encouraged by President
Obama's Open Government Initiative. See, 78 FR 67258. The Initiative
includes executive orders, action plans, memoranda, etc., which
espouses enhanced principles of open government, transparency and
greater access to information.
Two commenters stated that the Open Government Initiative does not
support publication of private establishment records (Exs. 1328, 1411).
The National Retail Federation (NRF) commented, "OSHA has
inappropriately relied on President Obama's 'Open Government'
initiative to support public disclosure of injury and illness records.
The Administration's intention and purpose in issuing the Open
Government initiative is to foster transparency in government actions.
The Obama 'Open Government' initiative relates in no way to industry
data collected by an agency. Accordingly, the NRF is disappointed that
OSHA is attempting to rely on this initiative as justification for its
proposal to make private employer information generally available to
the public" (Ex. 1328). The Coalition for Workplace Safety (CWS)
provided a similar comment (Ex. 1411).
In response, OSHA notes that in the Memorandum on Transparency and
Open Government, issued on January 21, 2009, President Obama instructed
the Director of OMB to issue an Open Government Directive. On December
8, 2009, OMB issued a Memorandum for the Heads of Executive Departments
and Agencies, Open Government Directive, which requires federal
agencies to take steps to "expand access to information by making it
available online in open formats." The Directive also states that the
"presumption shall be in favor of openness (to the extent permitted by
law and subject to valid privacy, confidentiality, security, or other
restrictions)." In addition, the Directive states that "agencies
should proactively use modern technology to disseminate useful
information, rather than waiting for specific requests under FOIA."
As noted elsewhere in this document, publication of recordkeeping
data, subject to applicable privacy and confidentiality laws, will help
disseminate information about occupational injuries and illnesses.
Access to the data will help employers, employees, employee
representatives, and researchers better identify and abate workplace
hazards. Accordingly, OSHA believes that publication of injury and
illness data on OSHA's Web site is consistent with President Obama's
Open Government Initiative.
Privacy and Safeguarding Information
Freedom of Information Act
OSHA received several comments regarding the Freedom of Information
Act (FOIA) 5 U.S.C. 552. (Exs. 1207, 1214, 1279, 1382, 1396). Some of
these commenters claimed that the proposed rule was "arbitrary" and
"capricious" under the Administrative Procedures Act (APA), 5 U.S.C.
706(2)(A), because OSHA has taken a different position during FOIA
litigation. The U.S. Chamber of Commerce commented, "On numerous
occasions, OSHA has asserted that the very information that it now
seeks to publish on the internet should not be made public because it
includes confidential and proprietary business information. See, e.g.,
New York Times Co. v. U.S. Dep't of Labor, 340 F. Supp. 2d 394
(S.D.N.Y. 2004); OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d
153 (3d Cir. 2000). Indeed, as recently as 2004, Miriam McD. Miller,
OSHA's Co-Counsel for Administrative Law, stated in a sworn declaration
that the information contained in what now constitutes OSHA's Forms
300, 300A, and 301 "is potentially confidential commercial information
because it corresponds with business productivity."Decl. of Miriam
McD. Miller ] 5, New York Times Co. v. U.S. Dep't of Labor, 340 F.
Supp. 2d 394 (S.D.N.Y. 2004) (No. 03 Civ. 8334), ECF No. 16 (attached
as Exhibit A)."
The Chamber went on to comment, "OSHA and the Chamber's position
are, or at least were, the same: Total hours worked at individual
establishments is confidential and proprietary information. See New
York Times Co., 340 F. Supp. 2d at 402. Indeed, in the New York Times
Co. case, OSHA asserted that this number was not only confidential
information, but had the capacity to "cause substantial competitive
injury." Id. (citing Dep't of Labor Mem. of Law, Ex. B at 17). This is
because, as OSHA itself argued, the total hours worked by a company's
employees "corresponds with business productivity," Dep't of Labor
Mem. of Law, Ex. B at 4, and could be used "to calculate a
business['s] costs and profit margins," id. at 17 (citing Westinghouse
Elec. Corp. v. Schlesinger, 392 F. Supp. 1264, 1249 (E.D. Va. 1976),
aff'd, 542 F.2d 1190 (4th Cir. 1976)). The confidentiality problems
relating to hours worked are only exacerbated in this Proposed Rule by
OSHA's insistence on collecting and publishing this information on an
establishment-by-establishment basis, including the number of employees
at each establishment. Armed with total hours worked plus an
establishment's employee count, a business' overall capacity and
productivity can easily be determined" (Ex. 1396).
NAM commented, "Under the Freedom of Information Act (FOIA),
certain documents are exempt from public disclosure. 5 U.S.C. 552.
Exemption 4 protects 'a trade secret or privileged or confidential
commercial or financial information obtained from a person.' 5 U.S.C.
552(b)(4). The NAM and its members believe employee hours worked on the
OSHA Form 300A is confidential business information, because that
information gives insight into the state of a business at any given
time and creates a competitive harm. As such, this information is
entitled to protection from disclosure to the public under FOIA, which
would be consistent with how OSHA has historically treated employee
hours worked" (Ex. 1279). The American Petroleum Institute (API) made
a comment similar to NAM (Ex. 1214).
In response, OSHA notes that, as discussed in the preamble to the
proposed rule, the information required to be submitted by employers
under this final rule is not of a kind that would include confidential
commercial information. The Secretary carefully considered the issues
addressed in the New York Times case, and concluded that the
information on the OSHA recordkeeping forms, including the number of
employees and hours worked at an establishment, is not confidential
commercial information. See, 78 FR 67263. The decision in New York
Times, along with the decision in OSHA Data, was based on the
requirements in OSHA's previous recordkeeping regulation. Prior to
2001, employers were not required to record the total number of hours
worked by all employees on the OSHA forms.
Many employers already routinely disclose information about the
number of employees at an establishment. Since 2001, OSHA's
recordkeeping regulation has required employers to record information
about the average annual number of employees and total number of hours
worked by all employees on the OSHA Form 300A. Section 1904.35 also
requires employers to disclose to employees, former employees, and
employee representatives non-redacted copies of the OSHA Form 300A. In
addition, Sec. 1904.32(a)(4) requires employers to publicly disclose
information about the number of employees and total number of hours
worked through the annual posting of the 300A in the workplace for
three months from February 1 to April 30.
In the New York Times decision, the court concluded that basic
injury and illness recordkeeping data regarding the average number of
employees and total number of hours worked does not involve
confidential commercial information. See, 350 F. Supp. 2d 394 at 403.
The court held that competitive harm would not result from OSHA's
release of lost workday injury and illness rates of individual
establishments, from which the number of employee hours worked could
theoretically be derived. Id. at 402-403. Additionally, the court
explained that most employers do not view injury and illness data as
confidential. Id. at 403.
As noted by commenters, during the New York Times litigation, the
Secretary argued that the injury and illness rates requested in the
FOIA suit could constitute commercial information under Exemption 4 of
FOIA, 5 U.S.C. 552(b)(4). However, in the years since this decision,
the Secretary has reconsidered his position. Since 2004, in response to
FOIA requests, it has been OSHA's policy to release information from
the Form 300A on the annual average number of employees and the total
hours worked by all employees during the past year at an establishment.
Thus, there was a statement in the preamble to the proposed rule
explaining that the Secretary no longer believes the injury and illness
information entered on the OSHA recordkeeping forms constitutes
confidential commercial information. Accordingly, since the New York
Times decision in 2004, OSHA has had a consistent policy concerning the
release of information on the OSHA Form 300A.
Sarah Wilensky commented that OSHA is required under FOIA to
disclose much of the data it accesses from an inspection or visit to a
covered establishment, and that this obligation would not change if
OSHA receives information as part of this rulemaking. (Ex. 1382). This
commenter also suggested that, similar to other information in OSHA's
possession, employers' commercially valuable information submitted as
part of this rulemaking should be subject to exemption for trade
secrets under FOIA (Ex. 1382). Another commenter, MIT Laboratories,
commented that FOIA is not of much use as a standard to protect privacy
in this rule (Ex. 1207).
OSHA agrees with the commenters who suggested that recordkeeping
information collected as part of this final rule should be posted on
the Web site in accordance with FOIA. As discussed in the preamble to
the proposed rule, the publication of specific data elements will in
part be restricted by the provisions of FOIA. [78 FR 67259]. Currently,
when OSHA receives a FOIA request for employer recordkeeping forms, the
Agency releases all data fields on the OSHA 300A annual summary,
including the annual average number of employees and total hours worked
by employees during the year. With respect to the OSHA 300 Log, because
OSHA currently obtains part 1904 records during onsite inspections, the
Agency applies Exemption 7(c) of FOIA to withhold from disclosure
information in Column B (the employee's name). (Note that OSHA will not
collect or publish Column B under this final rule.) FOIA Exemption 7(c)
provides protection for personal information in law enforcement
records. [5 U.S.C. 552(b)(7)(c)]. OSHA currently uses Exemption 7(c) to
withhold personal information included in Column B as well as other
columns of the 300 Log. For example, OSHA would not disclose the
information in Column C (Job Title), if such information could be used
to identify the injured or ill employee.
Similarly, OSHA uses FOIA exemptions to withhold from disclosure
Fields 1 through 9 on the OSHA 301 Incident Report. Fields 1 through 9
(the left side of the 301) includes personal information about the
injured or ill employee as well as the physician or other health care
professional. (Note that under this final rule, OSHA will not collect
or publish Field 1 (employee name), Field 2 (employee address), Field 6
(name of treating physician or health care provider), or Field 7 (name
and address of non-workplace treating facility). All fields on the
right side of the 301 (Fields 10 through 18) are generally released by
OSHA in response to a FOIA request.
OSHA generally uses FOIA Exemption 7(c) to withhold from disclosure
any personally identifiable information included anywhere on the three
OSHA recordkeeping forms. For example, although information in Field 15
of the 301 incident report (Tell us how the injury occurred) is
generally released in response to a FOIA request, if that data field
includes any personally-identifiable information, such as a name or
Social Security number, OSHA will apply Exemption 6 or 7(c) and not
release that information. FOIA Exemption 6 protects information about
individuals in "personnel and medical and similar files" when the
disclosure of such information "would constitute a clearly unwarranted
invasion of personal privacy." [5 U.S.C. 552(b)(6)].
Additionally, OSHA currently uses FOIA Exemption 4 to withhold from
disclosure information on the three recordkeeping forms regarding trade
secrets or privileged or confidential commercial or financial
information. [5 U.S.C. 552(b)(4)]. However, it is OSHA's experience
that the inclusion of trade secret information on recordkeeping forms is
extremely rare. OSHA's recordkeeping regulation does not require employers
to record information about, or provide detailed descriptions of, specific
brands or processes that could be considered confidential commercial
information. In any event, employers will have an opportunity to inform
OSHA that submitted data may contain PII or confidential commercial
information.
Again, OSHA wishes to emphasize that it will post injury and
illness recordkeeping information collected by this final rule
consistent with FOIA.
Privacy Act
Several commenters raised concerns about a possible conflict
between the proposed rule and the Privacy Act of 1974, 5 U.S.C. 552a.
(Exs. 1113, 1342, 1359, 1370, 1393). The American Farm Bureau
Federation (AFBF) commented, "OSHA must consider the privacy interests
of farmers' names and home contact information and is obligated under
federal law to do a review under the Privacy Act" (Ex. 1113). The
Society of the Plastics Industry, Inc. (SPI) commented, "[G]iven the
nature of the information that may be filed in the Section 1904 forms,
OSHA's obligation to redact any personally identifiable medical
information from those forms, and the fact that it will be infeasible
to OSHA to meet that obligation, OSHA is precluded by the Federal
Privacy Act from issuing the rule" (Ex. 1342). Ashok Chandran made a
similar comment (Ex. 1393).
In response, OSHA notes that the Privacy Act regulates the
collection, maintenance, use, and dissemination of personal
identifiable information by federal agencies. Section 552a(e)(4) of the
Privacy Act requires that all federal agencies publish in the Federal
Register a notice of the existence and character of their systems of
records. The Privacy Act permits the disclosure of information about
individuals without their consent pursuant to a published routine use
where the information will be used for a purpose that is comparable to
the purpose for which the information was originally collected.
The Privacy Act only applies to records that are located in a
"system of records." As defined in the Privacy Act, a system of
records is "a group of any records under the control of any agency
from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual." See, 5 U.S.C. 552a(a)(5). Because OSHA
injury and illness records are retrieved neither by the name of an
individual, nor by some other personal identifier, the Privacy Act does
not apply to OSHA injury and illness recordkeeping records. As a
result, the Privacy Act does not prevent OSHA from posting
recordkeeping data on a publicly-accessible Web site. However, OSHA
again wishes to emphasize that, consistent with FOIA, the Agency does
not intend to post personally identifiable information on the Web site.
Trade Secrets Act
The Coalition for Workplace Safety (CWS) commented that publication
of information contained in the 300, 300A, and 301 forms would be a
violation of 18 U.S.C. 1905--Disclosure of confidential information
generally, which makes it a criminal act for government officials to
disclose information concerning or relating to the trade secrets,
processes, operations, style of work, or apparatus, or to the identity,
confidential statistical data, amount or source of any income, profits,
loses, or expenditures of any person, firm, partnership, corporation,
or association (Ex. 1411).
OSHA notes that the Trade Secrets Act, 18 U.S.C. 1905, states:
"Whoever, being an officer or employee of the United States,...
publishes, divulges, discloses, or makes known in any manner or to any
extent not authorized by law any information coming to him in the
course of his employment or official duties... or record made to or
filed with, such department or agency or officer or employee thereof,
which information concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, or to the identity,
confidential status, amount or source of any income, profits, losses,
or expenditures of any person, firm, partnership, corporation, or
association;... shall be fined under this title, or imprisoned not
more than one year, or both; and shall be removed from office or
employment."
As discussed elsewhere in this document, the information required
to be submitted under the final rule is not of a kind that would
include confidential commercial information. The information is limited
to the number and nature of recordable injuries or illnesses
experienced by employees at particular establishments, and the data
necessary to calculate injury/illness rates, i.e., the number of
employees and the hours worked at an establishment. Details about a
company's products or production processes are generally not included
on the OSHA recordkeeping forms, nor do the forms request financial
information. The basic employee safety and health data required to be
recorded do not involve trade secrets, and public availability of such
information would not enable a competitor to obtain a competitive
advantage. Accordingly, the posting of injury and illness recordkeeping
data online by OSHA is not a release of confidential commercial
information, and therefore is not a violation of the Trade Secrets Act.
In some limited circumstances, the information recorded in compliance
with part 1904 may contain commercial or financial information. OSHA
considers such information to be potentially confidential, and, as
appropriate, follows the procedures set forth in 29 CFR 70.26, which
require OSHA to contact the employer which submitted the information
prior to any potential release under FOIA Exemption 4, 5 U.S.C.
552(b)(4). Additionally, Section 15 of the OSH Act protects the
confidentiality of trade secrets. 29 U.S.C. 664. Under this final rule,
it will be OSHA policy not to post confidential commercial or financial
information on the publicly available Web site. The case description
information solicited in questions 14 through 17 on OSHA's Form 301 is
broad in nature and does not call for detailed descriptions that
include personal or commercially confidential information. The examples
provided on the form for fields 14 and 15 include "spraying chlorine
from hand sprayer" and "worker was sprayed with chlorine when gasket
broke during replacement". OSHA will add additional guidance to these
instructions to inform employers not to include personally identifiable
information (PII) or confidential business information (CBI) within
these fields.
Confidential Commercial Information
Multiple commenters stated that the proposed rule would require
employers to submit proprietary and confidential business data to OSHA
(Exs. 0057, 0160, 0171, 0179, 0205, 0218, 0224, 0240, 0251, 0252, 0257,
0258, 1084, 1090, 1091, 1092, 1093, 1111, 1112, 1113, 1116, 1123, 1192,
1193, 1195, 1196, 1197, 1198, 1199, 1205, 1209, 1214, 1216, 1217, 1218,
1219, 1225, 1272, 1275, 1276, 1279, 1318, 1323, 1326, 1328, 1332, 1333,
1334, 1336, 1338, 1343, 1349, 1356, 1359, 1366, 1367, 1370, 1372, 1386,
1392, 1394, 1396, 1397, 1399, 1408, 1411, 1415, 1426, 1427, 1430). In
addition to the comments addressed above regarding the average number
of employees and total hours worked by employees, commenters expressed
concern about the confidentiality of other data on the OSHA recordkeeping
forms. IPC-Association Connecting Electronics Industries made a specific
comment that "the requirement in column F [OSHA 300 Log] to disclose the
"object/substance that directly injured or made person ill" creates a
mechanism that could lead to disclosure of intellectual property to
competitors, both foreign and domestic, especially in research and
development facilities" (Ex. 1334). Darren Snikrep commented, "The plan
to provide public access to the data means a loss of privacy for employers
and may adversely affect an employer's ability to obtain work" (Ex. 0057).
Similarly, the Louisiana Farm Bureau commented, "The proposed rule states
that the company's executive's signature, title, telephone number, the
establishment's name and street address, industry description, SIC or
NAICS code and employment information including annual average number
of employees, total hours worked by all employees will all be non-
protected information that is readily available to the public via the
OSHA data portal and downloadable to anyone. This invites targeting of
employers that may have no basis on actual workplace safety. We
strongly feel that an employer's information identified with OSHA
reporting should be kept private, the same as the privacy afforded
workers under the proposed OSHA rule." (Ex. 1386).
On the other hand, the Associated General Contractors of Michigan
commented that recordkeeping data are not proprietary and confidential
business information: "Companies with over 20 employees during the
reporting year must electronically report annually using the OSHA 300A
Summary Form. This type of reporting would not be a burden on employers
and would avoid 'privacy issues', but would provide enough information
for a more effective enforcement effort" (Ex. 0250). J. Wilson made a
similar comment (Ex. 0238).
In response, OSHA again wishes to emphasize that it is not the
Agency's intention to post proprietary or confidential commercial
information on the publicly-accessible Web site. The purpose for the
publication of recordkeeping data under this final rule is to
disseminate information about occupational injuries and illnesses. OSHA
agrees with commenters who stated that recordkeeping data generally do
not include proprietary or commercial business information.
Specifically, information on the 300A annual summary, such as the
establishment's name, business address, and NAICS code, are already
publicly available.
As discussed above, OSHA is prohibited from releasing proprietary
or confidential commercial information under FOIA Exemption 4. The term
"confidential commercial information" means "records provided to the
government by a submitter that arguably contain material exempt from
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C.
552(b)(4), because its disclosure could reasonably be expected to cause
substantial competitive harm." See, Executive Order 12600,
Predisclosure notification procedures for confidential commercial
information. [June 23, 1987]. Additionally, because recordkeeping data
will be posted on a publicly-accessible Web site, when recording
injuries and illnesses at their establishment, OSHA encourages
employers not to enter confidential commercial information on the
recordkeeping forms.
Submission of Personally Identifiable Information and Employee Privacy
OSHA received several comments in support of electronic submission
of part 1904 data with personally identifiable information (PII) (Exs.
0208, 1106, 1211, 1350, 1354, 1381, 1382, 1387, 1395). Many commenters
commented that federal and state agencies require electronic submission
of health and safety data without the misuse of personal identifiers
(Exs. 0208, 1106, 1211, 1350, 1354, 1381, 1382, 1387, 1395). For
example, the Department of Workplace Standards, Kentucky Labor Cabinet
commented that they do "not foresee misuse of the information; other
agencies require electronic submission of similar data and have
accomplished the requirement without misuse of personal identifiers"
(Ex. 0208). Sarah Wilensky, the Service Employees International Union
(SEIU) and the California Department of Industrial Relations (DIR),
Office of the Director provided similar comments (Exs. 1382, 1387,
1395).
The American Public Health Association (APHA) commented that OSHA's
sister agency, the Mine Safety and Health Administration (MSHA), "has
collected and posted on its Web site far more detailed and
comprehensive information on work-place injuries than is being proposed
by OSHA" (Ex. 1354). The AFL-CIO and the International Brotherhood of
Teamsters provided similar comments (Exs. 1350, 1381).
However, there were also many comments opposing employer submission
of certain data from the OSHA Form 300 and 301. Thoron Bennett
commented that OSHA should not "collect [employee] names from OSHA 300
or 301 logs" (Ex. 0035). The International Association of Drilling
Contractors (IADC) provided a similar comment (Ex. 1199).
The Phylmar Regulatory Roundtable commented that employers should
"not be required to submit information including names, dates of
birth, addresses, Social Security Number, etc.... Requiring
electronic submissions containing PII to OSHA unnecessarily creates an
opportunity for private information to accidentally become public"
(Ex. 1110). The U.S. Poultry & Egg Association, Huntington Ingalls
Industries--Newport News Shipbuilding, and Melinda Ward provided
similar comments (Exs. 1109, 1196, 1223). Huntington Ingalls
Industries--Newport News Shipbuilding also commented that employees
could "have the ability to opt out of having their personally
identifiable information provided to OSHA" (Ex. 1196).
MIT Laboratories commented that "OSHA should consider developing a
toolkit or educational materials to help employers identify information
that poses a re-identification risk in their workplace records,
especially if OSHA expect [sic] that its recordkeeping forms will
continue to elicit textual descriptions of injuries and illnesses in
the future. Such materials could help mitigate the risk that employers
will include identifying information in the form" (Ex. 1207).
OSHA partially agrees with commenters who stated that employers
should submit their data to OSHA with PII about employees included on
the 300 and 301 forms. In many cases, PII entered on the OSHA
recordkeeping forms includes important information that the Agency uses
for activities designed to increase workplace safety and health and
prevent occupational injuries and illnesses, including outreach,
compliance assistance, enforcement, and research. As discussed
elsewhere in this preamble, other government agencies are able to
handle vary large amounts of PII, and OSHA will follow accepted
procedures and protocols to prevent the release of such information.
However, for some data fields, OSHA does not consider the data from
these fields necessary to meet the various stated goals of the data
collection. These fields primarily exist to help people doing incident
investigations at the establishment. Collecting data from these fields
would not add to OSHA's or any other user's ability to identify
establishments with specific hazards or elevated injury and illness
rates. Therefore, OSHA has decided in this final rule to exclude from the
submittal requirements several fields on the OSHA Forms 300 and 301 to
minimize any potential release or unauthorized access to these data.
The data elements are:
Log of Work-Related Injuries and Illnesses (OSHA Form
300): Employee name (column B).
Injury and Illness Incident Report (OSHA Form 301):
Employee name (field 1), employee address (field 2), name of physician
or other health care professional (field 6), facility name and address
if treatment was given away from the worksite (field 7).
Additionally, several commenters expressed concern about the
potential public release of personal information about employees from
the OSHA recordkeeping forms. (Exs. 0171, 0189, 0209, 0210, 0215, 0250,
0253, 1091, 1113, 1199, 1201, 1206, 1207, 1276, 1329, 1359, 1370, 1386,
1408, 1410). These commenters stated that the OSHA recordkeeping forms
contain private and highly confidential employee information, including
medical information. Some commenters also raised concerns about
previous OSHA rulemakings. For example, the National Association of
Home Builders (NAHB) commented, "OSHA has made specific findings
related to privacy interest of employees and the utility of making
certain recordkeeping forms public. Having done so, OSHA must explain
why it is deviating from its past practice and positions... OSHA is
required to comply with the Administrative Procedure Act and provide a
reasoned explanation for this change of policy, starting by recognizing
past policy and a justification for the change. OSHA has not done so
here and failure to do so here makes this change arbitrary and
capricious" (Ex. 1408).
A few commenters suggested that OSHA should balance the public
interest of disclosure with the employee's right to privacy (Exs. 1279,
1408, 1411). NAM commented:
In the Federal Register publishing the final rule to the Part
1904 revisions, OSHA acknowledged the existence of a U.S.
Constitutional right of privacy in personal information. In doing
so, OSHA cited to various U.S. Supreme Court and federal circuit
court decisions that have suggested that such a right exists. 66 FR
at 6054. See, e.g., Whalen v. Roe, 429 U.S. 588 (1977), Nixon v.
Adm'r of General Services, 433 U.S. 425 (1977), Paul v. Verniero,
170 F.3d 396, 402 (3d Cir. 1999), Norman-Bloodsay v. Lawrence
Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998).
Further, OSHA recognized that "information about the state of a
person's health, including his or her medical treatment,
prescription drug use, HIV status and related matters is entitled to
privacy protection" and that "there are few matters that are quite
so personal as the status of one's health, and few matters the
dissemination of which one would prefer to maintain greater control
over." 66 FR at 6054. OSHA went on to acknowledge that "[t]he
right to privacy is not limited to medical records. Other types of
records containing medical information are also covered." Id. at
6055. (citations omitted).
After recognizing that a right of privacy exists and is entitled
to protection, OSHA applied a balancing test--weighing the
individual's interest in confidentiality against the public interest
in disclosure to employees and representatives. Id. After lengthy
analysis, OSHA concluded that allowing employees access to
information contained on the Form 301 served a legitimate public
interest--that is helping employees to protect themselves from
future injuries or illness.
The proposed regulation discussed in these comments, ignores
this right of privacy and abandons any type of balancing test. OSHA
does not allege any reasons that making such information available
to the public outweighs the privacy interests of the individual
employees. Merely redacting an employee's name does not provide
sufficient protection from the release, even inadvertently, of other
personally identifiable information or medical information that
employees maintain a privacy interest in (Ex. 1279).
Other commenters raised a specific concern about the release of
personal information in the agricultural industry, where many families
live on farms where they work (Exs. 1113, 1359, 1370, 1386). Commenters
stated that, under the proposed rule, a publicly-searchable database
will include information about farmers' names, their home address, as
well as other home contact information. These commenters also
emphasized that the proposed rule would lead to serious security and
privacy concerns that OSHA has not addressed.
Additionally, the American Health Care Association/National Center
for Assisted Living (AHCA/NCAL) asked whether the proposed rule would
compromise the privacy of patients in the health care industry. This
commenter stated that they assist and care for people and that this
involves day-to-day interactions with patients, residents, and their
families--"who expect that their privacy will be protected and that
personal information about them or their conditions will not be
broadcast on OSHA's Web page" (Ex. 1194).
In response, OSHA disagrees with commenters who suggested that the
Agency is deviating from its past practice regarding recordkeeping
information and the privacy interest of employees. In the preamble to
the 2001 final rule revising the part 1904 recordkeeping regulation,
OSHA explained that it has historically recognized that the OSHA 300
Log and 301 Incident Report may contain information that an individual
would wish to remain confidential. [66 FR 6055]. OSHA also acknowledged
that although the entries on the 300 Log are typically brief, they may
contain medical information, including diagnosis of specific illnesses.
Id. However, OSHA concluded that disclosure of the Log and Incident
Report to employees, former employees, and their representatives
benefits these employees generally by increasing their awareness and
understanding of the safety and health hazards in the workplace. Thus,
current Sec. 1904.35, Access to records, permits employees, former
employees, and employee representatives access to information on the
OSHA recordkeeping forms. As the 2001 preamble makes clear, OSHA
authorized this right of access after balancing the privacy rights of
individuals with the public interest for disclosure. In addition, the
2001 preamble states that OSHA does not have the statutory authority to
prevent the disclosure of private information once the records are in
the possession of employees, former employees and their
representatives. [66 FR 5056].
OSHA acknowledges commenters' concerns about the potential posting
of private employee information on a publicly-accessible Web site.
However, the posting or disclosure of private or confidential
information has never been the intent of this rulemaking. OSHA believes
it has effective safeguards in place to prevent the disclosure of
personal or confidential information contained in the recordkeeping
forms and submitted to OSHA. Specifically, as discussed above, OSHA
will neither collect nor publish the following information:
Log of Work-Related Injuries and Illnesses (OSHA Form
300): Employee name (column B).
Injury and Illness Incident Report (OSHA Form 301):
Employee name (field 1), employee address (field 2), name of physician
or other health care professional (field 6), facility name and address
if treatment was given away from the worksite (field 7).
Also, OSHA's recordkeeping regulation at Sec. 1904.29(b)(10)
prohibits the release of employees' names and personal identifiers
related to "privacy concern cases." OSHA will also withhold from
publication all of the information on the left-hand side of the OSHA
301 Incident Report that is submitted to OSHA (employee date of birth
(Field 3), employee date hired (Field 4), and employee gender (Field 5)).
All of the information on the right hand side (Fields 10 through 18) will
generally be posted on the Web site (after it is scrubbed for PII).
Finally, because the OSHA 300A Annual Summary does not contain any
personally-identifiable information, all of the fields on the OSHA 300A
Annual Summary will be posted.
OSHA also acknowledges that certain data fields on the OSHA 300 and
301 may contain personally-identifiable information. It has been OSHA's
experience that information entered in Column F of the 300 Log may
contain personally-identifiable information. For example, when
describing an injury or illness, employers sometimes include names of
employees. As a result, OSHA plans to review the information submitted
by employers for personally-identifiable information. As part of this
review, the Agency will use software that will search for, and de-
identify, personally identifiable information before the submitted data
are posted.
In response to commenters who expressed concern about the posting
of personal information from family farms, OSHA notes that it is
extremely unlikely that personal information from family farms will be
collected or posted under this final rule. Section 1904.41(a)(1) of the
final rule requires only establishments with 250 or more employees to
submit information from the three OSHA recordkeeping forms. In
addition, Sec. 1904.41(a)(2) of the final rule makes clear that only
establishments in designated industries with 20 more employees, but
fewer than 250 employees, must submit information from the OSHA 300A
annual summary. As a result, in most cases, family farms will not be
required to submit injury and illness recordkeeping data to OSHA under
this final rule.
As discussed elsewhere in this preamble, under Sec. 1904.41(a)(3)
of the final rule, some employers with 19 or fewer employees (including
small farms) may be required to submit their injury and illness
recordkeeping data to OSHA. Farm address and contact information is
already commercially available, and the information can be purchased
from such companies as D&B and Experian. Also, address and contact
information for small farms that have been inspected by OSHA is already
on the Agency's public Web site.
A number of commenters suggested that, even though OSHA intended to
delete employee names and other identifying information, enough
information would remain in the published data for the public to
identify the injured or ill employee (Exs. 0189, 0211, 0218, 0224,
0240, 0241, 0242, 0252, 0253, 0258, 1084, 1090, 1092, 1093, 1109, 1113,
1122, 1123, 1190, 1192, 1194, 1197, 1198, 1199, 1200, 1205, 1206, 1207,
1209, 1214, 1217, 1218, 1219, 1223, 1272, 1273, 1275, 1276, 1279, 1318,
1321, 1322, 1323, 1326, 1327, 1331, 1333, 1334, 1336, 1338, 1342, 1343,
1348, 1349, 1353, 1355, 1356, 1359, 1360, 1370, 1372, 1376, 1378, 1386,
1389, 1392, 1394, 1396, 1397, 1399, 1402, 1408, 1410, 1411, 1412, 1415,
1417, 1427, 1430). Some of these commenters were specifically concerned
about the anonymity of injured or ill employees working at small
establishments located in small communities. For example, commenters
noted that information such as type of injury or illness, date and
location of injury or illness, type of body part injured, treatment,
and job title, could be used to identify the employee.
In response, OSHA notes that the final rule requires only
establishments with 250 or more employees to submit information from
all three OSHA recordkeeping forms. The Agency believes it is less
likely that employees in such large establishments will be identified
based on the posted recordkeeping data. By contrast, establishments
with 20 to 249 employees that are required to submit recordkeeping data
under this final rule are only required to submit their OSHA 300A
annual summary. As discussed above, the OSHA Form 300A includes only
aggregate injury and illness data from a specific establishment.
Safeguarding Collected Information
OSHA received multiple comments on the issue of safeguarding the
information collected under this final rule. Several commenters
commented that OSHA should use and specify procedures for cybersecurity
measures to protect confidential information (Exs. 1210, 1333, 1334,
1364, 1409). For example, IPC--Association Connecting Electronics
Industries commented that "IPC is concerned about the security of the
injury and illness data reported to OSHA. IPC asks OSHA to specify the
security measures that will be used to protect sensitive information"
(Ex. 1334).
MIT Laboratories commented more generally about the misuse of
collected data. They stated that there is a lack of "mechanisms that
would provide accountability for harm arising from misuse of disclosed
data... Accountability mechanisms should enable individuals to find
out where data describing them has been distributed and used, set forth
penalties for misuse, and provide harmed individuals with a right of
action" (Ex. 1207). The American Road and Transportation Builders
Association (ARTBA) provided a similar comment (Ex. 1409).
In response, when OSHA develops the data collection system, the
Agency plans to maintain two data repositories in the system: One as
OSHA's data mart (or warehouse) for prescribed data behind a secure
firewall, and a separate but similarly secured repository of data that
has been verified as scrubbed and available for public access. Both
systems will have multi-tiered access controls, and the internal system
will specifically be designed to limit access to PII to as few users as
possible. In addition, OSHA will consider the possible need to encrypt
sensitive data in the data mart repository as a safeguard, so that data
would be scrubbed (and rendered unreadable and useless) in the case of
unauthorized access. Also, as discussed above, OSHA will not collect
data from certain fields that primarily exist to help people doing
incident investigations at the establishment and that would not add to
OSHA's or any other user's ability to identify establishments with
specific hazards or elevated injury and illness rates.
Additionally, NAM commented that, in the preamble to the 2001 final
rule, OSHA acknowledged the inability to protect personal information
in part 1904: "In 2001, OSHA acknowledged that the agency had no means
of protecting against unwarranted disclosure of private information
contained in an employer's injury and illness records or that there
were sufficient safeguards in place to protect against misuse of
private information. But more importantly, OSHA acknowledged that
"[t]he right to collect and use [private] data for public purposes is
typically accompanied by a concomitant statutory or regulatory duty to
avoid unwarranted disclosures." 66 FR at 6056." (Ex. 1279). Other
commenters commented that there is no assurance that OSHA will be able
to protect the privacy of the employee once the recordkeeping data is
submitted (Exs. 0187, 1217, 1275).
In response, OSHA disagrees with commenters who suggested the
Agency will not be able to protect employee information. As discussed
above, two ways OSHA can protect the privacy of employee information
are by not collecting certain information and by not releasing
personally identifiable information on the publicly-accessible Web
site. With respect to safeguarding the information submitted by
employers, OSHA is strongly committed to maintaining the confidentiality
of the information it collects, as well as the security of its computer
system. All federal agencies are required to establish appropriate
administrative and technical safeguards to ensure that the security of
all media containing confidential information is protected against
unauthorized disclosures and anticipated threats or hazards to their
security or integrity. Regardless of the category of information, all
Department of Labor agencies must comply with the Privacy and Security
Statement posted on DOL's Web site. As part of its efforts to ensure
and maintain the integrity of the information disseminated to the public,
DOL's IT security policy and planning framework is designed to protect
information from unauthorized access or revision and to ensure that the
information is not compromised through corruption or falsification.
Posting of the annual summary in the workplace is not public
disclosure.
The International Association of Amusement Parks (IAAP) commented
that OSHA only addressed the privacy concern by stating in the preamble
to the proposed rule that an employer already has the obligation to
publish recordkeeping data when they post the OSHA 300A. IAAP
commented, however, that "[t]his posting of the annual summary data by
an employer is not comparable to posting injury and illness data on a
searchable, publicly accessible database. Employers can post the annual
summary data on employee bulletin boards which are typically not
located in places where the public has access" (Ex. 1427). The
American Fuel & Petroleum Association (AFPA) also noted that "[w]ith
respect to posting annual summary data, the information stays within
the place of employment. Even if an employee decides to distribute the
information, the reach would probably be limited to the immediate,
surrounding area" (Ex. 1336).
In response, OSHA notes that one of the objectives of this
rulemaking is to produce a wider public dissemination of information
about recordable occupational injuries and illnesses. The Annual
Summary does not include personally-identifiable information, and the
posting of the information on the Web site should not involve privacy
or confidentiality concerns. With respect to the posting on the Web
site of information from the 300 Log and 301 Incident Report for
establishments with 250 or more employees, such posting will not
include personally-identifiable information. Again, the goal of the
final rule is to disseminate injury and illness data, not to
disseminate personal information about employers or employees.
Privacy Concern Cases
Some commenters raised concerns about the proposed rule and the
protection of personally identifiable employee information included in
"privacy concern cases" (Exs. 0150, 1207, 1279, 1335, 1339). Under
OSHA's existing recordkeeping regulation, Sec. 1904.29(b)(6)) requires
employers to withhold the injured or ill employee's name from the 300
Log for injuries and illnesses defined as "privacy concern cases."
Section 1904.29(b)(7) defines privacy concern cases as those involving
(i) an injury or illness to an intimate body part or the reproductive
system; (ii) an injury or illness resulting from a sexual assault;
(iii) a mental illness; (iv) a work-related HIV infection, hepatitis
case, or tuberculosis case; (v) needlestick injuries and cuts from
sharp objects that are contaminated with another person's blood or
other potentially infectious material, or (vi) any other illness, if
the employee independently and voluntarily requests that his or her
name not be entered on the log. Additionally, Sec. 1904.29(b)(10)
includes provisions addressing employee privacy if the employer decides
voluntarily to disclose the OSHA 300 and 301 forms to persons other
than those who have a mandatory right of access under Sec. 1904.35.
The paragraph requires employers to remove or hide employees' names or
other personally identifiable information before disclosing the forms
to persons other than government representatives, former employees, or
authorized representatives, as required by Sec. Sec. 1904.40 and
1904.35, except in three cases. The employer may disclose the forms,
complete with personally-identifiable information, only to: (i) An
auditor or consultant hired by the employer to evaluate the safety and
health program; (ii) the extent necessary for processing a claim for
workers' compensation or other insurance benefits; or (iii) a public
health authority or law enforcement agency for uses and disclosures for
which consent, an authorization, or opportunity to agree or disagree or
object is not required under 45 CFR 164.512 (Privacy Rule).
In its comments, NAM stated that OSHA failed to address how Sec.
1904.29(b)(6)-(10) would be affected by the proposed rule. NAM
commented that there may be differences between employers and OSHA as
to what is considered personally identifiable information.
Assume that an employer voluntarily provides its OSHA Forms 300
and 301 to an outside safety and health organization. In choosing to
do so, the employer is required to redact the employees' names and
"other personally identifying information." Depending on a variety
of factors, the employer chooses to redact certain information,
including job titles and dates of injuries. Yet, months later when
OSHA receives this employer's injury and illness records it decides
to only redact the employees' names. The safety and health
organization could put both sets of data together--something OSHA
seems to want to encourage--and the safety and health organization
could conceivably identify various individuals. Using this
information, the safety and health organization contacts the
employee. In many instances, the employee may not want to be
contacted or have their information used and disseminated any
further, constituting an unwarranted and ongoing invasion of the
employee's privacy (Ex. 1279).
Additionally, Portland Cement commented: "The Agency has not shown
the regulated community in this proposal what a revised Form 300, if
developed, would show, and explicit wording in the proposed 1904.41
would require the employee's name to be shown in the electronic
submission to OSHA. Because the Agency has clearly defined "privacy
concern cases" in part 1904.29(b)(6) for when employers may keep
confidential the identity of the injured or ill employee, there are
concerns about why OSHA did not more clearly and explicitly address
naming the employee in the proposed electronic submission requirement
found in proposed 1904.41, and why the Agency did not provide a revised
OSHA Form 300 for review in the proposed regulation" (Ex. 1335).
In response, OSHA agrees with commenters who stated that the
confidentiality of privacy concern cases is extremely important. The
requirements in existing Sec. 1904.29(b)(6) through (10) were issued
by OSHA in 2001 as a result of the Agency's strong commitment to
protect the identity of employees involved in privacy concern cases. As
discussed above, the final rule requires employers at establishments
with 250 or more employees to submit information about the employee and
the employee's injury/illness recorded on the 300 and 301 forms, except
employee name and address, treating physician name, and treating
facility name and address. This includes the information related to
privacy concern cases. Since OSHA will have the relevant information
from the forms, employers are not required to submit the confidential
list of privacy concern cases.
Also as discussed above, OSHA will not collect or post information
from Column B (the employee's name) from the 300 Log or from Fields 1,
2, 6, or 7 from the 301 Incident Report. In addition, OSHA will not
post information from Fields 3 through 5 of the 301 Incident Report.
Information in items 14 through 17 will be scrubbed for PII before
being released publicly. This will ensure that information about an
employee's name, address, date of birth, date hired, and gender is not
disclosed. OSHA also does not intend to post any other information on
the Web site that could be used to identify an individual.
Additionally, OSHA will conduct a special review of submitted privacy
concern case information to ensure that the identity of the employee is
protected.
With respect to NAM's comment regarding the definition of
"personally-identifiable information," OSHA uses the definition
provided in the May 22, 2007, OMB Memorandum for the Heads of Executive
Departments and Agencies, "Safeguarding Against and Responding to the
Breach of Personally Identifiable Information." The term "personally-
identifiable information" refers to information which can be used to
distinguish or trace an individual's identify, such as their name,
Social Security number, biometric records, etc. alone, or when combined
with other personal or identifying information which is linked or
linkable to a specific individual, such as date and place of birth,
mother's maiden name, etc. Based on this definition, certain
information included on the OSHA recordkeeping forms is personally
identifiable information. For example, an employee's name, address,
date of birth, date hired, and gender would be personally identifiable
information and not subject to posting on the publicly-accessible Web
site as establishment-specific data. (However, note that OSHA will not
collect information about the employee's name or address under this
final rule.)
Other information included on the OSHA forms may also be personally
identifiable information. As mentioned by a commenter, depending on the
circumstances at a specific establishment, the information in Column C
(Job Title) from the 300 Log could be used to identify an employee who
was involved in a privacy concern case. In fact, OSHA's current
recordkeeping Frequently Asked Question (FAQ) 29-3 permits an employer
to delete information (such as Job Title) if they believe it will
identify the employee. However, OSHA also believes that because only
establishments with 250 or more employers will be required to submit
the OSHA 300 Log and 301 Incident Report, it is less likely that
information related to Job Title can be used to identify an employee.
OSHA further notes that comments that suggested additional
categories for privacy concern cases are not within the scope of this
rulemaking. Any revision to existing Sec. 1904.29(b)(6) through (10)
would require separate notice and comment rulemaking.
Confidential Information Protection and Statistical Efficiency Act
Several commenters stated that the online posting of covered
employers injury and illness recordkeeping data violates the
Confidential Information Protection and Statistical Efficiency Act of
2002 (CIPSEA) (Pub. L. 107-347, December 17, 2002) (Exs. 1225, 1392,
1399). These commenters noted that CIPSEA prohibits BLS from releasing
establishment-specific injury and illness data to the general public or
to OSHA, and that OSHA has not adequately addressed how the release of
part 1904 information under this rulemaking is consistent with the
Congressional mandate expressed in the law.
Two commenters also stated that publishing data from the OSHA
recordkeeping forms would circumvent Congress's intent from 2002 (Exs.
1193, 1430). These commenters noted that data on the 300 and 301 forms
are already reported to BLS, and when Congress passed CIPSEA, it made
the determination that such information should be confidential and
prohibited BLS from releasing establishment-specific data to the
general public or to OSHA.
In response, OSHA notes that CIPSEA provides strong confidentiality
protections for statistical information collections that are conducted
or sponsored by federal agencies. The law prevents the disclosure of
data or information in identifiable form if the information is acquired
by an agency under a pledge of confidentiality for exclusively
statistical purposes. See, section 512(b)(1). BLS, whose mission is to
collect, process, analyze, and disseminate statistical information,
uses a pledge of confidentiality when requesting occupational injury
and illness information from respondents under the BLS Survey.
The provisions of CIPSEA apply when a federal agency both pledges
to protect the confidentiality of the information it acquires and uses
the information only for statistical purposes. Conversely, the
provisions of CIPSEA do not apply if information is collected or used
by a federal agency for any non-statistical purpose. As noted elsewhere
in this document, the information collected and published by OSHA in
the final rule will be used for several purposes, including for the
targeting of OSHA enforcement activities. Therefore, the CIPSEA
confidentiality provisions are not applicable to the final rule.
Data Quality Act
Peter Strauss commented that OSHA is entitled to collect the
workplace injury and illness records as prescribed by the proposed
rule, but the Data Quality Act assures against the mishandling of such
data (Ex. 0187). Another commenter, Society of Plastics Industry, Inc.,
commented: "Let us assume, solely for purposes of further analysis,
and contrary to its stated purpose, that the publication of this
information was designed solely to inform affected employers and
employees of workplace incidents, and implicitly workplace conditions,
so they could take remedial and/or preventive measures to prevent
incidents from happening again. OSHA would be publishing information
that has not been investigated or otherwise verified through
appropriate quality controls, that would be misleading (in that it
would be published without any meaningful context and in a manner
designed to convey employer responsibility notwithstanding any
accompanying disclaimers), and that may very well contain personal
identifiers or personally identifiable information that could
effectively result in the unlawful disclosure of personal medical
information. This type of publication would conflict with the goals of
the OSH Act, the requirements of the Data Quality Act, and the
requirements of the applicable privacy laws" (Ex. 1342).
In response, OSHA notes that the Data Quality Act, or Information
Quality Act, was passed by Congress in Section 115 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658). The Act directs the Office of Management and
Budget (OMB) to issue government-wide guidelines that "provide policy
and procedural guidance to federal agencies for ensuring and maximizing
the quality, objectivity, utility, and integrity of information
(including statistical information) disseminated by federal agencies."
The Act also requires other federal agencies to publish their own
implementation guidelines that include "administrative mechanisms
allowing affected persons to seek and obtain correction of information
maintained and disseminated by the agency" that does not comply with the
guidelines issued by OMB. The Department of Labor issued its
implementing guidelines on October 1, 2002. [http://www.dol.gov/informationquality.htm].
The purpose of these guidelines is to establish Departmental guidelines
for implementing an information quality program at DOL and to enhance
the quality of information disseminated by DOL.
The DOL Guidelines state that "dissemination" includes agency
initiated or sponsored distribution of information to the public." It
does not include "agency citations to or discussion of information
that was prepared by others and considered by the agency in the
performance of its responsibilities, unless an agency disseminates it
in a manner that reasonably suggests that the agency agrees with the
information." OSHA notes that it will make no determination as to
whether the Agency agrees with the recordkeeping information
electronically submitted under the final rule. In addition, with the
exception of redacting personally identifiable information, OSHA will
not amend the raw recordkeeping data submitted by employers. As a
result, the provisions of the Information Quality Act, as well as the
DOL information quality guidelines, do not apply to the recordkeeping
information posted on the public Web site.
Although the provisions of the Information Quality Act do not
apply, OSHA still wishes to emphasize that, as part of its efforts to
ensure accuracy, the Agency encourages affected employers, employees,
and other individuals to seek and obtain, where appropriate, correction
of recordkeeping data posted on the public Web site. OSHA believes that
in most cases, informal contacts with the Agency will be appropriate.
However, OSHA will also make available on its Web site a list of
officials to whom requests for corrections should be sent and where and
how such officials may be contacted. The purpose of this correction
process is to address inaccuracies in the posted information, not to
resolve underlying substantive policy or legal issues.
Health Insurance Portability and Accountability Act
Several commenters raised concerns about whether the proposed rule
would hinder individual privacy rights under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191.
Some of these commenters stated that the HIPAA privacy regulation at 45
CFR parts 160 and 164 (Privacy Rule), prohibits OSHA from public
disclosure of personally-identifiable health information. Other
commenters expressed the concern that employers would be in violation
of the Privacy Rule if this rulemaking requires them to submit
protected health information to OSHA (Exs. 0218, 0224, 0240, 0252,
1084, 1093, 1109, 1111, 1123, 1197, 1200, 1205, 1206, 1210, 1214, 1217,
1218, 1223, 1272, 1275, 1279, 1331, 1338, 1342, 1362, 1370, 1386, 1402,
1408).
In response, OSHA notes that on December 28, 2000, the U.S.
Department of Health and Human Services (HHS) issued a final rule,
Standard for Privacy of Individually-Identifiable Health Information
(65 FR 82462). The rule was modified on August 14, 2002 (67 FR 53182),
which is codified at 45 CFR parts 160 and 164. Collectively known as
the "Privacy Rule," these standards protect the privacy of
individually identifiable health information ("protected health
information" or "PHI"), but is balanced to ensure that appropriate
uses and disclosures of PHI still may be made when necessary to treat a
patient, to protect the nation's public health, and for other critical
purposes. A covered entity may not use or disclose protected health
information unless permitted by the Privacy Rule. See, 45 CFR 164.502.
As required by HIPAA, the provisions of the Privacy Rule only apply
to "covered entities." The term "covered entity" includes health
plans, health care clearinghouses, and health care providers who
conduct certain financial and administrative transactions
electronically. See, 45 CFR 160.103. OSHA notes that the Agency does
not fall within the definition of a covered entity for purposes of the
Privacy Rule. Therefore, the use and disclosure requirements of the
Privacy Rule do not apply to OSHA, and do not prevent the Agency from
publishing injury and illness recordkeeping information under this
final rule.
Additionally, OSHA agrees with commenters who suggested that the
Agency consider applying the principles set forth in the Privacy Rule
for the de-identification of health information. OSHA believes that
health information is individually identifiable if it does, or
potentially could, identify the individual. As explained by commenters,
once protected health information is de-identified, there may no longer
be privacy concerns under HIPAA. Again, it is OSHA's policy under the
final rule not to release any individually-identifiable information. As
discussed elsewhere in this document, procedures are in place to ensure
that individually-identifiable information, including health
information, will not be publicly posted on the OSHA Web site.
With respect to the issue of whether HIPAA prevents covered
entities from disclosing PHI to employers, and/or directly to OSHA, the
Agency notes that the Privacy Rule specifically includes several
exemptions for disclosures of health information without individual
authorization. Of particular significance, is 45 CFR 164.512--Uses and
disclosures for which authorization or opportunity to agree or object
is not required. These standards, in themselves, do not compel a
covered entity to disclose PHI. Instead, they merely permit the covered
entity to make the requested disclosure without obtaining authorization
from affected individuals. Section 164.512(a) of the Privacy Rule
permits covered entities to use and disclose PHI, without
authorization, when they are required to do so by another law. HHS has
made clear that this disclosure encompasses the full array of binding
legal authorities, including statutes, agency orders, regulations, or
other federal, state or local governmental actions having the effect of
law. See, 65 FR 82668. As a result, the Privacy Rule does not allow a
covered entity to restrict or refuse to disclose PHI required by an
OSHA standard or regulation.
A covered entity may also disclose PHI without individual
authorization to "public health authorities" and to "health
oversight agencies." See, 45 CFR 164.512(b) and (d). The preamble to
the Privacy Rule specifically mentions OSHA as an example of both. See,
65 FR 82492, 82526.
The Privacy Rule also permits a covered entity who is a member of
the employer's workforce, or provides health care at the request of an
employer, to disclose to employers protected health information
concerning work-related injuries or illnesses or work-related medical
surveillance in situations where the employer has a duty under the OSH
Act, the Mine Act, or under a similar state law to keep records on or
act on such information. Section 164.512(b)(1)(v)(C) specifically
permits a covered entity to use or disclose protected health
information if the employer needs such information in order to comply
with obligations under 29 CFR parts 1904 through 1928.
Americans With Disabilities Act
The New York Farm Bureau (NYFB) commented that the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. prohibits the
release of health and disability-related information (Ex. 1370). NYFB
specifically requested that OSHA explain how compliance with the electronic
reporting requirement can be accomplished while meeting the requirements
of the ADA.
In response, OSHA notes that Section 12112(d)(3)(B) of the ADA
permits an employer to require a job applicant to submit to a medical
examination after an offer of employment has been made but before
commencement of employment duties, provided that medical information
obtained from the examination is kept in a confidential medical file
and not disclosed except as necessary to inform supervisors, first aid
and safety personnel, and government officials investigating compliance
with the ADA. Section 12112(d)(4)(C) requires that the same
confidentiality protection be accorded health information obtained from
a voluntary medical examination that is part of an employee health
program.
By its terms, the ADA requires confidentiality for information
obtained from medical examinations given to prospective employees, and
from medical examinations given as part of a voluntary employee health
program. The OSHA injury and illness records are not derived from pre-
employment or voluntary health programs. The information in the OSHA
injury and illness records is similar to that found in workers'
compensation forms, and may be obtained by employers by the same
process used to record needed information for workers' compensation and
insurance purposes. The Equal Employment Opportunity Commission (EEOC),
the agency responsible for administering the ADA, recognizes a partial
exception to the ADA's strict confidentiality requirements for medical
information regarding an employee's occupational injury or workers'
compensation claim. See EEOC Enforcement Guidance: Workers'
Compensation and the ADA, 5 (September 3, 1996). Therefore, it is not
clear that the ADA applies to the OSHA injury and illness records.
Even assuming that the OSHA injury and illness records fall within
the literal scope of the ADA's confidentiality provisions, it does not
follow that a conflict arises. The ADA states that "nothing in this
Act shall be construed to invalidate or limit the remedies, rights, and
procedures of any federal law." See, 29 U.S.C. 12201(b). In enacting
the ADA, Congress was aware that other federal standards imposed
requirements for testing an employee's health, and for disseminating
information about an employee's medical condition or history,
determined to be necessary to preserve the health and safety of
employees and the public. See, H.R. Rep. No. 101-485 pt. 2, 101st
Cong., 2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N. 356, 357
(noting, e.g. medical surveillance requirements of standards
promulgated under OSH Act and federal Mine Safety and Health Act, and
stating "[t]he Committee does not intend for [the ADA] to override any
medical standard or requirement established by federal... law...
that is job-related and consistent with business necessity"). See
also, 29 CFR part 1630 App. p. 356. The ADA recognizes the primacy of
federal safety and health regulations; therefore such regulations,
including mandatory OSHA recordkeeping requirements, pose no conflict
with the ADA. Cf. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999)
("When Congress enacted the ADA, it recognized that federal safety and
health rules would limit application of the ADA as a matter of law.").
The EEOC has also recognized both in the implementing regulations
at 29 CFR part 1630, as well as in interpretive guidelines, that the
ADA yields to the requirements of other federal safety and health
standards and regulations. The implementing regulation codified at 29
CFR 1630.15(e) explicitly states that an employer's compliance with
another federal law or regulation may be a defense to a charge of
violating the ADA.
Additionally, the EEOC Technical Assistance Manual on the ADA
states that the "ADA does not override health and safety requirements
established under other Federal laws... For example,... Employers
also must conform to health and safety requirements of the U.S.
Occupational Safety and Health Administration (OSHA)." For these
reasons, OSHA does not believe that the mandatory submission and
publication requirements in Sec. 1904.41 of this final rule conflict
with the confidentiality provisions of the ADA.
Other Issues
Alternate Forms
Some commenters commented that the requirement for electronic
submission of part 1904 injury and illness data will lead to the
elimination of alternate or equivalent recordkeeping forms by employers
(Exs. 1385, 1399). Littler Mendelson, P.C. commented: "Many employers
utilize equivalent forms--particularly insurance and accident
investigation forms in place of the Form 301. In establishing a
requirement for electronic reporting in a particular software format
OSHA will be mandating the use of a specific form and eliminating the
widespread use of equivalent forms by employers. This change has not
been identified or evaluated (benefits, or lack thereof) under the
Paperwork Reduction Act provisions applicable to this rulemaking.
Littler believes that the incremental benefit (if any) proposed in this
rulemaking is significantly outweighed by the increased paperwork
duplication which would be created by the use of mandatory forms and
elimination of equivalent forms" (Ex. 1385).
In response, OSHA notes that existing Sec. 1904.29(a) provides
that employers must use the OSHA 300 Log, 301 Incident Report, and 300A
Annual Summary, or equivalent forms, when recording injuries and
illnesses under part 1904. Section 1904.29(b)(4) states that an
equivalent form is one that has the same information, is as readable
and understandable, and is completed using the same instructions as the
OSHA form it replaces. OSHA is aware that many employers use an
insurance form instead of the 301 Incident Report, or supplement an
insurance form by adding any additional information required by OSHA.
As discussed above, under the final rule, employers have two
options for submitting recordkeeping data to OSHA's secure Web site.
First, employers can directly enter data in a web form. Second,
employers will be provided with a means of electronically transmitting
the information, including information from equivalent forms, to OSHA.
This is similar to how BLS collects data from establishments under the
SOII. Accordingly, the final rule does not change the option for
employers to use alternate or equivalent forms when recording OSHA
injuries and illnesses.
No Fault Recordkeeping Policy
There were many comments that the proposed rule would reverse
OSHA's long-standing "no fault" recordkeeping policy (Exs. 0160,
0174, 0179, 0192, 0218, 0224, 0240, 0251, 0255, 1084, 1091, 1092, 1093,
1109, 1113, 1123, 1191, 1192, 1194, 1197, 1199, 1200, 1214, 1218, 1272,
1273, 1276, 1279, 1323, 1324, 1328, 1329, 1334, 1336, 1338, 1342, 1343,
1349, 1359, 1370, 1386, 1391, 1394, 1397, 1399, 1401, 1411, 1427). For
example, the Coalition for Workplace Safety commented that "[i]n 2001,
OSHA revised the recordkeeping requirements and the foundation of those
revisions in what OSHA deemed a "no-fault" system... For a variety of
reasons OSHA concluded that a "geographic" presumption was the most
comprehensive way to achieve Congress's objective for determining work-related
injuries and illness. However, at the same time, OSHA recognized that
the "geographic" presumption did not necessarily correlate to an
employer's behavior and therefore injuries and illness that were beyond
an employer's control would be recorded... [n]ow, OSHA intends to
use this no-fault system to target employers for enforcement efforts,
to shame employers into compliance, to allow members of the public to
make decisions about with which companies to do business, and to allow
current employees to compare their workplaces to the "best"
workplaces for safety and health. This proposed regulation
fundamentally upends the no-fault system that OSHA originally adopted
in 2001" (Ex. 1411). The International Association of Drilling
Contractors (IADC) also commented that "the presumption under the NPRM
is that all injuries or illnesses are preventable, suggesting all
incidents are the fault of the employer. The proposal essentially turns
the "no fault" reporting system into one where employers will be
blamed for idiosyncratic events arising as a result of forces beyond
their control or actions by workers in direct contravention of
workplace rules. This is a clear abandonment of the "no-fault" system
in favor of OSHA's controversial and counterproductive "regulation by
shaming" enforcement doctrine. Surprisingly, OSHA fails to even
acknowledge its reversal, or provide any justification or an analysis
for this significant change" (Ex. 1199).
In response, OSHA disagrees with commenters who commented that the
Agency has reversed its "no fault" recordkeeping policy. The Note to
Sec. 1904.0 of OSHA's existing recordkeeping regulation continues to
provide that the recording or reporting of a work-related injury,
illness, or fatality does not mean that an employer or employee was at
fault, that an OSHA rule has been violated, or that the employee is
eligible for workers' compensation or other benefits. As noted
elsewhere in this preamble, the purpose of this rulemaking is to
improve workplace safety and health through the collection of useful,
accessible, establishment-specific injury and illness data to which
OSHA currently does not have direct, timely, and systematic access. The
information acquired through this final rule will assist employers,
employees, employee representatives, researchers, and the government to
better identify and correct workplace hazards.
OSHA also disagrees with commenters who suggested that the Agency
will use the "no fault" recordkeeping system to target employers for
enforcement efforts. As discussed elsewhere in this preamble, and
consistent with the Agency's longstanding practice, OSHA will use a
neutral administrative plan when targeting employers for onsite
inspection, similar to how the Agency has administered enforcement
activities under the Site-Specific Targeting program.
Section 1904.41(a)(3) Seems To Give OSHA Unlimited Power
Andrew Sutton commented that the language in proposed Sec.
1904.41(a)(3) appears to give OSHA "unfettered discretion." This
section would have provided that upon notification, you must
electronically send to OSHA or OSHA's designee the requested
information, at the specified time interval, from the records that you
keep under part 1904. According to the commenter, this section might be
seen to give too much power to OSHA for ad hoc data collection: "In
fact, the authority contained in this section could be said to make the
whole rest of 1904.41 redundant; OSHA could enact the whole rest of the
proposed regulation via the power granted here." (Ex. 0245).
In response, OSHA notes that, like the proposed rule, Sec.
1904.41(a)(3) of the rule requires that, upon request, employers must
electronically submit their OSHA part 1904 records to OSHA or OSHA's
designee. This section replaces OSHA's existing regulation at Sec.
1904.41, Annual OSHA injury and illness survey of ten or more
employers. In recent years, OSHA has used the authority in Sec.
1904.41 to conduct surveys through the OSHA Data Initiative (ODI).
It has never been OSHA's intention to exercise unfettered
discretion when collecting injury and illness records. Like the
existing regulation, Sec. 1904.41(a)(3) of the final rule provides
OSHA with authority to conduct surveys of employers regarding their
occupational injuries and illnesses. Historically, the information
collected through these surveys has assisted OSHA in identifying trends
in workplace hazards, evaluating the effectiveness of OSHA enforcement
activities, and gathering information for the promulgation of new
occupational safety and health standards and regulations.
OSHA further notes that data collection under final Sec.
1904.41(a)(3) would be subject to the Paperwork Reduction Act, which
provides that federal agencies generally cannot conduct or sponsor a
collection of information, and the public is not required to respond to
an information collection, unless it is approved by OMB and displays a
valid OMB Control Number. Also, pursuant to the PRA, notice of
information collections must be published in the Federal Register. As a
result, employers will be able to determine which employers are within
a survey group and which information will be collected each year before
the survey begins. Once a survey has been given an OMB control number
under the PRA, any substantive or material modification would require a
new PRA clearance.
In addition, final Sec. 1904.41(b)(7) provides that employers who
are partially exempt from keeping injury and illness records under
existing Sec. Sec. 1904.1 and/or 1904.2 are required to submit
recordkeeping data only if OSHA notifies them they will be required to
participate in a particular information collection under Sec.
1904.41(a)(3). OSHA will notify these employers in writing in advance
of the year for which injury and illness records will be required.
D. The Final Rule
The final rule is similar to the proposed rule in requiring
employers to electronically submit part 1904 records to OSHA. However,
there are also several differences from the proposed rule. The major
differences between the final rule and the proposed rule include the
following:
1. In the final rule, establishments with 250 or more employees
that are required to keep part 1904 records must electronically submit
some of the information from the three recordkeeping forms that they
keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries
and Illnesses, OSHA Form 300 Log of Work-Related Injuries and
Illnesses, and OSHA Form 301 Injury and Illness Incident Report) to
OSHA or OSHA's designee once a year. In the proposed rule, these
establishments would have been required to electronically submit all of
the information from the OSHA Form 300 and OSHA Form 301 quarterly, and
electronically submit all of the information from the OSHA Form 300A
annually.
2. In the final rule, for establishments with 20 to 249 employees,
the list of designated industries who must report in appendix A to
subpart E of part 1904 is based on a three-year average of BLS data from
2011, 2012, and 2013. In the proposed rule, the list of designated
industries in appendix A to subpart E of part 1904 would have been
based on one year of BLS data from 2009.
Under the final rule, employers have the following requirements:
1. Sec. 1904.41(a)(1)--Establishments with 250 or more employees
that are required to keep part 1904 records must electronically submit
the required information from the three recordkeeping forms that they
keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries
and Illnesses, OSHA Form 300 Log of Work-Related Injuries and
Illnesses, and OSHA Form 301 Injury and Illness Incident Report) to
OSHA or OSHA's designee annually. This information must be submitted no
later than March 2 of the year after the calendar year covered by the
form. The establishments are not required to submit the following
information:
a. Log of Work-Related Injuries and Illnesses (OSHA Form 300):
Employee name (column B).
b. Injury and Illness Incident Report (OSHA Form 301): Employee
name (field 1), employee address (field 2), name of physician or other
health care professional (field 6), facility name and address if
treatment was given away from the worksite (field 7).
2. Sec. 1904.41(a)(2)--Establishments with 20-249 employees that
are classified in a designated industry listed in appendix A to subpart
E of part 1904 must electronically submit the required information from
the OSHA Form 300A annually to OSHA or OSHA's designee. This
information must be submitted no later than March 2 of the year after
the calendar year covered by the form.
3. Sec. 1904.41(a)(3)--Establishments must electronically submit
the requested information from their part 1904 records to OSHA or
OSHA's designee after notification from OSHA.
Overall, the final rule's provisions requiring regular electronic
submission of injury and illness data will allow OSHA to obtain a much
larger database of timely, establishment-specific information about
injuries and illnesses in the workplace. This information will help
OSHA use its resources more effectively by enabling OSHA to identify
the workplaces where workers are at greatest risk. This information
will also help OSHA establish a comprehensive database that the Agency,
researchers, and the public can use to identify hazards related to
reportable events and to identify industries and processes where these
hazards are prevalent. The change from quarterly to annual reporting of
information from OSHA Form 300 and OSHA Form 301 by establishments with
250 or more employees will also lessen the burden of data collection on
both employers and OSHA.
Note that OSHA will phase in implementation of the data collection
system. In the first year, all establishments required to routinely
submit information under the final rule will be required to submit only
the information from the Form 300A (by July 1, 2017). In the second
year, all establishments required to routinely submit information under
the final rule will be required to submit all of the required
information (by July 1, 2018). This means that, in the second year,
establishments with 250 or more employees that are required to
routinely submit information under the final rule will be responsible
for submitting information from the Forms 300, 301, and 300A. In the
third year, all establishments required to routinely submit under this
final rule will be required to submit all of the required information
(by March 2, 2019). This means that beginning in the third year (2019),
establishments with 250 or more employees will be responsible for
submitting information from the Forms 300, 301, and 300A, and
establishments with 20-249 employees in an industry listed in appendix
A to subpart E of part 1904 will be responsible for submitting
information from the Form 300A by March 2 each year. This will provide
sufficient time to ensure comprehensive outreach and compliance
assistance in advance of implementation.
In addition, consistent with E.O. 13563, OSHA plans to conduct a
retrospective review, once the Agency has collected three full years of
data. OSHA will use the findings of the retrospective review to assess
the electronic submission requirements in the final rule and modify
them as appropriate and feasible.
IV. Section 1902.7--Injury and Illness Recording and Reporting
Requirements
In 1997, OSHA issued a final rule at Sec. 1904.17, OSHA Surveys of
10 or More Employers that required employers to submit occupational
injury and illness data to OSHA when sent a survey form. The Sec.
1904.17 rule enabled the Agency to conduct a mandatory survey of the
1904 data, which was named the OSHA Data Initiative (ODI). When OSHA
issued the 1997 rule, the Agency determined that the States were not
required to adopt a rule comparable to the federal Sec. 1904.17 rule
(62 FR 6441).
In 2001, Sec. 1952.4(d) (now Sec. 1902.7(d)) was added to the
final rule to continue to provide the States with the flexibility to
participate in the OSHA Data Initiative under the federal requirements
or the State's own regulation (66 FR 5916-6135). At its outset, Federal
OSHA conducted the OSHA data collection in all of the states, including
those which administered approved State Plans. However, Federal OSHA
then began to collect data only in the State-Plan States that wished to
participate. The current Sec. 1902.7(d) allowed the individual States
to decide, on an annual basis, whether or not they would participate in
the OSHA data collection. If the State elected to participate, the
State could either adopt and enforce the requirements of current Sec.
1904.41 as an identical or more stringent State regulation, or could
defer to the federal regulation and federal enforcement with regard to
the mandatory nature of the survey. If the State deferred to the
current federal Sec. 1904.41 regulation, OSHA's authority to implement
the ODI was not affected either by operational agreement with a State-
Plan State or by the granting of final State-Plan approval under
section 18(e).
In this rulemaking, the proposed rule would have required State-
Plan States to adopt requirements identical to those in 29 CFR 1904.41
in their recordkeeping and reporting regulations as enforceable State
requirements, as provided in section 18(c)(7) of the OSH Act. The data
collected by OSHA as authorized by Sec. 1904.41 would have been made
available to the State-Plan States. Nothing in any State Plan would
have affected the duties of employers to comply with Sec. 1904.41.
Three State-Plan States submitted comments on the proposed rule--
Kentucky (Ex. 208), North Carolina (Ex. 1195), and California (Ex.
1395). However, they did not comment specifically on this part of the
proposed rule. OSHA also did not receive any other comments on this
part of the proposed rule.
The final rule is the same as the proposed rule. State-Plan States
must adopt requirements identical to those in 29 CFR 1904.41 in their
recordkeeping and reporting regulations as enforceable State
requirements, as provided in section 18(c)(7) of the OSH Act. OSHA will
make the data collected by OSHA under this final rule available to the
State Plan States. Nothing in any State plan will affect the duties of
employers to comply with Sec. 1904.41.
V. Section 1904.35 and Section 1904.36
A. Background
One of the goals of the final rule is to ensure the completeness
and accuracy of injury and illness data collected by employers and reported
to OSHA. Therefore, Sec. 1904.35 of the final rule contains three new
provisions that promote complete and accurate reporting of work-related
injuries and illnesses by requiring employers to provide certain
information on injury and illness reporting to employees, clarifying
that employer reporting procedures must be reasonable, and prohibiting
employers from retaliating against employees for reporting work-related
injuries and illnesses, consistent with the existing prohibition in
section 11(c) of the OSH Act.
In the initial comment period and at the public meeting, many
commenters expressed concern that the public availability of OSHA data
would motivate some employers to under-record injuries and illnesses,
in part by attempting to reduce the number of recordable injuries and
illness their employees report to them. See, e.g., Exs. 0114, 1327,
1647, 1648, 1651, 1675, 1695. Exs. 0165, 01-09-2014 Tr. at 54-55; 01-
10-2014 Tr. at 52-55. In addition, commenters in both comment periods
pointed to numerous studies finding that under-recording is already a
serious issue. See, e.g., Exs. 1675, 1679, 1685, 1695. OSHA concludes
that the rulemaking record supports these concerns. Therefore, this
final rule includes provisions intended to promote accurate recording
of work-related injuries and illnesses by preventing the under-
recording that arises when workers are discouraged from reporting these
occurrences. The rule also establishes an additional mechanism for OSHA
to enforce the existing statutory prohibition on employer retaliation
against employees.
Specifically, the rule makes three changes to Sec. Sec. 1904.35
and 1904.36 consistent with the proposed changes set forth in the
August 14, 2014 Supplemental Notice of Proposed Rulemaking. The final
rule (1) requires employers to inform employees of their right to
report work-related injuries and illnesses free from retaliation; (2)
clarifies the existing implicit requirement that an employer's
procedure for reporting work-related injuries and illnesses must be
reasonable and not deter or discourage employees from reporting; and
(3) prohibits employers from retaliating against employees for
reporting work-related injuries or illnesses, consistent with the
existing prohibition in section 11(c) of the OSH Act.
The final rule also makes a technical edit to Sec. 1904.35(a)(3)
to clarify that the rights of employees and their representatives to
access injury and illness records are governed by Sec. 1904.35(b)(2).
Section 1904.35(a)(3) does not alter any of the substantive rights or
limitations contained in Sec. 1904.35(b)(2).
B. The Proposed Rule
On January 9 and 10, 2014, OSHA held a public meeting to discuss
the November 8, 2013 Notice of Proposed Rulemaking. Many meeting
participants expressed concern that the proposal to publish
establishment-specific injury and illness data on OSHA's publicly
available Web site might cause an increase in the number of employers
that adopt policies or practices that have the effect of discouraging
or deterring employees from reporting, including policies that result
in retaliation against employees who report work-related injuries and
illnesses. See, e.g., Exs. 0165, 01-09-2014 Tr. at 33-40. Such policies
and practices, when successful in deterring employee reporting, would
undermine the benefits of the rule by compromising the accuracy of
records and result in injustice for employees who do report their work-
related injuries and illnesses and then suffer retaliation for doing
so. OSHA seeks to ensure that employers, employees, and the public have
access to the most accurate data possible about injuries and illnesses
in workplaces so that they can take the most appropriate steps to
protect worker safety and health.
Therefore, on August 14, 2014, OSHA issued a Supplemental Notice of
Proposed Rulemaking to address this issue. OSHA requested comment on
"whether to amend the proposed rule to (1) require that employers
inform their employees of their right to report injuries and illnesses;
(2) require that any injury and illness reporting requirements
established by the employer be reasonable and not unduly burdensome;
and (3) prohibit employers from taking adverse action against employees
for reporting injuries and illnesses."
Some commenters took issue with procedural aspects of the
supplemental notice to the propose rule. A few commenters asserted that
the supplemental notice to the proposed rule denied the public the
opportunity to meaningfully comment because it did not include proposed
regulatory text and was not specific enough about what conduct was to
be prohibited. Exs. 1566, 1650. However, under the Administrative
Procedure Act, proposed regulatory text is not required; agencies must
only include "either the terms or substance of the proposed rule or a
description of the subjects and issues involved." 5 U.S.C. 553(b)(3).
Here, the proposal explained the substance of the proposed rule and the
subjects and issues involved. In addition, the specificity and detail
of the comments OSHA received indicate that commenters understood the
issues under discussion. Furthermore, as discussed below, the final
regulatory text closely tracks the concepts and language used in the
proposal, meaning the proposal provided sufficient notice to the public
of the conduct to be prohibited. See Chocolate Mfrs. Ass'n v. Block,
755 F.2d 1098, 1105 (4th Cir. 1985) (notice is sufficient as long as
the final rule is a "logical outgrowth" from the notice). Therefore,
the supplemental notice to the proposed rule provided adequate notice
for commenters.
Other commenters, including the American Coatings Association,
stated that the amendments suggested by the supplemental proposal were
outside the scope of the original November 8, 2013 proposal (Ex. 1548).
OSHA agrees that these changes to Sec. Sec. 1904.35 and 1904.36 were
outside the scope of the original proposal. That is why OSHA published
a supplemental proposal and extended the public comment period. The
final amendments to Sec. Sec. 1904.35 and 1904.36 are within the scope
of the supplemental proposal, and are therefore permissible under the
Administrative Procedure Act.
C. The Final Rule
The final rule includes three new provisions in Sec. 1904.35.
These provisions follow directly and logically from the August 14, 2014
Supplemental Notice of Proposed Rulemaking. First, the final rule
amends paragraphs (a)(2) and (b)(1)(iii) to require employers to inform
employees of their right to report work-related injuries and illnesses
free from retaliation. Second, paragraph (b)(1)(i) of the final rule
clarifies that the reporting method already implicitly required by this
section must be reasonable and not deter or discourage employees from
reporting. And third, paragraph (b)(1)(iv) of the final rule prohibits
employers from retaliating against employees for reporting work-related
injuries or illnesses under section 1904.35 consistent with the
existing prohibition contained in section 11(c) of the OSH Act.
Section 1904.35, Paragraphs (a)(2) and (b)(1)(iii): Employee
Information on Reporting
The final rule strengthens paragraph (a) of Sec. 1904.35 by
expanding the previous requirement for employers to inform employees
how to report work-related injuries and illnesses so that the rule now
includes a mandate to inform employees that they have a right to report
work-related injuries and illnesses free from retaliation by their employer
as described in paragraph (b)(1)(iii) of the final rule. OSHA has determined
that this enhanced information-provision requirement will improve employee
and employer understanding of their rights and responsibilities related to
injury and illness reporting and thereby promote more accurate
reporting.
The rulemaking record supports OSHA's determination that requiring
employers to inform employees of their reporting rights will improve
the quality of employers' injury and illness records. Commenters
provided numerous examples and studies showing that many employees
avoid reporting injuries and illnesses because they are afraid that
doing so will result in retaliation. For example, Lipscomb et al.
(2012) found that many carpenters' apprentices avoided reporting
injuries and filing workers compensation claims because they feared
discipline, termination, or other adverse action. Exs. 1648, 1675,
1695. Other researchers discovered similar fears among a variety of
worker populations. See, e.g., Moore et al. (2013) (construction),
Southern Poverty Law Center and Alabama Appleseed (2013) (poultry
processing), Nebraska Appleseed (2009) (meatpacking), Lashuay and
Harrison (2006) (California low-wage workers), Scherzer et al. (2005)
(hotel room cleaners), Pransky et al. (1999) (manufacturing) (Exs.
1648, 1675, 1685, 1695). See also below regarding actual retaliation
against workers for reporting work-related injuries and illnesses. A
2009 survey by the U.S. Government Accountability Office (GAO) found
that two thirds of occupational health practitioners observed worker
fear of disciplinary action for reporting workplace injuries and
illnesses (Exs. 1675, 1695). Although some commenters questioned
whether underreporting is a real problem, the examples and studies
cited above have convinced OSHA that employee fear of retaliation is a
real barrier to reporting of work-related injuries and illnesses and
that the information-provision requirements in the final rule will
allay workers' fear of retaliation and lead to more accurate reporting.
Section 1904.35(b)(1)(i): Reasonable Reporting Procedures
The final rule amends paragraph (b)(1)(i) of Sec. 1904.35 to state
explicitly that employer procedures for employee reporting of work-
related illnesses and injuries must be reasonable. The previous version
of Sec. 1904.35(b)(1)(i) already required employers to set up a way
for employees to report work-related injuries and illnesses promptly.
The final rule adds new text to clarify that reporting procedures must
be reasonable, and that a procedure that would deter or discourage
reporting is not reasonable, as explained in a 2012 OSHA enforcement
memorandum. See OSHA Memorandum re: Employer Safety Incentive and
Disincentive Policies and Practices (Mar. 12, 2012). Although the
substantive obligations of employers will not change, the final rule
will have an important enforcement effect for the minority of employers
who do not currently have reasonable reporting procedures.
The rulemaking record supports OSHA's decision to include these
clarifying revisions to paragraph (b)(1)(i) in the final rule.
Commenters cited studies suggesting that employees are deterred from
reporting injuries and illnesses where the procedure for doing so is
too difficult. For example, Scherzer et al. (2005) found that many
hotel room cleaners failed to report work-related pain to management
because it took too many steps to do so (Ex. 1695). The revisions to
paragraph (b)(1) clarify that such unduly burdensome reporting
procedures would violate the final rule.
Commenters also raised concerns about rigid prompt-reporting
requirements in place at some workplaces that have resulted in employee
discipline for late reporting even though employees could not
reasonably have reported their injuries or illnesses earlier. See,
e.g., Exs. 1675, 1679, 1695, 1696. Several of these commenters
highlighted issues related to musculoskeletal disorders because such
disorders develop over time and therefore cannot be reported
immediately after an individual incident. The comment by the AFL-CIO
(Ex. 1695) typifies the views of these commenters:
Many employers have policies that require the immediate
reporting of a work-related injury by the worker, and for some
employers failure to follow this requirement will result in
discipline, regardless of the circumstances. In some cases workers
may be unaware that they have suffered an injury, since the pain or
symptoms do not manifest until later... This is particularly true
for musculoskeletal injuries. The worker reports the injury when
they recognize it has occurred, but are disciplined because the
reporting did not occur until after the event that caused the injury
occurred.
OSHA shares these concerns. Employer reporting requirements must
account for injuries and illnesses that build up over time, have
latency periods, or do not initially appear serious enough to be
recordable. The United Food and Commercial Workers International Union
provides several examples of food processing workers receiving
discipline for "late" reporting where it was not reasonable to have
expected the injured employee to report earlier. In one such case, a
worker reported shoulder and neck pain that had developed gradually due
to work-related repetitive motions beginning one week earlier. Although
there was no single incident that precipitated the injury, the worker
received a "final warning" for failure to "timely report an injury"
(Ex. 1679). This policy was not reasonable because it did not allow for
reporting within a reasonable time after the employee realized that he
or she had suffered a work-related injury.
OSHA disagrees with comments that express support for employers who
require immediate reporting of injuries and illnesses on the grounds
that such requirements are necessary for accurate recordkeeping, to
prevent fraud, and to address injuries before they get worse (Exs.
1449, 1658, 1663). OSHA recognizes that employers have a legitimate
interest in maintaining accurate records and ensuring that employees
are reporting genuine work-related injuries and illnesses in a
reasonably prompt manner. These interests, however, must be balanced
with fairness to employees who cannot reasonably discover their
injuries or illnesses within a rigid reporting period and with the
overriding objective of part 1904 to ensure that all recordable work-
related injuries and illnesses are recorded. Accordingly, for a
reporting procedure to be reasonable and not unduly burdensome, it must
allow for reporting of work-related injuries and illnesses within a
reasonable timeframe after the employee has realized that he or she has
suffered a work-related injury or illness.
A few commenters questioned whether reporting of work-related
injuries and illnesses is properly characterized as an employee right,
as opposed to an employee obligation. The Act provides that employees
and employers "have separate but dependent responsibilities and rights
with respect to achieving safe and healthful working conditions." 29
U.S.C. 651(b)(2). Part 1904 imposes the obligation to record and report
work-related injuries and illnesses on the employer. See 29 CFR 1904.4.
In turn, employers may require employees to report work-related
injuries and illnesses, as long as the procedures for doing so are
reasonable and the employer does not retaliate against employees when
they report.
Some commenters expressed concern that the requirement described in
the proposed rule--that reporting procedures "be reasonable and not
unduly burdensome"--was ambiguous and vague. See, e.g., Exs. 1532,
1566. The final rule provides that employers must establish a
"reasonable" procedure for employees to report work-related injuries
and illnesses and clarifies that a reporting procedure is not
reasonable if it would deter or discourage a reasonable employee from
reporting. OSHA did not include the phrase "unduly burdensome" in the
final rule. The "reasonable person" standard is an objective standard
that is well-established and applied in many areas of the law, and
which can be applied by laypeople without the use of experts. See
Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009). OSHA believes
the final rule's requirement that employers establish a reporting
procedure that would not deter or discourage a reasonable employee from
reporting work-related injuries and illnesses is sufficiently clear to
notify employers of their obligations under the rule while giving
employers flexibility to design policies that make sense for their
workplaces. Like the previous version of the rule, the final rule
imposes a performance requirement rather than prescribing specific
procedures employers must establish, and therefore gives employers
flexibility to tailor their programs to the needs of their workplaces.
See 66 FR 6052 (Jan. 19, 2001).
Section 1904.35(b)(1)(iv): Prohibition of Discrimination Against
Employees for Reporting a Work-Related Injury or Illness
The final rule adds paragraph (b)(1)(iv) to Sec. 1904.35 to
incorporate explicitly into part 1904 the existing prohibition on
retaliating against employees for reporting work-related injuries or
illnesses that is already imposed on employers under section 11(c) of
the OSH Act. As discussed in the Legal Authority section of this
preamble, paragraph (b)(1)(iv) of the final rule does not change the
substantive obligations of employers. Rather, paragraph (b)(1)(iv)
provides OSHA an enhanced enforcement tool for ensuring the accuracy of
employer injury and illness logs. Section 1904.36 of the final rule
further clarifies that section 11(c) also prohibits retaliating against
employees for reporting work-related injuries or illnesses, as
explained in the 2012 OSHA enforcement memorandum. See OSHA Memorandum
re: Employer Safety Incentive and Disincentive Policies and Practices
(Mar. 12, 2012). OSHA believes only a minority of employers engages in
prohibited retaliation, and the final rule will enable more effective
enforcement against those employers.
A number of commenters stated that there is no need to amend Sec.
1904.35 to prohibit retaliating against employees for reporting
injuries and illnesses because Section 11(c) of the Act already
prohibits such retaliation. See, e.g., Exs. 1473, 1549, 1655, 1662.
OSHA disagrees. Although the substantive obligations of employers will
not change under the new rule, the rule will have an important
enforcement effect. Section 11(c) only authorizes the Secretary to take
action against an employer for retaliating against an employee for
reporting a work-related illness or injury if the employee files a
complaint with OSHA within 30 days of the retaliation. 29 U.S.C.
660(c). The final rule provides OSHA with an additional enforcement
tool for ensuring the accuracy of work-related injury and illness
records that is not dependent on employees filing complaints on their
own behalf. Some employees may not have the time or knowledge necessary
to file a section 11(c) complaint or may fear additional retaliation
from their employer if they file a complaint. The final rule allows
OSHA to issue citations to employers for retaliating against employees
for reporting work-related injuries and illnesses and require abatement
even if no employee has filed a section 11(c) complaint.
Additionally, as noted by one commenter, adding a prohibition on
retaliation to part 1904 provides clear notice to employers of what
actions are prohibited, which will help to prevent retaliatory acts
from occurring in the first place (Ex. 1561). In other words, the final
rule serves a preventive purpose as well as a remedial one. The new
rule also differs from section 11(c) because it is specifically
designed to promote accurate recordkeeping. For comparison, under the
medical removal protection (MRP) provision of the lead standard, if an
employer denies MRP benefits in retaliation for an employee's exercise
of a right under the Act, OSHA can cite the employer and seek the
benefits as abatement, because payment of the benefits is important to
vindicate the health interests underlying MRP; section 11(c) is not an
exclusive remedy. United Steelworkers, AFL-CIO v. St. Joe Resources,
916 F.2d 294, 298 (5th Cir. 1990). Likewise, here OSHA can cite
employers under the final rule in order to advance the rule's purpose
of promoting accurate recordkeeping, which is grounded in OSHA's
authority under Section 8(c)(2) of the OSH Act (29 U.S.C. 657(c)(2)) to
require employers to maintain accurate records of work-related injuries
and illnesses.
OSHA anticipates that feasible abatement methods for violations of
paragraph (b)(1)(iv) will mirror some of the types of remedies
available under section 11(c); the goal of abatement would be to
eliminate the source of the retaliation and make whole any employees
treated adversely as a result of the retaliation. For example, if an
employer terminated an employee for reporting a work-related injury or
illness, a feasible means of abatement would be to reinstate the
employee with back pay. See McKennon v. Nashville Banner Pub. Co., 513
U.S. 352, 362 (1995) (citing Franks v. Bowman Transp. Co., 424 U.S.
747, 764 (1976)) ("[T]he object of compensation is to restore the
employee to the position he or she would have been in absent the
discrimination."); St. Joe Resources, 916 F.2d at 299 (Occupational
Safety and Health Review Commission may order employers to pay back pay
as abatement for violations of the MRP requirements). If an employer
retaliates against an employee for reporting a work-related illness or
injury by denying a bonus to a group of employees, feasible means of
abatement could include revising the bonus policy to correct its
retaliatory effect and providing the bonus retroactively to all of the
employees who would have received it absent the retaliation.
Some commenters acknowledged that the proposed rule gives OSHA
additional enforcement tools but argued that doing so impermissibly
interferes with section 11(c) by infringing on an employee's right to
bring a section 11(c) claim and by eliminating section 11(c)'s 30-day
window for employees to bring complaints. The final rule does not
abrogate or interfere with the rights or restrictions contained in
section 11(c). An employee who wishes to file a complaint under section
11(c) may do so within the statutory 30-day period regardless of
whether OSHA has issued, or will issue, a citation to the employer for
violating the final rule. OSHA believes that many employees will
continue to file 11(c) complaints because of the broader range of
equitable relief and punitive damages available under that provision.
Finally, one commenter suggested that retaliation cases are too complex
and fact-based to be suitable subjects of enforcement citations. Ex.
1645. OSHA disagrees. OSHA regularly issues citations based on complex
factual scenarios and will provide its staff with appropriate training
about enforcing the final rule.
Discrimination citable under paragraph (b)(1)(iv) could include
termination, reduction in pay, reassignment to a less desirable
position, or any other adverse action that "could well dissuade" a
reasonable employee from reporting a work-related injury or illness.
See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53,
57 (2006) (holding that the test for determining whether a particular
action is materially adverse is whether it would deter a reasonable
person from engaging in protected activity under Title VII). The
Burlington Northern case considered whether a particular action would
deter a reasonable person from filing a claim of sex discrimination. In
the context of the final rule, the test would be whether the action
would deter a reasonable employee from reporting a work-related injury
or illness. Commenters placed substantial emphasis on three specific
types of policies, discussed in more detail below: Disciplinary
policies, post-accident drug testing policies, and employee incentive
programs.
Commenters cited numerous examples of employers disciplining
employees who report injuries regardless of whether the employee
violated company safety policy. See, e.g., Exs. 1675, 1679, 1681, 1691,
1695, 1696. Although it is an employer's duty to enforce safety rules,
disciplining an employee simply for reporting an injury or illness
deters employees from reporting injuries and illnesses without
improving safety. Numerous commenters identified cases in which
employers suspended, reassigned, or even terminated employees simply
for being injured. See, e.g., Ex. 1695, attachment 16 (employee
suspended, placed on work restrictions, and threatened with termination
for having too many OSHA-recordable injuries), Ex. 1675 (employees
suspended for having been injured), Ex. 1681 (employees harassed and
terminated for reporting injuries or filing for workers compensation),
Ex. 1679 (employees terminated for being injured). Some commenters
pointed out progressive disciplinary policies involving increasingly
serious sanctions for additional reports. See, e.g., Exs. 1675, 1695.
Others pointed to employer policies that make employees who report
injuries ineligible for promotions (Ex. 1675) or automatically give
poor performance evaluations to employees who report OSHA-recordable
injuries (Ex. 1696). A report by the U.S. House of Representatives
Committee on Education and Labor made a similar finding that many forms
of "direct intimidation" are used by employers to discourage
reporting. See Hidden Tragedy: Underreporting of Workplace Injuries and
Illnesses, Majority Staff Report by the Committee on Education and
Labor, U.S. House of Representatives (June 2008); Exs. 1675, 1679,
1695. Under paragraph (b)(1)(iv) of the final rule, OSHA can issue
citations to employers who discipline workers for reporting injuries
and illnesses when no legitimate workplace safety rule has been
violated.
In addition, the United Steel, Paper and Forestry, Manufacturing,
Energy, Allied Industrial and Service Workers International Union (USW)
identified a number of cases where employers engaged in pretextual
disciplinary actions--asserting that an employee was being disciplined
for violating a safety rule where the real reason was the employee's
injury or illness report (Ex. 1675). This includes situations when
reporting employees are disciplined more severely than other employees
who worked in the same way, or when reporting employees are selectively
disciplined for violation of vague work rules such as "work
carefully" or "maintain situational awareness." Vague work rules are
particularly subject to abuse by the employer and would not be
considered legitimate workplace safety rules when they are used
disproportionately to discipline workers who have reported an injury or
illness. In contrast, a legitimate workplace safety rule should require
or prohibit specific conduct related to employee safety or health so it
can be applied fairly and not used as a pretext for retaliation. The
AFL-CIO identified a series of cases in which a Michigan administrative
law judge upheld findings of the Michigan Occupational Safety and
Health Administration that AT&T used these types of vague safety
policies as pretext for retaliating against employees who reported
workplace injuries. See Ex. 1695 (citing AT&T Servs. v. Aggeler, No. D-
11-242-1 (Mich. Admin. Hearing Sys., Jan. 13, 2013); AT&T Servs. v.
Wright, No. D-11-101-1 (Mich. Admin. Hearing Sys., Apr. 8, 2013); AT&T
Servs. v. Swift, No. D-11-200-1 (Mich. Admin. Hearing Sys., Mar. 6,
2013); AT&T Servs. v. West, No. D-11-311-1 (Mich. Admin. Hearing Sys.,
Apr. 23, 2013)). And even a legitimate work rule may not be applied
selectively to discipline workers who report work-related illnesses or
injuries but not employees who violate the same rule without reporting
a work-related injury or illness. Paragraph (b)(1)(iv) of the final
rule authorizes OSHA to issue citations to employers who engage in such
pretextual disciplinary actions.
OSHA believes that the majority of employers do not discipline
employees unless they have actually broken a legitimate workplace
safety or health rule and do not selectively discipline employees who
violate legitimate work rules only when they also report a work-related
injury or illness. But in the minority of workplaces where employers
may sanction employees for reporting, it is no surprise that workers
are deterred from reporting because they fear the consequences of doing
so. See above regarding worker fear of reporting work-related injuries
and illnesses. Data collected during OSHA's National Emphasis Program
on Injury and Illness Recordkeeping (Recordkeeping NEP) show that among
the surveyed workplaces where such disciplinary policies exist,
approximately 50 percent of workers reported that the policy deterred
reporting. See Analysis of OSHA's National Emphasis Program on Injury
and Illness Recordkeeping, Prepared for the Office of Statistical
Analysis, Occupational Safety and Health Administration, by ERG (Nov.
1, 2013); Ex. 1835. Therefore, OSHA expects that enforcement of the
provisions in the final rule will improve the rate and accuracy of
injury and illness reporting.
OSHA received a number of comments expressing concern that this
section of the final rule will have a chilling effect on employers
disciplining employees who violate safety rules, thereby contributing
to a less safe work environment. It is important to note that the final
rule prohibits employers only from taking adverse action against an
employee because the employee reported an injury or illness. Nothing in
the final rule prohibits employers from disciplining employees for
violating legitimate safety rules, even if the same employee who
violated a safety rule also was injured as a result of that violation
and reported that injury or illness (provided that employees who
violate the same work rule are treated similarly without regard to
whether they also reported a work-related illness or injury). What the
final rule prohibits is retaliatory adverse action taken against an
employee simply because he or she reported a work-related injury or
illness.
Commenters also pointed to policies mandating automatic post-injury
drug testing as a form of adverse action that can discourage reporting.
See, e.g., Exs. 1675, 1695. Although drug testing of employees may be a
reasonable workplace policy in some situations, it is often perceived
as an invasion of privacy, so if an injury or illness is very
unlikely to have been caused by employee drug use, or if the method of
drug testing does not identify impairment but only use at some time in
the recent past, requiring the employee to be drug tested may
inappropriately deter reporting. The U.S. House of Representatives
Committee on Education and Labor has recognized that "to intimidate
workers, employers may require that workers are tested for drugs or
alcohol [after every incident or injury], irrespective of any potential
role of drug intoxication in the incident" (Exs. 1675, 1679, 1695).
The Committee also pointed to Scherzer et al. (2005), which found that
32 percent of surveyed Las Vegas hotel workers who reported work-
related pain were forced to take drug tests, even though studies like
Krause et al. (2005) show that such injuries are often caused by
physical workload, work intensification, and ergonomic problems--not by
workplace mistakes that could have been caused by drugs. Id. The
American National Standards Institute (ANSI) has similarly recognized
the need for drug testing programs to be "carefully designed and
implemented to ensure employees are not discouraged from effective
participation in [injury and illness reporting programs]" (Ex. 1695).
OSHA believes the evidence in the rulemaking record shows that
blanket post-injury drug testing policies deter proper reporting.
Morantz and Mas (2008) conducted a study on a large retail chain and
found that post-accident drug testing caused a substantial reduction in
injury claims. The authors found suggestive evidence that at least part
of that reduction was due to the reduced willingness of employees to
report accidents (Ex. 1675). Crant and Bateman (1989) describe privacy
concerns and other individual factors that can affect employee
willingness to participate in drug testing programs and report
accidents. Id. OSHA's Recordkeeping NEP data also supports that
hypothesis because many workers reported that such post-injury drug
testing programs deterred reporting (Ex. 1695).
Some commenters stated their belief that drug testing of employees
is important for a safe workplace; some expressed concern that OSHA
planned a wholesale ban on drug testing (Exs. 1667, 1674). To the
contrary, this final rule does not ban drug testing of employees.
However, the final rule does prohibit employers from using drug testing
(or the threat of drug testing) as a form of adverse action against
employees who report injuries or illnesses. To strike the appropriate
balance here, drug testing policies should limit post-incident testing
to situations in which employee drug use is likely to have contributed
to the incident, and for which the drug test can accurately identify
impairment caused by drug use. For example, it would likely not be
reasonable to drug-test an employee who reports a bee sting, a
repetitive strain injury, or an injury caused by a lack of machine
guarding or a machine or tool malfunction. Such a policy is likely only
to deter reporting without contributing to the employer's understanding
of why the injury occurred, or in any other way contributing to
workplace safety. Employers need not specifically suspect drug use
before testing, but there should be a reasonable possibility that drug
use by the reporting employee was a contributing factor to the reported
injury or illness in order for an employer to require drug testing. In
addition, drug testing that is designed in a way that may be perceived
as punitive or embarrassing to the employee is likely to deter injury
reporting.
A few commenters also raised the concern that the final rule will
conflict with drug testing requirements contained in workers'
compensation laws. This concern is unwarranted. If an employer conducts
drug testing to comply with the requirements of a state or federal law
or regulation, the employer's motive would not be retaliatory and the
final rule would not prohibit such testing. This is doubly true because
Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting
workers' compensation laws. 29 U.S.C. 653(b)(4).
Finally, many commenters expressed concern with the retaliatory
nature of the employee incentive programs at some workplaces, providing
myriad examples. See, e.g., Exs. 1661, 1675, 1679, 1695. Employee
incentive programs take many forms. An employer might enter all
employees who have not been injured in the previous year in a drawing
to win a prize, or a team of employees might be awarded a bonus if no
one from the team is injured over some period of time. Such programs
might be well-intentioned efforts by employers to encourage their
workers to use safe practices. However, if the programs are not
structured carefully, they have the potential to discourage reporting
of work-related injuries and illnesses without improving workplace
safety. The USW provided many examples of employer incentive policies
that could discourage reporting of work-related injuries and illnesses.
Ex. 1675. One employer had a policy that involved periodic prize
drawings for items such as a large-screen television; workers who
reported an OSHA-recordable injury were excluded from the drawing. Id.
The American College of Occupational and Environmental Medicine noted
that many of its member physicians reported knowledge of situations
where employers discouraged injury and illness reporting through
incentive programs predicated on workers remaining "injury free,"
leading to peer pressure on employees not to report (Ex. 1661).
In addition, in recent years, a number of government reports have
raised concerns about the effect of incentive programs on injury and
illness reporting. A 2012 GAO study found that rate-based incentive
programs, which reward workers for achieving low rates of reported
injury and illnesses, may discourage reporting. Ex. 1695. Other, more
positive incentive programs, which reward workers for activities like
recommending safety improvements, did not have the same effect. A
previous GAO study had also highlighted incentive programs as a cause
of underreporting of work-related injuries and illnesses (Exs. 1675,
1695). The 2008 House Report listed examples of problematic incentive
programs and found that "depending on how an incentive program is
structured, reluctance to lose the bonus or peer pressure from other
crew members whose prizes are also threatened reduces the reporting of
injuries and illnesses in the job, rather than reducing the actual
number of workplace injuries and illnesses" (Exs. 1675, 1679, 1695).
In 2006, a report by the California State Auditor found that an
employee incentive program had likely caused the significant
underreporting of injuries by the company working on reconstruction of
a portion of the San Francisco Bay Bridge (Ex. 1695). The company
offered employees monetary incentives up to $1,500 only if zero
recordable injuries were reported. This kind of incentive program is
especially likely to discourage reporting because not only will the
injured employee not receive the prize after reporting an injury, but
the employee is even less likely to report out of fear of angering or
disappointing the coworkers who will also be denied the prize, or
because the coworkers actively pressure the worker not to report.
OSHA has previously recognized that incentive programs that
discourage employees from reporting injuries and illnesses by denying a
benefit to employees who report an injury or illness may be prohibited
by section 11(c). See OSHA Memorandum re: Employer Safety Incentive and
Disincentive Policies and Practices (Mar. 12, 2012); see also
ANSI/AIHA Z10-2012, Ex. 1695, attachment 5 ("incentive programs...
should be carefully designed and implemented to ensure employees are not
discouraged from effective participation in [injury and illness reporting
programs"). The same memorandum pointed out that, to the extent incentive
programs cause under-reporting, they can result in under-recording of
injuries and illnesses, which may lead to employer liability for
inaccurate recordkeeping. The latter concern is what is being addressed by
this final rule's prohibition on employers using incentive programs in a
way that impairs accurate recordkeeping.
Some commenters expressed satisfaction with existing safety
incentive programs that provide monetary incentives to employees who
maintain low blood lead levels, and requested that OSHA not undermine
such programs (Exs. 1488, 1654, 1683). OSHA does not intend the final
rule to categorically ban all incentive programs. However, programs
must be structured in such a way as to encourage safety in the
workplace without discouraging the reporting of injuries and illnesses.
The specific rules and details of implementation of any given
incentive program must be considered to determine whether it could give
rise to a violation of paragraph (b)(1)(iv) of the final rule. It is a
violation of paragraph (b)(1)(iv) for an employer to take adverse
action against an employee for reporting a work-related injury or
illness, whether or not such adverse action was part of an incentive
program. Therefore, it is a violation for an employer to use an
incentive program to take adverse action, including denying a benefit,
because an employee reports a work-related injury or illness, such as
disqualifying the employee for a monetary bonus or any other action
that would discourage or deter a reasonable employee from reporting the
work-related injury or illness. In contrast, if an incentive program
makes a reward contingent upon, for example, whether employees
correctly follow legitimate safety rules rather than whether they
reported any injuries or illnesses, the program would not violate this
provision. OSHA encourages incentive programs that promote worker
participation in safety-related activities, such as identifying hazards
or participating in investigations of injuries, incidents, or "near
misses." OSHA's Voluntary Protection Program (VPP) guidance materials
refer to a number of positive incentives, including providing t-shirts
to workers serving on safety and health committees; offering modest
rewards for suggesting ways to strengthen safety and health; or
throwing a recognition party at the successful completion of company-
wide safety and health training. See Revised VPP Policy Memo #5:
Further Improvements to the Voluntary Protection Programs (August 14,
2014).
VI. Final Economic Analysis and Regulatory Flexibility Certification
A. Introduction
Executive Orders 12866 and 13563 require that OSHA estimate the
benefits, costs, and net benefits of proposed and final regulations.
Executive Orders 12866 and 13563, the Regulatory Flexibility Act, and
the Unfunded Mandates Reform Act also require OSHA to estimate the
costs, assess the benefits, and analyze the impacts of certain rules
that the Agency promulgates. Executive Orders 12866 and 13563 direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility.
In the proposal, OSHA estimated that this rule would have economic
costs of $11.9 million per year, including $10.7 million per year to
the private sector, with costs of $183 per year for affected
establishments with 250 or more employees and $9 per year for affected
establishments with 20 or more employees in designated industries. The
Agency believed that the annual benefits, while unquantified,
significantly exceed the annual costs.
In this final rule, OSHA estimates that the rule will have economic
costs of $15.0 million per year, including $14 million per year to the
private sector with costs of $214 per year to affected establishments
with 250 or more employees and $11.13 per year for affected
establishments with 20 to 249 employees in designated industries. The
Agency continues to believe that the annual benefits, while
unquantified, significantly exceed the annual costs.
The final rule is not an "economically significant regulatory
action" under Executive Order 12866 or the Unfunded Mandates Reform
Act (UMRA) (2 U.S.C. 1532(a)), and it is not a "major rule" under the
Congressional Review Act (5 U.S.C. 801 et seq.). The Agency estimates
that the rulemaking imposes far less than $100 million in annual
economic costs. In addition, it does not meet any of the other criteria
specified by UMRA or the Congressional Review Act for a significant
regulatory action or major rule. This Final Economic Analysis (FEA)
addresses the costs, benefits, and economic impacts of the final rule.
The final rule will make four changes to the existing recording and
reporting requirements in part 1904. These changes in existing
requirements differ somewhat from those in the proposed rule.
First, OSHA will require establishments that are required to keep
injury and illness records under part 1904, and that had 250 or more
employees in the previous year, to electronically submit the required
information from all three OSHA recordkeeping forms to OSHA or OSHA's
designee, on an annual basis.
Second, OSHA will require establishments that are required to keep
injury and illness records under part 1904, had 20 to 249 employees in
the previous year, and are in certain designated industries, to
electronically submit the required information from the OSHA annual
summary form (Form 300A) to OSHA or OSHA's designee, on an annual
basis.
Third, OSHA will require all employers who receive notification
from OSHA to electronically submit the requested information from their
injury and illness records to OSHA or OSHA's designee. Any such
notification will be subject to the approval process established by the
Paperwork Reduction Act.
Fourth, OSHA will require employers to inform employees of their
right to report injuries and illness and prohibit discrimination
against employees who report injuries and illnesses.
The final rule does not add to or change any employer's obligation
to complete, retain, and certify injury and illness records. The final
rule also does not add to or change the recording criteria or
definitions for these records. The only changes are that, under certain
circumstances, employers will be obligated to submit information from
these records to OSHA in an electronic format and to assure that
employees have, and understand they have, a right to report injuries
and illnesses without fear of discrimination. OSHA requested comments
and received many helpful comments throughout this process. For
example, one commenter suggested that OSHA should run a pilot program
of electronic reporting (Ex. 1109). In many ways, OSHA's previous
collection of these data through the OSHA Data Initiative (the ODI) was
a lengthy pilot program, and a successful one which lasted for almost
20 years. This final rule is an extension of that effort, by expanding
the collection to involve more establishments and to collect a larger
set of injury and illness data. For many of the establishments affected
by this final rule, the data submitted will be identical to the data
that was collected by the ODI.
As OSHA explained in the preamble to the proposed rule, the
electronic submission of information to OSHA would be a relatively
simple and quick matter. In most cases, submitting information to OSHA
would require several basic steps: (1) Logging on to OSHA's web-based
submission system; (2) entering basic establishment information into
the system (the first time only); (3) copying the required injury and
illness information from the establishment's records into the
electronic submission forms; and (4) hitting a button to submit the
information to OSHA. In many cases, especially for large
establishments, OSHA data are already kept electronically, so step 3
would be less time-intensive relative to cases in which records are
kept on paper. The submission system, as anticipated, would also save
an establishment's information from one submission to the next, so step
2 might be eliminated for most establishments after the first
submission.
Many commenters questioned whether the process would be this
simple. OSHA will first examine the costs of the activities outlined
above, and then address a wide variety of comments on other costs in
addition to those for the activities outlined above.
B. Costs
1. Sec. 1904.41(a)(1)--Annual Electronic Submission of Part 1904
Records by Establishments With 250 or More Employees
In the Preliminary Economic Analysis (PEA), OSHA obtained the
estimated cost of electronic data submission per establishment by
multiplying the compensation per hour (in dollars) of the person
expected to perform the task of electronic submission by the time
required for the electronic data submission. OSHA then multiplied this
cost per establishment by the estimated number of establishments that
would be required to submit data, to obtain the total estimated costs
of this part of the proposed rule. This methodology was retained in the
FEA.
To estimate the compensation of the person expected to perform the
task of electronic data submission in the PEA, OSHA suggested that
recordkeeping tasks are most commonly performed by a Human Resource,
Training, and Labor Relations Specialist, Not Elsewhere Classified
(Human Resources Specialist). In the PEA, OSHA estimated compensation
using May 2008 data from the BLS Occupational Employment Survey (OES),
reporting a mean hourly wage of $28 for Human Resources Specialists,
and June 2009 data from the BLS National Compensation Survey, reporting
a mean fringe benefit factor of 1.43 for civilian workers in general.
OSHA multiplied the mean hourly wage ($28) by the mean fringe benefit
factor (1.43) to obtain an estimated total compensation (wages and
benefits) for Human Resources Specialists of $40.04 per hour ([$28 per
hour] x 1.43).
OSHA requested comments as to whether the Human Resources
Specialist was a reasonable wage rate, and received only a few comments
(Exs. 0211, 1110, 0194, 1198). Many comments on the subject of
occupation performing the collection and submission stated that the use
of a Human Resource Specialists was not reflective of their experience.
For example, the Food Market Institute (FMI) commented, "For instance,
while OSHA asserts the new responsibilities will be shouldered by human
resources personnel, it is far more likely that each establishment's
safety professionals will be burdened with the task." (Ex. 1198) One
comment from the American Subcontractors Association stated, "Instead,
among small and mid-sized ASA member firms, tasks like these are
performed by high level management personnel. In larger construction
firms, such tasks are likely to be performed by safety and health
professionals" (Ex. 1322). Other commenters suggested that a more
senior person would be needed to go over the data. Aimee Brooks of
Western Agricultural Processors Association (WAPA) stated, "It is
highly likely that upper level management would be inputting this
information, as giving this information sensitive task to office staff
at the workplace would be a liability to the business. If such
responsibility is given to office staff, it would need to be
accompanied with training regarding protecting sensitive information
and privacy" (Ex. 1273).
OSHA believes that throughout the economy, relatively low-wage
employees handle sensitive information, including PII such as employee
Social Security numbers, payroll information, and customers' credit
card information. OSHA further believes that specialized training is
not required before handling PII. For example, many restaurants do not
train wait staff specifically in the handling of credit card
information.
OSHA does agree with commenters who argued that the average
compensation for recordkeepers might be greater than for a human
resources specialist. For this Final Economic Analysis (FEA), OSHA
updated those compensation numbers using the same sources, but a
different occupational classification. This change was made so that
this regulation will be consistent with OSHA's 2014 recordkeeping
paperwork package and OSHA's September 2014 recordkeeping regulation.
For the FEA, OSHA estimated compensation using May 2014 data from the
BLS Occupational Employment Survey (OES), reporting a mean hourly wage
of $33.88 for Industrial Health and Safety Specialists, and December
2014 data from the BLS National Compensation Survey, reporting a mean
fringe benefit factor of 1.44 for civilian workers in general. OSHA
multiplied the mean hourly wage ($33.88) by the mean fringe benefit
factor (1.44) to obtain an estimated total compensation (wages and
benefits) for Industrial Health and Safety Specialists of $48.78 per
hour ([$33.88 per hour] x 1.44). This represents an increase in the
wage rate of 22 percent over the wage used in the PEA.
OSHA recognizes that not all firms assign the responsibility for
recordkeeping to an Industrial Health and Safety Specialist. For
example, a smaller firm may use a bookkeeper or a plant manager, while
a larger firm may use a higher level specialist. However, OSHA believes
that the calculated cost of $48.78 per hour is a reasonable estimate of
the hourly compensation of a typical recordkeeper. In the case of a
very small firm, this wage rate may exceed the owner or proprietor's
wage. BLS data from the Quarterly Census of Employment and Wages (2014)
show that the average weekly wage for a worker in a firm with 20 to 49
employees is $848 per week, while the average wage for a worker in a
firm with 1,000 or more employees is $1,699 per week--nearly twice as
high as the smaller firm.
For time required for the data submission in the PEA, OSHA used the
estimated unit time requirements reported by BLS in their paperwork
burden analysis for the Survey of Occupational Injuries and Illnesses
(SOII) (OMB Control Number 1220-0045, expires October 31, 2013).
\1\ BLS estimated 10 minutes per recordable injury/illness case for
electronic submission of the information on Form 301 (Injury and Illness
Incident Report) and Form 300 (Log of Work-Related Injuries and Illnesses).
BLS also estimated 10 minutes per establishment, total, for electronic
submission of the information on Form 300A (Summary of Work-Related
Injuries and Illnesses). For the FEA, OSHA used, where appropriate, the
values reported in the latest BLS SOII paperwork package (OMB Control Number
1220-0045, expires September 30, 2016).
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\1\ The ODI paperwork analysis (1218-0209) estimates an average
time of 10 minutes per response for submitting Form 300A data. The
ODI does not require submission of Form 301 data. The 10 minute
estimate form the ODI is equal to the 10 minute estimate from the
BLS SOII for submission of the same data.
---------------------------------------------------------------------------
Many of the comments on the 10 minutes originally estimated by OSHA
for submitting the requested data were general in nature and often
conflated the time to submit the data with the time to audit the data
(Exs. 1113, 1092, 1192, 1421, 1366). A typical statement was, "OSHA
estimates the electronic submission process would take each
establishment only 10 minutes for each OSHA 301 submission and 10
minutes for the submission of both the OSHA 300 and 300A. This fails to
accurately account for the time it would take employees to familiarize
themselves with the process and review reports to ensure compliance
with all regulations" (Ex. 1421).
Some comments directly addressed the issue of the relevance of the
BLS estimates to OSHA's requirements (Exs. 1328, 1411). Eric Conn,
representing the National Retail Federation (NRF), commented on the use
of BLS's time estimate for submitting data, stating, "The data
submitted for the BLS survey, however, is more limited in terms of
information requested. BLS requests only certain data for up to 15
cases, but the Proposed Regulation would require all relevant Form 300
and/or 300A information from the entire injury and illness record. Thus
the time burden would actually be much greater than OSHA predicts"
(Ex. 1328).
OSHA agrees that the final rule requires information on all
individual cases and not just on 15 or fewer lost workday injuries and
illnesses, as required by BLS. The requirement for information on all
cases from Form 301 was addressed in the PEA by estimating ten minutes
per form entered and multiplying this by the number of forms OSHA would
require to be submitted, rather than the number BLS requires to be
submitted. Such differences are trivial, with the possible exception of
the individual injury/illness entries on Form 300. In the FEA, OSHA has
added two minutes per injury or illness listed on the OSHA 300 Log to
account for this difference. Along with the 10 minutes per 300A
Summary, OSHA is estimating more time than the BLS paperwork burden.
For example, in the simplest case, OSHA estimates that an establishment
with more than 250 employees and a single injury will take (on average)
10 minutes to electronically submit the OSHA Summary (Form 300A), 10
minutes to submit the single injury report (Form 301) and 2 minutes to
submit the one line that would be on the 300 Log for each recorded
injury, for a total of 22 minutes. BLS estimates 20 minutes as the
average time across all employers for any number of injuries.
In the PEA, using the information on estimated hourly compensation
of recordkeepers and estimated time required for data submission, OSHA
calculated that the estimated cost per establishment with 250 or more
workers for quarterly data submission of the information on Forms 300
and 300A would be $26.69 per year ([10 minutes per data submission] x
[1 hour per 60 minutes] x [$40.04 per hour] x [4 data submissions per
year]). Because the final rule now requires data to be submitted once a
year, rather than four times a year, the equation in the FEA for
submitting the Form 300A data is: $8.13 per year ([10 minutes per data
submission] x [1 hour per 60 minutes] x [$48.78 per hour] x [1 data
submission per year]). Note that $8.13 per year is nearly 75 percent
less than the annual cost in the PEA because OSHA will not require
quarterly submission. In addition, the estimated cost per recordable
injury/illness case in the final rule is $9.74 ([10 minutes per case
for form 301 entries plus 2 minutes per case for entry of form 300 log
entries] x [1 hour per 60 minutes] x [$48.78 per hour]).
To calculate the total estimated costs of this part of the rule in
the PEA, OSHA used establishment and employment counts from the U.S.
Census County Business Patterns (CBP), data from the U.S. Census
Enterprise Statistics (ES), and injury and illness counts from the BLS
Survey of Occupational Injuries and Illnesses (SOII).\2\ In the PEA,
CBP data showed that there were 38,094 establishments with 250 or more
employees in the industries covered by this section. The CBP data also
indicated that these large establishments employed 35.8 percent of all
employees in the covered industries. In the FEA, using newer CBP data,
OSHA finds that there are 33,674 establishments with 250 or more
employees, a decrease of 11 percent.
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\2\ For the CBP see: http://www.census.gov/econ/cbp/. For the ES
see: http://www.census.gov/econ/esp/. For the SOII see: http://www.bls.gov/iif/oshsum.htm.
---------------------------------------------------------------------------
For the PEA, the BLS data showed a total of 2,486,500 injuries and
illnesses that occurred in the covered industries. For the FEA, more
recent BLS data were aggregated, and a total of 1,992,458 injuries and
illnesses were found in the covered industries.
In both the PEA and the FEA, to calculate the number of injuries
and illnesses that will be reported by covered establishments with 250
or more employees, OSHA assumed that total recordable cases in
establishments with 250 or more employees would be proportional to
their share of employment within the industry. Thus in the PEA, OSHA
estimated that 890,288 injury and illness cases would be reported per
year by establishments with 250 or more employees that were covered by
this section. In the FEA, using the same methodology and more recent
data, OSHA estimates that 713,397 injury and illness cases will be
reported per year by establishments with 250 or more employees covered
by this section.
In the PEA, OSHA calculated an estimated total cost of quarterly
data submission of non-case information of $1,016,729 ([38,094
establishments required to submit data quarterly] x [$26.69 for
electronic data submission per year]). In addition, OSHA calculated an
estimated total cost of quarterly data submission of case information
of $5,938,221 ([890,288 injury/illness cases per year at affected
establishments] x [$6.67 per injury/illness case]). Summing these two
costs yielded a total cost of $6,954,950 per year for the proposed rule
($1,016,729 + $5,938,221), for an average cost per affected
establishment of $183 per year.
In the FEA, OSHA used the same equations above, using newer data
plus an additional two minutes per injury and illness case to enter
Form 300 data, to estimate the total cost of annual data submission
under this section of the final rule. OSHA estimates a total cost of
annual data submission of non-case information of $273,770 ([33,674
establishments required to submit data annually] x [$8.13 for
electronic data submission per year]). In addition, OSHA calculates an
estimated total cost of annual data submission of case information of
$6,948,487 ([713,397 injury/illness cases per year at affected
establishments] x [$9.74 per injury/illness case]). Summing these two
costs yields a total cost of $7,222,257 per year for the final rule
($273,770 + $6,948,487), for an average cost per affected establishment
of $214 per year.
OSHA requested comments on all aspects of the PEA, including
examples of establishments with 250 or more employees that cannot
report electronically with existing facilities and equipment or data
sources showing that such establishments exist. Aimee Brooks commented
on behalf of Western Agricultural Processors Association (WAPA): ". .
. in some areas of California, tree nut hullers and processors do not
have a computer or internet access" (Ex. 1273). Aimee Brooks also
stated on behalf of California Cotton Ginners and Growers Association
(CCGGA): "Cotton growers and ginners are usually remotely located and
access to internet or a computer is not only limited, but both hardware
and software are generally out of date, unreliable, and slow, meaning
the online reporting process will take much longer than the OSHA
estimate of 10 minutes per establishment" (Ex.1274).
As will be discussed below, many commenters were concerned that
requiring electronic submission might be a problem for some small
firms; however, no clear examples were provided of an establishment
with over 250 employees that did not have computers and Internet
access. Based on the comments to the proposed rule, and OSHA's own
experience, the Agency continues to believe that large establishments
with 250 or more employees have access to computers and the
Internet.\3\
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\3\ Note that the establishments subject to the requirements in
this section of the final rule include establishments that
previously submitted data under the OSHA Data Initiative (ODI).
However, OSHA has decided not to subtract the existing costs of
submitting data for the ODI from the total costs estimated for this
section of the final rule.
---------------------------------------------------------------------------
2. Sec. 1904.41(a)(2)--Annual Electronic Submission of OSHA Annual
Summary Form (Form 300A) by Establishments With 20 or More Employees
but Fewer Than 250 Employees in Designated Industries
OSHA's methodology for estimating the costs of this section of the
proposed rule in the PEA was similar to the methodology for estimating
the costs of the previous section. OSHA first obtained the estimated
cost of electronic data submission per establishment by multiplying the
compensation per hour (in dollars) for the person expected to perform
the task of electronic data submission by the time required for the
electronic data submission. OSHA then multiplied this cost by the
estimated number of establishments that would be required to submit
data, to obtain the total estimated costs of this part of the proposed
rule.
In the PEA, for compensation per hour, OSHA used the calculated
cost of $40.04 per hour as a reasonable estimate of the hourly
compensation of a representative recordkeeper. In the FEA, as discussed
above, OSHA has increased this per-hour wage to $48.78.
In the PEA, OSHA used the BLS estimate of 10 minutes per
establishment for electronic submission of the information on Forms 300
and 300A (Summary of Work-Related Injuries and Illnesses) to estimate
the time required for this submission. The estimated cost per
establishment for electronic submittal under this part of the proposed
rule was $6.67 per year ([$40.04 per hour] x [10 minutes per data
submission] x [1 hour per 60 minutes] x [one data submission per
year]).
For the FEA, the estimated cost per establishment for electronic
submittal under this part of the proposed rule is $8.13 per year
([$48.78 per hour] x [10 minutes per data submission] x [1 hour per 60
minutes] x [one data submission per year]).
In the PEA, OSHA estimated that the number of establishments
subject to this part of the proposed rule would be 440,863. OSHA noted
in the PEA that many of these establishments were already submitting
these data to OSHA through the ODI. 47,700 establishments of the 68,600
establishments in the 2010 ODI (70 percent) submitted their data
electronically.
As a result, OSHA estimated that the direct labor cost of this part
of the proposed rule would have been $2,622,397 ([$6.67 per
establishment per year] x ([440,863 establishments affected under the
proposed rule]-[47,700 establishments already submitting electronically
to the ODI])).
This estimate is based on the assumption that all of the affected
establishments have on-site access to a computer and an adequate
Internet connection. However, as noted above, 30 percent of
establishments in the 2010 ODI did not submit data electronically. One
possible reason for this choice is that, for some of those
establishments, it was difficult to submit data electronically. Most
agencies currently allow non-electronic filing of information, and some
businesses continue to use this option, despite strong encouragement by
agencies to file electronically.
OSHA searched for but was unable to find information on the
proportion of all businesses without access to a computer and the
Internet. However, OSHA did find a survey, conducted by a contractor
for the Office of Advocacy of the Small Business Administration (SBA)
in the spring of 2010, on the use of Internet connectivity by small
businesses, called "The Impact of Broadband Speed and Price on Small
Business" (http://www.sba.gov/sites/default/files/rs373tot_0.pdf).
This survey suggests that at least 90 percent of small businesses
surveyed use the Internet at their business. Further, the survey noted
that 75 percent of all small businesses not using the Internet were
small businesses with five or fewer employees. Given the survey's
estimates that 50 percent of small businesses have fewer than 5
employees, this means that 95 percent of all small businesses with five
or more employees have Internet connections. OSHA believes that even
this 95 percent is an underestimate for two reasons. First, the survey
is five years old, and during the past seven years the cost of both
computer equipment and Internet access has fallen (for example, since
May 2008 the BLS Personal Computer Index has fallen by nearly 20
percent; http://data.bls.gov/timeseries/CUSR0000SEEE01?output_view=pct_3mths). Second, the survey is of small
entities, not establishments. OSHA can show that a significant
proportion of small establishments are a part of non-small entities,
and those larger entities are even more likely to have computers and
Internet connections.
It also needs to be noted that the minimum establishment size
affected by this proposed rule is 20 employees. It is reasonable to
assume that an even smaller percentage of firms with 20 or more
employees lack a computer with an Internet connection.
OSHA was able to find only two current Federal Government data
collection programs that require data to be submitted electronically.
Effective January 1, 2010, the Department of Labor's
Employee Benefits Security Administration requires the electronic
filing of all Form 5500 Annual Returns/Reports of Employee Benefit Plan
and all Form 5500-SF Short Form Annual Returns/Reports of Small
Employee Benefit Plan for 2009 and 2010 plan years, as well as any
required schedules and attachments, using EFAST2-approved third-party
software or iFile. EFAST2 is an all-electronic system designed by the
Department of Labor, Internal Revenue Service, and Pension Benefit
Guaranty Corporation to simplify and expedite the submission, receipt,
and processing of the Form 5500 and Form 5500-SF. These forms must be
electronically filed each year by employee benefit plans to satisfy
annual reporting requirements under the Employee Retirement Income
Security Act (ERISA) and the Internal Revenue Code. Under EFAST2, filers
choose between using EFAST2-approved vendor software or a free
limited-function web application (IFILE) to prepare and submit the
Form 5500 or Form 5500-SF. Completed forms are submitted via the Internet
to EFAST2 for processing.
Under the mandatory electronic filing provisions (11 CFR
104.18) of the Federal Election Commission (FEC), effective January 1,
2001, any political committee or other person that is required to file
reports with the FEC and that receives contributions or makes
expenditures in excess of $50,000 in the current calendar year, or has
reason to expect to do so, must submit its reports electronically.
All other data collection programs identified by OSHA provide a
non-electronic option for data submission, including the OSHA Data
Initiative (ODI); various databases at the Environmental Protection
Agency (EPA), including the Toxics Release Inventory Program (TRI); and
programs administered by the Internal Revenue Service (IRS), the Bureau
of Labor Statistics (BLS), and the U.S. Census Bureau (including
business data).
As noted above, even a dated survey from 2010 found that 95 percent
of small businesses with 5 or more employees had a computer with an
Internet connection. The Department of Commerce estimated in 2009 that
69 percent and 64 percent of U.S. households, respectively, had some
kind of Internet access and broad-band Internet access specifically
(National Telecommunications and Information Administration, U.S.
Department of Commerce, "Table 2 Households using the Internet in and
outside the home, by selected characteristics: Total, Urban, Rural,
Principal City, 2009 (Numbers in Thousands)", http://www.ntia.doc.gov/legacy/data/CPS2009_Tables.html).
By 2013, high-speed broadband and Internet use had risen to 73 and
74 percent, respectively (Source: http://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf).
In addition, households with higher incomes and levels of education
were more likely to have Internet access at home, and home Internet
access among employed householders was 78 percent, compared to
65 percent among unemployed householders and 52 percent among
householders not in the labor force.
It seems reasonable to assume that business owners, as a group,
have higher incomes and labor force participation rates than the U.S.
population as a whole. And data from the 2007 Survey on Small Business
Owners, conducted by the U.S. Census Bureau, show that business owners
have higher levels of education; 74 percent of the business owners had
at least some post-high school education and 45 percent had at least a
bachelor's degree, compared to 55 percent and 30 percent among the
general U.S. population aged 25 and older in 2010 (U.S. Census, "Table
1. Educational Attainment of the Population 18 Years and Over, by Age,
Sex, Race, and Hispanic Origin: 2010", http://www.census.gov/hhes/socdemo/education/data/cps/2010/Table1-01.xls, accessed June 15, 2011).
Further, a small-business owner without an office or home computer may
own a smart phone, which could easily be used for transmitting the data
for the 300A summary because it is a very simple form.
In the PEA, to account for the lack of direct data on computers and
Internet access among small businesses and the presumed increase in
Internet usage since the indirect data were obtained, OSHA estimated
that 95 percent of the 440,863 establishments subject to this part of
the proposed rule (i.e., 418,820 establishments) had access to a
computer with an Internet connection, either at home or at work. OSHA
believed that the actual percentage of establishments with Internet
access was larger than this estimated value. OSHA welcomed comment on
this issue. The remaining 22,043 establishments would have to either
buy additional equipment and/or services or use off-site facilities,
such as public libraries. OSHA estimated in the PEA that finding and
using such off-site facilities would add an hour (including
transportation and waiting time), on average, to the time required by
the recordkeeper to submit the data electronically. For some
establishments, they might need to travel next door to find a computer
or Internet access, while others might need to drive for an hour or
more. In the proposal this led to additional costs of $882,607 per year
([440,863 establishments] x [5% of these establishments] x [1 hour for
finding and using off-site facilities] x [$40.04 per hour]).
OSHA requested comments on all aspects of this preliminary estimate
and received many comments. Some commenters requested that OSHA still
provide a paper reporting option (Exs. 0179, 0211, 0253, 0255, 1092,
1112, 1123, 1190, 1192, 1199, 1205, 1322). The American Forest and
Paper Association (AFPA) commented, "Many businesses, particularly
small firms located in rural areas, do not have ready access to the
Internet or may find electronic reporting burdensome because they
currently have a paper-based record system and should not be burdened
with the cost of converting to an electronic format" (Ex. 0179). Many
commenters incorrectly asserted that OSHA had assumed everyone had a
computer and kept records electronically (Exs. 1092, 1123, 1190, 1199,
1200, 1343, 1359, 1370, 1410, 1421). As discussed above, this
assumption was inaccurate. Perhaps because of this inaccurate
assumption, almost no commenters addressed OSHA's estimate of the
number of establishments without computer access or OSHA's estimates of
the costs for such establishments.
However, one commenter, the American Farm Bureau Federation (AFBF),
provided information on computer use on farms: ". . . only 68 percent
of farmers (both livestock/poultry and crop producers) have a computer
and only 67 percent have internet access..." (Ex. 1113). Note that
the figure of 67 percent of farms with Internet access is only a bit
below the national average for households of 74 percent with Internet
access. OSHA does not expect that many farms will be subject to
reporting under this final rule, because few farms have 20 or more
workers. Of the 2.2 million US farms, only about 550,000 have any hired
help (about 25 percent). The 2012 Agricultural Census reports that
there are just 40,661 farms with 10 or more workers in the U.S. OSHA
believes that there are 20,623 farms with more than 20 hired workers
that would be subject to this final rule. OSHA believes that farms with
many workers are extremely large operations, heavily capitalized, and
likely to have computers or smartphones and Internet access.
In the PEA, OSHA estimated the total costs of this part of the
proposed rule as the direct labor cost of electronic submittal
($2,622,397) for the 393,163 establishments subject to the rule and not
already electronically submitting the data to OSHA through the ODI,
plus the additional cost for 5 percent of the affected 440,863
establishments of going off-site to submit the data electronically
($882,607). A last cost of $189,935 in the PEA, for those
establishments that do not currently certify their records, is
discussed below. Thus, the total cost of the proposed rule was
$3,695,939 per year, or an approximate estimated average of $9.40 per
affected establishment ([$3,695,939 per year]/([440,863 establishments
affected under the proposed rule] - [47,700 establishments already
submitting electronically to the ODI])). In the FEA, the estimate of
affected establishments is smaller: 410,673 affected establishments
versus 440,863 affected establishments with 20 or more employees in
the PEA, or 6.8 percent less. Note that, since the ODI was not in
effect in 2015, OSHA will not take an offset for establishments
submitting data for the ODI.
The total costs of this part of the final rule are the direct labor
cost of electronic submittal ($3,338,771) for the 410,673 non-farm
establishments subject to the rule, plus the additional cost for 5
percent of the affected 410,673 establishments of going off-site to
submit the data electronically ($1,001,631). A last cost of $231,192,
for those establishments that do not currently certify their records,
is discussed below. Thus, the total cost is $4,571,594 per year, or an
approximate estimated average of $11.13 per affected establishment
([$4,571,594 per year]/([410,673 establishments affected under the
proposed rule]).
In the PEA, OSHA recognized that a small percentage of
establishments currently subject to part 1904 do not fully comply with
the requirement in Sec. 1904.32(a)(3) to certify the accuracy of each
year's records. OSHA inspection data showed that in 2010, about 1.6
percent of establishments undergoing an inspection had a violation of
the recordkeeping certification requirement. OSHA had previously
estimated costs and a paperwork burden for the time these employers
would spend reviewing their data for certification purposes (see, for
example, OSHA's September 2014 recordkeeping paperwork package).
Because the data collection under this section of the proposed rule
would have made it obvious to these employers that the records had not
been certified, OSHA included the full costs of certification for those
not in compliance with Sec. 1904.32(a)(3) as a cost of this rule. In
the PEA, the number of not-in-compliance establishments was estimated
by multiplying 1.6 percent times 360,863 establishments subject to the
rule but not currently in the ODI (440,863 total establishments minus
80,000 in ODI). The resulting figure was only 5,774 establishments not
in compliance with Sec. 1904.32(a)(3). The cost for these non-
compliers to comply with Sec. 1904.32(a)(3) by completing
certification was $189,935. This was calculated by multiplying [(30
minutes) x (5,774 establishments) x ($65.79 per hour) x (1 hour per 60
minutes)], where $65.79 was the adjusted hourly wage for a certifying
official. This wage reflected the hourly wage plus benefits of an
Industrial Production Manager (OES 11-3051), the same occupation used
for certification of records in other OSHA recordkeeping regulations.
OSHA invited comments on whether 1.6 percent is the actual
certification non-compliance rate for firms subject to part 1904, and
on whether the adjusted wage of $65.79 was, on average, the correct
wage rate for individuals certifying annual recordkeeping logs. OSHA
did not receive any comments disputing these figures. As a result, OSHA
has retained the estimate of 1.6 percent of establishments not
certifying their annual records.
In the FEA, OSHA updated the wage rate of the certifying official,
using 2014 data. Thus the wage rate for the certifying official, based
on the wage of an Industrial Production Manager (OES 11-3051), is
$70.37, based on a mean hourly wage of $48.87 and a fringe benefit
factor of 1.44 ($48.87 x 1.44 = $70.37). The estimated number of non-
compliant establishments is 6,571 (1.6 percent of 410,673 non-farm
establishments). The cost of certification for non-certifying
establishments is $231,200 [(30 minutes) x (6,571 establishments) x
($70.37 per hour) x (1 hour per 60 minutes)].
OSHA believes, and current ICRs support, that 30 minutes is the
appropriate amount of time required, on average, for certification.
However, a range of time requirements is possible. For example, if the
certifying officials are especially productive at certification,
perhaps because the injury and illness records are well-maintained or
because the officials are able to work off existing finalized summary
reports sent to Workers' Compensation insurance agencies, then it may
only take 15 minutes, on average, to complete the certification. In
that case, the total cost would be just $115,596. On the other hand,
perhaps the certifying officials have become less productive since the
previous ICRs. If it now takes a certifying official one hour instead
of 30 minutes to certify, then the total cost for non-complying
establishments would be $462,384.
OSHA also notes that in the PEA, farms with 20 or more employees
were not counted for cost purposes, though they were included in the
scope of the regulation. A separate analysis follows for the FEA.
OSHA was not able to obtain a count of farms (crop and animal) with
20 or more employees. OSHA took the estimate of farms with 10 or more
employees (41,246 farms), provided by the Census of Agriculture, and
took 50 percent of that total (20,623 farms) as the best estimate of
the number of farms with 20 or more employees. This is still possibly
an over-estimate of the number of farms with 20 or more employees,
because the inverse relationship between the number of farms and the
number of farm employees rises geometrically. Other information, for
example farm revenue data, also help to show that there are very few
farms with revenues high enough to support 20 employees.
Following the methodology used elsewhere in the FEA, those 20,623
farms will on average take 10 minutes to submit their summary
electronically to OSHA. OSHA has made two adjustments to this
methodology for farms. First, OSHA estimates that five percent of farms
subject to this section of the final rule (1,031 farms) will not have
access to a computer, a smart phone, or the Internet. Second, OSHA
estimates a travel time of one hour for data submitters at these
establishments to travel off-site to an Internet connection.
OSHA estimates that 330 farms (1.6% x 20,623 farms) do not
currently certify their injury/illness records, leading to an
additional cost of $11,611 [(30 minutes) x (330 establishments) x
($70.37 per hour) x (1 hour per 60 minutes)]. The total cost for farms
included in electronic reporting is $229,568, which is derived by
multiplying [(20,623 farms) x ($48.78 per hour) x (10 minutes) x (1
hour per 60 minutes)] and adding [(1,031 farms without Internet) x
($48.78 per hour) x (1 hour)] and then adding [(330 farms that do not
currently certify) x ($70.37 per hour) x (30 minutes) x (1 hour per 60
minutes)].
OSHA believes that the same computer ownership factor used in the
PEA and FEA for general establishments also applies to farms. While
there were comments, based on a USDA survey, that farms did not have as
many computers or as much Internet access as the rest of the private
sector, that survey was heavily weighted toward typical American farms,
i.e., farms operated by a single farmer or farm family, and many times
smaller than an operation with 20 or more employees. OSHA again
emphasizes that a smart phone with data access will be sufficient to
submit summary data from the Form 300A to the OSHA Web site.
Several commenters expressed concern that OSHA was not allowing
enough time for initial startup or familiarization for establishments
that will be newly required to report their data electronically
(Exs.1338, 1276, 1351, 0160, 1112, 1205, 1394, 1190, 1342, 1281, 1397,
1343, 1402, 1199, 1113, 1092, 1192, 1421, 1372, 1401, 1356, 1332, 1198,
1279, 1366). In response to these comments, OSHA has added ten minutes
to the time estimate, in the first year the regulation is in effect, to
account for the time establishments take to create their login accounts
with OSHA and enter their basic information from the OSHA 300A form,
such as establishment name and address. These ten minutes are not included
in current paperwork packages, so the costs will apply to every
establishment subject to reporting electronically to OSHA--a total of
431,296 establishments (including the 20,623 farms). Note that number of
establishments includes both establishments with 20 to 249 employees,
subject to the requirements in this section of the final rule, as well as
establishments with 250 or more employees, subject to the requirements in
the previous section of the final rule. The total first-year cost for
familiarization is $3,506,436 [(431,296 establishments) x ($48.78 per hour)
x (10 minutes) x (1 hour per 60 minutes). This one-time, first year cost can
be amortized over 10 years at a 7 percent interest rate to yield $499,237
per year. At a 3 percent interest rate, it would yield $411,061 per
year.
3. Sec. Sec. 1904.35 and 1904.36
The last cost element is from the non-discrimination provisions of
this final rule. In the economic analysis for the supplemental notice
to the proposed rule, OSHA stated that "these provisions do not
require employers to provide any new or additional records not already
required in existing standards. (When the existing standards were
promulgated, OSHA estimated the costs to employers of the records that
would be required.) These provisions add no new rights to employees,
but are instead designed to assure that employers recognize the
existing right of employees to report work-related injuries and
illnesses."
After examining the rulemaking record and adjusting the final
regulatory text, OSHA now anticipates that the implementation of the
non-discrimination provisions will have one cost component, namely an
informational component that employers can meet by posting the new OSHA
poster (https://www.osha.gov/Publications/osha3165-8514.pdf). The final
rule requires employers to specifically inform employees that they have
the right to report injuries and illness, and that employers are not to
discourage or retaliate against an employee who reports an injury or
illness. Posting this new poster will allow employers to meet this
requirement, because it informs workers that they have the right to
report injuries or illness, without being retaliated against, and
informs employers that it is illegal to retaliate against an employee
for reporting an injury or illness. (Note that the old poster mentioned
that employees had the right to make safety/health complaints without
retaliation in general, but made no specific reference to the reporting
of injuries and illnesses.) Note also that this is not the only way an
employer can meet this requirement; an employer may inform the
employees in any way that the employer sees fit. However, OSHA believes
that the use of a professionally-designed poster that is easily
downloadable from many Web sites, including OSHA's, is the most
inexpensive way for most employers to meet this requirement.
This section of the FEA accounts for the costs, discusses the
benefits, and in addition addresses comments provided by the public on
the subject of this part of the final rule.
For the costs--although employers are required to post the OSHA
poster, OSHA is not requiring employers to replace the existing poster
with the new poster. Putting up the OSHA poster is therefore a new cost
for this final rule. To calculate the cost of posting the new OSHA
poster, OSHA used the following judgments. First, it will take an
employer five minutes to obtain and post the poster. Second, this task
will be undertaken by an industrial manager with an hourly wage of
$70.37, as above. Third, there are 1,364,503 establishments subject to
this requirement in the final rule (including farms with 10 or more
employees). The estimated one-time cost for posting the new OSHA poster
is thus $8,001,673 [(1,364,503 establishments) x $70.37 per hour) x (5
minutes) x (1 hour per 60 minutes)]. Annualized over 10 years at 3
percent interest, this is a total cost of $938,040 per year. OSHA
believes this cost estimate is a significant over-estimate because many
establishments routinely download and post newer versions of OSHA's
poster even without regulatory guidance. In addition, although OSHA is
using an estimate of five minutes in the FEA, OSHA wrote in the
supplemental notice to the proposed rule that posting the sign could
take as few as three minutes.
OSHA received a few comments relating to the costs of the non-
discrimination provisions of the proposed rule. Some commenters noted
that OSHA already requires employers to post an OSHA sign that informs
workers of their right to not be discriminated against for reporting
(Exs. 1547, 1600, 1603). For example, the Association Connecting
Electronics Industries commented, "Employees must already be made
aware that they are protected under the Act 'against discharge or
discrimination for the exercise of their rights under Federal and State
law.' Specifically, OSHA requires that employers post OSHA 3165, Job
Safety and Health--It's the law! This posting clearly states that
employees can file a complaint with OSHA within 30 days of retaliation
or discrimination by an employer for making a safety or health
complaint and employers must comply with the occupational safety and
health standards under the OSH Act" (Ex. 1668). OSHA agrees that
workplaces must post an OSHA poster, but there is no requirement that
establishments download the latest OSHA poster, which is the one that
contains the specific information on the right to report injuries and
illnesses, as required by the final rule.
OSHA did not quantify the benefits of the non-discrimination
requirement in the supplemental notice to the proposed rule, because
OSHA believed that since there would be no additional costs, there
would be no additional benefits. In the supplemental notice to the
proposed rule, OSHA stated, "OSHA also expects that, because these
three potential provisions will only clarify existing requirements,
there are also no new economic benefits. The provisions will at most
serve to counter the additional motivations for employers to
discriminate against employees attempting to report injuries and
illnesses." [79 FR 47605-47610]
However, OSHA believes that posting the newest OSHA poster will
encourage both employees and employers to accurately report and record
workplace injuries and illnesses. Many commenters commented that
informing workers of their right to report injuries and illnesses
without fear of discrimination was beneficial (Exs. 1489, 1529, 1603,
1640, 1647, 1679, 1682, 1688, 1695, 1696). The Communications Workers
of America (CWA) stated, "Employer notification to employees of their
right to report occupational injuries and illnesses without fear of
employer retaliation, employer development and implementation of
reasonable injury and illness requirements, and the prohibition of
employer's adverse action against the workers who report injuries and
illnesses is extremely important towards improving and maintaining safe
and healthful working conditions and worker well-being" (Ex. 1489).
4. Sec. 1904.41(a)(3)--Electronic Submission of Part 1904 Records Upon
Notification
This part of the final rule has no immediate costs or economic
impacts. Under this part of the rule, an establishment will be required
to submit data electronically if OSHA notifies the establishment to do
so as part of a specified data collection. Each specified data
collection would be associated with its own particular costs, benefits,
and economic impacts, which OSHA would estimate as part of obtaining
OMB approval for the specified data collection under the Paperwork
Reduction Act of 1995.
5. Budget Costs to the Government for the Creation of the Reporting
System, Helpdesk Assistance, and Administration of the Electronic
Submission Program
While OSHA has not typically included the cost of administering a
new regulation in the preliminary economic analysis, the Agency did
include such costs in the PEA, because they represented a significant
fraction of the total costs of the regulation. The program lifecycle
costs can be categorized into IT hardware and software costs, helpdesk
costs, and OSHA program management personnel costs. OSHA received
estimates for the lifecycle costs from three sources: an OSHA
contractor, the BLS, and the OSHA web-services office.
According to OSHA's Office of Web Services, the creation of the
reporting system hardware and software infrastructure would have had an
initial cost of $1,545,162. Annualized over 10 years at 3 percent
interest, this is $181,140 per year.
BLS provided a unit cost estimate of 28 cents per transaction. This
would have amounted to $372,000 per year for about 1.3 million
transactions. Adding annual help desk costs of $200,000 would have made
the total $572,000.
The contractor and OSHA's Office of Web Services provided higher
budget estimates. The contractor suggested that annual costs could have
been as high as $953,000, while the OSHA Office of Web Services
suggested a cost of $626,000 per year.
Under the proposed rule, OSHA would have also continued to require
three full-time-equivalent workers (FTEs) to administer the new
electronic recordkeeping system. OSHA believed these FTEs would have
cost the government $150,000 each, including salary and benefits, for a
total of $450,000 per year. Added to the BLS cost of $572,000 and the
annualized start-up cost of $220,000, this would have amounted to
$1,242,000, or just over $1.2 million. Adding the FTE costs to the
contractor and OSHA Office of Web Services estimates, along with the
annualized start-up cost, would have yielded a range of between $1.2
million and $1.6 million per year. For its best estimate in the PEA,
OSHA used the BLS estimated costs per transaction, because this
estimate is based on actual experience with implementing a similar
program.
For the FEA, OSHA used the estimate for costs to the government as
published in the PEA and then adjusted the estimate by using the rate
of inflation determined by the GDP deflator (source: St. Louis Federal
Reserve Bank GDP deflator time series from January 2012 to January
2015: 3.0 percent) to adjust the estimated cost to the government. Thus
the cost to the government for this final rule is $1,279,260.
Several commenters commented on the cost to the government. Several
commenters expressed concerns that this data collection effort would
strain the resources of OSHA by costing too much or requiring too many
Federal employees to work on this project (Exs. 1187, 1193, 1199, 1204,
1219, 1336, 1339, 1382, 1389, 1399, 1430, 1461). A typical comment
highlighting the possible additional costs to the government was
submitted by the MYR Group: "Although not technically required for
notice and comment rulemaking under the OSH Act, MYR Group believes
that OSHA should evaluate the cost of its own resources which would be
required to be dedicated to this rule instead of other compliance
assistance or enforcement activities. OSHA would have to establish and
continuously maintain a special government Web site for these data
collections. This involves not only hardware and software expenses, but
also ongoing salaries. To utilize the data for injury and illness
prevention, or for enforcement, OSHA would have to establish positions
for analysis to review and interpret the data. MYR Group believes that
shifting resources from prevention activities to data management would
be detrimental to making the workplaces safer and certainly not worth
the minor potential for an incremental benefit in the collection of
statistically insignificant data" (Ex. 1399).
In response, OSHA believes that the number of OSHA employees who
will be assigned to collecting and analyzing the improved data will be
the same number as those who worked on the ODI program. Based on
examples of Web sites submitted by OSHA's contractor, OSHA believes
that the data collection Web site will be a turn-key operation that
will not require much human monitoring, just like the ODI data
collection Web site. Further, OSHA believes that this data collection,
even if it requires additional resources, will result in saving of
other resources through better targeting of resources and better
understanding of safety and health.
6. Discussion of Other Potential Costs of the Rule
Some commenters suggested that there were other possible costs
associated with the rule, including costs for computers and computer
systems, for training, and for review of submissions. Others commented
that there might be indirect costs, for example through loss of
reputation to a firm (or, presumably, an establishment), loss of
confidential business data, higher OSHA fines, additional union
organizing, additional training, and opportunity costs, as well as
perhaps higher labor costs as the labor supply gets better information
on the safety and health of a workplace. Commenters also suggested that
liability costs might rise, or that the security of dangerous materials
or processes might be compromised. Finally, commenters suggested that
an untrained public might naively misinterpret the data. Each of these
groups of comments will be addressed briefly in this section.
a. Computers and Computer Systems
Some commenters argued that OSHA was requiring the use of
computerized record keeping. Troy Miller, a private citizen, commented,
"The literature included with the proposed rule suggests that OSHA
assumes a majority of employers already keep their injury and illness
records electronically, so submission to OSHA should be doable without
much extra time or expense" (Ex. 0160). A related set of comments
suggested that many establishments or firms would need to buy new
computer systems (Exs. 0035, 1205, 1225, 0179, 0210, 1092, 1123, 1189,
1190, 1192, 1199, 1275, 1281, 1092, 1113, 1279).
OSHA notes that nothing in this final rule, or in the existing part
1904 regulation, requires employers to create or maintain records
electronically. Anyone who prefers to keep paper records for whatever
reason may continue to do so. Employers who keep paper records will
only have to enter the information from their paper records onto the
forms on OSHA's Web site. OSHA estimates that this data entry will
require 10 minutes per form and two minutes per line entry on Form 300.
It is possible that an employer who already keeps records
electronically could take fewer than ten minutes per form and two
minutes per line entry on Form 300 by electronically transferring the
appropriate data to the OSHA Web site.
b. Training
Several commenters suggested that they would face additional
training costs to train employees who already administer or keep OSHA
300-series forms to upload either summary or Log data to the OSHA Web
site (Exs. 0160, 0179, 0194, 0196, 0210, 0215, 1091, 1092, 1326, 1339,
1340, 1372, 1393, 1394, 1396, 1401, 1408). A typical comment on
training was submitted by the Pacific Maritime Association (PMA), which
commented, "OSHA has failed to take into account the costs associated
with having to train employees to record injuries in a manner suitable
for publication..." (Ex. 1326).
OSHA continues to believe that additional training should not be
necessary either to fill in a web form or to transmit records from an
existing electronic system with which the employee is already familiar.
This will be no more difficult than filling in order forms on private
sites or other government forms online. It should be noted that more
than 70 percent of respondents to the OSHA ODI and the BLS SOII
collections choose to respond electronically. OSHA has already
accounted for training for recordkeepers to understand the OSHA
recordkeeping system and for the costs of familiarizing first-time
recordkeepers with the Web site. No additional training will be
necessary to transfer data from already-filled-in forms to a computer
form. Note that OSHA's estimate of an hourly wage of $48.78 for the
person entering the data assumes that the person is a technically-
proficient employee; the hourly wage for an employee who is not
technically proficient would typically be less.
c. Review
Several commenters suggested that some establishments might
undertake an extra level of review, or an extra review effort, before
sending the information to OSHA (Exs. 0258, 1110, 1123, 1205, 1336,
1356, 1399, 1401, 1413, 1427). For example, the Phylmar Regulatory
Roundtable (PRR) commented, "Online submission to OSHA will likely
include the labor not just of record keepers, but of more senior health
and safety staff to quality control the data before submission. Most
members believe strongly that senior management would seek to review
and approve all submissions (not just the 300A reports); again this
would involve additional cost to comply" (Ex. 1110).
As discussed above, comments on this issue were often conflated
with other issues, for example the confidentiality of employees'
records. The Texas Cotton Ginners' Association (TCGA), represents very
small establishments that "will have up to 20 or 30 employees during
peak periods" (Ex. 0211). The TCGA suggested that, because of the
possibility of revealing confidential employee information, a manager
might instead subject the data to further review and upload it
themselves: "The concern of management will be that this type of
system will inherently set up situations where workers may feel their
privacy is violated, and the worker is likely to blame their employer
when this occurs. To minimize their liability, it is unlikely that a
company will simply hand all the forms to a clerk and tell them to key
the data into the public domain" (Ex. 0211).
In response, OSHA notes that OSHA's estimate of an hourly wage for
the recordkeeper submitting the data is based on the assumption of a
safety and health specialist familiar with the establishment's safety
and health records, and that this hourly wage may be larger than the
hourly wage for managers of small firms. Second, OSHA notes that a firm
with 20-30 employees is required to submit only the information from
Form 300A (the annual summary), which contains no employee-specific
information.
OSHA believes that existing regulations already provide an entirely
adequate incentive to employers to thoroughly review their records and
that publication of establishment-specific data through the final rule
will require little further review. After all, OSHA records can already
be accessed by OSHA at the time of inspection, as well as by employees
and their representatives (including unions and employee attorneys). In
addition, employers are already required to certify records under
possible penalties of perjury.
Some commenters were concerned about confidential business
information or personal information (Exs. 0038, 0150, 0159, 0210, 0215,
0252, 1090, 1091, 1110). As discussed above, there is no need for
confidential business information in OSHA records, and OSHA already
urges employers to avoid including confidential business information in
OSHA records because OSHA allows employees and their representatives
access to these records and places no limitations on the use of these
records. There is no need for such confidential business information in
OSHA records, and confidential business information should already be
excluded, as the records can be made public at any time. Employers
concerned with the time required to expunge personal information should
also consider that the information in question could already be made
public and that recordkeeping should exclude as much personal
information as possible, consistent with the use of the records. In
addition, OSHA intends to exclude the names and other PII of
individuals from the records before publishing the data.
d. Harm to Reputation
Some commenters suggested that published injury and illness data
will tarnish the reputations of some establishments, or enterprises, or
perhaps their entire industry. The Pacific Maritime Association
commented, "...an employee who has worked for one employer over a
long period of time, and complains about a cumulative injury on his
first day of work with a second employer will trigger an injury report
that will be attributed to that second employer. Publication of this
report is obviously unfair and inaccurate. Further, owing to
contractual obligations and developing regional working rules, the
standards and conditions at different ports change with a degree of
frequency. Accordingly, without the proper context--something that OSHA
has not proposed to provide as part of this database--it will be
impossible for the public to even compare the injury rates of a single
port" (Ex. 1326). OSHA agrees that it is important for users of the
data to understand the rules under which the data was gathered, as
shown by the "Explanatory Notes" OSHA includes with its currently-
published ODI data. OSHA intends to include similar notes and
explanations with the data collected under this rulemaking to minimize
misunderstanding and misrepresentation of the data.
Many commenters wrote that they feared that publication of
establishment-specific summaries of annual injuries and illnesses would
harm the establishments' reputations, and therefore, their businesses
(Exs. 0157, 0160, 0162, 0181, 0189, 0205, 0218, 0224, 0235, 0240, 0242,
0245, 0249, 0251, 0255, 1084, 1089, 1090, 1091, 1092, 1093, 1095, 1096,
1106, 1112, 1113, 1115, 1117, 1123, 1192, 1197, 1198, 1199, 1200, 1205,
1209, 1214, 1216, 1217, 1218, 1224, 1225, 1272, 1276, 1277, 1279, 1281,
1282, 1283, 1284, 1321, 1326, 1327, 1328, 1332, 1333, 1336, 1337, 1341,
1342, 1343, 1348, 1349, 1351, 1355, 1356, 1357, 1359, 1361, 1370, 1380,
1388, 1389, 1393, 1396, 1397, 1399, 1400, 1401, 1402, 1405, 1408, 1412,
1421). A typical comment was submitted by Grede Holdings, LLC (GH),
which stated that "[p]roviding raw data in a public forum to be viewed
by individuals or groups that may not know how to interpret the data
could result in incorrect conclusions or assumptions about the employer.
This misunderstanding of the data could further result in unwarranted
damage to a company's reputation, related loss of business and jobs,
and unwarranted government inspections consuming the limited agency
and company resources that could be used more effectively elsewhere"
(Ex. 1402). The National Association of Home Builders (NAHB) commented
that "OSHA also does not consider the adverse impacts on safety and
health that could occur through the implementation of this rule. These
impacts have been discussed above and include employers shifting
resources away from safety and health initiatives toward lagging
indicators, employers including fewer details of injuries and illnesses
on recordkeeping forms, and employers with sound injury and illness
prevention programs being subjected to reputation damage from employers,
employees, and others making incorrect assessments of their safety and
health efforts from extremely limited facts" (Ex. 1408).
Regarding the first comment, OSHA is not aware of damage to the
reputations of establishments or firms from other, similar data
collection efforts. For example, MSHA has been collecting and
publishing individual mine injury data on the Web for 15 years. OSHA
itself has, for many years, published establishment-specific results of
its inspections and, more recently, establishment-specific data
collected through the ODI. There are other types of web-published data,
which include public safety information (for example police or fire
responses to a business's location), health inspector reports, court
records, and information about a firm's financial condition. All of
these sorts of information are subject to misinterpretation by members
of the public.
Regarding the second comment, OSHA strongly disagrees with the
commenter that a strong illness and injury prevention program can be
based on hiding basic information on injury and illness rates from
either employees or the public. Illness and injury prevention programs
work best when data on injuries and illnesses is collected and analyzed
frequently and used as a tool to improve safety and health. As
discussed above, this data collection effort will allow scholars and
public health experts to analyze establishment data, discover patterns
in injuries and illnesses, and recommend solutions.
e. Opportunity Costs of the Regulation
Another comment about the proposed rule had to do with what one
commenter explicitly identified as "opportunity costs", that is, the
value of effort forgone due to the compliance costs for this final
rule. The Food Marketing Institute (FMI) commented, "Thus, time spent
addressing the proposed rule's many requirements is time that the
safety personnel cannot spend providing safety training, completing
safety audits, or handling other matters critical to the ongoing safety
of the workplace. The opportunity costs created by the proposed rule
are potentially significant and must be accounted for in the proposal's
overall cost to employers" (Ex. 1198).
In response, the comment above is true for any government rule or
regulation, or for that matter, any internal firm regulation or
operating procedure. Time spent on compliance with any regulation is,
by definition, time that cannot be spent on something else. That is one
reason why OSHA has kept the requirements for this final rule as simple
and as economical as possible. OSHA does not believe that an extra ten
minutes, or even an extra hour, every year will significantly affect
the ability of an establishment to have a safety program or generate
profits. In fact, OSHA believes that when an establishment has access
to the injury and illness information for other firms that will be
generated by this final rule, it should make an establishment's safety
and health program more efficient. Further, in principal, the labor
costs of affected workers reflect the opportunity costs of that labor.
If the opportunity cost is significantly higher than the labor costs,
the firm should consider hiring more of the kind of labor in question.
f. Data Taken Out of Context
Last, many commenters stated that OSHA injury and illness data
might be taken out of context or misinterpreted by the public. One
commenter, the National Grain and Feed Association (NGFA), commented,
"Providing raw data to those who do not know how to interpret it or
without putting such data in context invites improper and false
conclusions or assumptions to be drawn about the employer, which could
lead to unnecessary damage to a company's reputation, related loss of
business and jobs, and misallocation of resources by the public,
government and industry" (Ex. 1351). OSHA strongly disagrees with
comments criticizing the value of raw and un-interpreted injury and
illness data. Standard economic principles show that information is
valuable, even if it is difficult to interpret. As economists as early
as Adam Smith, and including Friedrich Hayek and Milton Friedman, have
shown, economic actors who have only a narrow view of the information
available in the economy work together to efficiently allocate
resources. Hayek wrote in "The Use of Knowledge in Society" (1945)
that "The whole acts as one market, not because any of its members
survey the whole field, but because their limited individual fields of
vision sufficiently overlap so that through many intermediaries the
relevant information is communicated to all. The mere fact that there
is one price for any commodity--or rather that local prices are
connected in a manner determined by the cost of transport, etc.--brings
about the solution which (it is just conceptually possible) might have
been arrived at by one single mind possessing all the information which
is in fact dispersed among all the people involved in the process."
In addition, OSHA believes that the best solution to the "problem
of information" is more information. Establishments, corporations, and
industry groups will now have access to competitors' information on
injuries and illnesses, and they will be able to distinguish themselves
from others in their industry.
7. Total Costs of the Rule
As shown in the Table VI-1 below, the total costs of the final rule
would be an estimated $15.0 million per year. These costs are shown in
the middle column of Table VI-1. Also note that the last column,
"First Year Costs", is broken out separately, but is also included in
the Final Rule Annual Costs column, having been amortized over 10 years
at 3 percent interest. It would be double-counting to add the total of
the second and third columns together.
Table VI-1--Total Costs of the Final and Proposed Rule
----------------------------------------------------------------------------------------------------------------
Proposed rule Final rule Final rule
-----------------------------------------------------------
Cost element First year costs
Annual costs Annualized costs (if different from
annualized costs)
----------------------------------------------------------------------------------------------------------------
Electronic submission of part 1904 records by $6,954,950 \4\ $7,222,257..................
establishments with 250 or more employees..........
Electronic submission of OSHA annual summary form 3,695,939 4,571,594..................
(Form 300A) by establishments with 20 to 249
employees in designated industries.................
This includes:
Cost for establishments without a computer
($1,001,631)...................................
Cost for establishments with non-certified
records ($231,192).............................
Cost for Agricultural Establishments not in PEA....................... 229,568..................
Familiarization....................................................... 411,061 3,506,436
Cost for check by unregulated establishments.......................... 370,283 3,158,593
Cost of non-discrimination provision.................................. 938,040 8,001,673
Electronic submission of part 1904 records upon * 0 * 0..................
notification.......................................
-----------------------------------------------------------
Total Private Sector Costs...................... 10,650,889 13,742,804..................
Total Government Costs.......................... 1,242,000 1,279,260 1,545,162
-----------------------------------------------------------
Total....................................... 11,892,889 15,022,064..................
----------------------------------------------------------------------------------------------------------------
* This part of the proposed rule has no immediate costs or economic impacts. Under this part of the rule, an
establishment would be required to submit data electronically if OSHA notified the establishment to do so as
part of a specified data collection. Each specified data collection would be associated with its own
particular costs, benefits, and economic impacts, which OSHA would estimate as part of obtaining OMB approval
for the specified data collection under the Paperwork Reduction Act of 1995.
First, as noted elsewhere in this document, the final rule does not
add to or change any employer's obligation to complete, retain, and
certify injury and illness records. The final rule also does not add to
or change the recording criteria or definitions for these records. The
only change is that, under certain circumstances, employers will be
obligated to submit information from these records to OSHA in an
electronic format. Many employers have already done this through the
OSHA Data Initiative and BLS SOII survey; these employers have not
commented, either on the proposed rule or on the paperwork analyses,
that they incurred additional costs beyond those that OSHA estimated
(see for example the ODI ICR 200912-1218-012 and the SOII ICR 201209-
1220-001).
---------------------------------------------------------------------------
\4\ This is the cost for every year of the rule except the first
year. Because of the phase-in, in the first year establishments with
250 or more employees only have to submit their summary data, at a
cost of $239,197. All other costs are unaffected by the phase-in.
---------------------------------------------------------------------------
Second, employers are already required to examine and certify the
information they collect. Employers who are already sufficiently
satisfied with the accuracy of their records to accept the risk of a
criminal penalty are unlikely to do more simply because they must
electronically submit the records to OSHA. Therefore, the prospect of
submitting their data to OSHA would not provide any additional
incentive to carefully record injuries and illnesses.
Third, injury and illness records kept under part 1904 are already
available to OSHA and the public in a variety of ways. The annual
summary data must be posted where employees can see it. Employees or
their representatives can also obtain and make public most of the
information from these records at any time, if they wish. These are the
people who are most likely to recognize if the records are inaccurate.
Finally, OSHA Compliance Officers routinely review these records when
they perform workplace inspections. While OSHA inspections are a rare
event for the typical business, they are much more common for firms
with over twenty employees in the kinds of higher-hazard industries
subject to this rule.
OSHA requested comments on the issue of whether employers newly
required to submit records to OSHA may spend additional time assuring
the accuracy of their records, beyond what they spend now. If all
431,296 establishments were to spend an extra half hour for an
industrial health and safety specialist to double-check the data prior
to submission, then the costs of this final rule would increase by
$10.5 million. While this would be a substantial addition to the costs
of the rule, such an addition would not alter OSHA's conclusion that
this is neither an economically-significant rule nor a rule that would
impose significant costs on a substantial number of small businesses.
OSHA received two comments that provided alternative estimates of
the total costs. OSHA will review these estimates here.
Miles Free at Precision Machined Products Association (PMPA)
provided a detailed breakdown of estimated costs, itemizing the tasks
firms would have to undertake due to the proposed regulation change
(Ex. 194). The costs totaled $592 per firm. Most of these tasks were
not included in OSHA's cost estimate. The total of $592 includes the
use of a higher managerial wage ($30) and costs associated with reading
the rule, reviewing, training, and development of IT resources; he
notes "many of these costs are initial setup". OSHA believes that
many of these costs seem inflated. For example, the second largest
single cost element is for "reading the rule" which will require 4
hours. Given that the rule itself takes up less than one page of text,
and can be readily explained in less than another page of text, it is
difficult to imagine how someone could spend 4 hours reading the rule.
In addition, as noted above, review of records is already required; no
additional IT resources are required to submit a form electronically;
and it is difficult to see how technically-qualified personnel will
need training in order to submit already-gathered data on an Internet
form.
For the Final Economic Analysis, OSHA added 5 minutes of time for
establishments that are required to keep records, but are not newly
required to submit annual records summaries to OSHA under this rule.
OSHA believes those establishments might need 5 minutes to check OSHA's
Web site, or various other Web sites or sources of information to
determine if they are covered under this recordkeeping change. There
are 889,327 establishments that are required to keep records but are
not required to report under this new rule. If each establishment takes
5 minutes to check, using an Industrial Health and Safety Specialist
with a loaded wage of $42.62, then the unit cost will be $3.55
[5/60 * $42.62] and the total cost, which occurs entirely in the first
year and can be annualized over 10 years at 3 percent interest, is
$370,283 [$3,158,593 in the first year, discounted at a 3 percent
interest rate over 10 years].
The Chamber of Commerce asserts that "OSHA's cost-benefit analysis
is deeply flawed" for multiple reasons and derives its own total costs
of the regulation at over $1.1 billion (Ex. 1396). In the submitted
comment, the Chamber states one of the sources of the higher cost would
"result from companies more closely scrutinizing whether an injury or
illness is recordable and hence reportable." The discussion of this
topic focused on the legal case of Caterpillar Logistics Inc. vs Solis,
to "illustrate the time and resources that employers will be forced to
expend in making these recordability decisions." In their submitted
comments, they describe the difficulty of diagnosing the source of
musculoskeletal disorders (ergonomic injuries) which they cite as "34%
of all purported nonfatal workplace injuries and illnesses" based on
BLS statistics. The Chamber stated that "OSHA's estimated costs barely
scratch the surface of the resources that this proposed rule will
require." Given that the costs to Caterpillar are associated entirely
with OSHA's current part 1904 regulation, OSHA believes that this issue
is not relevant to this rulemaking.
In their discussion of costs, the Chamber provides its own
estimates for three specific elements: reviewing the rule, re-
programming information systems, and training. They state, "if each
firm on average spent just one hour to review the rule's compliance
requirements, the initial year cost would be over $342 million." The
Chamber based its cost estimate on the BLS 2013 average compensation
for private sector managers and administrators, and a total count of
7.4 million separate establishments. It should be noted that the
overwhelming majority of these establishments are very small firms with
fewer than 11 employees and firms in low-hazard industries that are
partially exempt from OSHA's recordkeeping requirements. These firms
already know that this rulemaking does not apply to them, because they
are not required to routinely keep OSHA injury and illness records
under part 1904.
Using reports by companies surveyed about HR information systems
that would need to be modified, the Chamber estimates an initial-year
cost of over $440 million to re-program information systems and
software. The Chamber's comments describe multiple challenges
associated with the costs for electronic submissions, including the
integration of software or databases, and up to 16 hours of
professional labor to retool information systems and software. The
Chamber states, "The majority of employers will find it necessary to
change existing records systems and procedures in order to compile and
submit information according to the format and periodicity of this
proposed rule's reporting requirement." The Chamber estimates startup
software modification costs of over $5,000 for large firms and $1,000
for small firms. These estimates seem high. The typical large firm has
to track an average of 21 one-page records. It is difficult to imagine
how it would be possible to spend $5,000 on a system designed to track
21 one-page records. In any case, however, firms must already track
these records, although they need not do so electronically, so there is
no need for a new system of any kind as a result of the final rule. In
the case of small firms, the Chamber estimated that there would be
$1,000 in software costs associated with submitting data on a one-page
form that the employer already is required to fill out. OSHA believes
that it is extremely unlikely that a small firm would spend $1,000 for
this purpose.
Lastly in the submitted cost comments, the Chamber estimates
training costs at nearly $150 million, "based on just one hour of
training plus the average cost for commercial occupational safety
training materials." The Chamber's estimated training cost would be
for corporate managers who "will need to be trained to comply with the
reporting formats, schedules and procedures." As discussed above, OSHA
believes that such training is unnecessary for a person competent in
computer use (or smart phone use) to fill in an on-line form.
C. Benefits
As OSHA explained in the preamble to the proposed rule, OSHA
anticipates that establishments' electronic submission of
establishment-specific injury/illness data will improve OSHA's ability
to identify, target, and remove safety and health hazards, thereby
preventing workplace injuries, illnesses, and deaths. In addition, OSHA
believes that the data submission requirements of the final rule will
improve the quality of the information and lead employers to increase
workplace safety and health.
The Agency plans to make the injury and illness data public, as
encouraged by President Obama's Open Government Initiative. Online
access to these data will allow the public, including employees and
potential employees, researchers, employers, unions, and workplace
safety and health consultants, to use and benefit from the data. It
will support the development of innovative ideas and allow everybody
with a stake in workplace safety and health to participate in improving
occupational safety and health.
The data collected by BLS is mostly used in the aggregate. While
BLS makes micro data available in a restricted way to researchers, OSHA
will make micro data, including case data, available to researchers and
the public with far fewer restrictions.
The BLS SOII is used as a basis for much of the research on
workplace safety and health in the US. Typical examples include
Economic Burden of Occupational Injury and Illness in the United
States, by J. Paul Leigh (2011); Analyzing the Equity and Efficiency of
OSHA Enforcement, by Wayne B. Gray and John T. Scholz (1991);
Establishment Size and Risk of Occupational Injury, by Dr. Arthur
Oleinick MD, JD, MPH, Jeremy V. Gluck Ph.D., MPH, and Kenneth E. Guire
(1995); and Occupational Injury Rates in the U.S Hotel Industry, by
Susan Buchanan et al. in the American Journal of Industrial Medicine
(2010). Some of these studies, such as Gray and Sholtz, use
establishment-specific data previously only available on site at BLS.
The database resulting from this final rule will provide for the
use of establishment-specific data without having to work under the
restrictions imposed by BLS for the use of confidential data. It would
also provide data on injury and illness classifications that are not
currently available from any source, including the BLS SOII.
Specifically, under this collection, there would be case-specific data
for injuries and illnesses that do not involve days away from work. The
BLS case and demographic data is limited to cases involving days away
from work and a small subset of cases involving restricted work
activity.
In order to determine possible monetary benefits to this rule, OSHA
calculated the value of statistical life (VSL) using Viscusi & Aldy's
(2003) meta-analysis of studies in the economics literature that use a
willingness-to-pay methodology to estimate the imputed value of
life-saving programs. The authors found that each fatality avoided was
valued at approximately $7 million in 2000 dollars. Using the GDP Deflator
(Source: https://research.stlouisfed.org/fred2/series/GDPDEF/#), OSHA estimated that
this $7 million base number in 2000 dollars yields an estimate of $9
million in 2012 dollars for each fatality avoided.
Many injuries, illnesses, and fatalities can be prevented at
minimal cost. For example, the costs of greater use of already-
purchased personal protective equipment are minimal, yet many
fatalities described in OSHA's inspection data systems could have been
prevented through the use of available personal protective equipment.
This includes fatalities related to falls when a person was wearing
fall protection but did not have the lanyard attached and to electric
shocks where arc protection was available but unused or left in the
truck. For such minimal-cost preventative measures, assuming they have
costs of prevention of less than $1 million per fatality prevented and
using the VSL of $9 million and other parameters typically used in OSHA
benefits, if the final rule leads to either 1.5 fewer fatalities or
0.025 percent fewer injuries per year, the rule's benefits will be
equal to or greater than the costs. Many accident-prevention measures
will have some costs, but even if these costs are 75 percent of the
benefits, the final rule will have benefits exceeding costs if it
prevented 4.8 fatalities or 0.8 percent fewer injuries per year. OSHA
expects the rule's beneficial effects to exceed these values.
OSHA received many comments concerning the possible benefits, or
lack of benefits, for the final rule. Some of the benefit suggestions
were innovative. One commenter suggested that having establishment-
level injury and illness data on-line will be valuable for local
medical care practitioners who can check to see whether their patient's
illness or injury is because of their job (Ex. 1106). The Council of
State and Territorial Epidemiologists (CSTE) commented, "Availability
of on line data on work-related injuries and illnesses will allow
health care practitioners to assess the occurrence of particular
injuries and illnesses at the establishments where their patients
work" (Ex. 1106).
CSTE provided an example of a similar regulation in Massachusetts
which did reduce workplace injuries (Ex. 1106). The study by Laramie et
al. (2011) showed that after implementing a needlestick injury
reporting program in Massachusetts, the hospitals required to submit
annual injury summaries had a 22 percent decrease in needle stick
injuries over 5 years. While OSHA does not claim that this data
collection initiative will result in a 5 percent annual decrease in
injuries and illnesses, even two-hundredths of a percent decrease in
injuries and illnesses would be an overall benefit of 400 fewer
workplace injuries and illnesses in the United States per year.
Many commenters suggested that the benefits of this information
collection and dissemination would be dissipated because of the poor
quality of the information collected (Exs. 1219, 1333, 1391, 1199,
1343, 1342, 1110, 1110, 1402, 0258, 1359).
In response, OSHA notes that information is a unique good, which
has special properties including non-exclusion and non-rivalness, and
that the absence of information can create a market failure. The
presence of some information can help to correct a market failure, even
if the information is not perfect. The information can still provide a
signal to the economic actors (firms, establishments, workers, etc.)
even if the information stream is noisy.
The labor market may suffer from information asymmetries. If
employers know the actual risk of performing a job and job applicants
believe the job is safer than it actually is, then employees may accept
a lower wage, in other words, a less efficient wage. The classic
economics article on market information asymmetries is Akerlof's "The
Market for Lemons", which describes a theoretical model for the market
for used cars. For employers, there is an incentive to misrepresent the
safety of their workplace because it would allow them to hire labor for
less than the market clearing wage.
As discussed above, a common complaint of commenters was that
injury and illness summaries are lagging, rather than leading,
indicators of safety problems (Exs. 0027, 0163, 0210, 0250, 0258, 1109,
1124, 1193, 1194, 1198, 1204, 1206, 1217, 1219, 1222, 1275, 1279, 1321,
1326, 1331, 1333, 1334, 1336, 1339, 1341, 1342, 1343, 1355,, 1360,
1363, 1373, 1376, 1380, 1389, 1390, 1391, 1392, 1393, 1396, 1399, 1400,
1402, 1406, 1408, 1409, 1410, 1411, 1413, 1416, 1417, 1430, 1467,
1489). One commenter, the American Health Care Association (AHCA)
commented, "Despite OSHA's alleged position regarding the value of
leading indicators as opposed to lagging indicators, OSHA continues to
push employers into focusing resources and energy in the wrong
direction" (Ex. 1194). Another commenter, the Mechanical, Electrical,
Sheet Metal Alliance (MCAA), stated: ". . . OSHA Incidence Rates are
poor indicators of safety performance" (Ex. 1363). MCAA writes further
that "Construction owners often determine whether contractors are
eligible to bid on their projects based on the owner's perception of
the contractors' safety performance. Owner's evaluation of a company's
lagging indicators on the OSHA's [sic] Web site would be misleading
with regard to that company's safety culture and safety performance"
(Ex. 1363). OSHA disagrees, instead believing that OSHA's Web site
information is better than no information and that it won't be
misleading in the context of hundreds or thousands of other similar
establishments reporting their injury and illness rates, which will be
available for comparison.
The nomenclature of leading versus lagging indicators is
unfortunate. OSHA is not requiring an annual data collection to attempt
to judge the safety performance of any particular establishment, but
rather to collect annual injury and illness data to use in ways similar
to how the data collected from the ODI was used already. OSHA does not
have a strong opinion on the question of injury and illness data as a
lagging indicator, but the Agency knows that on average, current-year
injury/illness rates are related to past-year as well as future-year
injury and illness rates. OSHA wants to collect this information;
further, the Agency has been requiring many establishments to record
this information for decades. As discussed elsewhere, this data
collection effort is not an exercise in judging safety and health
reputations.
Other commenters who commented that the collection and electronic
publication of these records would be helpful included many labor
unions. A representative comment is from the International Brotherhood
of Teamsters (IBT), which wrote that they currently have great
difficulty obtaining these records for their membership from unionized
workplaces. The IBT wrote, "The cases are provided as an illustration
of the fact that employers frequently deny union representatives access
to this information, forcing the union to pursue charges with the
NLRB" (Ex. 1381).
D. Economic Feasibility
OSHA concludes that the final rule will be economically feasible.
For the annual reporting requirement, affecting establishments with 250
or more employees, the average cost per affected establishment will be
$215 per year. For the annual reporting requirement, affecting
establishments with 20 to 249 employees in designated high-hazard
industries, the average cost per affected establishment will be
$11.13 per year. In addition, the non-discrimination provision, which
has a cost of $5.86, on average, in the first year for each of the 1.3
million establishments subject to the rule, should also be economically
feasible. These costs will not affect the economic viability of these
establishments.
E. Regulatory Flexibility Certification
The part of the final rule requiring annual reporting for
establishments with 250 or more employees will affect some small firms,
according to the definition of small firm used by the Small Business
Administration (SBA). In some sectors, such as construction, where
SBA's definition only allows relatively smaller firms, there are
unlikely to be any firms with 250 or more employees that meet SBA
small-business definitions. In other sectors, such as manufacturing, a
small minority of SBA-defined small businesses will be subject to this
rule. Thus, this part of the final rule will affect only a small
percentage of all small firms. However, because some small firms will
be affected, especially in manufacturing, OSHA has examined the impacts
on small businesses of the costs of this rule. OSHA's procedures for
assessing the significance of final rules on small businesses suggest
that costs greater than 1 percent of revenues or 5 percent of profits
may result in a significant impact on a substantial number of small
businesses. To meet this level of significance at an estimated annual
average cost of $215 per affected establishment per year, annual
revenues for an establishment with 250 or more employees would have to
be less than $21,500, and annual profits would have to be less than
$4,300. These are extremely unlikely combinations of revenue and
profits for firms of this size and would only occur for a very small
number of firms in severe financial distress.
The part of the final rule requiring annual electronic submission
of data from establishments with 20 to 249 employees in designated
industries will also affect some small firms. As stated above, costs
greater than 1 percent of revenues or 5 percent of profits may result
in a significant economic impact on a substantial number of small
businesses. To meet this level of significance at an estimated annual
average cost of $11.13 per affected establishment per year, annual
revenues for an establishment with 20 to 249 employees would have to be
less than $1,113, and annual profits would have to be less than $226.
These are extremely unlikely combinations of revenue and profits for
establishments of this size.
As a result of these considerations, per section 605 of the
Regulatory Flexibility Act, OSHA proposes to certify that this final
rule will not have a significant economic impact on a substantial
number of small entities. Thus, OSHA did not prepare an initial
regulatory flexibility analysis or conduct a SBREFA Panel. OSHA
requested comments on this certification. Many commenters stated that
OSHA should have held a SBREFA Panel (Exs. 0179, 0205, 0250, 0255,
1092, 1103, 1113, 1123, 1190, 1199, 1200, 1205, 1208, 1209, 1211, 1216,
1217, 1275, 1278, 1343, 1356, 1359, 1370, 1387, 1395, 1396, 1408, 1410,
1411, 1421). Other commenters stated that specific aspects of the
proposed regulation brought it to the level that should require a
SBREFA Panel review. The American Public Power Association (APPA)
commented, "While OSHA representatives have asserted that the new
elements of the proposed rule are only extensions of existing
requirements, APPA is of the opinion that the proposed rule includes
profound changes to the scope of the existing framework. As such, OSHA
should have convened a Small Business Advocacy Review panel per the
Small Business Regulatory Enforcement Fairness Act ("SBREFA") to
analyze the potential impact on the small business community" (Ex.
1410).
In response, OSHA continues to assert that this regulation is
similar to the ODI, though with a larger number of participating
establishments. That data collection initiative ran successfully for
nearly 20 years.
In another example, the International Association of Drilling
Contractors wrote, "While OSHA acknowledges a small portion of
businesses do not have immediate access to computers or the Internet,
the agency has not put the rule before a small business review panel as
required under the Small Business Regulatory Enforcement Fairness Act
of 1996..." (Ex. 1199). OSHA's response to the issue of computer
and Internet access is discussed above.
Despite the comments, OSHA continues to believe that even if the
costs per small establishment were ten or twenty times higher than the
tiny per establishment costs of about $10 per average small business,
those costs would be nowhere near one percent of revenues or five
percent of profits. OSHA does note that during its past two SBREFA
Panel exercises, in 2012 (on Injury and Illness Prevention Programs)
and again in 2014 (on Infectious Diseases), all small-business panel
participants had access to computers, the Internet, and email.
VII. Unfunded Mandates
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1501 et seq.), as well as Executive Order 12875, this final rule does
not include any federal mandate that may result in increased
expenditures by state, local, and tribal governments, or increased
expenditures by the private sector of more than $100 million.
Section 3 of the Occupational Safety and Health Act makes clear
that OSHA cannot enforce compliance with its regulations or standards
on the U.S. government "or any State or political subdivision of a
State." Under voluntary agreement with OSHA, some States enforce
compliance with their State standards on public sector entities, and
these agreements specify that these State standards must be equivalent
to OSHA standards. Thus, although OSHA may include compliance costs for
affected public sector entities in its analysis of the expected impacts
associated with the final rule, the rule does not involve any unfunded
mandates being imposed on any State or local government entity.
Based on the evidence presented in this economic analysis, OSHA
concludes that the final rule would not impose a Federal mandate on the
private sector in excess of $100 million in expenditures in any one
year. Accordingly, OSHA is not required to issue a written statement
containing a qualitative and quantitative assessment of the anticipated
costs and benefits of the Federal mandate, as required under Section
202(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532(a)).
VIII. Federalism
The final rule has been reviewed in accordance with Executive Order
13132 (64 FR 43255 (Aug. 10, 1999)), regarding Federalism. The final
rule is a "regulation" issued under Sections 8 and 24 of the OSH Act
(29 U.S.C. 657, 673) and not an "occupational safety and health
standard" issued under Section 6 of the OSH Act (29 U.S.C. 655).
Therefore, pursuant to section 667(a) of the OSH Act, the final rule
does not preempt State law (29 U.S.C. 667(a)). The effect of the final
rule on states is discussed in section IX. State Plan States.
IX. State Plan States
For the purposes of section 18 of the OSH Act (29 U.S.C. 667) and
the requirements of 29 CFR 1904.37 and 1902.7, within 6 months after
publication of the final OSHA rule, state-plan states must promulgate
occupational injury and illness recording and reporting requirements
that are substantially identical to those in 29 CFR part 1904 "Recording
and Reporting Occupational Injuries and Illnesses." All other injury and
illness recording and reporting requirements (for example, industry
exemptions, reporting of fatalities and hospitalizations, record retention,
or employee involvement) that are promulgated by state-plan states may be
more stringent than, or supplemental to, the federal requirements, but,
because of the unique nature of the national recordkeeping program,
states must consult with OSHA and obtain approval of such additional or
more stringent reporting and recording requirements to ensure that they
will not interfere with uniform reporting objectives (29 CFR
1904.37(b)(2), 29 CFR 1902.7(a)).
There are 27 state plan states and territories. The states and
territories that cover private sector employers are Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin
Islands have OSHA-approved state plans that apply to state and local
government employees only.
X. Environmental Impact Assessment
OSHA has reviewed the provisions of this final rule in accordance
with the requirements of the National Environmental Policy Act (NEPA)
of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality
(CEQ) NEPA regulations (40 CFR parts 1500-1508), and the Department of
Labor's NEPA Procedures (29 CFR part 11). As a result of this review,
OSHA has determined that the final rule will have no significant
adverse effect on air, water, or soil quality, plant or animal life,
use of land, or other aspects of the environment.
XI. Office of Management and Budget Review Under the Paperwork
Reduction Act of 1995
The final rule contains collection of information (paperwork)
requirements that are subject to review by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C.
3501 et seq.) and OMB regulations (5 CFR part 1320). The PRA requires
that agencies obtain approval from OMB before conducting any collection
of information (44 U.S.C. 3507). The PRA defines a "collection of
information" as "the obtaining, causing to be obtained, soliciting,
or requiring the disclosure to third parties or the public of facts or
opinions by or for an agency regardless of form or format" (44 U.S.C.
3502(3)(A)).
OSHA's existing recordkeeping forms consist of the OSHA 300 Log,
the 300A Summary, and the 301 Incident Report. These forms are
contained in the Information Collection Request (ICR) (paperwork
package) titled 29 CFR part 1904 Recording and Reporting Occupational
Injuries and Illnesses, which OMB approved under OMB Control Number
1218-0176 (expiration date 01/31/2018).
The final rule affects the ICR estimates in two programmatic ways:
(1) Establishments that are subject to the part 1904 requirements and
have 250 or more employees must electronically submit to OSHA on an
annual basis the required information recorded on their OSHA Forms 300,
301, and 300A; and (2) Establishments in certain designated industries
that have 20 to 249 employees must electronically submit to OSHA on an
annual basis the required information recorded on their OSHA Form 300A.
In addition to submitting the required data, employers subject to
either of these requirements will also be required to create an account
and learn to navigate the collection system.
The final rule also requires employers subject to the part 1904
requirements to inform their employees of their right to report
injuries and illnesses. This requirement can be met by posting a
recently-revised version of the OSHA Poster. The public disclosure of
information originally supplied by the Federal Government to the
recipient for the purpose of disclosure to the public is not included
within the definition of collection of information (5 CFR
1320.3(c)(2)).
The burden hours for the final rule are estimated to be 173,406 for
the initial year of implementation and 254,029 for subsequent years.
There are no capital costs for this collection of information.
The table below presents the new components of the rule that
comprise the ICR estimates.
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about this ICR.
1. Title: 29 CFR part 1904 Recording and Reporting Occupational
Injuries and Illnesses.
2. Number of respondents: OSHA requires establishments that are
required to keep injury and illness records under part 1904, and that
had 250 or more employees in the previous year, to submit information
from these records to OSHA or OSHA's designee, electronically, on an
annual basis. There are approximately 34,000 establishments that will
be subject to this requirement and that will submit detailed case
characteristic data on approximately 700,000 occupational injuries and
illnesses per year. OSHA also proposes to require establishments that
are required to keep injury and illness records under part 1904, had 20
to 249 employees in the previous year, and are in certain designated
industries to electronically submit the information from the OSHA
annual summary form (Form 300A) to OSHA or OSHA's designee on an annual
basis. There are approximately 430,000 establishments that will be
subject to this requirement. Finally, OSHA proposes to require all
employers who receive notification from OSHA to electronically submit
specified information from their injury and illness records to OSHA or
OSHA's designee. This requirement will only incur a paperwork burden
when the agency implements a notice of collection. For each new data
collection conducted under this proposed provision, the Agency will
request OMB approval under separate PRA control numbers.
3. Frequency of responses: Annually.
4. Number of responses: 1,644,661.
5. Average time per response: Time per response varies from 20
minutes for establishments reporting only under Sec. 1904.41(a)(2), to
multiple hours for large establishments with many recordable injuries
and illnesses reporting under Sec. 1904.41(a)(1). The average time of
response per establishment is 41 minutes.
6. Estimated total burden hours: The burden hours for the final
rule are estimated to be 173,406 for the initial year of implementation
and 254,029 for subsequent years. Also, there is an adjustment decrease
of 750,637 burden hours due to decreases in (1) the number of
establishments covered by the recordkeeping rule; (2) the number of
injuries and illness recorded by covered employers; and (3) the number
of fatalities, amputations, hospitalization, and loss of eye reported
by employers. The proposed total burden hours for the recordkeeping
(part 1904) ICR are 2,667,251.
7. Estimated costs (capital-operation and maintenance): There are
no capital costs for the proposed information collection.
OSHA received a number of comments relating to the estimated time
necessary to meet the paperwork requirements of the proposed changes
published in the November 8, 2013 Improve Tracking of Workplace
Injuries and Illnesses Notice of Proposed Rulemaking (78 FR 67254-
67283) and its August 14, 2014 Supplemental Notice (79 FR 47605-47610).
References to documents below 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.
17, the proposed rule, is Document ID Number OSHA-2013-0023-0017. The
comments are grouped and addressed by topic.
Topic 1: A number of comments were submitted pertaining to the
extra time required to submit data on a quarterly basis, rather than an
annual basis (Exs. 157, 247). Paula Loht of Gannett Fleming Inc. wrote,
"Based on my calculations, if the proposed reporting requirements are
implemented, it would take my two-person staff two weeks of full-time
work every quarter to comply, and would also require input from our
technical staff. That would be more than 160 person hours, four
times per year."
Response: In the final rule, OSHA requires case-specific data to be
submitted electronically on an annual basis rather than a quarterly
basis. This will effectively reduce the time required to log into the
collection system multiple times per year. It will also allow employers
to comply with the existing review and certification requirements under
Sec. 1904.32 prior to submitting their data to OSHA, eliminating the
need for extra review employers would have taken prior to a quarterly
submission. An annual submission, rather than a quarterly submission,
results in a lower burden.
Topic 2: Several comments were submitted pertaining to the time
required to verify the accuracy of the data prior to its submittal to
OSHA (Exs. 157, 247, 1205). Rick Hartwig of the Graphic Arts Coalition
wrote, "The time estimates by OSHA with regard to the electronic
submission process also does not accurately account for the real time
it will take an employer or its staff to review the reports, verify
information, ensure accuracy of the data entered, enlist the assistance
of knowledgeable opinions as necessary, redacting personal information,
and to ensure compliance with all applicable regulatory requirements,
all prior to submittal to OSHA" (Ex. 1205).
Response: The data is submitted after the employer has certified to
the accuracy of the records in accordance with the already existing
requirements of Sec. 1904.32, Annual Summary. The time required to
review and certify the records is accounted for under this provision.
The new reporting requirements under Sec. 1904.41 require the employer
to submit the already verified information to OSHA. OSHA, therefore,
did not adjust its estimates for this provision.
Topic 3: Several comments were submitted pertaining to the time
OSHA used to estimate the submittal of data from the OSHA form 300
(Exs. 247, 1328, 1141). Eric Conn, representing the National Retail
Federation (NRF), wrote, "...OSHA bases its time estimates on the
time it takes employers to submit data to the Bureau of Labor
Statistics (BLS) in response to its survey. The data submitted for the
BLS survey, however, is more limited in terms of information requested.
BLS requests only certain data for up to 15 cases, but the Proposed
Regulation would require all relevant Form 300 and/or 300A information
from the entire injury and illness record. Thus the time burden would
actually be much greater than OSHA predicts" (Ex. 1328).
Response: OSHA agrees that using the estimate of 10 minutes per
establishment for entry of the OSHA Forms 300 and 300A data
underestimates the time that will be required to respond to this data
collection. Establishments with 250 or more employees will be required
to submit the Form 300 data for all cases entered on the log.
Accordingly, OSHA is now basing its estimation of the time required to
submit Log 300 data on the number of injury and illness cases that will
be submitted rather than on an estimate of time per establishment. OSHA
now estimates employers will require 2 minutes to enter the Form 300
one line entry for each of the 714,000 cases that will be submitted to
OSHA. This is in addition to the 10 minutes per establishment for the
data from the OSHA Form 300A. Basing estimates on case counts for Form
300 data provides a truer estimate of the total.
Topic 4: Several comments were submitted pertaining to keeping
one's records electronically and to submitting a "batch file" in
response to the new collection requirements (Exs. 247, 1326, 1336,
1141, 1205). Michael Hall of the Pacific Maritime Association (PMA)
wrote, "Under the current recording system, PMA and other employers
have not maintained electronic records that are capable of being
uploaded or transmitted because they are only inspected during an OSHA
inspection. Accordingly, moving to an electronic recording system
capable of transmission will be both time consuming and costly" (Ex.
1326). Marc Freedman of the Coalition for Workplace Safety (CWS) wrote,
"OSHA does not estimate how many employers currently maintain
electronic records. As OSHA asserts, 30 percent of ODI respondents do
not submit records electronically; therefore, one can assume that these
records are not maintained electronically. From this, it can be safely
assumed that a sizeable number of employers will also be copying the
required injury and illness information from the establishment's paper
forms into the electronic submission forms--a cost OSHA simply ignores
when calculating the average cost per affected establishment with 250
or more employees. Moreover, OSHA has not analyzed whether current
existing electronic programs would present such data in a format
acceptable to be uploaded to OSHA. Without knowing what types of
electronic forms OSHA would consider for uploading, the regulated
community is unable to estimate whether uploading such information
would impose increased costs" (Ex. 1141).
Response: The final rule does not require employers to adopt an
electronic system to record occupational injuries and illnesses and to
maintain OSHA Forms 300, 301 and 300A. The new provisions only require
employers to submit to OSHA the information they have already recorded.
One or more methods of data transmission (other than manual data entry)
will be provided, but use is not required. If the employer has software
with the ability to export or transmit data in a standard format that
meets OSHA's specifications, they may use that method to meet their
reporting obligations and minimize their burden to do so. Most
commercially available recordkeeping software platforms have such
functionality and many large employers regularly use this method for
responding to the BLS SOII survey.
OSHA believes many large establishments subject to this requirement
will already be keeping their records electronically and will export or
transmit the required information rather than entering it into the web
form. This will substantially reduce the time needed to comply with the
reporting requirement. However, the estimates contained in the Final
Economic Analysis (FEA) and the ICR are calculated with the assumption
that all submissions will be made by manually entering the required
data via the web form. No time savings are included in these estimates
for employers that will submit their data through a batch file upload
or electronic transmission. OSHA will adjust the estimates under
renewed ICRs when we have solid information regarding the percentage of
employers that take advantage of batch file upload or electronic
transmission.
Topic 5: Several comments were submitted pertaining to the
necessity to train employees on how to use the newly created reporting
system (Exs. 1205, 1336, 1141). Susan Yashinskie of the American Fuel &
Petrochemical Manufacturers (AFPM) wrote, "This estimate is highly
inaccurate and significantly understates the costs given the amount of
time it will take for employers to learn how to use and navigate the
proposed electronic reporting system..." (Ex. 1336). Rick Hartwig
of the Graphic Arts Coalition wrote, "Regarding the cost estimates
outlined within the proposal, they do not account for actual activities
and efforts that will be required by the employer. These additional
costs can include the training of personnel... to learn the different
elements of the new system..." (Ex. 1205).
Response: OSHA agrees that employers will require time to create an
account and familiarize themselves with the Web site prior to entering
and submitting the required data. This will be a onetime cost in the
initial year with costs in subsequent years for establishment with
employee turnover. OSHA estimates employers will require 10 minutes to
accomplish this task.
In addition to these five common topics, several comments were
submitted on miscellaneous issues pertaining to paperwork burden.
Bill Taylor of the Public Agency Safety Management Association
(PASMA)--South Chapter wrote, "...One of our member sites has
approximately 2,600 employees and their estimated cost of compliance
with this proposed quarterly reporting requirement is $7,250... This
employer also assumed labor costs of $50 per hour, which includes
benefits" (Ex. 157). PASMA's labor cost estimate of $50 per hour
including benefits is consistent with OSHA's estimate of $48.78 for an
Occupational Health and Safety Specialist to perform the employer's
day-to-day recordkeeping duties.
Michael Hall of the Pacific Maritime Association (PMA) wrote,
"OSHA's estimates do not take into account the costs described above
that are unique to the maritime industry. In particular, the man-hours
that will have to be devoted to attempting to prevent, if possible,
duplicative reporting will be enormous" (Ex. 1326). The costs of
properly recording information on OSHA Forms 300, 301 and 300A are
already accounted for in the current recordkeeping requirements burden
estimates. The new reporting requirements under 1904.41 only require
the employer to submit the data that is already recorded.
Marc Freedman of the Coalition for Workplace Safety (CWS) wrote,
"Because of the consequences of recording an injury under this
proposal, employers can be expected to involve more experts in some
cases. This is particularly the case with musculoskeletal disorders
("MSD")... employers are more likely to incur substantial costs to
conduct evaluations similar to Caterpillar's in order to determine
whether an injury is truly work-related. This is particularly the case
with musculoskeletal disorder injuries. OSHA has not accounted for
these additional costs that are likely to flow from this proposed
regulation" (Ex. 1141). OSHA has not adjusted its estimate for the
time it requires to determine the recordability of an injury or
illness. Employers are already required to certify to the accuracy of
the OSHA forms prior to submitting these data. The time required to
record cases on the OSHA forms is already accounted for in the
estimates. It should be noted that the "MSD" column Mr. Freedman
references does not exist at this time. OSHA will account for burden
associated with future rulemaking requirements in future ICRs. It
should also be noted that OSHA currently publishes establishment-
specific injury and illness rates on its Web site and has not observed
any indication that publication of that data has increased the time
needed to record injuries and illnesses. OSHA does not agree with Mr.
Freedman's conjecture that publication of the data captured by these
revised requirements will result in additional burden for recording
injuries and illnesses.
The PRA specifies that Federal agencies cannot conduct or sponsor a
collection of information unless it is approved by OMB and displays a
currently valid OMB approval number (44 U.S.C. 3507). Also,
notwithstanding any other provision of law, respondents are not
required to respond to the information collection requirements until
they have been approved and a currently valid control number is
displayed. OSHA will publish a subsequent Federal Register document
when OMB takes further action on the information collection
requirements in the Recordkeeping and Recording Occupational Injuries
and Illnesses rule.
XII. Consultation and Coordination With Indian Tribal Governments
OSHA reviewed this final rule in accordance with Executive Order
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have
"tribal implications" as defined in that order. This final rule does
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes.
List of Subjects
29 CFR Part 1904
Health statistics, Occupational safety and health, Reporting and
recordkeeping requirements, State plans.
29 CFR Part 1902
Health statistics, Intergovernmental relations, Occupational safety
and health, Reporting and recordkeeping requirements, State plans.
Authority and Signature
This document was prepared under the direction of David Michaels,
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and
Health. It is issued under Sections 8 and 24 of the Occupational Safety
and Health Act (29 U.S.C. 657, 673), Section 553 of the Administrative
Procedure Act (5 U.S.C. 553), and Secretary of Labor's Order No. 41-
2012 (77 FR 3912 (Jan. 25, 2012)).
Signed at Washington, DC, on April 29, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
Final Rule
For the reasons stated in the preamble, OSHA amends parts 1904 and
1902 of chapter XVII of title 29 as follows:
PART 1904--[AMENDED]
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1. The authority citation for part 1904 continues to read as follows:
Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
0
2. Revise Sec. 1904.35 to read as follows:
Sec. 1904.35 Employee involvement.
(a) Basic requirement. Your employees and their representatives
must be involved in the recordkeeping system in several ways.
(1) You must inform each employee of how he or she is to report a
work-related injury or illness to you.
(2) You must provide employees with the information described in
paragraph (b)(1)(iii) of this section.
(3) You must provide access to your injury and illness records for
your employees and their representatives as described in paragraph
(b)(2) of this section.
(b) Implementation--(1) What must I do to make sure that employees
report work-related injuries and illnesses to me? (i) You must
establish a reasonable procedure for employees to report work-related
injuries and illnesses promptly and accurately. A procedure is not
reasonable if it would deter or discourage a reasonable employee from
accurately reporting a workplace injury or illness;
(ii) You must inform each employee of your procedure for reporting
work-related injuries and illnesses;
(iii) You must inform each employee that:
(A) Employees have the right to report work-related injuries and
illnesses; and
(B) Employers are prohibited from discharging or in any manner
discriminating against employees for reporting work-related injuries or
illnesses; and
(iv) You must not discharge or in any manner discriminate against
any employee for reporting a work-related injury or illness.
(2) [Reserved]
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3. Revise Sec. 1904.36 to read as follows:
Sec. 1904.36 Prohibition against discrimination.
In addition to Sec. 1904.35, section 11(c) of the OSH Act also
prohibits you from discriminating against an employee for reporting a
work-related fatality, injury, or illness. That provision of the Act
also protects the employee who files a safety and health complaint,
asks for access to the part 1904 records, or otherwise exercises any
rights afforded by the OSH Act.
Subpart E--Reporting Fatality, Injury and Illness Information to
the Government
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4. Add an authority citation to subpart E of 29 CFR part 1904 to read
as follows:
Authority: 29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of
Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012).
0
5. Revise Sec. 1904.41 to read as follows:
Sec. 1904.41 Electronic submission of injury and illness records to
OSHA.
(a) Basic requirements--(1) Annual electronic submission of part
1904 records by establishments with 250 or more employees. If your
establishment had 250 or more employees at any time during the previous
calendar year, and this part requires your establishment to keep
records, then you must electronically submit information from the three
recordkeeping forms that you keep under this part (OSHA Form 300A
Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of
Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and
Illness Incident Report) to OSHA or OSHA's designee. You must submit
the information once a year, no later than the date listed in paragraph
(c) of this section of the year after the calendar year covered by the
forms.
(2) Annual electronic submission of OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 20 or more
employees but fewer than 250 employees in designated industries. If
your establishment had 20 or more employees but fewer than 250
employees at any time during the previous calendar year, and your
establishment is classified in an industry listed in appendix A to
subpart E of this part, then you must electronically submit information
from OSHA Form 300A Summary of Work-Related Injuries and Illnesses to
OSHA or OSHA's designee. You must submit the information once a year,
no later than the date listed in paragraph (c) of this section of the
year after the calendar year covered by the form.
(3) Electronic submission of part 1904 records upon notification.
Upon notification, you must electronically submit the requested
information from your part 1904 records to OSHA or OSHA's designee.
(b) Implementation--(1) Does every employer have to routinely
submit information from the injury and illness records to OSHA? No,
only two categories of employers must routinely submit information from
their injury and illness records. First, if your establishment had 250
or more employees at any time during the previous calendar year, and
this part requires your establishment to keep records, then you must
submit the required Form 300A, 300, and 301 information to OSHA once a
year. Second, if your establishment had 20 or more employees but fewer
than 250 employees at any time during the previous calendar year, and
your establishment is classified in an industry listed in appendix A to
subpart E of this part, then you must submit the required Form 300A
information to OSHA once a year. Employers in these two categories must
submit the required information by the date listed in paragraph (c) of
this section of the year after the calendar year covered by the form or
forms (for example, 2017 for the 2016 forms). If you are not in either
of these two categories, then you must submit information from the
injury and illness records to OSHA only if OSHA notifies you to do so
for an individual data collection.
(2) If I have to submit information under paragraph (a)(1) of this
section, do I have to submit all of the information from the
recordkeeping form? No, you are required to submit all of the
information from the form except the following:
(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300):
Employee name (column B).
(ii) Injury and Illness Incident Report (OSHA Form 301): Employee
name (field 1), employee address (field 2), name of physician or other
health care professional (field 6), facility name and address if
treatment was given away from the worksite (field 7).
(3) Do part-time, seasonal, or temporary workers count as employees
in the criteria for number of employees in paragraph (a) of this
section? Yes, each individual employed in the establishment at any time
during the calendar year counts as one employee, including full-time,
part-time, seasonal, and temporary workers.
(4) How will OSHA notify me that I must submit information from the
injury and illness records as part of an individual data collection
under paragraph (a)(3) of this section? OSHA will notify you by mail if
you will have to submit information as part of an individual data
collection under paragraph (a)(3). OSHA will also announce individual
data collections through publication in the Federal Register and the
OSHA newsletter, and announcements on the OSHA Web site. If you are an
employer who must routinely submit the information, then OSHA will not
notify you about your routine submittal.
(5) How often do I have to submit the information from the injury
and illness records? If you are required to submit information under
paragraph (a)(1) or (2) of this section, then you must submit the
information once a year, by the date listed in paragraph (c) of this
section of the year after the calendar year covered by the form or
forms. If you are submitting information because OSHA notified you to
submit information as part of an individual data collection under
paragraph (a)(3) of this section, then you must submit the information
as often as specified in the notification.
(6) How do I submit the information? You must submit the
information electronically. OSHA will provide a secure Web site for the
electronic submission of information. For individual data collections
under paragraph (a)(3) of this section, OSHA will include the Web
site's location in the notification for the data collection.
(7) Do I have to submit information if my establishment is
partially exempt from keeping OSHA injury and illness records? If you
are partially exempt from keeping injury and illness records under
Sec. Sec. 1904.1 and/or 1904.2, then you do not have to routinely
submit part 1904 information under paragraphs (a)(1) and (2) of this
section. You will have to submit information under paragraph (a)(3) of
this section if OSHA informs you in writing that it will collect injury
and illness information from you. If you receive such a notification,
then you must keep the injury and illness records required by this part
and submit information as directed.
(8) Do I have to submit information if I am located in a State Plan
State? Yes, the requirements apply to employers located in State Plan
States.
(9) May an enterprise or corporate office electronically submit
part 1904 records for its establishment(s)? Yes, if your enterprise or
corporate office had ownership of or control over one or more
establishments required to submit information under paragraph (a)(1) or
(2) of this section, then the enterprise or corporate office may
collect and electronically submit the information for the
establishment(s).
(c) Reporting dates. (1) In 2017 and 2018, establishments required
to submit under paragraph (a)(1) or (2) of this section must submit the
required information according to the table in this paragraph (c)(1):
------------------------------------------------------------------------
Establishments
submitting under Establishments
paragraph (a)(1) submitting under
of this section paragraph (a)(2)
Submission year must submit the of this section Submission
required must submit the deadline
information from required
this form/these information from
forms: this form:
------------------------------------------------------------------------
2017............. 300A............ 300A............ July 1, 2017.
2018............. 300A, 300, 301.. 300A............ July 1, 2018.
------------------------------------------------------------------------
(2) Beginning in 2019, establishments that are required to submit
under paragraph (a)(1) or (2) of this section will have to submit all
of the required information by March 2 of the year after the calendar
year covered by the form or forms (for example, by March 2, 2019, for
the forms covering 2018).
0
6. Add appendix A to subpart E of part 1904 to read as follows:
Appendix A to Subpart E of Part 1904--Designated Industries for Sec.
1904.41(a)(2) Annual Electronic Submission of OSHA Form 300A Summary of
Work-Related Injuries and Illnesses by Establishments With 20 or More
Employees but Fewer Than 250 Employees in Designated Industries
----------------------------------------------------------------------------------------------------------------
NAICS Industry
----------------------------------------------------------------------------------------------------------------
11.................................................. Agriculture, forestry, fishing and hunting.
22.................................................. Utilities.
23.................................................. Construction.
31-33............................................... Manufacturing.
42.................................................. Wholesale trade.
4413................................................ Automotive parts, accessories, and tire stores.
4421................................................ Furniture stores.
4422................................................ Home furnishings stores.
4441................................................ Building material and supplies dealers.
4442................................................ Lawn and garden equipment and supplies stores.
4451................................................ Grocery stores.
4452................................................ Specialty food stores.
4521................................................ Department stores.
4529................................................ Other general merchandise stores.
4533................................................ Used merchandise stores.
4542................................................ Vending machine operators.
4543................................................ Direct selling establishments.
4811................................................ Scheduled air transportation.
4841................................................ General freight trucking.
4842................................................ Specialized freight trucking.
4851................................................ Urban transit systems.
4852................................................ Interurban and rural bus transportation.
4853................................................ Taxi and limousine service.
4854................................................ School and employee bus transportation.
4855................................................ Charter bus industry.
4859................................................ Other transit and ground passenger transportation.
4871................................................ Scenic and sightseeing transportation, land.
4881................................................ Support activities for air transportation.
4882................................................ Support activities for rail transportation.
4883................................................ Support activities for water transportation.
4884................................................ Support activities for road transportation.
4889................................................ Other support activities for transportation.
4911................................................ Postal service.
4921................................................ Couriers and express delivery services.
4922................................................ Local messengers and local delivery.
4931................................................ Warehousing and storage.
5152................................................ Cable and other subscription programming.
5311................................................ Lessors of real estate.
5321................................................ Automotive equipment rental and leasing.
5322................................................ Consumer goods rental.
5323................................................ General rental centers.
5617................................................ Services to buildings and dwellings.
5621................................................ Waste collection.
5622................................................ Waste treatment and disposal.
5629................................................ Remediation and other waste management services.
6219................................................ Other ambulatory health care services.
6221................................................ General medical and surgical hospitals.
6222................................................ Psychiatric and substance abuse hospitals.
6223................................................ Specialty (except psychiatric and substance abuse)
hospitals.
6231................................................ Nursing care facilities.
6232................................................ Residential mental retardation, mental health and
substance abuse facilities.
6233................................................ Community care facilities for the elderly.
6239................................................ Other residential care facilities.
6242................................................ Community food and housing, and emergency and other relief
services.
6243................................................ Vocational rehabilitation services.
7111................................................ Performing arts companies.
7112................................................ Spectator sports.
7121................................................ Museums, historical sites, and similar institutions.
7131................................................ Amusement parks and arcades.
7132................................................ Gambling industries.
7211................................................ Traveler accommodation.
7212................................................ RV (recreational vehicle) parks and recreational camps.
7213................................................ Rooming and boarding houses.
7223................................................ Special food services.
8113................................................ Commercial and industrial machinery and equipment (except
automotive and electronic) repair and maintenance.
8123................................................ Dry-cleaning and laundry services.
----------------------------------------------------------------------------------------------------------------
PART 1902--STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE
STANDARDS
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7. The authority citation for part 1902 is revised to read as follows:
Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
0
8. In Sec. 1902.7, revise paragraph (d) to read as follows:
Sec. 1902.7 Injury and illness recording and reporting requirements.
* * * * *
(d) As provided in section 18(c)(7) of the Act, State Plan States
must adopt requirements identical to those in 29 CFR 1904.41 in their
recordkeeping and reporting regulations as enforceable State
requirements. The data collected by OSHA as authorized by Sec. 1904.41
will be made available to the State Plan States. Nothing in any State
plan shall affect the duties of employers to comply with Sec. 1904.41.
[FR Doc. 2016-10443 Filed 5-11-16; 8:45 am]
BILLING CODE 4510-26-P
