[Federal Register Volume 88, Number 139 (Friday, July 21, 2023)]
[Rules and Regulations]
[Pages 47254-47349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15091]
Vol. 88
Friday,
No. 139
July 21, 2023
Part II
Department of Labor
-----------------------------------------------------------------------
Occupational Safety and Health Administration
-----------------------------------------------------------------------
29 CFR Part 1904
Improve Tracking of Workplace Injuries and Illnesses; Final Rule
Federal Register / Vol. 88 , No. 139 / Friday, July 21, 2023 / Rules
and Regulations
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1904
[Docket No. OSHA-2021-0006]
RIN 1218-AD40
Improve Tracking of Workplace Injuries and Illnesses
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: OSHA is amending its occupational injury and illness
recordkeeping regulation to require certain employers to electronically
submit injury and illness information to OSHA that employers are
already required to keep under the recordkeeping regulation.
Specifically, OSHA is amending its regulation to require establishments
with 100 or more employees in certain designated industries to
electronically submit information from their OSHA Forms 300 and 301 to
OSHA once a year. OSHA will not collect employee names or addresses,
names of health care professionals, or names and addresses of
facilities where treatment was provided if treatment was provided away
from the worksite from the Forms 300 and 301. Establishments with 20 to
249 employees in certain industries will continue to be required to
electronically submit information from their OSHA Form 300A annual
summary to OSHA once a year. All establishments with 250 or more
employees that are required to keep records under OSHA's injury and
illness regulation will also continue to be required to electronically
submit information from their Form 300A to OSHA on an annual basis.
OSHA is also updating the NAICS codes used in appendix A, which
designates the industries required to submit their Form 300A data, and
is adding appendix B, which designates the industries required to
submit Form 300 and Form 301 data. In addition, establishments will be
required to include their company name when making electronic
submissions to OSHA. OSHA intends to post some of the data from the
annual electronic submissions on a public website after identifying and
removing information that could reasonably be expected to identify
individuals directly, such as individuals' names and contact
information.
DATES: This final rule becomes effective on January 1, 2024.
Collections of information: There are collections of information
contained in this final rule (see Section V, OMB Review Under the
Paperwork Reduction Act of 1995). Notwithstanding the general date of
applicability for the 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: Electronic copies of this Federal Register document and news
releases are available at OSHA's website at https://www.osha.gov.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-1999; email:
meilinger.francis2@dol.gov.
For general information and technical inquiries: Lee Anne Jillings,
Director, Directorate of Technical Support and Emergency Management,
U.S. Department of Labor; telephone (202) 693-2300; email:
Jillings.LeeAnne@dol.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. References and Exhibits
B. Introduction
C. Regulatory History
D. Related Litigation
E. Injury and Illness Data Collection
II. Legal Authority
A. Statutory Authority To Promulgate the Rule
B. Fourth Amendment Issues
C. Publication of Collected Data and FOIA
D. Reasoned Explanation for Policy Change
III. Summary and Explanation of the Final Rule
A. Section 1904.41(a)(1)(i) and (ii)--Annual Electronic
Submission of Information From OSHA Form 300A Summary of Work-
Related Injuries and Illnesses
1. Section 1904.41(a)(1)(i)--Establishments With 20-249
employees That Are Required To Submit Information From OSHA Form
300A
2. Section 1904.41(a)(1)(ii)--Establishments With 250 or More
Employees That Are Required To Submit Information From OSHA Form
300A
3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into
Final Section 1904.41(a)(1)(i) and (ii)
4. Updating Appendix A
B. Section 1904.41(a)(2)--Annual Electronic Submission of OSHA
Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form
301 Injury and Illness Incident Report by Establishments With 100 or
More Employees in Designated Industries)
1. Covered Establishments and Industries
a. The Size Threshold for Submitting Information From OSHA Forms
300 and 301
b. The Criteria for Determining the Industries in Appendix B to
Subpart E
c. Cut-Off Rates for Determining the Industries in Appendix B to
Subpart E
d. Using the Most Current Data To Determine Designated
Industries
e. Industries Included in Final Appendix B After Applying the
Final Criteria, Cut-Off Rates, and Data Sources
2. Information To Be Submitted
3. Publication of Electronic Data
4. Benefits of Collecting and Publishing Data From Forms 300 and
301
a. General Benefits of Collecting and Publishing Data From Forms
300 and 301
b. Beneficial Ways That OSHA Can Use The Data From Forms 300 and
301
c. Beneficial Ways That Employers Can Use the Data From Forms
300 and 301
d. Beneficial Ways That Employees Can Use the Data From Forms
300 and 301
e. Beneficial Ways That Federal and State Agencies Can Use the
Data From Forms 300 and 301
f. Beneficial Ways That Researchers Can Use the Data From Forms
300 and 301
g. Beneficial Ways That Workplace Safety Consultants Can Use the
Data From Forms 300 and 301
h. Beneficial Ways That Members of the Public and Other
Interested Parties Can Use the Data From Forms 300 and 301
5. The Freedom of Information Act (FOIA)
6. Safeguarding Individual Privacy (Direct Identification)
7. Indirect Identification of Individuals
8. The Experience of Other Federal Agencies
9. Risk of Cyber Attack
10. The Health Information Portability and Accountability Act
(HIPAA)
11. The Americans With Disabilities Act (ADA)
12. The Privacy Act
13. Privacy Impact Assessment
14. Other Issues Related to OSHA's Proposal To Require the
Submission of and Then Publish Certain Data From Establishments'
Forms 300 and 301
a. Miscellaneous Comments
b. The Effect of the Rule on the Accuracy of Injury and Illness
Records
c. Collecting and Processing the Data From Forms 300 and 301
Will Help OSHA Use Its Resources More Effectively
d. OSHA's Capacity To Collect and Process the Data From Forms
300 and 301
e. Data Submission
f. Tools To Make the Collected Data From Forms 300 and 301 More
Useful
C. Section 1904.41(b)(1)
D. Section 1904.41(b)(9)
1. Collecting Employee Names
2. Excluding Other Specified Fields
E. Section 1904.41(b)(10)
F. Section 1904.41(c)
G. Additional Comments Which Concern More Than One Section of
the Proposal
1. General Comments
2. Misunderstandings About Scope
3. Diversion of Resources
4. Lagging v. Leading Indicators
5. Employer Shaming
6. Impact on Employee Recruiting
7. Legal Disputes
8. No Fault Recordkeeping
9. Confidentiality of Business Locations
10. Employer-Vaccine-Mandate-Related Concerns
11. Constitutional Issues and OSHA's Authority To Publish
Information From Forms 300 and 301
a. The First Amendment
b. The Fourth Amendment
c. The Fifth Amendment
d. OSHA's Authority To Publish Information Submitted Under This
Rule
12. Administrative Issues
a. Public Hearing
b. The Advisory Committee on Construction Safety and Health
(ACCSH)
c. Reasonable Alternatives Considered
IV. Final Economic Analysis and Regulatory Flexibility Certification
A. Introduction
B. Changes From the Preliminary Economic Analysis (PEA)
(Reflecting Changes in the Final Rule From the Proposal)
1. Continued Submission of OSHA 300A Annual Summaries by
Establishments With 250 or More Employees
2. Additional Appendix B Industries
3. Updated Data
C. Cost
1. Wages
a. Wage Estimates in the PEA
b. Comments on OSHA's Wage Estimates
c. Wage Estimates in the FEA
2. Estimated Case Counts
3. Familiarization
4. Record Submission
5. Custom Forms
6. Batch-File Submissions
7. Software/System Upgrades Needed
8. Other Costs
a. Harm to Reputation
b. Additional Time Needed To Review for PII
c. Company Name
d. Training Costs
D. Effect on Prices
E. Budget Costs to the Government
F. Total Cost
G. Benefits
H. Economic Feasibility
I. Regulatory Flexibility Certification
V. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
B. Summary of Information Collection Requirements
VI. Unfunded Mandates
VII. Federalism
VIII. State Plans
IX. National Environmental Policy Act
X. Consultation and Coordination With Indian Tribal Governments
Authority and Signature
I. Background
A. References and Exhibits
In this preamble, OSHA references documents in Docket No. OSHA-
2021-0006, the docket for this rulemaking. The docket is available at
http://www.regulations.gov, the Federal eRulemaking Portal.
When citing exhibits in the docket, OSHA includes the term
``Document ID'' followed by the last four digits of the Document ID
number. For example, OSHA's preliminary economic analysis is in the
docket as OSHA-2021-0006-0002. Citations also include the attachment
number or other attachment identifier, if applicable, page numbers
(designated ``p.'' or ``Tr.'' for pages from a hearing transcript), and
in a limited number of cases a footnote number (designated ``Fn.''). In
a citation that contains two or more Document ID numbers, the Document
ID numbers are separated by semi-colons (e.g., ``Document ID 1231,
Attachment 1, p. 6; 1383, Attachment 1, p. 2'').
All materials in the docket, including public comments, supporting
materials, meeting transcripts, and other documents, are listed 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, including copyrighted material, are available
for inspection through the OSHA Docket Office. Contact the OSHA Docket
Office at (202) 693-2350 (TTY (877) 889-5627) for assistance in
locating docket submissions.
B. 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
the regulation must use three forms, or their equivalent, to record
recordable employee injuries and illnesses:
OSHA Form 300, the Log of Work-Related Injuries and
Illnesses. This form includes information about the employee's name,
job title, date of the injury or illness, where the injury or illness
occurred, description of the injury or illness (e.g., body part
affected), and the outcome of the injury or illness (e.g., death, days
away from work, job transfer or restriction).
OSHA Form 301, the Injury and Illness Incident Report.
This form includes the employee's name and address, date of birth, date
hired, and gender and the name and address of the health care
professional that treated the employee, as well as more detailed
information about where and how the injury or illness occurred.
OSHA Form 300A, the Annual Summary of Work-Related
Injuries and Illnesses. This form includes general information about an
employer's workplace, such as the average number of employees and total
number of hours worked by all employees during the calendar year. It
does not contain information about individual employees. Employers are
required to prepare this form at the end of each year and post the form
in a visible location in the workplace from February 1 to April 30 of
the year following the year covered by the form.
Section 1904.41 of the previous recordkeeping regulation also
required two groups of establishments to electronically submit injury
and illness data to OSHA once a year.
Sec. 1904.41(a)(1) required establishments with 250 or
more employees in industries that are required to routinely keep OSHA
injury and illness records to electronically submit information from
the Form 300A summary to OSHA once a year.
Sec. 1904.41(a)(2) required establishments with 20-249
employees in certain designated industries (those listed on appendix A
of part 1904 subpart E) to electronically submit information from their
Form 300A summary to OSHA once a year.
Also, Sec. 1904.41(a)(4) required each establishment that must
electronically submit injury and illness information to OSHA to provide
their Employer Identification Number (EIN) in their submittal.
Under this final rule, three groups of establishments will be
required to electronically submit information from their injury and
illness recordkeeping forms to OSHA once a year.
Establishments with 20-249 employees in certain designated
industries (listed in appendix A to subpart E) will continue to be
required to electronically submit information from their Form 300A
annual summary to OSHA once a year (final Sec. 1904.41(a)(1)(i)). OSHA
is also updating the NAICS codes used for appendix A to subpart E.
Establishments with 250 or more employees in industries
that are required to routinely keep OSHA injury and illness records
will continue to be required to electronically submit information from
the Form 300A to OSHA once a year (final Sec. 1904.41(a)(1)(ii)).
Establishments with 100 or more employees in certain
designated industries (listed in new appendix B to subpart E) will be
newly required to electronically submit information from their OSHA
Forms 300 and 301 to OSHA once a year (final Sec. 1904.41(a)(2)). The
industries listed in new appendix B were chosen based on
three measures of industry hazardousness.
OSHA will also require establishments to include their company name
when making electronic submissions to OSHA (final Sec.
1904.41(b)(10)).
Additionally, although publication is not part of the regulatory
requirements of this final rule, OSHA intends to post the collected
establishment-specific, case-specific injury and illness information
online. As discussed in more detail below, the agency will seek to
minimize the possibility of the release of information that could
reasonably be expected to identify individuals directly, such as
employee name, contact information, and name of physician or health
care professional. OSHA will minimize the possibility of releasing such
information in multiple ways, including by limiting the worker
information collected, designing the collection system to provide extra
protections for some of the information that employers will be required
to submit, withholding certain fields from public disclosure, and using
automated software to identify and remove information that could
reasonably be expected to identify individuals directly.
OSHA has determined that the data collection will assist the agency
in its statutory mission to assure safe and healthful working
conditions for working people (see 29 U.S.C. 651(b)). In addition, OSHA
has determined that the expanded public access to establishment-
specific, case-specific injury and illness data will allow employers,
employees, potential employees, employee representatives, customers,
potential customers, researchers, and the general public to make more
informed decisions about workplace safety and health at a given
establishment. OSHA believes that this accessibility will ultimately
result in the reduction of occupational injuries and illnesses.
OSHA estimates that this rule will have economic costs of $7.7
million per year, including $7.1 million per year to the private
sector, with average costs of $136 per year for affected establishments
with 100 or more employees, annualized over 10 years with a discount
rate of seven percent. The agency believes that the annual benefits,
while unquantified, significantly exceed the annual costs.
C. Regulatory History
As discussed in section II, Legal Authority, the Occupational
Safety and Health Act (OSH Act or Act) requires employers to keep
records of employee illnesses and injuries as prescribed by OSHA
through regulation. 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)). These regulations require
the recording of work-related injuries and illnesses that involve
death, loss of consciousness, days away from work, restricted work or
transfer to another job, medical treatment beyond first aid, or
diagnosis of a significant injury or illness by a physician or other
licensed health care professional (29 CFR 1904.7).
On July 29, 1977, OSHA amended these regulations to partially
exempt businesses having ten or fewer employees during the previous
calendar year from the requirement to record occupational injuries and
illnesses (42 FR 38568). Then, on December 28, 1982, OSHA amended the
regulations again to partially exempt establishments in certain lower-
hazard industries from the requirement to record occupational injuries
and illnesses (47 FR 57699).\1\ OSHA also amended the recordkeeping
regulations in 1994 (Reporting of Fatality or Multiple Hospitalization
Incidents, 59 FR 15594) and 1997 (Reporting Occupational Injury and
Illness Data to OSHA, 62 FR 6434). Under the version of Sec. 1904.41
added by the 1997 final rule, OSHA began requiring certain employers to
submit their 300A data to OSHA annually through the OSHA Data
Initiative (ODI). Through the ODI, OSHA collected data on injuries and
acute illnesses attributable to work-related activities in the private
sector from approximately 80,000 establishments in selected high-hazard
industries. The agency used these data to calculate establishment-
specific injury and illness rates, and, in combination with other data
sources, to target enforcement and compliance assistance activities.
---------------------------------------------------------------------------
\1\ All employers covered by the OSH Act are covered by OSHA's
recordkeeping and reporting requirements found in 29 CFR part 1904.
However, there are several exceptions to OSHA's recordkeeping
requirements that apply unless OSHA or the Bureau of Labor
Statistics (BLS) informs them in writing that they must keep records
(29 CFR 1904.1(a)(1), 1904.2(a)(1)). For example, employers with ten
or fewer employees, as well as businesses with establishments in
certain industries, are partially exempt from keeping OSHA injury
and illness records (29 CFR 1904.1, 1904.2). The provision excepts
most employers covered by the OSH Act. All employers covered by the
OSH Act, including those that are partially exempt from keeping
injury and illness records, are still required to report work-
related fatalities, in-patient hospitalizations, amputations, and
losses of an eye to OSHA within specified timeframes under 29 CFR
1904.39.
---------------------------------------------------------------------------
On January 19, 2001, OSHA issued a final rule amending its
requirements for the recording and reporting of occupational injuries
and illnesses (29 CFR parts 1904 and 1952), along with the forms
employers use to record those injuries and illnesses (66 FR 5916). The
final rule also updated the list of industries that are partially
exempt from recording occupational injuries and illnesses.
On September 18, 2014, OSHA again amended the regulations to
require employers to report work-related fatalities and severe
injuries--in-patient hospitalizations, amputations, and losses of an
eye--to OSHA and to allow electronic reporting of these events (79 FR
56130). The final rule also revised the list of industries that are
partially exempt from recording occupational injuries and illnesses.
On May 12, 2016, OSHA amended the regulations on recording and
reporting occupational injuries and illnesses to require employers, on
an annual basis, to submit electronically to OSHA injury and illness
information that employers are already required to keep under part 1904
(81 FR 29624). Under the 2016 revisions, establishments with 250 or
more employees that are routinely required to keep records were
required to electronically submit information from their OSHA Forms
300, 300A, and 301 to OSHA or OSHA's designee once a year, and
establishments with 20 to 249 employees in certain designated
industries were required to electronically submit information from
their OSHA annual summary (Form 300A) to OSHA or OSHA's designee once a
year. In addition, that final rule required employers, upon
notification, to electronically submit information from part 1904
recordkeeping forms to OSHA or OSHA's designee. These provisions became
effective on January 1, 2017, with an initial submission deadline of
July 1, 2017, for 2016 Form 300A data. That submission deadline was
subsequently extended to December 15, 2017 (82 FR 55761). The initial
submission deadline for electronic submission of information from OSHA
Forms 300 and 301 was July 1, 2018. Because of a subsequent rulemaking,
OSHA never received the data submissions from Forms 300 and 301 that
the 2016 final rule anticipated.
On January 25, 2019, OSHA issued a final rule that amended the
recordkeeping regulations to remove the requirement for establishments
with 250 or more employees that are routinely required to keep records
to electronically submit information from their OSHA Forms 300 and 301
to OSHA or OSHA's designee once a year. As a result, those
establishments were required to electronically submit only information
from their OSHA 300A
annual summary. The 2019 final rule also added a requirement for
covered employers to submit their Employer Identification Number (EIN)
electronically along with their injury and illness data submission (83
FR 36494, 84 FR 380, 395-97).
On March 30, 2022, OSHA issued a notice of proposed rulemaking
(NPRM or proposed rule) proposing to amend the recordkeeping
regulations to require establishments with 100 or more employees in
certain designated industries to electronically submit information from
their OSHA Forms 300 and 301 to OSHA once a year (87 FR 18528). In
addition, OSHA proposed to continue the requirement for establishments
with 20 or more employees in certain designated industries to
electronically submit data from their OSHA Form 300A annual summary to
OSHA once a year. OSHA also proposed to update the appendices
containing the designated industries covered by the electronic
submission requirement and to remove the requirement for establishments
with 250 or more employees not in a designated industry to
electronically submit information from their Form 300A to OSHA on an
annual basis. Further, OSHA expressed its intention to post the data
from the proposed electronic submission requirement on a public website
after identifying and removing information that could reasonably be
expected to identify individuals directly, such as individuals' names
and contact information. Finally, OSHA proposed to require
establishments to include their company name when making electronic
submissions to OSHA.
Comments on the NPRM were initially due on May 30, 2022 (87
FR18528). However, in response to requests for an extension, OSHA
published a second Federal Register notice on May 25, 2022, extending
the comment period until June 30, 2022 (87 FR 31793). By the end of the
extended comment period, OSHA had received 87 comments on the proposed
rule. The issues raised in those comments are addressed herein.
D. Related Litigation
Both the 2016 and 2019 OSHA final rules that addressed the
electronic submission of injury and illness data were challenged in
court. In Texo ABC/AGC, Inc., et al. v. Acosta, No. 3:16-cv-01998-L
(N.D. Tex. filed July 8, 2016), and NAHB, et al. v. Acosta, No. 5:17-
cv-00009-PRW (W.D. Okla. filed Jan. 4, 2017), industry groups
challenged OSHA's 2016 final rule that required establishments with 250
or more employees to electronically submit data from their OSHA Forms
300 and 301 to OSHA (as well as other requirements not relevant to this
rulemaking). The complaints alleged that the publication of
establishment-specific injury and illness data would lead to misuse of
confidential and proprietary information by the public and special
interest groups. The complaints also alleged that publication of the
data exceeds OSHA's authority under the OSH Act and is unconstitutional
under the First Amendment to the U.S. Constitution. After OSHA
published a notice in the Federal Register on June 28, 2017, noting
that the agency planned to publish a proposal that would reconsider the
requirements of the 2016 final rule (82 FR 29261), Texo was
administratively closed. The plaintiffs in NAHB dropped their claims
relating to the 300 and 301 data submission requirement after the 2019
final rule was published (and moved forward with their other claims,
which are still pending in the Western District of Oklahoma).
In Public Citizen Health Research Group et al. v. Pizzella, No.
1:19-cv-00166 (D.D.C. filed Jan. 25, 2019) and State of New Jersey et
al. v. Pizzella, No. 1:19-cv-00621 (D.D.C. filed Mar. 6, 2019), a group
of public health organizations and a group of States filed separate
lawsuits challenging OSHA's 2019 final rule rescinding the requirement
for certain employers to submit the data from OSHA Forms 300 and 301 to
OSHA electronically each year. The U.S. District Court for the District
of Columbia resolved the two cases in a consolidated opinion and held
that rescinding the provision was within the agency's discretion
(Public Citizen Health Research Group et al. v. Pizzella, No. 1:19-cv-
00166-TJK (D.D.C. Jan. 11, 2021)). The court first dismissed Public
Citizen's complaint for lack of subject-matter jurisdiction. Next,
turning to the merits of the States' complaint, the court held that
OSHA's rescission of the Form 300 and Form 301 data-submission
requirements was within the agency's discretion based on its
rebalancing of the ``uncertain benefits'' of collecting the 300 and 301
data against the diversion of OSHA's resources from other efforts and
potential privacy harms to employees. The court also rejected the
plaintiffs' assertion that OSHA's reasons for the 2019 final rule were
internally inconsistent. Both groups of plaintiffs have appealed to the
U.S. Court of Appeals for the District of Columbia Circuit (Nos. 21-
5016, 21-5018).
Additionally, since 2020, the Department of Labor (DOL) has
received multiple adverse decisions regarding the release of
electronically submitted 300A data under the Freedom of Information Act
(FOIA). In each of the cases, OSHA argued that electronically submitted
300A injury and illness data are exempt from disclosure pursuant to the
confidentiality exemption in FOIA Exemption 4. Two courts, one in the
U.S. District Court for the Northern District of California and another
in the U.S. District Court for the District of Columbia, disagreed with
OSHA's position (see Center for Investigative Reporting, et al., v.
Department of Labor, No. 4:18-cv-02414-DMR, 2020 WL 2995209 (N.D. Cal.
June 4, 2020); Public Citizen Foundation v. United States Department of
Labor, et al., No. 1:18-cv-00117 (D.D.C. June 23, 2020)). In addition,
on July 6, 2020, the Department received an adverse ruling from a
magistrate judge in the Northern District of California in a FOIA case
involving Amazon fulfillment centers. In that case, plaintiffs sought
the release of individual 300A forms, which consisted of summaries of
Amazon's work-related injuries and illnesses and which were provided to
OSHA compliance officers during specific OSHA inspections of Amazon
fulfillment centers in Ohio and Illinois (see Center for Investigative
Reporting, et al., v. Department of Labor, No. 3:19-cv-05603-SK, 2020
WL 3639646 (N.D. Cal. July 6, 2020)).
In holding that FOIA Exemption 4 was inapplicable, the courts
rejected OSHA's position that electronically submitted 300A injury and
illness data are covered under the confidentiality exemption in FOIA
Exemption 4. The decisions noted that the 300A form is posted in the
workplace for three months and that there is no expectation that the
employer must keep these data confidential or private. As a result,
OSHA provided the requested 300A data to the plaintiffs, and posted
collected 300A data on its public website beginning in August 2020. The
data are available at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data and include the submissions for calendar years
2016, 2017, 2018, 2019, 2020, and 2021.
E. Injury and Illness Data Collection
Currently, two U.S. Department of Labor data collections request
and compile information from the OSHA injury and illness records that
certain employers are required to keep under 29 CFR part 1904: the
annual collection conducted by OSHA under 29 CFR 1904.41 (Electronic
Submission of Employer Identification Number (EIN) and Injury and
Illness Records to
OSHA), and the annual Survey of Occupational Injuries and Illnesses
(SOII) conducted by the Bureau of Labor Statistics (BLS) under 29 CFR
1904.42. This final rule amends the regulation at Sec. 1904.41. It
does not change the SOII or the authority for the SOII set forth in
Sec. 1904.42.
The BLS SOII is an establishment-based survey used to estimate
nationally representative incidence rates and counts of workplace
injuries and illnesses. It also provides detailed case and demographic
data for cases that involve one or more days away from work (DAFW) and
for days of job transfer and restriction (DJTR). Each year, BLS
collects data from Forms 300, 301, and 300A from a scientifically
selected probability sample of about 230,000 establishments, covering
nearly all private-sector industries, as well as State and local
government. Title 44 U.S.C. 3572 prohibits BLS from releasing
establishment-specific and case-specific data to the general public or
to OSHA. However, BLS has modified its collection procedures to be able
to automatically import certain Form 300A submissions from the OSHA ITA
into the BLS SOII Internet Data Collection Facility (IDCF). As
discussed below, the Department is continuing to evaluate opportunities
to further reduce duplicative reporting.
II. Legal Authority
A. Statutory Authority To Promulgate the Rule
OSHA is issuing this final rule pursuant to authority expressly
granted by several provisions of the OSH Act that address the recording
and reporting of occupational injuries and illnesses. Section 2(b)(12)
of the OSH 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 objectives 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 [of Labor] . . . , 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)).
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'' (29 U.S.C. 657(g)(1)).
Section 8(g)(2) of the Act broadly 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 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)).
Section 20 of the Act (29 U.S.C. 669) contains additional implicit
authority for collecting and disseminating data on occupational
injuries and illnesses. Section 20(a) empowers the Secretaries of Labor
and Health and Human Services to consult on research concerning
occupational safety and health problems, and provides for the use of
such research, ``and other information available,'' in developing
criteria on toxic materials and harmful physical agents. Section 20(d)
states that ``[i]nformation obtained by the Secretary . . . under this
section shall be disseminated by the Secretary to employers and
employees and organizations thereof'' (29 U.S.C. 669(d)).
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 (29 U.S.C.
655), aim to correct particular identified workplace hazards, while
regulations further the general enforcement and detection purposes of
the OSH Act (see Workplace Health & Safety Council v. Reich, 56 F.3d
1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n v. Bingham, 657
F.2d 777, 781-82 (5th Cir. 1981)); United Steelworkers of Am. v.
Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Recordkeeping requirements
promulgated under the Act are characterized as regulations (see 29
U.S.C. 657 (using the term ``regulations'' to describe recordkeeping
requirements); see also Workplace Health & Safety Council v. Reich, 56
F.3d 1465, 1468 (D.C. Cir. 1995) (citing La. Chem. Ass'n. v. Bingham,
657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of Am. v.
Auchter, 763 F.2d 728, 735 (3d Cir. 1985)).
B. Fourth Amendment Issues
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
requirements in this final rule are reasonable. The requirements serve
a substantial government interest in the health and safety of workers,
have a strong statutory basis, and rest 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, n.2). This 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 notices that will be published pursuant to the
Paperwork Reduction Act.
C. Publication of Collected Data and FOIA
FOIA generally supports OSHA's intention to publish information on
a publicly available website. FOIA provides that certain Federal agency
records must be routinely made ``available for public inspection in an
electronic format'' (see 5 U.S.C. 552(a)(2) (2016)). Subsection
(a)(2)(D)(ii) provides that agencies must include any records processed
and disclosed in response to a FOIA request that ``the agency
determines have become or are likely to become the subject of
subsequent requests for substantially the same records'' or ``have been
requested 3 or more times.''
Based on its experience, OSHA believes that the recordkeeping
information from the Forms 300, 301, and 300A required to be submitted
under this rule will likely be the subject of multiple FOIA requests in
the future. Consequently, the agency plans to place the recordkeeping
information that will be posted on the public OSHA website in its
Electronic FOIA Library. Since agencies may ``withhold'' (i.e., not
make available) a record (or portion of such a record) if it falls
within a FOIA exemption, just as they can do in response to FOIA
requests, OSHA will place the published information in its FOIA Library
consistent with all FOIA exemptions.
D. Reasoned Explanation for Policy Change
When a Federal agency action changes or reverses prior policy, that
action is subject to the same standard of review as an action that
addresses an issue for the first time or is consistent with prior
policy (F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514-15
(2009)). As with any other agency action, agencies must simply
``provide a reasoned explanation for the change'' (Encino Motorcars,
LLC v. Navarro, 579 U.S. 211, 221 (2016)). An agency that is changing
policy must ``display awareness that it is changing position,'' but
``need not demonstrate . . . that the reasons for the new policy are
better than the reasons for the old one''; ``it suffices that the new
policy is permissible under the statute, that there are good reasons
for it, and that the agency believes it to be better, which the
conscious change of course adequately indicates'' (F.C.C., 556 U.S. at
515; accord DHS v. Regents of Univ. of California, 140 S. Ct. 1891
(2020); Encino Motorcars, LLC, 579 at 221; see also Advocates for
Highway & Auto Safety v. FMCSA, 41 F.4th 586 (D.C. Cir. 2022)
(upholding 2020 change to 2015 rule); Overdevest Nurseries, L.P. v.
Walsh, 2 F. 4th 977 (D.C. Cir. 2021) (upholding 2010 change to 2008
rule)). In sum, the Administrative Procedure Act imposes ``no special
burden when an agency elects to change course'' (Home Care Ass'n of Am.
v. Weil, 799 F.3d 1084, 1095 (D.C. Cir. 2015)).
Although agencies may need to provide more detailed explanations
for changes in policy that ``engendered serious reliance interests,''
F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009), OSHA
has found no such reliance interests at stake in this rulemaking. The
prior policy, contained within the 2019 final recordkeeping rule,
represented a return to the pre-2016 status quo wherein large employers
were not required to submit their Form 300 and Form 301 information to
OSHA. Essentially, the prior policy relieved employers of the
requirement to incur the costs they would have had to incur to comply
with the 2016 final rule. Therefore, the prior policy did not require
employers to take any steps or invest any resources to comply with it.
Further, OSHA made it clear in the 2019 final rule that its decision
was based on a temporal weighing of the potential risks to privacy
against the benefits of collecting the data (e.g., ``OSHA has
determined that because it already has systems in place to use the 300A
data for enforcement targeting and compliance assistance without
impacting worker privacy, and because the Form 300 and 301 data would
provide uncertain additional value, the Form 300A data are sufficient
for enforcement targeting and compliance assistance at this time'' (84
FR 392)). Employers were therefore placed on notice that the policy
announced in the 2019 rule could change based on OSHA's weighing of the
relevant considerations over time, further alleviating any reliance
interests the rule might have engendered. In any event, OSHA provides
detailed and specific reasons for the change in prior policy throughout
this preamble.\2\
---------------------------------------------------------------------------
\2\ OSHA has determined that it is necessary and appropriate to
require certain establishments to electronically submit case-
specific, establishment-specific data from their Forms 300 and 301
to OSHA. Any claimed reliance interest in the prior policy, which
did not contain that requirement, is outweighed by the significant
benefits to occupational safety and health, discussed in Section
III.B.4 of the Summary and Explanation, that OSHA expects to accrue
from this rule (see Regents of the Univ. of California, 140 S. Ct.
at 1914 (it is ``the agency's job'' to determine ``in the particular
context before it, that other interests and policy concerns outweigh
any reliance interests'')).
---------------------------------------------------------------------------
III. Summary and Explanation of the Final Rule
OSHA is amending its occupational injury and illness recordkeeping
regulations at 29 CFR part 1904 to require certain employers to
electronically submit injury and illness information to OSHA that
employers are already required to keep. Specifically, this final rule
requires establishments with 100 or more employees in certain
designated industries (i.e., the industries on appendix B to subpart E
of part 1904) to electronically submit information from their OSHA
Forms 300 and 301 to OSHA once a year. OSHA will not collect certain
information, like employee and healthcare provider names and addresses,
from the Forms 300 and 301 in order to protect the privacy of workers
and other individuals identified on those forms. In addition, the final
rule retains the requirements for the annual electronic submission of
information from the Form 300A annual summary. Establishments with 20
to 249 employees in certain industries (i.e., those on appendix A to
subpart E of part 1904) will continue to be required to electronically
submit information from their OSHA Form 300A to OSHA once a year. And,
all establishments with 250 or more employees that are required to keep
records under part 1904 will continue to be required to electronically
submit information from their Form 300A to OSHA once a year. In
addition, the final rule requires establishments to
include their legal company name as part of their annual submission.
OSHA intends to post some of the information from these annual
electronic submissions on a public website after removing any submitted
information that could reasonably be expected to identify individuals
directly. OSHA received a number of comments on the proposed rule,
which was published in March 2022.
Many commenters strongly support this rulemaking effort (e.g.,
Docket IDs 0008, 0026, 0029, 0033, 0040, 0047, 0048, 0049, 0061, 0063,
0067, 0069, 0073, 0084, 0089), while others are strenuously opposed
(e.g., Docket IDs 0043, 0050, 0052, 0053, 0058, 0059, 0062, 0088,
0090). Several commenters requested that OSHA withdraw the proposed
rule (e.g., Docket IDs 0042, 0065, 0075). Organizations that represent
employees generally advocated for OSHA to proceed with the rulemaking,
arguing that collecting and publishing workplace illness and injury
information will lead to improvements in worker safety and health in a
number of different ways. Organizations commenting on behalf of
employers argued, in many cases, that the required submission and
subsequent publication of this information could harm businesses or
result in violations of employees' privacy. OSHA has evaluated the
public comments and other evidence in the record and agrees with
commenters who believe that electronic submission of worker injury and
illness information to OSHA will lead to safer workplaces. The agency
has decided to move forward with a final rule requiring electronic
submission of this information.
Public comments regarding the final regulatory provisions and
specific issues related to the submission and publication of workplace
injury and illness information are discussed throughout this preamble.
The Summary and Explanation is organized by regulatory provision, with
issues related to each provision discussed in the section for that
provision. Comments not specifically related to a regulatory provision
and comments that apply to the rulemaking in general are addressed at
the end of the Summary and Explanation. OSHA's economic analysis and
related issues and comments are discussed in Section IV, Final Economic
Analysis, following the Summary and Explanation.
A. Section 1904.41(a)(1)(i) and (ii)--Annual Electronic Submission of
Information From OSHA Form 300A Summary of Work-Related Injuries and
Illnesses
The final rule requires electronic submission of Form 300A
information from two categories of establishments. First, Sec.
1904.41(a)(1)(i) requires establishments with 20-249 employees that are
in an industry listed in appendix A of subpart E of part 1904 to
electronically submit information from their Form 300A to OSHA. The
industries included on appendix A are listed by the NAICS codes from
2017. Second, Sec. 1904.41(a)(1)(ii) requires establishments with 250
or more employees that are required to keep records under part 1904 to
electronically submit their Form 300A information to OSHA. For all
establishments, the size of the establishment is determined based on
how many employees the establishment had during the previous calendar
year. Data must be submitted annually, for the previous calendar year,
by the date specified in Sec. 1904.41(c), which is March 2.
As discussed in more detail below, the requirements for
establishment submission of Form 300A information under the final rule
are substantively identical to the requirements previously found in
Sec. 1904.41(a)(1) and (a)(2). In other words, all establishments with
250 or more employees are still required to submit information from
Form 300A, and establishments with 20-249 employees in industries on
appendix A of subpart E are still required to submit information from
their Form 300A. However, OSHA has made minor revisions to the language
of final Sec. 1904.41(a)(1)(i) and (ii), and the final regulatory text
of both provisions has been restructured, with final Sec.
1904.41(a)(1)(i) addressing the Form 300A submission requirements for
establishments with 20-249 employees and final Sec. 1904.41(a)(1)(ii)
addressing the Form 300A submission requirements for establishments
with 250 or more employees. As discussed elsewhere in this preamble,
final Sec. 1904.41(a)(2) addresses the submission requirements for
OSHA Forms 300 and 301 by establishments with 100 or more employees in
the industries listed in appendix B. The final rule's requirements in
Sec. 1904.41(a)(1) are discussed below, along with the proposed
provisions and related evidence in the rulemaking record.
1. Section 1904.41(a)(1)(i)--Establishments With 20-249 Employees That
Are Required To Submit Information From OSHA Form 300A
Under proposed Sec. 1904.41(a)(1), establishments that had 20 or
more employees at any time during the previous calendar year, and that
are classified in an industry listed in appendix A to subpart E, would
have been required to electronically submit information from their OSHA
Form 300A to OSHA or OSHA's designee once a year. As OSHA explained in
the preamble to the NPRM, this proposed provision was essentially the
same as the previous requirements. OSHA requested comment on proposed
Sec. 1904.41(a)(1) generally.
OSHA did not receive many comments specifically about the proposed
continuation of the requirement for certain establishments with 20 or
more employees to submit their Form 300A data electronically. The
Laborers Health and Safety Fund of North America stated that the
proposal for establishments with 20 or more employees in certain high-
hazard industries to electronically submit Form 300A data to OSHA
``must be a requirement,'' and emphasized the value of the data for
numerous interested parties (Docket ID 0080). The Communications
Workers of America (CWA) urged OSHA to expand the submission
requirements for the 300A by requiring all establishments with at least
20 employees to submit information from the Form 300A, instead of
limiting the requirement to only those industries on appendix A (Docket
ID 0092). In addition, the National Federation of Independent Business
(NFIB) commented on this provision, noting that ``the proposed rule
lowers the previous threshold that triggers a duty to file with OSHA
automatically (i.e., without any request from OSHA) from 250 or more
employees to 20 or more employees, increasing the number of small and
independent businesses within the appendix A industries required to
submit Form 300A'' (Docket ID 0036). However, NFIB's comment appears to
misunderstand the previous requirements. As OSHA explained in the
preamble to the proposed rule, establishments with 20-249 employees, in
industries listed in appendix A, were already required to
electronically submit information from their OSHA 300A to OSHA every
year (87 FR18535-6). OSHA was not proposing an expansion of this
requirement.
Having reviewed the evidence in the record, OSHA has decided to
retain the
requirement for establishments with 20-249 employees to annually submit
their Form 300A data to OSHA. As noted by the Laborers Health and
Safety Fund of North America and discussed further below, this
requirement provides a good deal of useful data to many types of
interested parties and should not be displaced. OSHA acknowledges the
comments supporting expansion of the previous requirement but notes
that expanding the requirement for submission of Form 300A data to all
establishments with 20-249 employees that are covered by part 1904
would expand the data collection to a total of about 557,000
establishments with 20-249 employees, according to 2019 County Business
Patterns data (https://www.census.gov/programs-surveys/cbp/data/datasets.html). In contrast, OSHA estimates that about 463,000
establishments with 20-249 employees in industries that are in appendix
A will be required to submit data under the final rule (https://www.census.gov/programs-surveys/cbp/data/datasets.html). OSHA does not
believe, at this time, that the benefits from the additional data
collection would outweigh the disadvantages of the additional time and
resources required for compliance.
In the previous regulation, this requirement was at Sec.
1904.41(a)(2). In the final rule, it is at Sec. 1904.41(a)(1)(i). This
final rule will not impose any new requirements on establishments with
20-249 employees to electronically submit information from their Form
300A to OSHA. All establishments that will be required to
electronically submit Form 300A information to OSHA on an annual basis
under the final rule are already required to do so.
Additionally, as noted above, OSHA revised the language of this
requirement slightly for clarity. Specifically, the previous version
referred to establishments with ``20 or more employees but fewer than
250 employees[,]'' while final Sec. 1904.41(a)(1)(i) refers to
establishments with ``20-249 employees[.]'' These clarifying edits do
not change the substantive requirements of the provision.
Similarly, OSHA revised the language of proposed Sec.
1904.41(a)(1) in this final rule for clarity without adding any new
requirements for employers. Specifically, proposed Sec. 1904.41(a)(1)
would have required establishments with 20 or more employees that are
in an industry listed in appendix A of subpart E of part 1904 to
electronically submit information from their Form 300A to OSHA. The
final version of that provision, Sec. 1904.41(a)(1)(i), addresses only
establishments with 20-249 employees, because final Sec.
1904.41(a)(1)(ii) addresses establishments with 250 or more employees.
This change was made to eliminate the overlap, and potential confusion,
that would have resulted if both Sec. 1904.41(a)(1)(i) and Sec.
1904.41(a)(1)(ii) addressed establishments with 250 or more employees.
2. Section 1904.41(a)(1)(ii)--Establishments With 250 or More Employees
That Are Required To Submit Information From OSHA Form 300A
Although OSHA proposed to maintain the same Form 300A submission
requirement for establishments with 20-249 employees, the agency
proposed to remove the electronic submission requirement for certain
establishments with 250 or more employees. Under previous Sec.
1904.41(a)(1), all establishments of this size in industries routinely
required to keep injury and illness records were required to
electronically submit information from their Form 300A to OSHA once a
year. The proposal would have required this submission only from those
establishments with 250 or more employees in industries listed in
appendix A to subpart E. As explained in the preamble to the proposed
rule, OSHA had preliminarily determined that collecting Form 300A data
from a relatively small number of large establishments in lower-hazard
industries was not a priority for OSHA inspection targeting or
compliance assistance activities. OSHA asked for comment on the
proposed changes to Sec. 1904.41(a)(1) generally, and also
specifically asked the question, ``Is it appropriate for OSHA to remove
the requirement for establishments with 250 or more employees, in
industries not included in appendix A, to submit the information from
their OSHA Form 300A?'' (87 FR18546).
There were no comments specifically supporting the proposal to
remove the requirement for establishments with 250 or more employees,
in industries not included in appendix A, to submit the information
from their OSHA Form 300A. In contrast, multiple commenters opposed the
proposal and urged OSHA to retain the existing requirement for
establishments with 250 or more employees that are normally required to
report under part 1904 to submit data from their 300As (e.g., Docket
IDs 0024, 0035, Attachment 2, 0039, 0040, 0045, 0047, 0048, 0049, 0051,
0061, 0066, 0067, 0069, 0079, 0080, 0083, 0089, 0092, 0093). Reasons
for objecting to the proposed removal of the requirement for some large
establishments to submit data from their Form 300As included: OSHA
offered no compelling reason for removal; the need for continued
oversight over large establishments in lower-hazard industries in
general and certain industries in particular; the ability to use the
data to protect the large number of employees employed in these
establishments; and the value of the public information to employee
safety and health efforts.
Some commenters argued that OSHA had not made a persuasive case for
removing the requirement for large establishments in industries not
listed on appendix A to submit their 300A data. For example, Hunter
Cisiewski commented, ``The proposed rule ultimately fails to present a
compelling argument for why `lower hazard' industries should no longer
be required to electronically submit Form 300A when they must still
keep record of the form, present it to employees on request, and post
it publicly in the workplace'' (Docket ID 0024). The AFL-CIO argued,
``There is no reason that these establishments should be excluded from
a standard they are already subject to and have been complying with.
OSHA should at minimum, maintain the requirements for large
establishments in these sectors that are already in place'' (Docket ID
0061; see also Docket ID 0079). Similarly, Public Citizen and the
United Food and Commercial Workers International Union (UFCW) noted
that there would be no significant burden on employers to maintaining
the requirement because these employers are already required to keep
Form 300A data and they have systems in place for submitting the data
to OSHA electronically (Docket IDs 0093, 0066). The United Steelworkers
Union (USW) argued that keeping industries covered helps increase the
stability of the system. USW urged OSHA to ``focus on expanding, not
limiting, those covered by disclosure requirements, and to ensure that
all employers currently covered by the reporting requirements remain
covered'' (Docket ID 0067; see also Docket ID 0080). The UFCW stated
that ``[A]ll available evidence reflects that OSHA's current
requirements provide easy access to important data that is crucial to
reducing and preventing workplace injuries and illnesses'' (Docket ID
0066).
Other commenters, such as the National Institute for Occupational
Safety and Health (NIOSH) and the International Brotherhood of
Teamsters, noted that although the industries that are not listed in
appendix A may have
relatively low injury rates overall, ``injury rates can vary greatly
across employers and establishments within industries. The requirement
for large establishments to submit a 300A Log annually would be a
reasonable way to identify establishments that have high injury rates
for their industry, and to identify subsegments of industries that may
have more hazardous work processes and activities'' (Docket ID 0035,
Attachment 2; see also Docket ID 0083). Similarly, the Seventeen
Attorneys General from New Jersey, California, Connecticut, Delaware,
the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts,
Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode
Island, and Vermont (Seventeen AGs) noted their states' concern that
removing the 300A submission requirement for ``lower-hazard''
industries would leave Federal OSHA and State occupational safety and
health agencies with little way of determining whether these industries
were becoming more dangerous for workers over time. This, in turn,
could affect the States' outreach and enforcement efforts. ``For
example, if [s]tates had previously conducted enforcement and outreach
in `low hazard' industries, thus keeping risks down, but deprioritize
such enforcement based on a lack of reporting, any uptick of illnesses
and injuries in those industries, requiring enforcement efforts, may
initially go unnoticed by the [s]tates'' (Docket ID 0045).
Other commenters emphasized the significant number of workers
employed by the large establishments that OSHA had proposed to exclude
from submitting their 300A data, and the usefulness of the data in
providing them with safe work environments. Hunter Cisiewski estimated
that at least 666,250 workers are employed by the approximately 2,665
establishments with 250 or more employees that were proposed to be
removed from the Form 300A submission requirement (assuming that each
establishment employs only 250 workers). The same commenter also noted
that the workers in these large establishments already rely on the
required reporting of their injuries to OSHA ``to ensure compliance
with workplace regulations'' (Docket ID 0024). Similarly, the Council
of State and Territorial Epidemiologists (CSTE) noted that even if the
industries proposed for exclusion have lower injury and illness rates
than the industries on appendix A, they employ a large number of
people. ``Numbers [of workers] as well as rates of work-related
injuries or illness need to be considered in setting prevention
priorities. These establishments need to provide a safe work
environment, and electronic collection of summary data will allow OSHA
and public health agencies to monitor their ability to do so'' (Docket
ID 0040). The International Brotherhood of Teamsters commented, ``we
think continuing to collect OSHA 300A data for the large numbers of
workers employed in these establishments, would help to identify less
obvious problems and implement corresponding preventive measures''
(Docket ID 0083).
Various commenters pointed to known or potentially hazardous
industry segments that would have been exempt from submitting 300A data
under the proposal. For example, the National Council for Occupational
Safety and Health (National COSH) as well as the Centro de los Derechos
del Migrantes pointed to the temporary service industry and the home
health care industry as industries with known hazards for which OSHA
and the public should have access to injury and illness data (Docket
IDs 0048, 0089; see also Docket ID 0049). The AFL-CIO pointed to home
health services, an industry heavily affected by COVID-19, employment
services, which includes vulnerable temporary workers, and some
wholesalers with rates of cases with days away from work, restricted
work activity, or job transfer (DART) above 2.0 per 10,000 workers in
2020 (e.g., NAICS 4231, 4233, 4235, 423930, 4244, 4248, 4249) as
industries containing large establishments that would be newly exempted
from the 300A submission requirements The AFL-CIO argued that
``limiting the data these industries provide the agency would severely
limit the ability to track and identify emerging workplace hazards''
(Docket ID 0061).
Some commenters argued that maintaining the existing 300A reporting
requirement for all large establishments is particularly important
because the industries on appendix A reflect injury and illness data
from the BLS SOII that is not current. Therefore, exempting industries
not on appendix A could result in missing information from industries
that may have become more dangerous since publication of the SOII data
for 2011 to 2013. The United Steelworkers Union (USW) commented, ``By
tying the proposed rule to outdated and underreported injury and
illness data, many employers with 250 or more employees in potentially
high-hazard industries would be exempted, limiting workers' ability to
make informed decisions about a workplace's safety and health. . . .
These industries are currently covered by reporting requirements and
many, like home health, have seen a rise in injuries and illnesses
since the COVID-19 pandemic began'' (Docket ID 0067). Public Citizen
echoed this comment, stating that past injury rates, which are used to
designate industries required to submit data, may not reflect more
recent safety conditions. Public Citizen noted, in addition, that the
pandemic served as a reminder ``that even seemingly `low-hazard'
workplaces can be the epicenter of deadly outbreaks'' (Docket ID 0093).
Finally, a number of commenters underscored the value of the 300A
data that is being collected from large establishments. The UFCW urged
OSHA to retain the requirement for collection from all large
establishments because it would allow many types of users (the public,
employers, workers, researchers, and the government) to use the data
``in the very positive ways that the UFCW has used it'' already. The
UFCW described, in its comment, the many specific ways in which UFCW
has used published and union-collected illness and injury data from the
OSHA Form 300A, among other information, to increase safety and health
at large union-represented facilities (Docket ID 0066). Public Citizen
commented that ``the value of continuing to collect the information
from these employers outweighs any supposed burden . . . data collected
from electronic submission of injury and illness information can help
identify broad patterns from small injury and illness numbers per
establishment. Having this additional data from Form 300A summaries
would assist with research into specific types of injuries and
illnesses'' (Docket ID 0093).
In addition to supporting maintenance of the requirement for
submission of 300A data by large establishments, several commenters
supported expanding the submission requirements for large
establishments even further. For example, the National Employment Law
Project (NELP) supported requiring all employers with 250 or more
employees to submit information from the Form 300 Log in addition to
the Form 300A. NELP argued that certain industries, such as home health
care and employment services, contain very large employers that have
Total Case Rates (TCRs) that are well above the private sector average.
NELP therefore urged OSHA to retain as well as expand electronic
submission requirements for large establishments with 250 or more
employees in industries that are required to keep records under part
1904 so that researchers and other
organizations could more effectively track and monitor occupational
health and safety trends in home health care, employment services, and
other sectors (Docket ID 0049; see also Docket ID 0089).
The Laborers' Health and Safety Fund of North America argued that
OSHA should require all establishments with 250 or more employees to
submit the Form 300 and Form 301, in addition to the Form 300A:
``Establishments with 250 or more employees account for large
contractors that work on larger construction sites that can be
considered high-risk. For these reasons, establishments should be
required to submit electronic OSHA 300, 300A and 301 forms to not only
track injury and illness, but prove to OSHA that they are taking the
steps to mitigate and prevent them from happening'' (Docket ID 0080).
Having reviewed the information in the record on this issue, OSHA
has decided not to make the proposed change of restricting the universe
of large establishments that are required to submit data from Form
300A. Instead, the agency will maintain the requirement for all
establishments with 250 or more employees that are covered by part 1904
to submit the information from their OSHA Form 300A to OSHA, or its
designee, once a year. As explained by commenters, these establishments
are already submitting this information, so there is no new burden for
employers. Furthermore, access to the information provides multiple
benefits for workers, Federal and State occupational safety and health
agencies, and other interested parties. For example, continuing to
collect and make this data available to the public will allow tracking
of industry hazards over time, even for industries that are not on
appendix A. Commenters noted that this type of tracking was
particularly critical for industry segments and establishments that
have injury rates higher than the rate for their 4-digit NAICS industry
overall. They also noted that requiring information to be submitted
from all large establishments will help blunt the effect of using SOII
data that is several years old in determining which NAICS will be
included on appendix A. OSHA agrees with these rationales.
Although OSHA stated in the proposal that collecting Form 300A data
from this relatively small number of large establishments in lower-
hazard industries is not a priority for OSHA inspection targeting or
compliance assistance, OSHA is persuaded by commenters who see the
value in providing such data to the public; this includes the UFCW,
which has been using this data to make positive safety and health
changes in large establishments. In addition, OSHA recognizes the large
number of workers represented by the relatively small number of
establishments that would have been affected by the proposed change and
does not wish to remove resources that could be used to improve their
safety and health.
OSHA acknowledges the comments supporting expansion of the final
requirement by requiring submission of information from Forms 300 and
301 by all large establishments (250 or more employees) required to
keep records under part 1904. However, this change would expand the
universe of large establishments required to submit Form 300 and Form
301 data from about 22,000 (establishments with at least 250 employees
that are in NAICS listed on appendix B) to about 40,000 (establishments
with at least 250 employees that are required to keep records under
part 1904), an increase of 80 percent (data are as of 2019; see https://www.census.gov/programs-surveys/cbp/data/datasets.html). OSHA does not
believe, at this time, that the benefits from the additional data
collection would outweigh the disadvantages of the additional time and
resources that employers would have to expend to comply. OSHA also
values the stability provided to employers by keeping the universe of
establishments required to submit 300A data the same, in light of the
multiple recent changes to OSHA's data submission requirements.
In the previous regulation, this requirement was at Sec.
1904.41(a)(1). In the final rule, it is at Sec. 1904.41(a)(1)(ii).
This final rule will not impose any new requirements on establishments
to electronically submit information from their Form 300A to OSHA. All
establishments that will be required to electronically submit Form 300A
information to OSHA on an annual basis under the final rule were
already required to do so under the previous regulation. OSHA made only
one non-substantive change in the final regulatory text; whereas the
previous regulatory text at Sec. 1904.41(a)(1) contained an example
stating that data for calendar year 2018 would be submitted by the
month and day listed in Sec. 1904.41(c) of calendar year 2019, that
example has been removed from the final regulatory provision at Sec.
1904.41(a)(1)(ii). A similar, updated example is included in final
Sec. 1904.41(b)(1).
3. Restructuring of Previous Section 1904.41(a)(1) and (2) Into Final
Section 1904.41(a)(1)(i) and (ii)
In the preamble to the proposed rule, OSHA asked the following
question about the structure of the regulatory text containing the
requirements to submit data from OSHA injury and illness recordkeeping
forms: ``The proposed regulatory text is structured as follows: Sec.
1904.41(a)(1) Annual electronic submission of information from OSHA
Form 300A Summary of Work-Related Injuries and Illnesses by
establishments with 20 or more employees in designated industries;
Sec. 1904.41(a)(2) Annual electronic submission of information from
OSHA Form 300 Log of Work-Related Injuries and Illnesses, OSHA Form 301
Injury and Illness Incident Report, and OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 100 or more
employees in designated industries. This is the structure used by the
2016 and 2019 rulemakings. An alternative structure would be as
follows: Sec. 1904.41(a)(1) Annual electronic submission of
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments with 20 or more employees in designated
industries; Sec. 1904.41(a)(2) Annual electronic submission of
information from OSHA Form 300 Log of Work-Related Injuries and
Illnesses and OSHA Form 301 Injury and Illness Incident Report by
establishments with 100 or more employees in designated industries.
Which structure would result in better understanding of the
requirements by employers?'' (87 FR 18547).
OSHA did not receive many comments on this proposed alternative
structure for the regulatory text. However, NIOSH noted that it
preferred the second option. ``NIOSH finds the second alternative . . .
to be somewhat preferable. That alternative focuses first on which
establishments are required to submit OSHA Form 300A, and then focuses
on which establishments are required to submit OSHA Forms 300 and 301.
This structure may help employers to more directly answer their
questions about what forms to submit'' (Docket ID 0035, Attachment 2).
OSHA agrees that the proposed alternative structure, which
separates the provisions by recordkeeping form, may help employers
better understand the regulatory requirements for their establishments.
Based on this reasoning, as well as on OSHA's decision to retain the
requirement for all establishments with 250 or more employees in
industries covered by part 1904 to
submit information from their Form 300A annual summary (discussed
above), OSHA has decided to restructure the final regulation by
recordkeeping form, rather than establishment size and industry.
Therefore, in the final rule, Sec. 1904.41(a)(1) covers the
requirement to submit the OSHA Form 300A, with Sec. 1904.41(a)(1)(i)
for establishments with 20-249 employees in appendix A industries, and
Sec. 1904.41(a)(1)(ii) for establishments with 250 or more employees
in industries covered by part 1904. Final Sec. 1904.41(a)(2) covers
the requirement to submit the OSHA Forms 300 and 301, as discussed
below.
4. Updating Appendix A
Additionally, OSHA proposed to revise appendix A to subpart E to
update the list of designated industries to conform with the 2017
version of the North American Industry Classification System (NAICS).
Since OSHA revised Sec. 1904.41 in 2016, the Office of Management and
Budget has issued two updates to the NAICS codes, in 2017 and 2022. As
explained in the preamble to the proposed rule, OSHA believed that the
proposed update from 2012 NAICS to 2017 NAICS would have the benefits
of using more current NAICS codes, ensuring that both proposed appendix
A and proposed appendix B used the same version of NAICS, aligning with
the version currently used by BLS for the SOII data that OSHA used for
this rulemaking, and increasing the likelihood that employers were
familiar with the industry codes.
As OSHA explained, this revision would not affect which industries
were required to provide their data, but rather simply reflect the
updated 2017 NAICS codes. For appendix A, OSHA limited the scope of
this rulemaking to the proposed update from the 2012 version of NAICS
to the 2017 version of NAICS. The change from the 2012 NAICS to the
2017 NAICS would affect only a few industry groups at the 4-digit NAICS
level. Specifically, the 2012 NAICS industry group 4521 (Department
Stores) is split between the 2017 NAICS industry groups 4522
(Department Stores) and 4523 (General Merchandise Stores, including
Warehouse Clubs and Supercenters). Also, the 2012 NAICS industry group
4529 (Other General Merchandise Stores) is included in 2017 NAICS
industry group 4523 (General Merchandise Stores, including Warehouse
Clubs and Supercenters). As noted above, however, the establishments in
these industries were already covered by the previous record submission
requirements, so this would not represent a substantive change in those
requirements.
The Phylmar Regulatory Roundtable (PRR) supported the proposed
update from the 2012 version of NAICS to the 2017 version of NAICS for
appendix A, commenting, ``It is both practical and logical to align
with the most recent codes from an accuracy standpoint'' (Docket ID
0094). The Coalition for Workplace Safety (CWS), on the other hand,
commented that using the 2017 NAICS codes for Appendices A and B when
the 2022 codes have already been released by OMB will lead to confusion
and mistakes, unduly complicating the proposed requirements (Docket ID
0058).
While OSHA did not propose modifications to appendix A other than
the update from 2012 NAICS to 2017 NAICS, OSHA did discuss one
alternative in the proposal that would affect the industries on
appendix A: updating appendix A to reflect the 2017-2019 injury rates
from the SOII. Appendix A is based on the SOII's injury rates from
2011-2013. This alternative would have resulted in the addition of one
industry to appendix A (NAICS 4831 (Deep sea, coastal, and great lakes
water transportation)) and the removal of 13 industries (4421 Furniture
Stores, 4452 Specialty Food Stores, 4853 Taxi and Limousine Service,
4855 Charter Bus Industry, 5152 Cable and Other Subscription
Programming, 5311 Lessors of Real Estate, 5321 Automotive Equipment
Rental and Leasing, 5323 General Rental Centers, 6242 Community Food
and Housing, and Emergency and Other Relief Services, 7132 Gambling
Industries, 7212 RV (Recreational Vehicle) Parks and Recreational
Camps, 7223 Special Food Services, and 8113 Commercial and Industrial
Machinery and Equipment (except Automotive and Electronic) Repair and
Maintenance).
OSHA did not receive many comments in response to this alternative.
The AFL-CIO stated that the use of ``outdated'' SOII data to determine
the industries on appendix A would lead to missing information from
industries that might have become (or might become in the future) more
hazardous since the time period used as the basis for appendix A (2011-
2013). However, this statement was made in the context of the AFL-CIO's
argument that OSHA should not restrict the large establishments
required to submit 300A data to those in industries on appendix A, as
OSHA proposed. Because OSHA is not adopting that approach, and instead
is requiring all large establishments covered by part 1904 to continue
submitting data from Form 300A, OSHA believes this concern will be
minimized under the final regulatory requirements.
Having reviewed the record, OSHA has decided to update appendix A
to subpart E from the 2012 version of NAICS to the 2017 version of
NAICS. As the PRR commented, it is practical and logical to align the
industry list in appendix A with the more recent NAICS codes (see
Docket ID 0094). Indeed, employers are likely more familiar with the
2017 codes than the 2012 codes. This change would also ensure that
appendices A and B use the same version of NAICS. Finally, the 2017
NAICS codes are used by BLS for the SOII data that OSHA is using for
this rulemaking. While CWS stated that using the 2017 codes when the
2022 codes have already been released will cause confusion (Docket ID
0058), OSHA notes that both appendices are based on SOII data from BLS,
and that no SOII data using the 2022 NAICS codes are currently
available. SOII data for 2022 will not be available until November
2023. Thus, it is not possible for OSHA to base appendix A or B on SOII
data that use the 2022 NAICS codes, even though the 2022 codes are the
most recent ones available.
OSHA has also decided not to update appendix A using more recent
SOII data. As discussed in the preamble to the proposed rule, it took
several years for the regulated community to understand which
industries were and were not required to submit information, and such
misunderstandings could result in both underreporting and
overreporting. OSHA has determined that changing the covered
industries, by changing the data that forms the basis for the NAICS on
appendix A, would result in additional confusion for the regulated
community that is not warranted at this time. Moreover, three of the
industries that would be removed from appendix A if OSHA based that
appendix on updated data are also listed in appendix B, indicating that
they remain hazardous under other measures. Finally, as noted above,
OSHA agrees with interested parties who commented that requiring
information to be submitted from all large establishments will help
blunt the effect of using the older SOII data in determining which
NAICS will be included on appendix A.
The final appendix A to subpart E of part 1904 (Designated
industries for Sec. 1904.41(a)(1)(i) Annual electronic submission of
information from OSHA Form 300A Summary of Work-Related Injuries and
Illnesses by establishments
with 20-249 employees in designated industries) is as follows: \3\
---------------------------------------------------------------------------
\3\ As noted in the NPRM, OSHA proposed to remove NAICS 7213,
Rooming and Boarding Houses, from appendix A (see 87 FR 18536, n.7).
Employers in NAICS 7213 are not required to routinely keep OSHA
injury and illness records, per the part 1904 non-mandatory appendix
A to subpart B. This NAICS industry group was mistakenly included in
appendix A to subpart E when OSHA published its 2016 final rule (see
81 FR 29642). OSHA received no comments objecting to the removal of
NAICS 7213 from appendix A to subpart E and thus has excluded this
industry group from the final version of this appendix.
------------------------------------------------------------------------
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.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
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 (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living 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.
7223....................... Special Food Services.
8113....................... Commercial and Industrial Machinery and
Equipment (except Automotive and
Electronic) Repair and Maintenance.
8123....................... Drycleaning and Laundry Services.
------------------------------------------------------------------------
B. Section 1904.41(a)(2)--Annual Electronic Submission of OSHA Form 300
Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and
Illness Incident Report by Establishments With 100 or More Employees in
Designated Industries
Section 1904.41(a)(2) of the final rule requires establishments
that (1) had 100 or more employees at any point during the previous
calendar year and (2) are classified in one of the industries listed in
appendix B to subpart E of part 1904 to electronically submit certain
information from their Forms 300 and 301 to OSHA or OSHA's designee.
Data from the 300 and 301 forms must be submitted annually, for the
previous calendar year, by March 2 (Sec. 1904.41(c)). The only change
from the proposed rule is the deletion of the proposed rule's reference
to Form 300A. That reference has been deleted from this provision
because the requirements for establishments to submit Form 300A are
contained in Sec. 1904.41(a)(1)(i) and (ii) in this final rule.
Comments related to the submission of Form 300A are discussed in that
section. Appendix B has also changed from the proposal. Specifically,
OSHA has added six industries to appendix B. All six of the industries
added to appendix B have been part of appendix A since appendix A's
creation in 2016.
As discussed in Section I.C, Regulatory History, in 2016, OSHA
issued a final rule that required establishments with 250 or more
employees that are routinely required to keep injury and illness
records under part 1904 to electronically submit information from their
300 and 301 forms to OSHA once a year. However, OSHA never collected
that Form 300 and 301 data, and in 2019, it issued a final rule that
removed the requirement for these establishments to electronically
submit that information to OSHA.
As noted above, in this rulemaking, OSHA re-proposed a requirement
for certain establishments to submit information from their 300 and 301
forms to OSHA annually. The proposed provision in this rulemaking
differed from the 2016 final rule in that the proposed provision would
apply to establishments that (1) had 100 or more employees (rather than
250 or more employees, as in the 2016 final rule) and (2) are
classified in an industry listed in appendix B to subpart E of part
1904 (rather than all industries which are required by part 1904 to
keep records, as in the 2016 rule). OSHA received a wide range of
comments on the proposed provision. The issues related to these
comments are addressed below.
1. Covered Establishments and Industries
Like the proposed rule, Sec. 1904.41(a)(2) of the final rule
requires establishments that had 100 or more employees at any time
during the previous calendar year, and that are in an industry listed
in final appendix B to subpart E, to electronically submit certain
information from their Form 300 and 301 to OSHA or OSHA's designee once
a year. As discussed in more detail below, under final paragraph
1904.41(c), employers subject to the reporting requirement in Sec.
1904.41(a)(2) must submit all of the required information to OSHA or
OSHA's designee by March 2 of the year after the calendar year covered
by the forms.
As discussed above, in 2016, OSHA issued a final rule that required
all establishments with 250 or more employees in all industries
routinely required to keep part 1904 injury and illness records to
electronically submit information from their 300 and 301 forms to OSHA
once a year. In that rulemaking, OSHA estimated that establishments
with 250 or more employees covered by the submission requirement would
report 713,397 injury and illness cases each year. However, the 300 and
301 data submission requirements from the 2016 final rule were never
fully implemented, and OSHA never collected 300 and 301 data
electronically from covered employers. In 2019, OSHA issued a final
rule that removed the requirement for the annual electronic submission
of 300 and 301 data to OSHA.
In the NPRM in this rulemaking, OSHA explained that in developing
the requirement for establishments with 100 or more employees to
electronically submit data from their OSHA Form 300 and 301, OSHA
sought to balance the utility of the information collection for
enforcement, outreach, and research, on the one hand, and the burden on
employers to provide the information to OSHA, on the other hand (see 87
FR 18543). To achieve this balance in the proposed rule, OSHA analyzed
five years of injury and illness Form 300A summary data collected
through OSHA's ITA. OSHA examined combinations of establishment size
and industry hazardousness that, like the 2016 final rule, would
provide the agency with information on roughly 750,000 cases of
injuries and illnesses per year--roughly the same burden as the case-
specific requirement in the 2016 final rule. Based on this analysis,
OSHA proposed a reporting requirement for establishments with 100 or
more employees in 4-digit NAICS (2017) industries that:
1. had a 3-year-average Total Case Rate (TCR) in the BLS SOII for
2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-
equivalent employees, and
2. were included in proposed appendix A to subpart E. (All of the
industries in proposed appendix B were also in appendix A).
The proposed rule listed the designated industries in proposed
appendix B to subpart E.
OSHA proposed one exception to the above criteria, for the United
States Postal Service (USPS), which is the only employer in NAICS 4911
Postal Services. Under the Postal Employees Safety Enhancement Act
(Pub. L. 105-241), OSHA treats USPS as a private sector employer for
purposes of occupational safety and health, and USPS establishments
with 20 or more employees have been required to electronically submit
300A information to OSHA. However, BLS does not include USPS in the
SOII. Using the 2017, 2018, and 2019 data submitted by USPS to the ITA,
OSHA was able to calculate a TCR of 7.5 for NAICS 4911. Therefore, OSHA
included NAICS 4911 in proposed appendix B to subpart E.
Also, in the preamble to the proposed rule, OSHA explained that the
agency believed TCR, which represents the number of work-related
injuries and illnesses per 100 full-time-employees during a one-year
period, was the appropriate rate to use for determining the list of
industries in proposed appendix B to subpart E because covered
establishments would be required to electronically submit information
to OSHA on all of their recordable cases, not just cases that resulted
in days away from work, job restriction, or transfer. OSHA explained in
the preamble that, in 2020, OSHA received submissions to the ITA of
Form 300A data for 2019 from 46,911 establishments that had 100 or more
employees and were in one of the industries listed in proposed appendix
B to subpart E, accounting for 680,930 total recordable cases and a TCR
of 3.6.
The designated industries in proposed appendix B to subpart E were
as follows:
Proposed Appendix B
------------------------------------------------------------------------
2017 NAICS code 2017 NAICS title
------------------------------------------------------------------------
1111........................ Oilseed and grain farming.
1112........................ Vegetable and melon farming.
1113........................ Fruit and tree nut farming.
1114........................ Greenhouse, nursery, and floriculture
production.
1119........................ Other crop farming.
1121........................ Cattle ranching and farming.
1122........................ Hog and pig farming.
1123........................ Poultry and egg production.
1129........................ Other animal production.
1141........................ Fishing.
1151........................ Support activities for crop production.
1152........................ Support activities for animal production.
1153........................ Support activities for forestry.
2213........................ Water, sewage and other systems.
2381........................ Foundation, structure, and building
exterior contractors.
3111........................ Animal food manufacturing.
3113........................ Sugar and confectionery product
manufacturing.
3114........................ Fruit and vegetable preserving and
specialty food manufacturing.
3115........................ Dairy product manufacturing.
3116........................ Animal slaughtering and processing.
3117........................ Seafood product preparation and packaging.
3118........................ Bakeries and tortilla manufacturing.
3119........................ Other food manufacturing.
3121........................ Beverage manufacturing.
3161........................ Leather and hide tanning and finishing.
3162........................ Footwear manufacturing.
3211........................ Sawmills and wood preservation.
3212........................ Veneer, plywood, and engineered wood
product manufacturing.
3219........................ Other wood product manufacturing.
3261........................ Plastics product manufacturing.
3262........................ Rubber product manufacturing.
3271........................ Clay product and refractory manufacturing.
3272........................ Glass and glass product manufacturing.
3273........................ Cement and concrete product manufacturing.
3279........................ Other nonmetallic mineral product
manufacturing.
3312........................ Steel product manufacturing from purchased
steel.
3314........................ Nonferrous metal production and
processing.
3315........................ Foundries.
3321........................ Forging and stamping.
3323........................ Architectural and structural metals
manufacturing.
3324........................ Boiler, tank, and shipping container
manufacturing.
3325........................ Hardware manufacturing.
3326........................ Spring and wire product manufacturing.
3327........................ Machine shops; turned product; and screw,
nut, and bolt manufacturing.
3328........................ Coating, engraving, heat treating, and
allied activities.
3331........................ Agriculture, construction, and mining
machinery manufacturing.
3335........................ Metalworking machinery manufacturing.
3361........................ Motor vehicle manufacturing.
3362........................ Motor vehicle body and trailer
manufacturing.
3363........................ Motor vehicle parts manufacturing.
3366........................ Ship and boat building.
3371........................ Household and institutional furniture and
kitchen cabinet manufacturing.
3372........................ Office furniture manufacturing.
4231........................ Motor vehicle and motor vehicle parts and
supplies merchant wholesalers.
4233........................ Lumber and other construction materials
merchant wholesalers.
4235........................ Metal and mineral merchant wholesalers.
4244........................ Grocery and related product merchant
wholesalers.
4248........................ Beer, wine, and distilled alcoholic
beverage merchant wholesalers.
4413........................ Automotive parts, accessories, and tire
stores.
4422........................ Home furnishings stores.
4441........................ Building material and supplies dealers.
4442........................ Lawn and garden equipment and supplies
stores.
4451........................ Grocery stores.
4522........................ Department stores.
4523........................ General merchandise stores, including
warehouse clubs and supercenters.
4533........................ Used merchandise stores.
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.
4854........................ School and employee bus transportation.
4859........................ Other transit and ground passenger
transportation.
4871........................ Scenic and sightseeing transportation,
land.
4881........................ Support activities for air transportation.
4883........................ Support activities for water
transportation.
4911........................ Postal Service.
4921........................ Couriers and express delivery services.
4931........................ Warehousing and storage.
5322........................ Consumer goods rental.
5621........................ Waste collection.
5622........................ Waste treatment and disposal.
6219........................ Other ambulatory health care services.
6221........................ General medical and surgical hospitals.
6222........................ Psychiatric and substance abuse hospitals.
6223........................ Specialty hospitals.
6231........................ Nursing care facilities.
6232........................ Residential intellectual and developmental
disability, mental health, and substance
abuse facilities.
6233........................ Continuing care retirement communities and
assisted living facilities for the
elderly.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services.
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
6239........................ Other residential care facilities.
6243........................ Vocational rehabilitation services
7111........................ Performing arts companies.
7112........................ Spectator sports.
7131........................ Amusement parks and arcades.
7211........................ Traveler accommodation.
7212........................ RV parks and recreational camps.
7223........................ Special food services.
------------------------------------------------------------------------
a. The Size Threshold for Submitting Information From OSHA Forms 300
and 301
Like the proposed rule, Sec. 1904.41(a)(2) of the final rule
requires establishments in industries listed in appendix B to subpart E
with 100 or more employees to electronically submit certain information
from their 300 and 301 forms to OSHA once a year. The size criterion of
100 or more employees is based on the total number of employees at an
establishment during the previous calendar year. All individuals who
are ``employees'' under the OSH Act are counted in the total. The count
includes all full-time, part-time, temporary, and seasonal employees.
For businesses that are sole proprietorships or partnerships, the
owners and partners would not be considered employees and would not be
counted. Other examples of individuals who are not considered to be
employees under the OSH Act are unpaid volunteers and family members of
farm employers (see 66 FR 5916, 6038).
In the preamble to the proposed rule, OSHA specifically requested
comment on whether the threshold of 100 or more employees was the
appropriate size criterion for the requirement to electronically submit
data from the OSHA Form 300, 301, and 300A. OSHA also asked whether a
different size criterion would be more appropriate (see 87 FR 18546).
OSHA received a number of comments on the 100-or-more-employee
criterion as to the submission of OSHA Forms 300 and 301. Some
commenters supported the 100-or-more threshold (e.g., Docket IDs 0040,
0048, 0049, 0051, 0054, 0064, 0067, 0073, 0080, 0083, 0089, 0092,
0093). For example, the Council of State and Territorial
Epidemiologists stated that setting the threshold at 100 employees will
allow OSHA to receive more detailed information from the 300/301 forms
on the nature and circumstances of injuries and illnesses (Docket ID
0040). Also, the International Union of Painters and Allied Trades/AFL-
CIO commented that while they would have preferred to see the threshold
for large establishments dropped even further, they recognized that the
reduction from 250 to 100 from the 2016 final rule is significant and
will assist their industry and others in capturing additional data
(Docket ID 0073).
The National Nurses Union commented, ``An OSHA rule requiring
reporting from establishments with 100 or more employees is a superior
threshold to the 250-employee threshold. As an example, if the
establishment threshold was 250 employees, 299 hospitals in California
would have had to comply with electronic reporting requirements in
2021, covering over 378,000 hospital employees. Applying a reporting
rule to establishments with 100 or more employees would add an
additional 73 hospitals and protect nearly 12,017 additional hospital
employees in California alone. This is a significant increase in the
data available on workplace hazards'' (Docket ID 0064). Additionally,
the Communication Workers of America commented, ``We support OSHA's
proposal to be inclusive of more workplaces by changing the definition
of a ``large'' establishment to those with 100 or more employees,
rather than 250 employees. We support large establishments submitting
certain information from all three recordkeeping forms. . . .'' (Docket
ID 0092).
Other commenters opposed or questioned the 100-or-more employee
threshold (e.g., Docket IDs 0030, 0050, 0071, 0076, 0087, 0094). Of
those commenters who opposed the proposed threshold, most argued that
OSHA should set the threshold higher than 100 employees. For example,
the Employers E-Recordkeeping Coalition (Coalition) commented that, to
the extent employers in industries designated in appendix B are
required to submit information from their OSHA Form 300, 301, and 300A,
such a requirement should apply to employers with 250 or more
employees, not employers with 100 or more employees. The Coalition
asserted that, ``OSHA does not appear to provide any rationale for
lowering the threshold of what it considers to be ``larger employers''
from those with 250 or more'' (Docket ID 0087). Similarly, the National
Propane and Gas Association (NPGA) commented that OSHA does not explain
its rationale for lowering the size threshold to 100 employees (Docket
ID 0050).
OSHA agrees with commenters who supported the proposed 100-or-more-
employee threshold and disagrees with commenters who stated that the
employee threshold should be higher than 100 or more employees (e.g.,
250 or more employees). Increasing the threshold would reduce the
number of establishments required to electronically submit information
from their 300 and 301 forms, as well as decrease the number of injury
and illness case reports collected by the agency. For example,
increasing the size threshold from 100 or more employees to 250 or more
employees would reduce the number of establishments required to
electronically submit 300/301 data by 67 percent (i.e., from 52,092
establishments to 17,106 establishments). Likewise, raising the
threshold from 100 or more employees to 250 or more employees would
reduce the number of reported injury and illness cases by 32 percent
(i.e., from 766,257 cases to 523,562 cases). This reduction in the
amount of collected information would significantly limit OSHA's
ability to identify and target hazardous occupations and workplaces.
Also, a reduction in the amount of collected information would
adversely impact the benefits (discussed elsewhere) of making this
information available to employees, the public, and other interested
parties. OSHA is concerned that an increase in the employee threshold,
along with the corresponding reduction in publicly available injury and
illness information, will hinder efforts to prevent occupational
injuries and illnesses in the future.
Moreover, the question is more complex than merely whether to
``increase'' or ``decrease'' the establishment-size threshold, because
the scope of industries required to submit the Form 300 and 301 data
has also changed between the 2016 rule and this one. Under the 2016
final rule, all establishments that (1) had 250 or more employees at
any time during the previous calendar year, and (2) were required to
keep records pursuant to part 1904 were required to submit Forms 300
and 301. In contrast, in this rulemaking, OSHA proposed requiring
establishments with 100-or-more employees to submit only if they are
classified in one of the high-hazard industries listed in appendix B.
This approach--lowering the establishment-size threshold to capture
enough workplaces and cases to allow appropriate targeting and analysis
while focusing in on particularly hazardous industries--is fully
distinguishable from the agency's approach in 2016. OSHA's approach in
this rulemaking focuses on higher hazard industries and provides the
agency with information on more establishments, as compared to the
number of establishments which would have been required to submit their
Forms 300 and 301 information under the 2016 final rule. The increase
in the number of establishments required to submit information,
relative to the 2016 final rule, will allow OSHA to identify more
places where intervention will be beneficial, including targeting its
compliance assistance efforts.
Other interested parties recommended that OSHA conduct additional
analysis to determine which establishments should be required to
electronically submit Form 300/301 data to OSHA. For example, the
American Industrial Hygiene Association (AIHA) commented, ``There
should be an analysis of the impact of any company size selected to
report electronically. There are at least two considerations here: (1)
The number of responses that will be received if the threshold is
lowered to 100 (there is also a question of whether OSHA can manage an
associated increase in reports); and (2) Most companies in the U.S. are
small businesses and new regulations such as this can have an indirect
impact on them. Will companies of this size have the capability and IT
expertise to participate in electronic reporting? OSHA should conduct a
thorough analysis before imposing new reporting requirements on small
businesses.'' (Docket ID 0030). The Sheet Metal & Air Conditioning
Contractors' National Association submitted similar comments (Docket ID
0046).
OSHA agrees with AIHA that these factors are important in
determining the appropriate threshold for data submission and
considered them in setting the threshold. As to the first consideration
noted by AIHA, the number of responses, as noted above, OSHA estimates
that 52,092 establishments will be required to electronically submit
Form 300/301 data each year pursuant to Sec. 1904.41(a)(2) of the
final rule. OSHA further estimates that those establishments would
annually submit 766,257 injury and illness cases. In choosing the
proposed threshold, OSHA sought to balance the utility of the
information collection for enforcement, outreach, and research, on the
one hand, and the burden on employers to provide the information to
OSHA, on the other hand. And OSHA expects that the 100-employee
threshold will be an easy threshold for employers to understand and
keep track of. Further, as discussed in Section III.B. of this Summary
and Explanation, OSHA has determined that it is capable of managing,
analyzing, and utilizing the data it will receive pursuant to this
requirement.
As to AIHA's second factor, whether establishments with 100 or more
but fewer than 250 employees have the capability and IT expertise to
participate in electronic reporting, OSHA has also determined that such
establishments are capable of submitting these reports to OSHA.
Significantly, because the industries that appear in appendix B are a
subset of those in appendix A and the previous version of Sec.
1904.41(a)(2) required all establishments with 20-249 employees which
are classified in an industry listed in appendix A to submit
information from their Form 300A annually to OSHA, all of the
establishments which would be required to submit information from their
Forms 300 and 301 to OSHA under the proposal were already required to
submit information from their Forms 300A. In other words, the
establishments covered under the proposal (and this final rule) already
have experience submitting (and thus the ability to submit) such data
to OSHA electronically. For more details on this issue, see Section IV,
Final Economic Analysis.
OSHA also received comments questioning its preliminary decision to
use establishment size as a threshold criterion. For example, the
National Safety Council (NSC) supported a risk-based approach,
commenting that larger operations are not inherently less safe and that
OSHA should move to a risk-
based approach to protect workers. It argued, ``OSHA should evaluate
factors like the degree of the hazard, the magnitude of exposure
(number of workers exposed and duration of exposure), and the relative
risk at the site (likelihood of an incident based on current hazards
and the level of controls being applied to those hazards and past
experience). These data points should govern reporting requirements and
guide OSHA inspections, consulting and compliance resources.'' (Docket
ID 0041).
OSHA agrees that using a risk-based approach to collecting data can
be valuable. Indeed, as discussed in Section III.B.14.c in this Summary
and Explanation, OSHA anticipates this to be one of the benefits of the
data collection for the agency. That is, the data collection will
provide OSHA with establishment-specific, case-specific information the
agency can use to evaluate risk factors and guide OSHA activities based
on risk factors. However, in order to obtain this information, OSHA
must first set the criteria for collecting the information, through
this final rule. Risk is one of the reasons the agency proposed using a
Forms 300 and 301 data collection criteria based on industry hazard
level as well as establishment size, i.e., it is reasonable to assume
that establishments in industries with higher injury/illness rates are
higher-hazard industries with higher risks. As discussed elsewhere in
this preamble, the list of higher-hazard industries in final appendix B
to subpart E is based on several criteria, including the analysis of
average injury and illness rates over several years. OSHA believes this
approach represents a practical way of evaluating risks and hazards in
specific industries. OSHA also believes it would be difficult to
calculate an appropriate employee threshold based on the degree of
hazard or the magnitude of exposure at individual establishments,
especially when such case-specific data are not now available to the
agency. Moreover, OSHA expects that including a numerical threshold of
100 or more employees is easier for employers to understand and
provides certainty for the regulated community. The inclusion of a
numerical threshold with or without an additional industry criterion is
a familiar part of OSHA's recordkeeping regulations (see, e.g., 29 CFR
1904.1(a)(1); previous 29 CFR 1904.41(a)(1)-(2)). Further, OSHA
believes that the 100-employee threshold balances the burden on
employers with the benefits to worker safety and health.
Other commenters questioned OSHA's proposed 100-employee threshold
because the agency did not choose that threshold in the 2016
rulemaking. For example, the Coalition pointed out that ``OSHA
considered a lower threshold of 100 or more employees, and expressly
denied that approach in the 2016 rulemaking'' (Docket ID 0087). In
response to this comment, OSHA notes that the alternative (Alternative
E) in the 2013 NPRM (the NPRM which lead to the 2016 final rule) to
which the Coalition refers differs from the requirement OSHA proposed
in this rulemaking. Specifically, with regard to Forms 300 and 301,
Alternative E would have required all establishments which were
required to keep records and had 100 or more employees at any time
during the previous calendar year to submit Form 300 and 301 data to
OSHA annually (see 78 FR 67264, 67281). However, in this rulemaking,
OSHA proposed for only a subset of establishments with 100 or more
employees (i.e., those whose industries appear on appendix B) to submit
the data. OSHA estimated that it would receive 1,170,000 injury and
illness cases with incident report (OSHA Form 301) and Log (OSHA Form
300) data under Alternative E (81 FR 29636). OSHA further estimated
that 120,000 establishments would have been required to submit data
under the alternative (81 FR 29636). Ultimately, in 2016, OSHA agreed
with commenters who stated that reducing the size criterion to 100
would increase the burden on employers with diminishing benefit.
OSHA's 2016 decision to reject Alternative E was based on the
employer burden and benefits under that alternative. As discussed
above, under this rule, OSHA estimates that only 52,092 establishments
will be required to electronically submit Form 300/301 data each year
and those establishments would annually submit only 766,257 injury and
illness cases. Thus, an estimated 67,908 fewer establishments will be
required to submit data under this rule, as compared to the estimate of
those that would have been required to submit under Alternative E in
the 2016 final rule, and approximately 403,000 fewer cases are
estimated to be submitted than were estimated to have been submitted
under that alternative. The number of cases estimated to be submitted
under this final rule is similar to that which was estimated to have
been required to be submitted under the 2016 final rule (720,000 in
2016). Consequently, OSHA finds that its rejection of Alternative E in
the 2016 rulemaking has no bearing on its decision to use a 100-
employee threshold in this rulemaking. In fact, the agency's finding
that it could handle data from 720,000 cases in 2016 actually supports
its finding that it can handle a similar number of records in this
rulemaking.
The Phylmar Regulatory Roundtable (PRR) objected to OSHA's proposed
100-or-more-employee threshold for a different reason than the above
commenters. Specifically, it maintained that the requirement for
establishments with 100 or more employees in certain industries could
result in inaccurate or misleading information. In support of this
point, it stated that ``an establishment with few employees may have a
high case rate purely based on numbers which is not reflective of
workplace hazards or employer commitment. High injury and illness rates
are not an automatic indication that the company or establishment is
operating an unsafe environment'' (Docket ID 0094).
OSHA disagrees with PRR's assertion about the 100-or-more employee
threshold resulting in misleading information. While a small number of
injuries or illnesses could have a disproportionate effect on incidence
rates in an establishment with a small number of employees, this is
unlikely in larger establishments with 100 or more employees. Incidence
rate of injuries and illnesses are computed from the following formula:
Incidence rate per 100 full-time employees = (Number of injuries and
illnesses x 200,000)/Employee hours worked. The 200,000 figure in the
formula represents the number of hours 100 employees working 40 hours
per week, 50 weeks per year would work, and provides the standard base
for calculating incidence rate for an entire year. Mathematically, the
effect of a small change in the numerator (number of injuries and
illnesses x 200,000) on the incidence rate becomes smaller as the
denominator (employee hours worked) becomes larger, and the more
employees there are, the larger the denominator will tend to be. Two
recordable injuries or illnesses instead of one, at an establishment
with 20 full-time employees, would increase the TCR from 5.0 to 10.0;
in contrast, at an establishment with 100 full-time employees, the TCR
would only increase from 1.0 to 2.0. As discussed above, the TCR
threshold for industry inclusion in Appendix B is 3.5; an establishment
with 100 full-time employees would have to have at least 4 recordable
injuries in a year to exceed this threshold. In addition, as discussed
elsewhere, OSHA plans to publish narrative information from the Form
300 and 301 (after identifying and removing information that could
reasonably be expected to identify individuals directly), which will
enable the users of the data to determine the relevance of the data. In
fact, OSHA believes that the inclusion of more information about the
specific cases (rather than the summary information from Forms 300A)
will mitigate against potential misunderstandings, because the public
can use that information to determine the circumstances that led to the
injury or illness (e.g., through showing that a particular injury or
illness occurred for a reason other than a hazard in the work
environment). This is further discussed below in Section III.B.4 of
this Summary and Explanation, which also explains additional steps OSHA
plans to take to provide information to the public to aid their
understanding of the data.
OSHA also received a comment from NPGA opposing the proposed 100-
or-more employee threshold because it is not included in any other
portion of OSHA's recordkeeping regulations (Docket ID 0050). NPGA's
statement is accurate: OSHA's proposal in this rulemaking is the first
time OSHA has specifically tied a part 1904 recordkeeping requirement
to a 100-or-more-employee threshold. However, OSHA does not think the
presence of a new threshold is problematic. As stated above, a 100-
employee threshold is easy for establishments to understand and
balances OSHA's need for the data with the burden on establishments.
Moreover, OSHA expects that establishments are familiar with this
threshold from their experience with other Federal standards. For
example, private sector employers with 100 or more employees are
required to file an EEO-1 Component 1 Report with the Equal Employment
Opportunity Commission (EEOC) and the Office of Federal Contract
Compliance Programs (OFCCP), U.S. Department of Labor, every year (see
42 U.S.C. 2000e-8(c); 29 CFR 1602.7-.14; 41 CFR 60-1.7(a)).
Other commenters maintained that the 100-employee threshold was not
inclusive enough. For example, the AFL-CIO commented that if OSHA did
not adopt its recommendation to require all establishments with 100 or
more employees to submit data from all their recordkeeping forms
(rather than establishments with 100 or more employees which are also
classified in an industry listed in appendix B) (comment and OSHA's
response discussed below), then OSHA should adopt the provisions
contained in the 2016 final rule (i.e., require all establishments with
250 or more employees to submit data from Forms 300A, 300, and 301). It
argued that ``[a]t a minimum'' OSHA should require establishments with
250 or more employees to submit data from the Forms 300A and 300
(Docket ID 0061). The United Food and Commercial Workers International
Union submitted a similar comment (Docket ID 0066).
OSHA disagrees with commenters who suggested that OSHA should adopt
a threshold below 100 or more employees or eliminate the threshold
completely. OSHA acknowledges commenters who stated that a lower
threshold would result in an increase in the amount of injury and
illness data collected by the agency. However, the agency notes that
any reduction in the employee size threshold would increase the number
of establishments required to electronically submit Form 300 and 301
data, and this would result in an increased burden to smaller
employers. Again, the agency chose the 100-employee threshold by
balancing the utility of the information collection for enforcement,
outreach, and research, on the one hand, and the burden on employers to
provide the information to OSHA, on the other hand. The 100-employee
threshold will provide enough case-specific information, about enough
establishments, for wide-spread targeted outreach and enforcement while
minimizing the burden on employers, especially smaller employers, as
required by Section 8(d) of the OSH Act. In addition, OSHA notes that
the 100-or-more-employee threshold is appropriate since larger
establishments typically have more resources to support electronic
submission of case-specific injury and illness information to OSHA.
OSHA also finds that the 100-or-employee threshold is appropriate
because there is a lesser risk of employee reidentification from
information published regarding larger establishments. (For more
information on this issue, see the discussion of indirect
identification in Section III.B of this Summary and Explanation.)
In summary, after considering the entire record on the issue of the
size threshold for submitting OSHA Form 300 and 301 data, OSHA agrees
with commenters who supported the 100-or-more-employee threshold for
determining which establishments must electronically submit information
from their 300 and 301 forms. The 100-or-more-employee threshold will
allow OSHA to strike an appropriate balance between the total number of
establishments required to submit case-specific data to OSHA and the
total number of injury and illness cases collected, on the one hand,
with burden on employers (especially smaller employers) on the other.
As discussed above, as well as in Section IV, Final Economic Analysis,
OSHA believes that establishments with 100 or more employees have the
necessary personnel and IT resources to comply with the electronic
submission requirement in final Sec. 1904.41(a)(2). By setting the
threshold at 100 or more employees and limiting the covered industries
to the higher hazard industries listed in final appendix B to subpart
E, the agency is focusing its data collection efforts in a more
targeted manner. This approach is consistent with OSHA's stated
intention in the preamble to the proposed rule to balance the utility
of the information collection for enforcement, outreach, and research,
on the one hand, and the burden on employers to provide the information
to OSHA, on the other hand.
Accordingly, like the proposed rule, final Sec. 1904.41(a)(2)
requires establishments with 100 or more employees that are in the
designated industries listed in appendix B to subpart E to
electronically submit data from their 300 and 301 forms to OSHA once a
year.
b. The Criteria for Determining the Industries in Appendix B to Subpart
E
As stated above, OSHA proposed to require establishments with 100
or more employees at any time during the previous calendar year to
annually submit their Form 300 and 301 if they are in an industry
listed in proposed appendix B to subpart E. The criteria for including
the designated industries in proposed appendix B to subpart E was based
on a three-year average rate of Total Case Rate (TCR) in the BLS SOII
for 2017, 2018, and 2019, of at least 3.5 cases per 100 full-time-
employees. In the preamble to the proposed rule, OSHA requested comment
on whether TCR is the appropriate method for determining the list of
industries in proposed appendix B to subpart E. In addition, OSHA
specifically asked, ``Is Total Case Rate (TCR) the most appropriate
incidence rate to use for proposed appendix B to subpart E, or would
the Days Away Restricted or Transferred (DART) rate be more
appropriate?'' (87 FR 18546).
The TCR represents the number of work-related injuries and
illnesses per 100 full-time-employees during a one-year period. It is
based on all work-related injuries and illnesses recorded on the OSHA
300 Log resulting in death, days away from work, work restriction or
transfer to another job, and other
recorded cases (e.g., cases resulting in medical treatment beyond first
aid). On the other hand, the DART rate is based only on the number of
work-related injuries and illnesses recorded on the OSHA 300 Log
resulting in days away from work, restricted work activity or transfer
to another job.
A number of commenters opined on the appropriate criteria for
determining the industries designated in appendix B to Subpart E. Many
of these commenters supported the proposed use of the TCR (e.g., Docket
IDs 0030, 0040, 0047, 0048, 0054, 0064, 0066, 0084, 0089). For example,
AIHA indicated its support for using the TCR in the final rule, adding
that, ``All incident rate metrics suffer from inaccuracy due to a lack
of understanding of complex and intricately nuanced recording rules.
The TCR is the most widely used and least misunderstood of these
measures in the United States'' (Docket ID 0030). Also, the National
Nurses Union stated that TCR is a more appropriate metric than a DART-
rate-only metric because it includes all types of recorded injuries and
illnesses, not just those where an employer gave an injured or ill
employee ``time to rest and recover'' (Docket ID 0064).
Other commenters argued against OSHA's proposed use of the TCR and
for the use of a DART-rate metric. For example, the International
Bottled Water Association (IBWA) and the Coalition asserted that, per
OSHA's preamble, ``[a]ppendix B is meant to reflect employers in higher
hazard industries. While a higher DART may reflect such industries to
some extent, a higher TCR does not. This is because the TCR captures
relatively minor incidents--those that do not result in days away from
work, job restriction, or transfer'' (Docket IDs 0076, 0087). Both of
these commenters expressed concern that ``for example, under the
proposal, employers in industries with very few or no 'major' incidents
(i.e., those that result in days away from work, job restriction, or
transfer), but a larger number of 'minor' incidents will unfairly be
included in [a]ppendix B'' (Docket IDs 0076, 0087). On the other hand,
other commenters, such as AIHA, argued against the use of the DART rate
(Docket ID 0030).
Other commenters suggested other possible metrics in their
comments. For example, NIOSH commented, ``TCR may be the most
appropriate single criterion for selection of industries; however,
NIOSH believes that DART (Days Away, Restricted, or Transferred) and
fatality rates are also valuable for determining the magnitude of
injury risks in specific industries. There are two basic reasons why
some industries would rank differently based on TCR than they would on
DART or fatality rate. First, the nature of work differs among
industries and can result in different ratios of mild to severe
injuries. While the TCR represents mostly relatively mild injuries, the
severest injuries are the most important targets of prevention and
account for a very large share of the costs of injuries in the workers'
compensation system. Second, some industries may more fully report
injuries than others and so tend to have a higher ratio of TCR to DART
or fatality rate.'' (Docket ID 0035, Attachment 2). The International
Brotherhood of Teamsters concurred with NIOSH's comment (Docket ID
0083). AIHA offered a fourth possible metric: cases with days away,
observing, ``One other candidate, cases with days away, is perhaps the
most intuitive metric and most closely (though not exactly) aligned
with workers' compensation systems'' (Docket ID 0030).
Finally, AFL-CIO ``urge[d] OSHA to require all large establishments
with 100 or more employees, currently subject to recordkeeping
standards, to electronically report detailed injury and illness
information . . . as the value of these data has been thoroughly
explained by the agency and record of evidence in the 2016 final rule''
(Docket ID 0061). In other words, AFL-CIO asked OSHA to revise the
proposed provision to eliminate the requirement that only those
establishments in industries listed in appendix B would be required to
report. In AFL-CIO's recommendation, the only limitations would be
establishment size and being routinely required to keep injury and
illness records under part 1904.
Having reviewed the information in the record, OSHA rejects AFL-
CIO's suggestion to require all large establishments with 100 or more
employees (without regard to industry hazardousness) to submit
information. In the provisions related to the electronic submission of
Forms 300 and 301, OSHA has decided that it is appropriate to focus on
the most hazardous industries. Such a focus is a regular feature of
OSHA's recordkeeping regulations. For example, since 1982, OSHA has
exempted some low-hazard industries from maintaining injury and illness
records on a regular basis (see https://www.osha.gov/enforcement/directives/cpl-02-00-135). This partial exemption for low-hazard
industries currently appears in 29 CFR 1904.2. Similarly, since the
2016 final rule, OSHA has only required establishments with 20 or more
employees but fewer than 250 employees to submit information from Form
300A if those establishments are classified in an industry listed in
appendix A to subpart E to part 1904, i.e., if they are higher hazard
industries.
Focusing some recordkeeping requirements on higher hazard
industries has the benefit of enabling OSHA to better focus its
attention where it might have the highest impact, and lessens the
burden on less hazardous industries. OSHA finds that such a balance is
appropriate. Moreover, the agency will continue receiving information
from Form 300A from all recordkeeping establishments with 250 or more
employees. If the information from submitting establishments' Forms
300A, or from the BLS SOII and/or Census of Fatal Occupational Injuries
(CFOI), were to indicate that industries not listed on appendix B were
becoming more hazardous, OSHA could consider engaging in notice-and-
comment rulemaking to update appendix B. Further discussion on the
possibility of updating appendix B appears below in this section of the
Summary and Explanation.
As to the appropriate criteria, OSHA has decided to use several
data sources to populate the list of higher hazard industries in final
appendix B to subpart E. Specifically, OSHA finds that the TCR, the
DART rate, and the fatality rate are all important methods of
identifying higher hazard industries. As noted by some commenters,
while it is widely used in the United States and includes all types of
recorded injuries and illnesses, the TCR also includes data concerning
less severe injuries and illnesses (i.e., cases that resulted in
medical treatment beyond first aid but did not involve loss of
consciousness and/or did not result in restricted work or transfer to
another job, days away from work, or death). OSHA still considers the
TCR to be an appropriate rate to use for determining the list of
industries in appendix B to subpart E, especially since covered
establishments will be required to electronically submit information to
OSHA on all their recordable cases (i.e., total cases). However, OSHA
also agrees with commenters who suggested that information specifically
about severe injuries and illnesses is a reliable indication of whether
a specific industry is a high hazard industry. As NIOSH noted, the
nature of work differs among industries, and this can result in
different ratios of less severe and more severe injuries and illnesses.
Accordingly, OSHA has decided to use the DART rate and the fatality
rate in the BLS CFOI in addition to the TCR.
Adding the DART rate, which measures severe injuries and illnesses
resulting in days away from work, restricted work activity, or transfer
to another job, will ensure that industries with higher rates of severe
injuries are included, while using the TCR will ensure that OSHA is
capturing industries with higher injury and illness rates overall
(including less severe injuries and illnesses and, as discussed by NNU,
more serious injuries and illnesses in establishments where an employer
does not give the injured or ill employee ``time to rest and recover'')
(see Docket ID 0084).
Adding the fatality rate will also be helpful because fatalities
are more consistently reported than other injuries and illnesses. CFOI
produces comprehensive counts of workplace fatalities in the United
States. It is a Federal-State cooperative program that has been
implemented in all 50 States and the District of Columbia since 1992.
To compile counts that are as complete and accurate as possible, the
census uses multiple sources to identify, verify, and profile fatal
worker injuries. CFOI includes specific information about each
workplace fatality, including information about occupation and other
worker characteristics, equipment involved, and circumstances of the
event. All of the information in the CFOI is obtained by cross-
referencing the source records, such as death certificates, workers'
compensation reports, and Federal and State agency administrative
reports. To ensure that fatalities are work-related, cases are
substantiated with two or more independent source documents, or a
source document and a follow-up questionnaire. The CFOI fatality rate
is based on the number of deaths per 100,000 full-time-or-equivalent
employees. Adding the fatality rate from CFOI to the metrics used to
determine which industries should report in this final rule allows OSHA
to obtain data from industries with low non-fatal injury and illness
rates but high fatality rates.
OSHA does not think that the metric offered by AIHA (cases with
days away, or DAFW) is appropriate for this rulemaking. The DAFW rate
is a subset of the DART rate. It does not include cases in which an ill
or injured employee continues to work but is engaged in restricted
activities or job transfer. This is obviously more possible in some
establishments and industries than in others. For example, there might
be no alternative for restricted work or job transfer at a nursing care
facility for a patient-care worker who is unable to perform their
regular job duties due to an injury; thus, the injury would result in a
DAFW case. In contrast, it might be possible to temporarily reassign an
injured production-line worker to a different job on the production
line that accounts for the restrictions due to the injury; thus, the
injury would not result in a DAFW case. However, both injuries--the
days away from work case, as well as the restricted activities/job
transfer case--would be DART cases. Thus, the DART rate is a better
indicator of hazardousness across establishments and industries.
Given the concerns raised by commenters about specific injury and
illness rates, and in order to accurately identify higher hazard
industries, OSHA decided to use several factors in determining the list
of industries in final appendix B to subpart E. In addition to using
the TCR, OSHA analyzed industry hazardousness based on the DART rate
and the fatality rate. OSHA believes that using this approach more
comprehensively identifies higher hazard industries. The agency also
finds that this combination of factors furthers the agency's intention
of balancing the number of establishments covered and injury and
illness cases reported with the burden on employers, as well as not
expanding the submission requirement beyond establishments that are
already required to report information from the Form 300A. OSHA again
notes that all of the industries in final appendix B to subpart E are
also included in final appendix A to subpart E.
c. Cut-Off Rates for Determining the Industries in Appendix B to
Subpart E
Having determined the appropriate metrics (TCR, DART, and fatality
rates), OSHA now turns to the appropriate cut-off rates for selecting
the designated industries in appendix B to subpart E using the chosen
metrics. As discussed above, OSHA proposed including those industries
which had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees. Some commenters argued
that the proposed cut-off (3.5 per 100 workers) was too low (e.g.,
Docket IDs 0054, 0076, 0087). For example, the Employers E-
Recordkeeping Coalition (``Coalition'') argued that, whether the DART
or TCR rate is used, ``OSHA should establish a higher threshold value
than it proposes.'' The Coalition explained that the proposed threshold
TCR value of 3.5 was based on BLS SOII data for 2017, 2018, and 2019,
but that ``BLS data--specifically data representing the highest rates
for cases with days away from work, restricted work activity, or job
transfer (DART)--from the same time period (2017, 2018, 2019)
demonstrates that the lowest incidence rate was 4.2.'' It further
observed, ``Similarly, even if use of the TCR for purposes of
determining those industries that should be included in [a]ppendix B is
maintained in the final rule, a higher threshold value should be used.
According to BLS data representing highest rates for total cases from
the same time period (2017, 2018, 2019), the lowest incidence rate was
6.8. . . Accordingly, to the extent the TCR is used for purposes of
determining those industries that should be included in [a]ppendix B,
the threshold value should be set at no less than 6.8. '' (Docket ID
0087). IBWA submitted a similar comment (Docket ID 0076). Additionally,
Dow Chemical Company argued that OSHA should use a TCR ``triggering''
rate that is substantially higher than the private industry average for
full time equivalent workers (which was 2.8 in 2019 and 2.7 in 2020).
Dow explained, ``This will reduce the burden on industry sectors who
have a TCR at or below private industry average'' (Docket ID 0054).
Other commenters suggested that the proposed cut-off of 3.5 was too
high (e.g., Docket IDs 0037, 0047, 0048, 0049, 0066, 0069, 0079, 0084).
Several commenters urged OSHA to include more industries in appendix B
by lowering the cut-off to the three-year national average for private
industry. These commenters expressed concern about many hazardous
workplaces and high-risk occupations in industries that are above the
national average for private industry but below the proposed 3.5 cut-
off, including many industries with establishments operated by the
nation's major employers (Docket IDs 0030, 0047, 0048, 0049, 0066,
0069, 0084). For example, the Strategic Organizing Center (SOC)
``applaud[ed] OSHA's decision to lower the employment threshold for
report[ing] the 300/301 data . . . [but] urge[d] OSHA to reject the use
of such a high rate threshold for the inclusion of the specific
industry codes'' (Docket ID0079). In support of this recommendation,
SOC argued that OSHA had not justified the proposed TCR level other
than projecting that it would result in a volume of cases (roughly
750,000) similar to the 2016 rule (Docket ID 0079).
With regard to the appropriate value for triggering the inclusion
of industries in appendix B to subpart E, the final rule, like the
proposed rule, has a cut-off of 3.5 cases per 100 employees. As
reflected in the comments, the 3.5 cut-off value, which OSHA proposed,
represents a balance between more
information and more employer burden with a lower cut-off, and less
information and less employer burden with a higher cut-off. For
example, the cut-offs suggested by the Employers E-Recordkeeping
Coalition in their comment (Docket ID 0087) would only result in the
submission of an estimated 90,395 cases from 3,087 establishments
(using the 6.8 TCR rate taken from BLS table 19SNR01 ``Highest
incidence rates of total nonfatal occupational injury and illness
cases'', 2019) or an estimated 72,143 cases from 3,946 establishments
(using the 4.2 DART rate taken from BLS table 19SNR02 ``Highest
incidence rates of nonfatal occupational injury and illness cases with
days away from work, restricted work activity, or job transfer'',
2019).\4\ The Coalition's proposal would severely restrict the list of
industries which would be required to submit data pursuant to this
rulemaking, which would, in turn, restrict OSHA's ability to target its
enforcement and compliance assistance efforts beyond that small subset
of industries. It would also limit the information available to
interested parties for occupational safety and health purposes, e.g.,
to evaluate occupational safety and health trends and patterns.
Consequently, it would drastically decrease the benefits of the rule.
---------------------------------------------------------------------------
\4\ See https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-1-2019-national.xlsx for the TCR table and https://www.bls.gov/iif/nonfatal-injuries-and-illnesses-tables/soii-summary-historical/supplemental-table-2-2019-national.xlsx for the DART table.
---------------------------------------------------------------------------
In addition, for this final rule, OSHA has chosen to use a DART
rate of 2.25 per 100 employees and CFOI fatality rate of 5.7 deaths per
100,000 full-time-or-equivalent employees) to identify higher hazard
industries. Both represent 1.5 times the national average for private
industry for the respective rates. OSHA believes that these thresholds,
which are well above the national averages for private industry,
represent an appropriate cut-off for determining whether a given
industry is a higher hazard industry. As discussed below, adding the
DART criterion and the CFOI fatality criterion adds 6 industries to
Appendix B (3 per criterion) that are below the TCR threshold; this
addresses, to some degree, the concerns expressed by commenters about
hazardous workplaces that are below the TCR threshold.
Moreover, OSHA projects that the use of these cutoffs will enable
it to receive Form 300 and 301 data on approximately 750,000 cases of
injuries and illnesses per year. Based on the record of the 2016
rulemaking, OSHA determined that roughly this amount of cases would
provide OSHA and others with sufficient information to make workplaces
safer, while not overburdening employers (see 87 FR 18543). Nothing in
the record of this rulemaking, or the comments OSHA had received in the
2019 rulemaking, has convinced OSHA that a different balance should be
struck in this rule. However, as discussed above, the agency has
tailored the collection to industries and establishments where the
information would be most useful for improving workplace safety and
health.
OSHA only proposed including industries in appendix B if they also
appeared in appendix A; establishments with 20 or more employees in
industries in appendix A have already been required to electronically
submit information from their Form 300A since 2017. OSHA did not
receive any comments objecting to this part of the proposal and has
decided to retain this requirement in the final rule. However, several
interested parties argued that additional appendix A industries should
be listed in appendix B.
For example, the AFL-CIO commented that the proposed exclusion for
large establishments in certain industries from appendix B, ``which
further limits the ability to identify trends among workplace hazards
in high risk industries,'' means that a significant number of
industries will not be required to electronically submit OSHA Form 300
and 301 data to OSHA, including all of the utility sectors and almost
all of the construction industry[,]'' as well as a number of other
industries with large establishments (Docket ID 0061). The
Communications Workers of America commented that appendix B, like
appendix A, should include all industries in the manufacturing sector
(Docket ID 0092). SOC similarly characterized OSHA's proposal to limit
the requirement to submit Forms 300 and 301 to industries with a TCR of
at least 3.5 as a decision to ``arbitrarily exclude entire hazardous
industries from the revised reporting requirement.'' In particular, SOC
objected to the exclusion of the hotel industry, which, based on an
analysis by the National Employment Law Project, SOC believes is a high
hazard industry (Docket ID 0079).
The AFL-CIO also commented that the industry exclusions from
appendix B should not be based on BLS SOII data, because the data are
an inadequate measure of industry hazardousness. It argued that SOII
data, even recent three-year averages, is not an effective way to
ensure that high-hazard industries are captured consistently in the
data. The AFL-CIO further asserted that, ``[R]elying on these data to
create exclusion criteria ignores the known limitations of current
workplace injury and illnesses data. Over the last decade, studies have
documented that the BLS injury and illness survey fails to capture an
estimated 33-69% of work-related injuries. Some of the undercount has
been attributed to injuries and illnesses excluded from the BLS
survey's scope and the design of the survey.'' (Docket ID 0061).
In response, OSHA notes that there is no express exemption for
specific industries in appendix B to subpart E. The list of industries
in final appendix B is based on objective injury and illness data
indicating that a specific industry is a higher hazard industry. Any
exclusion or omission from the list of designated industries in final
appendix B is solely the result of a given industry not meeting the
higher hazard industry criteria specified above, criteria which have
been expanded under this final rule based on public comments. Moreover,
OSHA disagrees with SOC's characterization of its preliminary decisions
regarding the industries included on appendix B as ``arbitrar[y]''
(Docket ID 0079). As stated throughout the preamble to this final rule,
in proposing a higher hazard cut-off level, the agency was seeking to
balance the utility of the information collection for enforcement,
outreach, and research, on the one hand, with the burden on
establishments on the other. That is not to say that the agency found
that it would be economically infeasible for industries other than
those listed on proposed or final appendix B to submit their Form 300
or 301 data. Indeed, no such finding is required here. Rather, OSHA
looked to see what amount of information would be useful, considering
the number of establishments that would be reporting under the final
rule, the number of cases that would be submitted, the agency's
capacity to review such information, and the benefits that would stem
from the collection. The agency has determined that at the current
time, requiring larger, high hazard establishments to submit their data
can make a substantial impact on worker safety and health, and the
benefits of making other employers do so as well is less certain. OSHA
has decided to focus the rule on the establishments in industries in
which additional information has the most promise of addressing serious
workplace hazards. Further, OSHA notes that it will continue to receive
300A data from very large establishments (those with 250 or
more employees) in all industries required to keep records under part
1904 and can continue to use those data for targeting purposes as well.
OSHA will monitor the data it receives, and in the future, it may
consider new notice-and-comment rulemaking to adjust its approach in
light of its experience with the data collected under this final rule.
In addition, OSHA disagrees with the comment from the AFL-CIO that
BLS SOII data are not a reliable method for measuring industry
hazardousness. While BLS and its research partners have conducted
multiple studies which indicate that SOII fails to capture some cases,
the BLS SOII is an important indicator of occupational safety and
health and is the only source of national-level data on nonfatal
injuries and illnesses that spans the private sector and State and
local governments. Accordingly, OSHA is not making any adjustments to
the proposed appendix B industries based on these comments. However, as
discussed in more detail below, OSHA notes that the application of the
updated criteria for inclusion on appendix B has led to six new
industries being added to appendix B. These industries include NAICS
1133, Logging, NAICS 4853, Taxi and Limousine Services, and NAICS 4889,
Other Support Activities for Transportation--all industries that AFL-
CIO identified as industries with large establishments not included in
proposed appendix B that ``should be required to submit the injury and
illness data they are already required to collect'' (Docket ID 0061).
Consequently, the final rule responds to AFL-CIO's comment in part by
adding three additional NAICS codes based on the objective criteria in
this final rule.
d. Using the Most Current Data To Determine Designated Industries
In the preamble to the proposed rule, OSHA stated that the agency
anticipated that more current industry-level injury and illness data
from BLS, as well as more establishment-specific injury and illness
information from the ITA, would become available. OSHA therefore
explained that the agency may rely on the most current data available,
as appropriate, for determining the list of industries in appendix B to
subpart E. OSHA sought comment from the public on whether the agency
should use the most current data when developing the final rule (see 87
FR 18543).
The Phylmar Regulatory Roundtable (PRR) Occupational Safety and
Health, OSH Forum commented that while it agrees with the concept that
the most up-to-date information is the most accurate and should
determine the list of industries, OSHA should not include any new
industries in appendix B to subpart E in the final rule. According to
this commenter, doing so would not allow impacted industries the
opportunity to comment on such significant changes. Also, PRR
recommended that any additions to the list of industries (or sub-sets
of industries) in appendix B that result from OSHA analyzing updated
data should be conducted through notice and comment rulemaking (Docket
ID 0094).
In response, OSHA agrees with PRR that the list of higher hazard
industries in appendix B to subpart E should be based on data that was
available at the time of the proposed rule. OSHA notes that, although
the criteria used for determining the list of higher hazard industries
in appendix B has been modified for the final rule, all of the data
used to develop those criteria were available at the time of the
proposed rule. Specifically, the cut-off threshold used for the TCR
rate is based on a 3-year-average from 2017, 2018, and 2019, the cut-
off threshold for the DART rate is based on a 3-year-average from 2017,
2018, and 2019, and the cut-off threshold for the fatality rate is
based on data from 2019.
Additionally, in the preamble to the proposed rule, OSHA stated
that during the 2016 rulemaking, the agency agreed with commenters who
stated that the list of designated industries (listed in appendix A at
that time) should not be updated each year. OSHA explained that moving
industries in and out of the appendix each year would be confusing.
OSHA also stated that keeping the same industries in the appendix each
year would increase the stability of the system and reduce uncertainty
for employers. Accordingly, OSHA did not, as part of the 2016
rulemaking, include a requirement to annually or periodically adjust
the list of designated industries to reflect more recent BLS injury and
illness data. OSHA also committed that any such revision to the list of
designated industries in the future would require additional notice and
comment rulemaking (see 87 FR 29641). However, OSHA again raised the
issue of periodic updating of the designated industries in appendix B
to subpart E in the preamble to the proposed rule in this rulemaking
(see 87 FR 18543). Specifically, in Alternative #2, OSHA explained the
above information regarding its decision in the 2016 rulemaking,
explained that it ``could regularly update the list of designated
industries in proposed appendix B (industries where establishments with
100 or more employees must submit information from the Form 300 and 301
as well as the 300A)--for example, every 6 years, to align with the PRA
approval periods,'' and then welcomed comment on this issue (87 FR
18543).
OSHA received several comments on this issue. In its comments, Dow
stated that it did not support the regular updating of the list of
designated industries proposed in appendix B. Dow argued, ``Revising
this list and moving employers in and out would be extremely confusing
and introduce unneeded instability into the data collection process. If
the list of designated industries in appendix B were to be revised,
OSHA must provide notice and a rulemaking comment period'' (Docket ID
0054). In contrast, PRR commented that, if OSHA's assumption that the
collection of establishment-specific data will reduce injury and
illness rates, then the agency should be able to analyze data for the
designated industries and consider updating and removing industries
from the appendices (Docket ID 0094).
OSHA agrees with the comments stating that the list of designated
industries in appendix B to subpart E should not be updated on a
regular basis. As in the 2016 rulemaking, OSHA finds that moving
industries in and out of appendix B to subpart E on a periodic basis
would be confusing for employers. Employers are less likely to
encounter confusion when trying to determine whether their
establishments are required to electronically submit data to OSHA if
the list of industries in appendix B remains stable; appropriate future
adjustments, if any, would be accomplished through notice and comment
rulemaking. OSHA also believes that keeping the same industries in
appendix B to subpart E will increase the stability of the electronic
submission system and increase compliance with the submission
requirement. Accordingly, OSHA will not, as part of this rulemaking,
include a provision for the regular or periodic updating of the list of
industries in appendix B to subpart E.
In making this decision, OSHA acknowledges that industries' injury
and illness rates may change. As PRR commented, OSHA expects that this
rulemaking will aid in the decrease in such rates. If OSHA's ongoing
analyses of injury and illness rates show a decrease in injuries and
illnesses in particular industries included on appendix B, then OSHA
may consider removing those industries from appendix B. Similarly, if
OSHA learns that injury and illness rates in industries that are not
included on appendix B are
rising, then OSHA may consider adding those industries to appendix B.
However, in either case, OSHA would propose any such change via notice-
and-comment rulemaking, in part to obviate the confusion mentioned
above.
e. Industries Included in Final Appendix B After Applying the Final
Criteria, Cut-Off Rates, and Data Sources
Based on the above decisions, final appendix B to subpart E of part
1904 includes industries that:
1. had a 3-year-average rate of total recordable cases (Total Case
Rate, or TCR) in the BLS SOII for 2017, 2018, and 2019, of at least 3.5
cases per 100 full-time-equivalent employees, OR
2. had a 3-year-average DART rate in the BLS SOII for 2017, 2018,
and 2019 of at least 2.25 cases per 100 full-time-equivalent employees,
OR
3. had a fatality rate in the BLS Census of Fatal Occupational
Injuries (CFOI) of at least 5.7 deaths per 100,000 full-time-equivalent
employees, AND
4. are included in appendix A to subpart E. (All of the industries
in appendix B are also in appendix A.)
No industries were removed from appendix B based on these criteria.
However, six new industries have been added to appendix B. The new
industries are:
NAICS 1133--Logging (2019 fatality rate of 47.6),
NAICS 1142--Hunting and Trapping (three-year average DART
rate of 3.1),
NAICS 3379--Other Furniture Related Product Manufacturing
(three-year average DART rate of 2.27),
NAICS 4239--Miscellaneous Durable Goods Merchant
Wholesalers (2019 fatality rate of 15.6),
NAICS 4853--Taxi and Limousine Service (2019 fatality rate
of 6.9), and
NAICS 4889--Other Support Activities for Transportation
(three-year average DART rate of 2.4).
The application of the criteria and cut-offs to each industry that
was added to appendix B is summarized in the following table:
New Industries in Final Appendix B
----------------------------------------------------------------------------------------------------------------
High fatality
2017 NAICS 4-digit Industry High TCR High DART rate
----------------------------------------------------------------------------------------------------------------
1133......................... Logging.................. No............... ................. Yes.
1142......................... Hunting and Trapping..... No............... Yes.
3379......................... Other Furniture Related No............... Yes.
Product Manufacturing.
4239......................... Miscellaneous Durable No............... ................. Yes.
Goods Merchant
Wholesalers.
4853......................... Taxi and Limousine No............... ................. Yes.
Service.
4889......................... Other Support Activities No............... Yes. ................
for Transportation.
----------------------------------------------------------------------------------------------------------------
All of the establishments with 100 or more employees in these newly
included industries are also included in appendix A to subpart E, and,
therefore, have been required to electronically submit data from their
300A to OSHA once a year since January 1, 2017. Because of their
inclusion in appendix A, OSHA finds that each of these newly included
industries should have been aware of this rulemaking. Moreover, in the
preamble to the proposed rule, OSHA specifically indicated that the
criteria for determining higher hazard industries might be modified for
the final rule (indeed, OSHA asked for comment on this issue (see,
e.g., 87 FR 18543, 18546)). Consequently, OSHA finds that the proposal
placed all six of the newly added industries on notice that they could
be included in appendix B in this final rule and, thus, these
industries had an opportunity to comment on issues related to that
determination.
In the proposed rule, OSHA stated that it was proposing one
exception to these criteria, for the United States Postal Service
(USPS), which is the only employer in NAICS 4911 Postal Service. OSHA
explained BLS does not include USPS in the SOII. However, under the
Postal Employees Safety Enhancement Act (Pub. L. 105-241), OSHA treats
the USPS as a private sector employer for purposes of occupational
safety and health, and establishments in NAICS 4911 (i.e., USPS
establishments) with 20 or more employees are currently required to
electronically submit Form 300A information to OSHA. Using the 2017,
2018, and 2019 data submitted by USPS, OSHA calculated a TCR of 7.5 for
NAICS 4911. Because this TCR is greater than the proposed 3.5 criterion
for designated industries in proposed appendix B, OSHA included NAICS
4911 in proposed appendix B to subpart E. In so doing, OSHA noted that
NAICS 4911 was also included in both current and proposed appendix A to
subpart E (87 FR 18543).
OSHA did not receive any comments from interested parties regarding
the proposed inclusion of USPS in appendix B. Due to the lack of an
objection to its inclusion and USPS's high TCR level (as calculated by
OSHA), the agency has decided to include USPS in the final version of
appendix B.
The final appendix B to subpart E is as follows:
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
1111....................... Oilseed and Grain Farming.
1112....................... Vegetable and Melon Farming.
1113....................... Fruit and Tree Nut Farming.
1114....................... Greenhouse, Nursery, and Floriculture
Production.
1119....................... Other Crop Farming.
1121....................... Cattle Ranching and Farming.
1122....................... Hog and Pig Farming.
1123....................... Poultry and Egg Production.
1129....................... Other Animal Production.
1133....................... Logging.
1141....................... Fishing.
1142....................... Hunting and Trapping.
1151....................... Support Activities for Crop Production.
1152....................... Support Activities for Animal Production.
1153....................... Support Activities for Forestry.
2213....................... Water, Sewage and Other Systems.
2381....................... Foundation, Structure, and Building
Exterior Contractors.
3111....................... Animal Food Manufacturing.
3113....................... Sugar and Confectionery Product
Manufacturing.
3114....................... Fruit and Vegetable Preserving and
Specialty Food Manufacturing.
3115....................... Dairy Product Manufacturing.
3116....................... Animal Slaughtering and Processing.
3117....................... Seafood Product Preparation and Packaging.
3118....................... Bakeries and Tortilla Manufacturing.
3119....................... Other Food Manufacturing.
3121....................... Beverage Manufacturing.
3161....................... Leather and Hide Tanning and Finishing.
3162....................... Footwear Manufacturing.
3211....................... Sawmills and Wood Preservation.
3212....................... Veneer, Plywood, and Engineered Wood
Product Manufacturing.
3219....................... Other Wood Product Manufacturing.
3261....................... Plastics Product Manufacturing.
3262....................... Rubber Product Manufacturing.
3271....................... Clay Product and Refractory Manufacturing.
3272....................... Glass and Glass Product Manufacturing.
3273....................... Cement and Concrete Product Manufacturing.
3279....................... Other Nonmetallic Mineral Product
Manufacturing.
3312....................... Steel Product Manufacturing from Purchased
Steel.
3314....................... Nonferrous Metal (except Aluminum)
Production and Processing.
3315....................... Foundries.
3321....................... Forging and Stamping.
3323....................... Architectural and Structural Metals
Manufacturing.
3324....................... Boiler, Tank, and Shipping Container
Manufacturing.
3325....................... Hardware Manufacturing.
3326....................... Spring and Wire Product Manufacturing.
3327....................... Machine Shops; Turned Product; and Screw,
Nut, and Bolt Manufacturing.
3328....................... Coating, Engraving, Heat Treating, and
Allied Activities.
3331....................... Agriculture, Construction, and Mining
Machinery Manufacturing.
3335....................... Metalworking Machinery Manufacturing.
3361....................... Motor Vehicle Manufacturing.
3362....................... Motor Vehicle Body and Trailer
Manufacturing.
3363....................... Motor Vehicle Parts Manufacturing.
3366....................... Ship and Boat Building.
3371....................... Household and Institutional Furniture and
Kitchen Cabinet Manufacturing.
3372....................... Office Furniture (including Fixtures)
Manufacturing.
3379....................... Other Furniture Related Product
Manufacturing.
4231....................... Motor Vehicle and Motor Vehicle Parts and
Supplies Merchant Wholesalers.
4233....................... Lumber and Other Construction Materials
Merchant Wholesalers.
4235....................... Metal and Mineral (except Petroleum)
Merchant Wholesalers.
4239....................... Miscellaneous Durable Goods Merchant
Wholesalers.
4244....................... Grocery and Related Product Merchant
Wholesalers.
4248....................... Beer, Wine, and Distilled Alcoholic
Beverage Merchant Wholesalers.
4413....................... Automotive Parts, Accessories, and Tire
Stores.
4422....................... Home Furnishings Stores.
4441....................... Building Material and Supplies Dealers.
4442....................... Lawn and Garden Equipment and Supplies
Stores.
4451....................... Grocery Stores.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533....................... Used Merchandise Stores.
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.
4859....................... Other Transit and Ground Passenger
Transportation.
4871....................... Scenic and Sightseeing Transportation,
Land.
4881....................... Support Activities for Air Transportation.
4883....................... Support Activities for Water
Transportation.
4889....................... Other Support Activities for
Transportation.
4911....................... Postal Service.
4921....................... Couriers and Express Delivery Services.
4931....................... Warehousing and Storage.
5322....................... Consumer Goods Rental.
5621....................... Waste Collection.
5622....................... Waste Treatment and Disposal.
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 (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239....................... Other Residential Care Facilities.
6243....................... Vocational Rehabilitation Services.
7111....................... Performing Arts Companies.
7112....................... Spectator Sports.
7131....................... Amusement Parks and Arcades.
7211....................... Traveler Accommodation.
7212....................... RV (Recreational Vehicle) Parks and
Recreational Camps.
7223....................... Special Food Services.
------------------------------------------------------------------------
2. Information To Be Submitted
Section 1904.41(b)(9) of the final rule specifies which information
must be submitted under Sec. 1904.41(a)(2). Consequently, comments on
the proposed information to be submitted and OSHA's responses to those
comments are discussed in Section III.D of this Summary and
Explanation, on Sec. 1904.41(b)(9). However, because this summary and
explanation section covers comments on issues that relate to the
information that establishments must submit under Sec. 1904.41(a)(2),
OSHA is briefly previewing those requirements here. Specifically, as
laid out in question-and-answer format in Sec. 1904.41(b)(9),
establishments that are required to submit information under Sec.
1904.41(a)(2) of this section must submit all the information from the
OSHA Forms 300 and 301 except for the following case-specific
information:
Employee name (column B), from the Log of Work-Related
Injuries and Illnesses (OSHA Form 300).
Employee name (Field 1), employee address (Field 2), name
of physician or other health care professional (Field 6), and facility
name and address if treatment was given away from the worksite (Field
7) from the Injury and Illness Incident Report (OSHA Form 301).
Section 1904.41(b)(9) of the final rule is identical to proposed
Sec. 1904.41(b)(9).
3. Publication of Electronic Data
As discussed above, OSHA intends to make some of the data it
collects public. The publication of specific data elements will in part
be restricted by applicable Federal law, including provisions of the
Freedom of Information Act (FOIA), as well as specific provisions
within part 1904. OSHA will make the following data from Forms 300 and
301 available in a searchable online database:
Form 300 (the Log)--All collected data fields on the 300
Log will generally be made available on OSHA's website. As specified in
Sec. 1904.41(b)(9), employee names will not be collected. OSHA notes
that it often collects copies of establishments' Forms 300 during
inspections and includes them as part of the enforcement case file.
Prior to this rulemaking, OSHA has not conducted a systematic
collection of the information on the 300 Log. However, OSHA releases
the Forms 300 that it does have (in case files) in response to FOIA
requests, subject to application of the FOIA exemptions. In those
responses, OSHA redacts employee names pursuant to FOIA Exemptions.
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. As specified in Sec. 1904.41(b)(9), employee name
(Field 1), employee address (Field 2), name of physician or other
health care professional (Field 6), and facility name and address if
treatment was given away from the worksite (Field 7) will not be
collected. OSHA notes that it often collects copies of establishments'
Forms 301 during inspections and includes them as part of the
enforcement case file. Prior to this rulemaking, OSHA has not conducted
a systematic collection of the information on the 301 Incident Report.
However, OSHA releases the forms that it does have in response to FOIA
requests, subject to application of the FOIA exemptions. 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, and OSHA does not
release this information under FOIA. Similarly, OSHA will not publish
establishment-specific data from the left side of Form 301.
OSHA intends to publish information from the Forms 300 and 301 as
both text-based and coded data. An example of text-based data would be,
``Second degree burns on right forearm from acetylene torch'' in Field
F (``Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill'') on the Form 300.
An example of coded data for this case, using the Occupational Injury
and Illness Classification System (OIICS) Manual, would be:
Nature of injury: 1,520 (heat (thermal) burns, unspecified)
Part of body affected: 423 (forearm)
Source of injury or illness: 7,261 (welding, cutting, and blow
torches)
Event or exposure: 533 (contact with hot objects or
substances)
For text-based data, as discussed below, OSHA plans to use
automated de-identification technology, supplemented with some manual
review of the data, to identify and remove information that could
reasonably be expected to identify individuals directly from the fields
the agency intends to publish (as discussed above); the agency will not
publish text-based data until such information, if any, has been
identified and removed. For coded data, also as discussed below, OSHA
plans to use an automated coding system to code the collected data;
until the autocoding system has been tested and is in place, OSHA
intends to only use and publish uncoded data. The coded data by its
nature will not include any information which could reasonably be
expected to identify employees directly, and thus there will be no need
to use automated de-identification technology or manual de-
identification before publishing coded data.
4. Benefits of Collecting and Publishing Data From Forms 300 and 301
As discussed in more detail below, OSHA has determined that this
final rule will improve worker safety and health because the collection
of, and expanded public access to, establishment-specific, case-
specific, injury and illness data from Forms 300 and 301 will allow
OSHA, employers, employees, researchers, safety consultants, and the
general public to use the data in ways that will ultimately result in
the reduction of occupational injuries and illnesses.
In the preamble to the 2019 final rule, OSHA stated that, because
the agency ``already has systems in place to use the 300A data for
enforcement targeting and compliance assistance without impacting
worker privacy, and because the Form 300 and 301 data would provide
uncertain additional value, the Form 300A data are sufficient for
enforcement targeting and compliance assistance at this time'' (84 FR
392). The uncertainty regarding the extent of the benefits was based,
in part, on the determination that ``[b]ecause . . . publishing the
data would do more harm than good for reasons described more fully
below and in the privacy discussion above, OSHA would not make the data
public even if collected'' (84 FR 390). In addition, at the time of the
2019 final rule, ``OSHA ha[d] already taken the position that data from
Form 300A is exempt from disclosure under FOIA and that OSHA will not
make such data public for at least the approximately four years after
its receipt that OSHA intends to use the data for enforcement
purposes'' (84 FR 391).
Since publication of the 2019 final rule, however, OSHA is now
better able to collect, analyze, and publish data from Forms 300 and
301, and advances in technology have reduced the risk that information
that could reasonably be expected to identify individuals directly will
be disclosed to the public. Also, improvements in technology have
reduced the manual resources needed to identify and remove sensitive
worker information from 300 and 301 forms. These developments will
allow OSHA to more effectively review and analyze the collected 300 and
301 data and ensure that information which could reasonably be expected
to identify employees directly is removed prior to publication. For
example, as discussed below, more advanced autocoding technology will
allow OSHA to more efficiently review and analyze the data, allowing
the agency to focus its enforcement targeting and compliance assistance
resources on specific hazards at establishments with safety and health
problems, resulting in a reduction of work-related injuries and
illnesses. Similarly, advances in technology to identify and remove
information which could reasonably be expected to identify employees
directly will reduce the resources needed to publish text-based
information while adequately protecting worker privacy. In addition,
OSHA plans to publish the coded data produced by the more advanced
autocoding technology, which by its nature will not include any
information which could reasonably be expected to identify employees
directly.\5\
---------------------------------------------------------------------------
\5\ OSHA, like other Federal agencies, is responsible for
protecting personally identifiable information (PII) in accordance
with law and policy. Throughout this preamble, OSHA identifies and
discusses multiple ways in which the agency fulfills this
responsibility.
---------------------------------------------------------------------------
Additionally, as explained above, since 2020, there have been
multiple court decisions adverse to the Department of Labor's position
that electronically submitted Form 300A data are exempt from public
disclosure under the FOIA. In these decisions, courts have rejected the
Department of Labor's position that electronically submitted 300A
injury and illness data was covered under the confidentiality exemption
in FOIA Exemption 4. As a result, in August 2020, OSHA initiated a
policy to post collected 300A data on its public website at https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data, with
submissions for calendar years 2016, 2017, 2018, 2019, 2020, and 2021.
Accordingly, based on the recent developments described above, and
the additional information included in the record for this rulemaking,
OSHA now believes there are significant benefits resulting from the
collection and publication of establishment-specific, case-specific,
injury and illness data from Forms 300 and 301. In addition, as
explained below, OSHA concludes that the significant benefits
associated with the collection and publication of Forms 300 and 301
data outweigh the slight risk to employee privacy. Indeed, the benefits
of collection alone would outweigh the slight risk to employee privacy.
As explained in more detail below, after considering the record as
a whole, including commenters' responses to specific questions in the
NPRM on this topic, OSHA finds that the collection of, and expanded
public access to, establishment-specific, case-specific, injury and
illness data will allow OSHA, employers, employees, potential
customers, employee representatives, researchers, safety consultants,
and the general public to use the data in ways that will ultimately
result in the reduction of occupational injuries and illnesses (see 87
FR 18547).
a. General Benefits of Collecting and Publishing Data From Forms 300
and 301
OSHA received several comments on the general benefits of
collecting and publishing data from Forms 300 and 301. For example,
Miranda Ames commented, ``The more data we have about workplace safety,
the better we can do at protecting workers. Collection of information
like this by OSHA will enable better statistical analysis of workplace
injuries across industries, and incentivize employers to keep more
thorough records of workplace incidents and accidents'' (Docket ID
0011).
Similarly, Cal/OSHA commented, ``Complete and accurate surveillance
of occupational injury and illness is essential and holds significant
value for informed policy decisions and for effective intervention and
prevention programs. The policy of requiring submission of detailed
information from larger employers specifically helps identify and abate
workplace hazards by improving the surveillance of occupational injury
and illness.'' (Docket ID 0084). This commenter also explained that the
proposed requirements for reporting detailed information, and the
transparency that it creates, encourage and support accurate
occupational injury and illness reporting (Docket ID 0084). Similarly,
Centro de los Derechos del Migrante, Inc. commented that making the
data publicly available will increase the accuracy of such records and
address underreporting by employers (Docket ID 0089).
In addition, commenters suggested that the collection and
publication of Forms 300 and 301 data will allow the agency to receive
more detailed information on the nature and circumstances of work-
related injuries and illnesses, and target its limited enforcement and
compliance assistance resources to protect the greatest number of
workers (Docket IDs 0040, 0064). Commenters also noted that this rule
may particularly benefit low-income and minority workers (Docket IDs
0045, 0048). For example, National COSH stated that Latino and Black
workers are at greater risk of dying on the job than other workers, and
this rule ``is critical to improving worker safety and health,
especially for workers at elevated risk of injury, illness and death''
(Docket ID 0048).
On the other hand, some commenters questioned whether OSHA had
adequately justified the benefits of collecting and publishing data in
the proposed rule. For example, NFIB stated that many of the reasons
that OSHA gives in the preamble to the proposed rule to justify the
collection and publication of information are ``rather flimsy'' (Docket
ID 0036). Some commenters stated that the collected data would not
benefit workplace safety and health, concluding that OSHA recordkeeping
data are not useful. For example, an anonymous commenter stated that
data collection is reactive, and that taxpayer money would be much
better spent on proactive programs that improve safety and health in
the workplace. This commenter also asked, ``How do employers know that
OSHA will not start targeting them due to injuries that are reported?''
(Docket ID 0014). The U.S. Poultry & Egg Association commented that the
existing reporting rules are adequate to allow employers to identify
risks and allow OSHA to direct its enforcement activities, and stated
that a reduction in injury and illness rates in poultry processing and
general manufacturing from 1994 to 2020 is evidence that OSHA's
proposed changes are unnecessary (Docket ID 0053).
Mid Valley Agricultural Services commented, ``It is unclear how the
proposed rule will result in reductions to injuries/illnesses in the
workplace or the frequency and severity of instances. Aggregating more
data on workplace injuries/illnesses does nothing in and of itself to
reduce the possibility of workplace injuries/illnesses'' (Docket ID
0019). The Plastics Industry Association (Docket ID 0086) and Angela
Rodriguez (Docket ID 0052) submitted similar comments. In addition, the
U.S. Chamber of Commerce resubmitted a comment from the 2016 rulemaking
that argued that OSHA's collection of injury and illness data would not
lead to effective targeting of workplaces ``because information about
an establishment's incidences of workplace injuries and illnesses does
not accurately or reliably correlate with an establishment that is
hazardous or that has failed to take OSHA-compliant steps to prevent
injuries'' (Docket ID 0088, Attachment 2). The comment asserted that a
study by the RAND Corporation ``found that no research supports the
preconception that the goal of reducing workplace injuries and
illnesses can be most effectively reached by focusing on workplaces
with the highest number of incidents of injuries or illnesses'' and
that ``there appears to be little relationship between the injury rate
and the likelihood of violations at inspected establishments.'' The
comment concluded that ``this proposed database will provide raw data
subject to so many caveats, complexities, and assumptions as to be
meaningless.''
In response, OSHA agrees with commenters who generally stated that
there are benefits resulting from the collection and publication of
establishment-specific, case-specific, injury and illness data from
Forms 300 and 301. As discussed in more detail below, the primary
purpose of the requirement in the final rule for the electronic
submission of 300 and 301 data, and the subsequent publication of
certain data, is to prevent occupational injuries and illnesses through
the use of timely, establishment-specific injury and illness data by
OSHA, employers, employees, other Federal agencies and States,
researchers, workplace safety consultants, and the public. The
collection and publication of data from Forms 300 and 301 will not only
increase the amount of information available for analysis, but will
also result in more accurate statistics regarding work-related injuries
and illnesses, including more detailed statistics on injuries and
illnesses for specific occupations and industries. In other words, the
increase in collected injury and illness data will necessarily result
in more accurate statistics. In turn, more accurate statistics will
enhance interested parties' knowledge regarding specific workplace
hazards.
Relatedly, OSHA agrees with commenters that said making the data
publicly available will increase the accuracy of occupational injury
and illness reporting. To the extent that underreporting is a problem,
the public availability of case-specific data will allow employees to
assess whether their personally experienced injuries and illnesses have
been accurately recorded on their employers' Forms 300 and 301.
Although others would not be able to identify that a specific employee
suffered a particular injury or illness, OSHA expects that the injured
or ill worker would be able to determine whether their particular
injury or illness was recorded. This check would work in tandem with
employees' ability to check such things in an employer's Forms 300 and
301 and would address employees' fear that asking to view those forms
could result in retaliation. OSHA has also discussed these issues in
further detail in Section III.B.4.d of the Summary and Explanation.
The requirement to submit establishment-specific, case-specific
data will also assist OSHA in encouraging employers to prevent
occupational injuries and illnesses by expanding OSHA's access to the
information that employers are already required to keep under part
1904. As noted elsewhere, OSHA typically only has access to
establishment-specific, case-specific, injury and illness information
when it conducts an onsite safety and health inspection at an
individual establishment. However, the electronic submission of 300 and
301 data will allow OSHA to obtain a much larger data set of
information about work-related injuries and illnesses and will enable
the agency to use its enforcement and compliance assistance resources
more effectively. OSHA intends to use the collected data to identify
establishments with recognized workplace hazards where workers face a
high risk of sustaining occupational injuries and illnesses.
The collection of establishment-specific, case-specific information
will also provide data for analyses that are not currently possible.
OSHA plans to use the data collected from this final rule to assess
changes in the types and rates of specific injuries and illnesses in a
given industry over a long period of time. In addition, the data
collection will allow OSHA to better evaluate the effectiveness and
efficiency of its various safety and health programs, initiatives, and
interventions in different industries and geographic areas.
Additionally, for these reasons, OSHA disagrees with commenters that
suggest current reporting requirements are adequate to protect worker
safety and health.
OSHA disagrees with commenters that stated that part 1904 injury
and illness data are not useful in improving occupational safety and
health, and that taxpayer funds would be better spent on more proactive
measures. As noted above, OSHA's injury and illness recordkeeping
regulation has been in place since 1971. The information recorded on
the OSHA forms is recognized by safety and health professionals as an
essential tool for identifying and preventing workplace injuries and
illnesses. Historically, employers, employees, and OSHA have used part
1904 information to identify injury and illness trends and to evaluate
the effectiveness of abatement methods at an individual establishment.
The collection and publication of certain data from the 300 and 301
forms required by this final rule will enable interested parties and
OSHA to have access to a much larger data set, resulting in increased
knowledge of workplace hazards, and a reduction in occupational
injuries and illnesses. In addition, implementation of the collection
and publication of
establishment-specific, case-specific, injury and illness data is a
cost-effective measure used to improve workplace safety and health.
OSHA estimates that the total cost for implementing the requirements of
this final rule will have an annual cost to the government of
approximately $554,000 per year. However, the agency expects that the
increased knowledge of workplace hazards and injury and illness trends,
as well as the expected improved accuracy of part 1904 records, will
result in decreased workers' compensation costs for employers and
decreased healthcare costs for injured or ill employees by virtue of
the reduction in workplaces injuries and illnesses that OSHA expects to
result from this final rule. OSHA also notes, as discussed below, that
the agency's collection of this information will allow it to more
effectively prioritize its compliance assistance resources, which will
help employers better protect their employees.
OSHA agrees that the injury and illness data collected as a result
of this final rule may be used to target certain establishments for
safety and health inspection or compliance assistance. The agency
considers the use of the collected data for possible targeting of
specific establishments for enforcement or compliance assistance
intervention as a benefit of this final rule. Again, as noted above,
OSHA expects the accuracy and quality of occupational injury and
illness data to improve as a result of this final rule. The increased
amount of data collected by the agency, along with the expected
improvement in data accuracy, will enable OSHA to better analyze and
evaluate workplace safety and health hazards. Accordingly, the overall
improvement in the data collected by the agency will allow OSHA to more
accurately and objectively target specific establishments where workers
are at high risk and thereby reduce the overall occurrence of workplace
injuries and illnesses.
With regard to the Chamber's comment on the 2013 RAND Corporation
study, OSHA notes that the study focuses primarily on the effectiveness
of various types of Cal/OSHA inspections (e.g., programed, planned, and
complaint) rather than on issues related to workplace injury and
illness rates. Indeed, similar to how OSHA intends to use the collected
data from this final rule, one of the recommendations included in the
study states, ``Workplaces in high-injury-rate industries that have not
been inspected at all or not for many years should be identified and
deserve some priority in programmed inspections'' (see Inspection
Targeting Issues for the California Department of Industrial Relations
Division of Occupational Safety and Health (John Mendeloff & Seth A.
Seabury) (Docket ID 0099) at 13). Finally, as noted above, Cal/OSHA
itself commented in this rulemaking that injury and illness
surveillance is essential for informed policy decisions and in the
identification, prevention, and abatement of workplace hazards (Docket
ID 0084).
Additionally, the National Propane Gas Association stated that OSHA
``does not provide any details as to how publicly available information
could improve workplace safety'' (Docket ID 0050). In response, as the
agency explained in the NPRM (87 FR 18538), by that point in time, OSHA
had successfully collected reference year 2016 through 2020 Form 300A
data through the OSHA Injury Tracking Application. (Since publication
of the NPRM, OSHA has completed collection of reference year 2021 Form
300A data and has begun collecting 2022 data.) Approximately 300,000
records have been submitted to the agency each year. OSHA has
successfully analyzed these data to identify establishments with
elevated injury and illness rates and has focused both its enforcement
and outreach resources towards these establishments. This experience
demonstrates OSHA's ability to collect, analyze, and use large volumes
of data to interact with establishments where workers are being injured
or becoming ill. However, this same experience has demonstrated the
limits of the 300A data currently collected. As explained in more
detail below, the collection and publication of establishment-specific,
case-specific, injury and illness data from Forms 300 and 301 will
result in significant benefits for the agency.
The International Bottled Water Association (IBWA) commented, from
an enforcement standpoint, ``by the time the data could be evaluated
for use in selecting OSHA's enforcement targets, the data would surely
be stale and provide no useful basis for the agency to initiate
enforcement against employers within the six-month statute of
limitations set forth in the OSH Act.'' This commenter also stated
that, ``[b]ecause the data is insufficient in and of itself as a
targeting tool, and because OSHA would be able to rely on such data
only when it likely no longer reflects current conditions at a
particular worksite, OSHA's enforcement program is better served by
continuing to use 300A summary data to target enforcement resources,''
and then obtaining a copy employer's current Forms 300 and 301 at the
time of an inspection (Docket ID 0076). IBWA added, ``[u]sing the more
detailed 300 and 301 data in the context of an individual inspection,
as the agency has historically done, is a better and more effective use
of this data than OSHA's proposed new plan'' (Docket ID 0076).
In response, for purposes of enforcement inspection and compliance
assistance targeting, the agency intends to use the collected data from
this final rule in two ways. First, OSHA plans to continue to use
administrative plans based on neutral criteria to target individual
establishments with high injury and illness rates based on submitted
Form 300A summary data. Second, OSHA intends to use administrative
plans based on neutral criteria to target individual establishments
based on submitted case-specific, establishment-specific, injury and
illness data from the Forms 300 and 301.
OSHA agrees with IBWA that relying on Form 300A summary data is an
effective source of information for targeting the agency's enforcement
resources. For example, the Site-Specific Targeting (SST) plan is
OSHA's main site-specific programmed inspection initiative for non-
construction workplaces that have 20 or more employees. Currently, the
SST program targets individual establishments based on 300A injury and
illness data that employers are already required to electronically
submit to OSHA under 29 CFR 1904.41. OSHA uses submitted 300A data to
calculate injury and illness rates for individual establishments. The
SST program helps OSHA achieve the goal of ensuring that employers
provide safe and healthful workplaces by directing enforcement
resources to those workplaces with the highest rates of injuries and
illnesses. Moving forward, OSHA intends to continue to use the 300A
data submitted under 1904.41(a)(1) of this final rule to calculate
injury and illness rates and target individual establishments for
inspection under the SST.
OSHA also intends to use collected case-specific, establishment-
specific data from the Forms 300 and 301 to identify individual
establishments for enforcement inspection and compliance assistance
outreach. OSHA believes that reviewing and analyzing specific data from
the Forms 300 and 301 is an effective method for the agency to identify
individual establishments for enforcement inspection or compliance
assistance targeting. For example, OSHA will be able to use 300 and 301
data to identify specific hazards at a given
establishment. In turn, the agency will be able to more effectively
deploy its enforcement and compliance assistance resources to eliminate
identified hazards and enhance worker safety and health. Of course, and
as discussed elsewhere, OSHA enforcement targeting based on the data
submitted as a result of this final rule will be conducted in
accordance with a neutral-based scheme for identifying workplaces for
closer inspection.
OSHA disagrees with IBWA's comment that the collected injury and
illness data the agency intends to use for its enforcement inspection
and compliance assistance targeting is stale. OSHA acknowledges that
the Forms 300 and 301 data are based on injuries and illnesses that
occurred during the previous calendar year. However, OSHA's current SST
inspection targeting program is also based on Form 300A summary data
from the previous calendar year. Even though the injuries and illnesses
occurred during the previous calendar year, the information is helpful
to OSHA in determining whether a hazard is an ongoing problem at a
specific establishment. For example, although a heat-related illness
may have occurred more than six months before the submission deadline,
it may be reasonable for OSHA to conclude that multiple entries of this
illness on the OSHA forms represent an ongoing hazard at that
establishment. In addition, research indicates that high injury and
illness rates are persistent over time until there is some type of
safety and health intervention at the facility (see Evaluation of
OSHA's Impact on Workplace Injuries and Illnesses in Manufacturing
Using Establishment-Specific Targeting of Interventions: Programmed
Inspections and High Hazard Notification Letters, FINAL REPORT.
Prepared by: ERG, Lexington, MA, July 16, 2004 (Docket ID 0098)). By
identifying an establishment with ongoing hazards, the agency has the
opportunity to use its enforcement and compliance assistance resources
to conduct an intervention and improve workplace safety and health.
b. Beneficial Ways That OSHA Can Use the Data From Forms 300 and 301
OSHA expects to use the collected data in many ways to improve
worker safety and health. Most importantly, having this information
will provide OSHA with a much fuller and more detailed understanding of
the kinds of injuries and illnesses experienced by workers doing
different jobs in a range of industries.
The data available from the 300A forms currently collected by OSHA
show primarily only how many ``injuries'' and ``illnesses'' occur. (The
300A ITA data also provide information on the number of cases of
illnesses involving hearing loss, poisonings, skin disorders, and
respiratory disorders, but even for those, knowing that they occurred
at a particular workplace provides little if any useful information
about how the workers developed them.) The data provide no meaningful
information about the kinds of injuries or illnesses suffered by
workers, the kind of work they do, or the hazards present at their
workplaces. The establishment-wide scope of the 300A data currently
available to OSHA also tends to obscure particular types of injuries
and illnesses that may affect only certain classes of workers at large
establishments. For example, nursing aides at hospitals may be exposed
to very different hazards than those facing other hospital staff who do
not perform the same kind of physical work. Yet, looking at hospital-
wide generalized data will give no hint of the circumstances giving
rise to particular exposures or which workers are affected.
By having access to more precise information about the kinds of
injuries and illnesses affecting workers performing different kinds of
operations at different kinds of workplaces, OSHA can deploy its
resources in ways more calculated to address the specific hazards that
actually exist in specific workplaces. It is obvious that the broad
categories of ``injury'' and ``illness'' provide little useful
information about the specific kinds of hazards that exist at a
workplace. And even a narrower category of illness like ``respiratory
conditions'' does not indicate whether the respiratory condition is
related to a chemical exposure, COVID-19, valley fever
(coccidioidomycosis), hantavirus, Legionnaires' disease
(Legionellosis), or tuberculosis. In contrast, the collection and
analysis of case-specific data from the Forms 300 and 301 would allow
OSHA to determine the prevalence of particular respiratory hazards and
respond appropriately, whether that response is in the form of targeted
enforcement efforts or compliance assistance, general guidance
materials or regulatory solutions, or cooperation with local public
health authorities.
Having access to case-specific data will also allow OSHA to
determine whether workers in particular demographics are being sickened
or injured disproportionately. These may be younger or older workers,
temporary workers, or workers new to a particular assignment. If OSHA
has this information, it will be able to develop strategies to address
the particular demographic factors that lead to these disproportionate
outcomes.
Many of the comments questioning the utility of the data for OSHA
seemed to be premised on the erroneous belief that OSHA's primary use
of the data would be to target enforcement efforts at workplaces with
higher injury and illness rates. But the utility of case-specific data
is much broader. While the data certainly can be used to help target
enforcement, as well as compliance assistance efforts, it is also
valuable to OSHA in that it allows for the types of analyses that can
make all of OSHA's work more effective.
As noted above, OSHA can analyze the data to identify the specific
conditions that are injuring workers as well as the specific classes of
workers who are being injured. OSHA can identify trends in the types of
injuries and illnesses that are occurring and, as noted by the AFL-CIO,
the agency can identify and assess emerging hazards (Docket ID 0061).
Being able to make these identifications allows OSHA to promote safer
workplaces in myriad ways. OSHA can disseminate information about
trends in injuries and illnesses and emerging hazards to the public so
that both workers and employers can take steps to prevent similar
injuries and illnesses at their own facilities. For example, the AFL-
CIO noted that the data could have been utilized in the first years of
the COVID-19 pandemic to identify where effective mitigation measures
were necessary to reduce exposures, and could have been incorporated
into agency guidance, enforceable standards, and enforcement
initiatives, and used to inform employer and union COVID-19 safety
plans (Docket ID 0061). OSHA can also prioritize use of its own limited
resources to have the greatest impact. This may mean providing more
useful compliance assistance or guidance, considering development of
new standards, or revising enforcement programs to focus on workplaces
where OSHA has determined that hazards are more likely to be found. As
noted by the Laborers' Health and Safety Fund of North America, this
also means that OSHA can ``become more data driven in its compliance
and enforcement efforts'' and, ``[i]n being a more online and easily
accessible agency, OSHA can push its consulting efforts and services''
(Docket ID 0080).
One example of how OSHA can use the information in Forms 300 and
301 relates to OSHA's efforts to address indoor and outdoor heat-
related hazards. As climate change has accelerated, heat hazards have
become
more prevalent, sickening and killing more workers every year (see
https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf). OSHA's efforts to address these hazards are multi-pronged,
with ongoing enforcement, compliance assistance, and guidance efforts,
as well as a regulatory component. Without case-specific injury and
illness data, OSHA's understanding of the scope of the problem and its
ability to identify specific operations and types of establishments
where workers are most at risk, are limited, impeding its ability to
intervene at an early enough stage to prevent worker illnesses and
deaths. Currently, OSHA most often learns of these hazards after an
employer reports a worker hospitalization or death (pursuant to 29 CFR
1904.39). The Form 300A listing of the number of illnesses at various
establishments gives no sense of how many of those illnesses are heat-
related. In contrast, Forms 300 and 301 data will allow OSHA to
identify patterns and trends in the occurrence of heat-related illness,
and not only focus its enforcement and compliance assistance resources
appropriately, but also inform OSHA's efforts to develop a permanent
standard addressing heat hazards. These types of longer-term strategic
activities can help make OSHA a more effective agency overall, and in
doing so, make all workers safer.
c. Beneficial Ways That Employers Can Use the Data From Forms 300 and
301
In the preamble to the proposed rule, OSHA asked, ``What are some
ways that employers could use the collected data to improve the safety
and health of their workplaces?'' Multiple commenters provided comments
on employers' use of the collected data to improve the safety and
health of their workplaces, including information about benchmarking
and incentives. (Docket IDs 0030, 0035, 0046, 0061, 0063, 0093). For
example, AIHA commented, ``Benchmarking against other employers is an
important management tool for understanding and improving occupational
safety and health programs'' (Docket ID 0030). Similarly, the AFL-CIO
commented that the collected data would provide employers direct access
to detailed injury and illness information to compare their injury and
illness records and experience with others in the same industry (Docket
ID 0061). NIOSH made similar comments and added that, currently,
employers may compare their injury rates to those of their industry as
reported in the SOII, but because of the large number of injury and
illness records that will be collected under this rulemaking, employers
will be able to compare their injury and illness rates to those of many
more specific groups of establishments and employers. This commenter
also stated, ``Benchmarking safety performance to more comparable
establishments and employers instead of large, anonymous aggregates
would provide more accurate as well as more compelling metrics for
guiding and motivating improvement of safety programs'' (Docket ID
0035).
More generally, the Sheet Metal and Air Conditioning National
Association (SMACNA) commented, ``SMACNA members believe that any
additional data that is collected should be used in tandem with Bureau
of Labor Statistics (BLS) data so our industry can better understand
loss trends and use the information accordingly. SMACNA members provide
a unique service and would like the data to be broken down by the
specific North American Industry Classification System (NACIS) codes.
Such as detailed OSHA incident rate information for NACIS code 238220--
Plumbing, Heating, and Air-Conditioning Contractors.'' (Docket ID
0046).
Additionally, Worksafe commented that access to more electronic
data will allow businesses to compare their safety performance to other
firms and enable competition for improved safety. Also, this commenter
explained that suppliers, contractors, and purchasers of a firm's goods
or services could also consider the information in their business
decisions, such as whether to support a business with a poor safety
record. In addition, regarding the issue of incentives for employers,
this commenter stated, ``When employers know that injury or illness
incidents will be published online, the risk of social stigma will
encourage them to take appropriate precautions and avoid violations''
(Docket ID 0063).
Similarly, Public Citizen commented, ``Bringing performance
information out into the open is an effective form of behavioral
economics impacting employer decision-making. It serves as a strong
incentive for employers to improve their safety records and support
their reputations. It would encourage employers to implement systems,
protocols, education and workplace alterations, resulting in less
worker injuries and illnesses. Employers can also use establishment-
specific, case-specific injury and illness information to compare their
safety record to similar establishments and set benchmarks for
improvement of their own safety and health performance. Negative
publicity has been shown to improve not just the behavior of the
highlighted employer, but also other employers. This general deterrence
effect has been demonstrated by improved compliance with safety
standards by employers after OSHA issued press releases on OSHA
violations uncovered during inspections. The impact was so powerful
that press releases led to 73 percent fewer safety violations
identified during programmed inspections at neighboring enterprises and
a drop in injury reports from the same enterprises.'' (Docket ID 0093).
On the other hand, several commenters stated that employers would
not be able to use the collected data to improve the safety and health
of their workplaces (Docket IDs 0086, 0090, 0094). For example, the
Plastics Industry Association commented, ``The rule will not assist
employers in managing workplace safety as it does not provide
information that is not already available to them and their employees.
When companies publish incident reports internal to all employees, all
personal information is removed, and no medical information is
provided.'' This commenter also stated that companies track different
types of information and that some companies already benchmark with
others (Docket ID 0086).
The Phylmar Regulatory Roundtable OSH Forum also commented that
there is already benchmarking by employers, saying, ``Many employers,
such as PRR members are part of trade organizations and already
participate in formal benchmarking on injury and illness data. PRR
members also review BLS data. Therefore, we believe that OSHA's posting
of establishment specific data will be of NO additional benefit to the
resources already available to employers who actively pursue these
methods.'' (Docket ID 0094).
In addition, a few commenters stated that the data would harm
employers. For example, Angela Rodriguez commented, ``There is a
perceived risk of business competitors using the establishment-level
data to gain an advantage by comparing/contrasting results in a
negative context. E.g., `Company X lets their employees get seriously
injured 3x more than us' '' (Docket ID 0052). Similarly, the National
Retail Federation commented, ``Given President Biden's expressed desire
to lead the ``most pro-union Administration in American history,'' it
is likely that the true motivation of this rulemaking is to weaponize
injury and illness data for labor union leaders' benefit. Labor unions
will likely use this data to gain support for their organizing efforts,
claiming the data proves an
employer is not protecting its workers.'' (Docket ID 0090). This
commenter also stated that unions may use the data to pressure
employers in negotiations over collective bargaining agreements, and
competitors may use the information for anticompetitive purposes, such
as poaching top workers or hurting the reporting entity's standing in
the community (Docket ID 0090). Likewise, the Phylmar Regulatory
Roundtable OSH forum commented, ``This type of risk profile and data
tool could also be used by insurance companies when determining
policies and rates for a company's worker compensation insurance plan.
In addition, an insurance company could use the risk profile and data
tool to deny issuance of disability, long-term, and other types of
insurance.'' (Docket ID 0094).
In response, OSHA agrees with commenters who stated that employers
will be able to use the published establishment-specific, case-
specific, injury and illness data to improve their workplace safety and
health. Specifically, employers will be able to use the data to compare
case-specific injury and illness data at their establishment with that
of comparable establishments and set safety and health goals
benchmarked to the establishments they consider most comparable. OSHA
also plans to include information regarding establishments' NAICS
codes. As SMACNA suggests, interested parties can use that information
to better understand loss trends, which will help them make
improvements in worker safety and health.
Since employers will have access to a much larger data set, OSHA
disagrees with commenters who suggested that employers already have
access to enough information from trade associations to conduct
benchmarking with injury and illness data. OSHA notes that employers
will be able to access data from the entire range of establishments
covered by the electronic submission requirements in this final rule.
Thus, employers will have the opportunity to compare and benchmark
their injury and illness data with not only the safest establishments
in their industry, but with the safest establishments in all industries
covered by the final rule. In addition, OSHA anticipates that employers
will be able to review the establishment-specific injury and illness
data, identify safer establishments in their industry, and potentially
develop and establish similarly effective safety and health programs at
their own facilities.
OSHA also agrees with commenters who stated that the publication of
establishment-specific, case-specific, injury and illness data will
incentivize employers to minimize the number of occupational injuries
and illnesses at their workplace. For example, the publication of the
data will encourage potential customers or business partners to
evaluate the full range of injury and illness cases at a specific
establishment. In turn, employers will work to improve the occupational
safety and health at their facility, which will result in reduced work-
related injuries and illnesses, thereby enhancing the employer's
standing with potential customers and business partners.
In addition, OSHA disagrees with commenters who stated that the
collection and publication of establishment-specific, case-specific,
injury and illness data will harm employers or that labor unions will
``weaponize'' the data. Again, as noted above, the only purpose for the
collection and publication of injury and illness data required by this
final rule is to improve occupational safety and health and to reduce
injuries and illnesses to workers. At the same time, OSHA considers the
publication of an establishment's injury and illness data, which can be
a valid measure of a company's overall safety culture, to be an
effective incentive for employers to improve occupational safety and
health. As a result, OSHA concludes that the collection and publication
of this data will encourage employers with more hazardous workplaces to
make improvements in safety and health to reduce the number of
occupational injuries and illnesses at their workplaces. Such changes
will also be of benefit to employers, in that workplace illnesses and
injuries impose costs on employers beyond the cost to the injured or
ill employee.
In response to the Phylmar Group's comment that insurance companies
may use the collected data to calculate insurance rates or deny
insurance coverage to companies based on the data, OSHA notes that
insurance companies could engage in these practices using the 300A data
OSHA has been collecting and publishing for several years now if they
wanted to. The Phylmar Group does not identify any reason why the
collection of data from Forms 300 and 301 would make these practices
more likely or widespread, nor does it provide any evidence that
insurance companies are or are not already doing this. Moreover, the
possibility that insurance companies may raise rates or deny insurance
coverage based on an employer's higher-than-average rates of
occupational injuries and illnesses would provide further incentive for
employers to improve workplace safety and health at their
establishments.
Finally, and as discussed below, access to the collected data will
improve the workings of the labor market by providing more complete
information to job seekers. Using data newly accessible under this
final rule, potential employees will be able to examine case-specific
information to help them make more informed decisions about future
employment and, in turn, could encourage employers to make improvements
in workplace safety and health in order to attract potential employees.
In addition, this would help address the problem of information
asymmetry in the labor market, where the businesses with the greatest
problems have the lowest incentive to self-disclose.
Accordingly, after consideration of the rulemaking record, OSHA has
determined that employers will be able to use the collected and
published data to improve workplace safety and health and reduce
occupational injuries and illnesses.
d. Beneficial Ways That Employees Can Use the Data From Forms 300 and
301
In the preamble to the proposed rule, OSHA asked ``What are some
ways that employees could use the collected data to improve the safety
and health of their workplaces?'' 87 FR 18547.
OSHA received many comments on how employees will benefit from
increased access to information from the 300 and 301 forms and on how
employees will use the collected data to improve safety and health at
their workplaces. Several commenters provided information on how
employees will generally be able to use the collected data from Forms
300 and 301 (Docket IDs 0035, 0061, 0063, 0065, 0066, 0078). For
example, AIHA commented, ``Under a Total Worker Health model, injury
data about specific tasks, operations, job titles, and industries could
be used for worker training and education'' (Docket ID 0030).
Similarly, NIOSH commented, ``While the BLS Annual Survey data provide
good metrics for injury risks by industry, they are not ideal for
engaging workers and helping them to understand the risks that they may
face in their own jobs.'' This commenter also explained that the
narrative case-specific data that would be collected under the rule
could provide employees with concrete, real-world, accounts on how
injuries and illnesses occur and instruct them on how they can be
prevented (Docket ID 0035). The AFL-
CIO submitted similar comments (Docket ID 0061).
The National Nurses Union commented, ``Public posting of this data
would enable workers and their representatives to better understand the
scope of injuries and illnesses in particular work sites and to do so
in a more timely and efficient manner. While workers and their
representatives can access logs at their own workplace, they currently
cannot compare those logs to other workplaces in the industry. For
nurses, patterns of injury and illness could be identified, compliance
with existing standards could be more efficiently examined, and
emerging occupational risks could be better evaluated. When action to
correct workplace safety and health hazards is inefficient or delayed,
workers are unnecessarily exposed to predictable and preventable
hazards. Delays in correcting a workplace hazard pointlessly cost the
lives, limbs, and livelihoods of NNU members and other workers.''
(Docket ID 0064).
Additionally, Worksafe commented that unions and worker advocacy
groups will be able to use case-specific information to seek safety
improvements, ``Currently, these groups can access Form 300 logs only
by requesting them from employers, and the information may be provided
in an inefficient manner such as in PDF files or on paper. As detailed
below, unions and worker advocacy groups have the expertise to analyze
this information to identify necessary workplace fixes. Electronic
publication of more granular data will make it possible for them to
better identify the cause of worker injuries and illnesses, more
efficiently analyze large quantities of information, and appropriately
direct their efforts.'' (Docket ID 0063). Worksafe also provided
several examples of how establishment-specific, case-specific, injury
and illness data has been used by employees and their representatives
to reduce workplace injuries and illnesses. For example, it included a
narrative from a meatpacking labor organization:, ``In 2008, leaders
from the UFCW Tyson meatpacking locals union accessed Form 300 logs
collected from one meatpacking plant for a one-month period. They
analyzed injuries that could be related to ergonomic hazards and then
placed red ``sticky dots'' on a hand-drawn map of a human body,
depicting injury areas. The resulting body map looked as though the
hands were dripping blood because so many red dots were placed in that
area. The leaders were able to confirm that, despite known under-
reporting, a lot of hand-specific injuries occurred amongst their
members. The leaders later presented the body map in a meeting with
Tyson management, where it became a powerful tool. This meeting
included an individual who had been in charge of the company's
ergonomics program some years earlier and who had recently returned as
a top-level manager. Seeing the map, he agreed with the union to start
a series of efforts to revitalize the ergonomics program.'' (Docket ID
0063).
In contrast, some commenters stated that the collection and
publication of certain data from Forms 300 and 301 could potentially
harm employees, including harm to employee privacy and employability.
For example, R. Savage commented, ``I have concerns with organizations
uploading their OSHA Forms 300 and 301 because both forms contain
identifiable personal information. My concern is the privacy of the
injured employee. Government agencies have accidentally released
personal information in the past. Removing the employee's name in OSHA
form 300 and removing sections 1-9 of OSHA form 301 does not guarantee
that the employee will not be identifiable.'' (Docket ID 0018). Also,
an anonymous commenter stated, ``This would seem to make employees feel
like they need to share even more private information to their
employers than they already do'' (Docket ID 0044). However, this last
comment seems to be based on a misunderstanding. This rulemaking does
not amend the type of information that employers must enter on their
recordkeeping forms, nor does it amend the recordkeeping forms used to
track injuries and illnesses. Instead, this rulemaking addresses the
electronic submission to OSHA of certain information on the
recordkeeping forms that employers are already required to keep.
In response to the comments above, OSHA agrees that employees will
be able to use the collected and published data from Forms 300 and 301
to improve workplace safety and health. The collection and subsequent
publication of this data will allow employees to analyze injury and
illness data that is not currently available. The online availability
of such data will allow employees to compare their own workplaces to
other workplaces in their industries. Also, with access to
establishment-specific, case-specific data, employees will be better
able to identify emerging injury and illness trends in their industries
and push for changes in safety and health policies to better protect
workers. In addition, employees and their representatives will be able
to use the large amount of newly available case-specific information to
develop effective education and training programs to identify and
reduce workplace hazards.
With regard to the comments expressing concern about employee
privacy, as discussed elsewhere, OSHA is confident that the agency will
be able to protect information that could reasonably be expected to
identify individuals directly. The combination of not requiring
employers to submit certain information, and the improved technology
used to identify and remove personal information in the collected data,
greatly reduces the risk that reasonably identifiable employee
information will be disclosed to the public. Again, OSHA believes the
significant benefits to improved workplace safety and health outweigh
the slight risk of information that could reasonably be expected to
identify individuals directly being disclosed to the public.
Other commenters stated that, currently, employees and their
representatives only have online access to general data from the Form
300A or aggregate data from the BLS SOII (Docket IDs 0063, 0078).
Worksafe commented, ``electronic publication of case-specific
information on injuries, illnesses, and even fatalities will allow
firms' own employees to access timely information that they can use to
improve their own workplaces'' (Docket ID 0063). Also, Unidos US,
Farmworker Justice, and Texas RioGrande Legal Aid commented that, using
currently available BLS data, it is impossible to know how many
farmworkers specifically suffer from heat-related illnesses. These
commenters explained that with access to case-specific Forms 300 and
301 data, employees and their representatives will be able to search
information online to identify specific workplace hazards and direct
their resources to those hazards (Docket ID 0078).
On the other hand, some commenters stated that employees already
have access to the information they need. The National Propane Gas
Association commented, ``Potential employees or the general public can
assess an entire industry through the Bureau of Labor Statistics data
that OSHA referred to in the proposal'' (Docket ID 0050).
In response, OSHA disagrees with the National Propane Gas
Association that potential employees only need access the aggregate
industry information though the SOII. As discussed above, aggregate
data from the SOII, as well as the general summary data from the Form
300A, do not provide employees with access to case-specific information
at individual establishments. As explained by other commenters, online
access to the establishment-specific, case-specific, injury and illness
data will allow employees to search and identify other establishments
and occupations in their industries and compare the injury and illness
data at their establishments with the safest workplaces. Also, both
current and potential employees will have better access to health and
safety information about specific occupations and workplaces and will
be able to better identify and understand the specific risks they face
in their own jobs. Importantly, and as noted by commenters, access to
Forms 300 and 301 data will enable employees to track specific injuries
and illnesses, such as heat-related illnesses, throughout their
industries.
Some commenters stated that, even though employees have a right of
access to the OSHA recordkeeping forms under 29 CFR 1904.35, some
workers may fear retaliation from their employer if they request access
to information from the 300 and 301 forms at their workplace (e.g.,
Docket IDs 0049, 0061, 0063, 0089, 0093). National COSH commented,
``Making the case specific data publicly available as proposed in the
standard will also increase worker safety for the employees in the
establishments with 100 or more employees. Workers are too often scared
of retaliation if they request this information, even though employers
are required to provide access to the full 300 logs to employees upon
request. This information will allow employees in these establishments
access to this data without fear of retribution and it will help them
better identify patterns of injuries and hazards and to take actions to
have the hazards abated.'' (Docket ID 0048). NELP submitted a similar
comment (Docket ID 0049). Additionally, Centro del Derecho del Migrante
commented, ``Public access to these data will also improve worker
safety by allowing workers and their advocates to better identify
patterns of injuries and hazards in workplaces and across industries .
. . Publishing this information will allow employees in these
establishments access to this data without fear of retribution, and to
demand abatement of hazards in their own workplaces and industries.''
(Docket ID 0089).
There were also comments stating that, despite the access
requirements in 29 CFR 1904.35, many employers either deny or delay
access to case-specific information to employees and their
representatives. The United Food and Commercial Workers Union (UFCW)
commented, ``The public access provisions of this rule allow workers to
get important information through the OSHA website, rather than
navigate these hurdles with employers'' (Docket ID 0066). UCFW added
that it has had success in monitoring injury and illness data and
working with employers to apply the data to injury and illness
prevention efforts, but noted that workers in non-union workplaces do
not have the same ability to access the data, and that this rule would
help ``bridge that gap'' by providing all workers with access (Docket
ID 0066). Another commenter explained that, even when injury and
illness information is provided to employees, the information is not in
a usable format. The Strategic Organizing Center commented that, even
when workers request access to part 1904 information, ``they do not
have any specific right to receive them in a way which achieves the
goal of facilitating the analysis. This is especially important for
workers at the larger employers covered by the proposed reporting
requirement for the 300/301 data'' (Docket ID 0079).
In response, and as discussed above, OSHA's recordkeeping
regulation at 29 CFR 1904.35 already provides employees and their
representatives with access to the three OSHA recordkeeping forms kept
by their employers, with some limitations. Under Sec. 1904.35, when an
employee, former employee, or employee representative requests access
to certain information on Forms 300 or 301, the employer must provide
the requester with one free copy of the information by the end of the
next business day. Any delay or obstruction by an employer in providing
the required information to employees or their representatives would be
a violation of the recordkeeping regulation. And, retaliation against
an employee for requesting this information would violate Section 11(c)
of the OSH Act.
OSHA agrees with commenters who stated that making establishment-
specific, case-specific, injury and illness information available
online will enhance worker safety and health, particularly where
employees are reluctant to request access to such information. If
workers fear possible retaliation from their employer, employees will
easily be able to access the case-specific data for their own workplace
online, thus avoiding the need to request the information from their
employer. This uninhibited access will allow employees to better
identify and address hazards within their own workplaces.
In addition, since certain case-specific injury and illness data
will be posted online, employees will easily be able to search the
collected information to identify specific hazards at their workplaces.
Online posting also eliminates the problem noted by some commenters
that, in some cases, when employees request injury and illness
information from their employer, the information is provided on paper
or in a format that is not searchable. Also, the online posting of data
allows employees to conduct searches at any time to identify injury and
illness trends at their workplaces.
Public Citizen commented, ``[P]otential employees will benefit from
the availability of injury and illness data from establishments as they
make informed decisions about employment. Workers can compare injury
rates between potential employers and choose to work for the safer
employer. This puts power in the hands of labor, incentivizing
employers to improve safety given the competition for workers.''
(Docket ID 0093).
On the other hand, the Phylmar Regulatory Roundtable OSH Forum
expressed concern that the Form 300 and 301 data could be used to build
worker profiles that result in hiring decisions based on an employee's
injury and illness history and a high number of days away from work
(Docket ID 0094). Similarly, Brian Evans commented, ``Since this data
is public record, future employers would have access to this
information and could potentially discriminated against future hires
based on injured parties being listed in a work place related injury.
It could also lead to retaliation if the employee who was injured on
the job choses to stay employed in their current role. Leadership,
management, administration could view them as unsafe employees and
limit their growth potential at their organization, or seek ways to
terminate their employment due to the filing of a work place injury.''
(Docket ID 0080).
In response, OSHA agrees with the comment from Public Citizen that
the published Form 300 and 301 data will assist potential employees in
researching establishments where the risk to workers' safety and health
is low. At this time, potential employees only have access to the
limited injury and illness data that is currently available to the
public as discussed above. Access to Form 300 and 301 data not only
provides job seekers with an opportunity to review information about
individual workplaces, but also allows them to analyze the injury and
illness history of specific job titles within a
given industry or workplace. Potential employees can also identify
trends among and between occupations, and at specific sites within one
workplace. Also, as noted by Public Citizen, access to this information
by potential employees should provide an incentive to employers to
improve workplace safety and health. Specifically, the publication of
Form 300 and 301 data will 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 more in
demand, might be reluctant to work at more hazardous establishments.
OSHA disagrees that employers will use the published data from this
final rule to discriminate against current or potential employees. With
regard to potential employees, and as discussed in more detail in
Sections III.B.6 and III.D of this Summary and Explanation, because
OSHA is not requiring the electronic submission of information that
could reasonably be expected to identify individuals directly (e.g.,
name, contact information), and because the agency is using improved
technology to identify and redact such information before publication,
it is extremely unlikely that employers will be able to use the
published data to identify specific individuals and determine their
injury and illness history. As for current employees, OSHA notes that
employers are already required under part 1904 to include certain
potentially identifiable information about an employee when they
sustain a work-related injury or illness (e.g., employers must enter
the injured or ill employee's name on the OSHA 300 log). As a result,
the publication of case-specific de-identified injury and illness data
under this final rule will have no impact on an employer's ability to
identify their own injured or ill employees.
After consideration of these comments, OSHA has determined that
employees, potential employees, and employee representatives will be
able to use the collected data from Forms 300 and 301 to improve
workplace safety and health, including through better access to the
data in usable formats and without fear of retaliation. OSHA notes the
many examples in the rulemaking record provided by commenters on not
only how employees and their representatives currently use
establishment-specific, case-specific, injury and illness data, but
also on how they will be able to use the greater access to such
information provided by this final rule to reduce occupational injuries
and illnesses.
e. Beneficial Ways That Federal and State Agencies Can Use the Data
From Forms 300 and 301
OSHA received a number of comments in response to the question in
the NPRM about the ways in which Federal (besides Federal OSHA, which
is addressed above) and State agencies will be able to use the data
collected under this final rule to improve workplace safety and health.
Multiple commenters, including the National Employment Law Project, the
Centro de los Derechos del Migrante, and Richard Rabin, noted generally
that the centralized collection of and access to case-specific data
will benefit the worker safety and health efforts of NIOSH, State
agencies, and the public health community (e.g., Docket IDs 0040, 0045,
0048, 0049, 0051, 0064, 0084, 0089). AIHA stated that ``With the
limited resources available to most federal and state worker health and
safety programs, targeted programs will provide the most benefit for
workers and companies. These data will provide information so that
priorities can be set and outcome trends monitored'' (Docket ID 0030).
There were also comments from Federal entities about their intended
uses of the data. For example, NIOSH commented, ``As potential end
users of the data, NIOSH supports the improvements that are being
proposed by OSHA. NIOSH believes that the increased coverage of
employers within identified industries and the collection of the
additional detailed information that is not currently electronically
captured will offer greater potential for detailed and comprehensive
data analyses compared with the current data. NIOSH uses occupational
injury data to monitor injury trends, identify emerging areas of
concern, and propose research intervention strategies and programs.
Current OSHA data reflect a smaller proportion of select industries and
offer limited details. This new rule would offer greater coverage of
select industries and more detailed data, which would increase the
value and utility of these occupational injury data to NIOSH.'' (Docket
ID 0035, Attachment 2; see also Docket ID 0089).
In addition, NIOSH's comment listed more specific purposes for
which it can use the collected data, including:
Using the narrative data from Forms 300 and 301 for
learning the particular ways in which injuries occur in specific work
tasks and industries (citing work NIOSH has done with narrative data
from individual workers' compensation claims in Ohio).
Using the coded OSHA Log case data with narratives as a
very large training data set that could be used to improve the
autocoding of workers' compensation claims. As NIOSH stated,
``[a]utocoding workers' compensation claim narratives is critical to
producing injury rate statistics that can guide prevention efforts by
identifying high and increasing rates of specific types of injuries in
specific industries and employers.''
Improving the effectiveness and efficiency of workplace
inspections through the evaluation of more complete, detailed data on
certain types of injuries at specific workplaces. As an example, NIOSH
noted a series of studies supported by NIOSH where amputation cases at
specific workplaces were identified based on hospital records and
workers' compensation claims; the information was then provided to
Michigan OSHA, which used it to target inspections.
Linking workers' compensation data to OSHA logs in order
to provide a more complete set of information than either data set
provides separately. This effort has the potential to improve
identification and prevention of injuries, especially among temporary
employment agency workers, who constitute a vulnerable population of
workers with a disproportionate burden of workplace injuries.
Collaborating with National Occupational Research Agenda
Councils and OSHA to ``improve dissemination and use of the published
data to improve identification, mitigation, and prevention of workplace
injuries and illnesses'' (Docket ID 0035, Attachment 2).
National COSH agreed with NIOSH, noting that making these data
publicly available will assure that researchers and other agencies,
like NIOSH, can use the data for surveillance, evaluation, and research
purposes (Docket ID 0048).
In addition to the benefits of the data at the Federal level,
multiple commenters addressed the value of the final rule's data
collections to the States and to State occupational safety and health
efforts. In the preamble to the 2019 final rule, OSHA acknowledged
``that systems to collect this volume of data would be costly for
States to implement. Centralized collection might be more efficient and
cost-effective than state-by-state collection . . .'' At that time,
OSHA stated that it had ``doubts about the usefulness of the data and
concerns about the costs of collection,'' but reiterated that States
were nonetheless ``empowered to do as
OSHA ha[d] and weigh the substantial costs of collection against the
likely utility of the data'' (84 FR 394). In response to the NPRM in
the current rulemaking, many commenters made it clear that State
efforts to improve workplace safety and health will benefit from the
data that is made available by this rule, and that a national
collection system is a far more efficient means of achieving these
benefits than individual State efforts. National COSH noted similar
benefits at the State level as at the Federal level, stating that State
and community public health agencies will be able to use the data to
better understand the hazards in high-risk establishments and then
target those establishments for assistance and information regarding
best practices (Docket ID 0048). Likewise, the Council of State and
Territorial Epidemiologists (CSTE) commented, ``Access to these data
would also facilitate public health agency efforts to reduce work-
related injuries and illnesses in the States and significantly increase
the potential for more timely identification of emerging hazards.
Electronic collection of existing records is in line with 21st century
advances in health data collection made possible by advances in
information technology that involve centralized collection, analysis,
and dissemination of existing data from multiple entities. These
include, for example, collection at the State level of data on all
hospitalizations, all emergency room visits, and all ambulance runs,
and in over 20 States, data on all public and private insurance claims
(excluding workers' compensation claim data). . . . Making this
information broadly available is consistent with the growing
recognition, predominant in the patient safety field, that
transparency--sharing of information, including information about
hazards--is a critical aspect of safety culture.'' (Docket ID 0040).
In addition, CSTE provided specific examples of ways in which the
electronic reporting of case-level workplace injury and illness data
can enhance State health department and others' efforts to reduce work-
related injuries and illnesses and hazards in States and communities.
These examples included:
Identification of emerging problems: ``The ability to
search file level data not only in the establishment where the index
case is/was employed but also other establishments in the industry to
identify similar cases has the potential to facilitate timely
identification of emerging hazards'' that are ``both new and newly
recognized.'' CSTE discussed an example from Michigan, where a State
agency identified several deaths associated with bathtub refinishing,
raising new concerns about the hazards of chemical strippers used in
this process. Subsequent review of OSHA IMIS data identified 13 deaths
associated with bathtub refinishing in a 12-year period.\6\ These
findings from the State and Federal databases together led to the
development of educational information about the hazards associated
with tub refinishing and approaches to reducing risks; this material
was disseminated nationwide to companies and workers in the industry.
---------------------------------------------------------------------------
\6\ The OSHA Integrated Management Information System (IMIS) was
designed in 1991 as an information resource for in-house use by OSHA
staff and management, and by State agencies which carry out
federally approved OSHA programs. It was replaced by the OSHA
Information System (OIS) as the primary repository of OSHA's data,
starting in 2012.
---------------------------------------------------------------------------
Targeting establishments for preventive outreach in our
communities: ``Public health investigations of work-related incidents
result not only in prevention recommendations to those involved in the
incident, but in case studies which allow us to then take lessons
learned and disseminate these lessons broadly to other stakeholders.
The availability of information on high-risk establishments will allow
for more targeted and efficient information dissemination. The ability
to identify lower risk establishments may also provide new
opportunities to learn from employers who are implementing best
practices--and potentially to help identify under-reporters. The
availability of establishment specific information offers the
opportunity to incorporate occupational health concerns in community
health planning, which is increasingly providing the basis for setting
community health and prevention priorities.''
Improvement of data quality and use of the data:
``Observations from interviews with OSHA record-keepers in Washington
State suggest that incomplete OSHA records arise in part from lack of
knowledge or confusion on the part of some employers about how to
accurately and consistently record OSHA reportable cases and from poor
employer prioritization of this task. . . . Electronic data collection
and the subsequent public release of the data are means to improve data
quality, knowledge, and compliance with OSHA recordkeeping
requirements. Electronic collection of data offers the opportunity to
provide employers with electronic tools (e.g., prompts, definitions,
consistency edits, and industry-specific drop-down lists) to improve
the quality of the data reported. Standardized feedback to
establishments and potential reports of establishment-specific data
would promote the use of the data by employers and workers to set
health and safety priorities and monitor progress in reducing workplace
risks.''
Improvements in Medical Care: ``This record keeping rule,
by facilitating the diagnosis of work-related conditions, will allow
for better diagnosis and management of workplace illnesses by health
care providers in the community, thereby contributing to a reduction in
morbidity, absenteeism, and health care costs.'' CSTE described an
example from Massachusetts, which has a sharps injury prevention
control program. This program supplements OSHA's bloodborne pathogens
standard by requiring hospitals to report select data from the OSHA-
required log of sharps injuries annually to the Massachusetts
Department of Public Health (MDPH). In recent years, data from all
hospitals, which range in size from less than 150 to over 20,000
employees, have been submitted through a secure electronic
transmission. Annual hospital-specific data and statewide reports
prepared by MDPH provide information on patterns of sharps injuries and
sharps injury rates for use by hospitals and hospital workers as well
as MDPH. As CSTE stated, this experience in Massachusetts ``indicates
the utility of electronic reporting of person level occupational injury
data for targeting prevention efforts at multiple levels'' (Docket ID
0040).
The International Brotherhood of Teamsters noted that they agreed
with these comments from CSTE (Docket ID 0083).
Similarly, the Strategic Organizing Center commented that States
can use the collected data to compare injury and illness rates at
specific establishments to the rates for that industry in general. The
SOC also emphasized that ``OSHA's collection and distribution of . . .
key metrics will finally provide a measure of transparency to workers,
OSHA and its state partner agencies, the media and the public about the
nature of the serious injuries afflicting workers at large employers in
hazardous industries across the nation'' (Docket ID 0079).
OSHA also received comments from the States themselves (e.g.,
Docket IDs 0045, 0069, 0084). One comment that was strongly supportive
of the rule came from the Seventeen AGs. These State officials
represented nine States with OSHA-approved State Plans that cover both
private and State and local
government workers (California, Hawaii, Maryland, Michigan, Minnesota,
Nevada, New Mexico, Oregon, and Vermont), four States that have OSHA-
approved State Plans that cover State and local government workers only
(Connecticut, Illinois, New Jersey, and New York) and four States
without a State Plan (Delaware, the District of Columbia,
Massachusetts, Rhode Island). Their comment cited increased
transparency regarding workplace safety, as well as benefits to key
interested parties (including employees, consumers, employers,
researchers, and the States themselves) (Docket ID 0045).
The Seventeen AGs commented that States planned to use the
collected data for multiple specific purposes, including to: improve
targeting and outreach (New Jersey); develop the next strategic
inspection plan (Connecticut); ease administrative burden (Hawaii);
target recordkeeping inaccuracies (Illinois); prioritize and increase
efficiency of enforcement efforts (Maryland); improve the ability of a
State advisory board on occupational safety and health to develop
effective workplace injury prevention programming (Massachusetts);
discern patterns in the frequency and severity of injuries (Minnesota);
and inform future enforcement plans (Nevada). With the data that will
become available to them, States will also be able to institute or
improve targeted training and outreach programs, identify and
investigate incidents in particular categories of concern (such as
those that lead to ongoing disability and require accommodations under
the Americans with Disabilities Act), compare the data to other data
sources (such as workers' compensation data), identify workplace injury
and illness underreporting, improve their ability to consider
companies' workplace safety and health records when making contracting
decisions, and increase the specific workplace injury and illness
information available to State health agencies (Docket ID 0045). The
AFL-CIO touted the prevention index created by Washington State, which
operates both an OSHA State plan and the State workers' compensation
program. The State ``utilizes the detailed injury and illness data
collected through its workers' compensation system, similar to the data
contained in the Form 300 and Form 301, to develop a prevention index.
The index identifies the most common and costly injuries and illnesses
and the industry sectors with the greatest potential for prevention''
(Docket ID OSHA-2013-0023-2088, Attachment 1).
In addition, the Seventeen AGs noted, ``[T]hese benefits will only
accrue if OSHA collects and publishes such data. Not all states have
the resources to create and manage their own databases, and, in any
event, it is costlier and more inefficient for individual states to
create separate databases. Data from a single jurisdiction is also much
less likely to reveal patterns in workplace health and safety. Uniform
national data collection efforts, by contrast, will also allow states
to benchmark their performance--overall or in specific industries--
against peer states in ways that might encourage or promote reforms,
interventions, or legislation to address workplace safety issues.
Moreover, even if the [s]tates are not able to engage in targeted
enforcement now, it is nonetheless important to begin collecting and
publishing more detailed data now. . . . And when the [s]tates
implement targeting in the future, having a larger database of historic
data on which to `train' targeting algorithms will ensure that these
algorithms are more accurate.''(Docket ID 0045). The International
Brotherhood of Teamsters commented with support for ``the benefits
touted by the letter [from the Seventeen AGs] on the need for public
reporting of detailed injury and illness information to the [s]tates'
enforcement and regulatory agencies'' (Docket ID 0083).
The California Department of Industrial Relations (DIR), Division
of Occupational Safety and Health (Cal/OSHA), and the Connecticut
Council on Occupational Safety and Health (ConnectiCOSH) also provided
separate comments in support of the proposed rule, citing benefits to
worker safety (Docket IDs 0069, 0084). Cal/OSHA stated that the
availability of the additional data would aid in ``identifying patterns
that are currently masked by the aggregation of injury/illness data by
industry in existing data sources.'' Furthermore: ``[D]etailed case
level data could be used when proposing new prevention-oriented
regulations to California's Occupational Safety & Health Standards
Board (OSHSB), when responding to petitions to OSHSB for new or amended
standards, and in the creation of specific compliance assistance
materials oriented to existing or emerging workplace safety problems.''
Cal/OSHA also emphasized that centralized data collection by OSHA ``is
the most efficient and cost-effective way to compile and utilize the
data for prevention purposes,'' and the cost to States of ``setting up
parallel systems . . . would be significant'' (Docket ID 0084; see also
Docket ID OSHA-2013-0023-2088, Attachment 1).
After consideration of these comments and others in the record,
OSHA has determined that the expected benefits to Federal and State
agencies overcome any doubts the agency expressed in the 2019 final
rule related to the usefulness of the data and the costs of collection.
OSHA has determined that Federal and State agencies will be able to use
the collected data to improve workplace safety and health. The agency
especially notes the benefits for States, which may not have the
resources to create and manage their own data collections; the
inefficiency of multiple State-specific databases versus a single
national database; and the advantages of a uniform national data
collection requirement. OSHA finds particularly convincing the examples
of State and Federal entities' past and planned future uses of the data
to monitor, target, and prevent occupational injuries and illnesses.
f. Beneficial Ways That Researchers Can Use the Data From Forms 300 and
301
Multiple commenters provided examples of ways that researchers
could use the collected data to improve workplace safety and health.
Most generally, AIHA commented, ``Researchers require a stable data
source to conduct studies that depend on unbiased, complete data sets.
By collecting and making the data available to researchers, stratified
analyses with sufficient power can be conducted that will make the
results more generalizable to specific workers and industries.''
(Docket ID 0030). Similarly, Centro del Derecho del Migrante commented,
``Public access to these data will better allow organizations like CDM
to identify patterns of injuries and hazardous conditions in workplaces
and advance worker safety and health'' (Docket ID 0089).
Numerous commenters pointed out the limitations of currently
available data from BLS, and the need for more data to produce
statistically significant, robust results for more detailed categories
of injuries, establishments, and employers. NIOSH commented that the
release of summary injury data for all establishments of 20 or more
employees in certain industries and of individual injury case data for
injuries in establishments of 100 or more employees in certain
industries would produce more accurate and statistically meaningful
data than the BLS Annual Survey can provide ``because the number of
included injury records would be much greater than that included in the
BLS sample of
establishments of this size in these industries.'' NIOSH stated that
``the proposed data collection in higher risk industries would enable
more detailed and accurate statistics on the state as well as the
national level.'' In addition, the new data collection OSHA plans to
make available ``would provide establishment-specific, case-specific
injury and illness data for analyses that are not currently possible.''
NIOSH also stated that the release of the data collected by OSHA should
make it possible to produce meaningful statistics and perform more in-
depth analysis by combining records across several years by industry,
employer, or establishment, which is not possible with the BLS SOII
data that is currently available (Docket ID 0035). The International
Brotherhood of Teamsters concurred with this comment (Docket ID 0083).
The National Employment Law Project (NELP) commented on the need
for expanded, more detailed data: ``NELP recently used the currently
available establishment-level Injury Tracking Application data to
conduct state-specific analyses on injury and illness rates in the
warehousing sector. However, with access only to electronically
submitted data from Form 300A and not from Forms 300 and 301, we were
limited by an inability to disaggregate by the types of serious
injuries and serious illnesses. In addition, having access to case-
specific injury and illness data as reported in 300 and 301 forms would
have allowed NELP to identify specific injury and illness trends, and
correlate these with job titles, in order to more directly address and
prevent hazards that put workers at risk.'' (Docket ID 0049).
The AFL-CIO commented that access to more detailed data would
provide researchers with an invaluable source of information on
workplace safety and health hazards (Docket ID 0061). The AFL-CIO also
pointed to the limitations for researchers of the BLS SOII data:
``Studies have shown that the SOII data have significant limitations
and that consistent and representative mandatory reporting would
provide a more accurate data source for research on causes of injuries
and illnesses and prevention methods to track improvements and emerging
issues.'' (Docket ID 0061).
Commenters also provided examples of how researchers have used data
to improve workplace safety and health. For example, The Strategic
Organizing Center described its analysis of ITA data to prepare reports
on occupational injury rates among warehouse workers. It stated: ``This
example, we believe, completely vindicates OSHA's original intent in
establishing the Injury Tracking Application, including the public
release of the data received from employers. Absent the easy
availability of these data, it would be difficult if not impossible for
those outside the management structure of major employers to understand
the basic details of the worker safety and health situation at these
companies, much less to force employers with deficient performance to
change their practices. It is vital that employers who attempt to
misrepresent the failures of their worker safety and health systems
understand that they are subject to the independent oversight and
review that can only be offered by broadly-available distribution of
key metrics, such as the numbers, rates and characteristics of worker
injuries and illnesses.'' (Docket ID 0079).
The Strategic Organizing Center also pointed to injury research in
the hotel industry as an example of the value of OSHA's providing the
300 and 301 data for further analysis: ``In the mid-2000's, as the
hotel industry was rapidly introducing heavier mattresses and increased
workloads for housekeepers, the hotel union UNITE HERE undertook an
analysis of the 300 logs and employee personnel demographic data to
determine injury trends by injury type, job title, gender and race/
ethnicity. We published [a] study by Buchanan et al in 2010, the value
of which OSHA recognized in the preamble to the 2016 Final Injury
Tracking Rule (81 FR 29685, Col. 3). It revealed that the rates of
different injury types varied greatly across the study population of
55,327 person-years over a 3-year period at 50 hotels in five of the
largest US hotel chains. We found that MSD's were highest among
housekeepers, and acute traumatic injuries highest among cooks/kitchen
workers, and injury rates higher among women than men. Much of the
various increased risks was driven by the exceptionally high risks
endured by hotel housekeepers (7.9 injuries/100 person-years).''
(Docket ID 0079).
The Communication Workers of America (CWA) commented on the value
of access to large datasets of workplace injury and illness
information. It gave examples of data analyses it has conducted to
address safety and health issues:
CWA has analyzed large quantities of OSHA Log data for
certain regions from some large telecommunications employers. It was
able to compare aggregate worksite data from two different regions for
the same employer for the same year. Its comparison of aggregate OSHA
300 Log data from two different regions for the same employer shows a
large discrepancy in work-related COVID cases recorded on the OSHA 300
Logs and also demonstrates the value of the Cal/OSHA COVID standard's
reporting requirements given the increased reporting for sites in
California.
Recent and past analyses by a telecommunications employer
of its OSHA Log data for work locations in NY has shown the toll of
injuries and lost work days related to manhole cover lifting. The
employer, the union and union members worked together to conduct
ergonomic assessments using biometric sensors to evaluate the strain of
manhole cover lifting using different designs of manhole cover lifters.
The biometric assessments combined with worker feedback led to design
of a new, vehicle mounted manhole lifting device. The employer will
likely use the newly-approved manhole cover lifters in other areas of
the country where it operates. Aggregate OSHA 300 Log data will aid in
evaluating the effectiveness of this intervention in reducing and
preventing manhole cover lifting injuries.
An analysis by one employer of OSHA recordable injury/
illness data for the previous year from all worksites on Long Island,
NY revealed there had been over 11,000 lost work days due to extension
ladder accidents. After training, the number of extension ladder
accidents in those work locations dropped significantly, to almost
none. This initiative looked at aggregate data from one employer's
multiple worksites. Establishment-specific data, on its own, would not
have revealed the extent of the problem and the need for interventions,
nor would it have incentivized the employer to take action and provide
training.
Analyses of OSHA 300 Log data has led to multiple safety
improvements in CWA-represented manufacturing facilities with active
health and safety committees. At locations where CWA members build
engines and engine parts, OSHA 300 Log data analyses has resulted in
ergonomic assessments and training, the provision of better PPE, and
improved safety protocols.
(Docket ID 0092)
After consideration of these comments, OSHA has determined that
researchers will be able to use the collected data to improve workplace
safety and health. OSHA finds particularly convincing the examples of
past and planned future uses of the data by researchers to monitor,
target, and prevent occupational injuries and illnesses.
g. Beneficial Ways That Workplace Safety Consultants Can Use the Data
From Forms 300 and 301
In the proposed rule, OSHA asked, ``What are some ways that
workplace safety consultants could use the collected data to improve
workplace safety and health?'' (87 FR 18547). OSHA received several
comments about ways that workplace safety consultants could use the
collected data to improve workplace safety and health (Docket IDs 0026,
0030, 0035). Most generally, AIHA commented that the value that
workplace safety consultants bring to a company is directly related to
the availability of high-quality data, and ``[c]ompanies that engage
consultants depend on the consultant to be fully informed of the
inherent risks of specific operations, tasks, and industries so that
the recommendations for improvement and correction are based on
evidence'' (Docket ID 0030). Justin Hicks commented that the collected
data would be useful ``[a]s a young safety professional . . . when
educating my employer on safety culture'' (Docket ID 0026).
Additionally, NIOSH identified a number of ways in which workplace
safety consultants might use this data, including ``identifying and
disseminating useful facts about the comparative safety performance of
establishments, employers, and employer groups,'' and ``analy[zing]
patterns of injury causation at their client workplaces and appropriate
comparisons of workplaces'' (Docket ID 0035, Attachment 2). NIOSH also
noted that consultants' work with the collected data ``promises to
assist other stakeholders in identifying patterns of injuries and
targets for prevention and to complement the research disseminated by
state and federal agencies'' (Docket ID 0035, Attachment 2).
OSHA agrees with these commenters that the collected data will help
workplace safety consultants to be fully informed of the risks of
specific operations, tasks, and industries and, in turn, will give
consultants the information necessary to advise their employers on
safety and health practices. Accordingly, OSHA has determined that
workplace safety consultants and other workplace safety professionals
will be able to use the collected data to improve workplace safety and
health.
h. Beneficial Ways That the Public Can Use the Data From Forms 300 and
301
In the proposed rule, OSHA asked, ``What are some ways that members
of the public and other stakeholders, such as job-seekers, could use
the collected data to improve workplace safety and health?'' (87 FR
18547). Several commenters provided insights about how the general
public, the media, and prospective employees will be able to use the
collected data to improve workplace safety and health. With respect to
the general public, Hunter Cisiewski commented that the public
availability of data would ``allow the public to hold companies
accountable for creating unsafe workplaces'' and ``make informed
decisions about . . . what industries they should support,'' as well as
``incentivize employers to create safe working conditions'' (Docket ID
0024). The Seventeen AGs commented that the availability of data would
benefit consumers, ``who can use information about employer safety to
inform their purchasing and contracting decisions'' (Docket ID 0045).
In addition, Worksafe commented that the press and advocacy
organizations could ``monitor and report on the data'' (Docket ID
0063).
Commenters also addressed how job seekers could use the collected
data to improve workplace safety and health (Docket IDs 0020, 0024,
0030, 0063, 0082). For example, Hunter Cisiewski commented that the
data would allow prospective employees ``to make informed decisions
about where they should work'' (Docket ID 0024). AIHA commented that
access to the collected data would allow job seekers to ``inquire about
specific health and safety practices or culture during interviews,''
help them to be more informed, and encourage prospective employers to
be more transparent (Docket ID 0030). Similarly, Worksafe commented
that the availability of injury and illness data would allow job
seekers ``to better assess the types, severity, and frequency of
injuries and illnesses in a particular workplace'' and make more
informed decisions regarding their employment'' (Docket ID 0063).
Additionally, the Seventeen AGs commented that public access to
detailed injury and illness data would ``empower'' workers who are most
impacted by occupational hazards, i.e., low-income workers and workers
belonging to racial and ethnic minority groups, ``to make informed
decisions regarding where they choose to work'' (Docket ID 0045).
On the other hand, multiple commenters asserted that the data would
not be useful to the public. The overarching concern of these
commenters was that the public would lack the context necessary for the
data to provide an accurate picture of an establishment's safety and
health practices (Docket IDs 0021, 0043, 0050, 0052, 0053, 0062, 0071,
0075, 0086, 0090). For example, the National Propane Gas Association
commented that the collected data would ``mislead'' the public because
it is ``only a fraction of information regarding a workplace'' and, in
order to provide accurate information about worker safety, OSHA would
also need to publish information such as ``the number of uninjured or
healthy individuals working for the establishment; . . . the safety
procedures or policies implemented, days/weeks/months/years without
injuries or illnesses; . . . a comparison of the frequency or average
for the industry versus the specific establishment; . . . actions by
the employee that caused or contributed to the injury or illness; . . .
[and] the corrective actions by the establishment'' (Docket ID 0050).
Similarly, Angela Rodriguez commented that injury and illness data may
be misleading ``without the explanation of contributing root causes''
(Docket ID 0052). Likewise, Representatives Virginia Foxx (R-North
Carolina) and Fred Keller (R-Pennsylvania) commented that ``an
employer's injury and illness logs say nothing meaningful about an
employer's commitment to safety and compliance with OSHA standards,''
and ``[m]any factors outside an employer's control may lead to
workplace injuries and illnesses'' (Docket ID 0062). And, the Plastics
Industry Association commented that when viewing an employer's injury
and illness data in isolation, ``[t]here is insufficient context to
draw conclusions about the employer's safety program or practices''
(Docket ID 0086).
Commenters pointed to a number of reasons for their concern about
misinterpretation or misleading data. Some commenters expressed concern
that the collected data may be misleading specifically because it may
include injuries or illnesses that are not the employer's fault (Docket
IDs 0021, 0043, 0052, 0075, 0086, 0090). For example, the Motor and
Equipment Manufacturers Association and the Flexible Packaging
Association commented that data may be misinterpreted because many
workplace injuries occur due to circumstances entirely outside of an
employer's control (Docket ID 0075, 0090). More specifically, AWCI
commented that some injuries and illnesses are ``due solely to employee
misconduct,'' or ``the fault of neither the employer nor the employee''
(Docket ID 0043). AWCI also commented that ``falsified or
misrepresented workplace injury or illness claims'' may result in
inaccurate
data, as will workplace fatalities that are later determined not to be
work-related (Docket ID 0043). Similarly, Angela Rodriguez commented
that under 29 CFR 1904.5(b)(2)(ii), employers are required to record
injuries and illnesses for which symptoms surface at work but result
solely from a nonwork-related event or exposure that occurs outside the
work environment (Docket ID 0052). The Chamber of Commerce claimed that
injury and illness data are unreliable because workers' compensation
programs and the presence of collective bargaining agreements affect
the number of injuries and illnesses reported to OSHA, therefore,
``[t]wo employers with the same kinds of injuries will be viewed by
OSHA and the public as differently culpable'' (Docket ID 0088,
Attachment 2). Finally, the Plastics Industry Association commented
that ``many injuries that have no bearing on an employer's safety
program must be recorded,'' and pointed to injuries resulting from
employee misconduct, substance abuse, and accidents as examples (Docket
ID 0086).
Other commenters were concerned that the collected data would lead
to misinterpretation because the data do not provide an accurate
picture of what is currently happening or what will happen in the
future. The Motor and Equipment Manufacturers Association commented
generally that ``injury and illness data would become stale by the time
it is made public'' (Docket ID 0075). AWCI commented that ``[l]agging
indicators . . . such as OSHA recordable/reportable injury and illness
data[ ] have shown to be poor indicators of future safety and health
performance'' because they ``present information about what has
occurred in the past with no mechanism for accurately predicting what
may occur in the future'' (Docket ID 0043).
Still other commenters said that the public would be even more
likely to misinterpret data from small businesses. AWCI commented that
``the formula that OSHA uses [to calculate injury and illness rates] is
based on 100 full-time workers and the denominator in the equation is
the total number of hours worked by all employees,'' so ``the resulting
incidence rates often depict extremely inaccurate perceptions of
smaller establishments' safety and health cultures and past safety and
health performances'' (Docket ID 0043). Similarly, the Associated
Builders and Contractors commented, ``by expanding the mandate to 100
or more employees from 250, OSHA's proposal puts smaller companies at a
disadvantage by making them appear to be less safe than larger
companies by comparison. A smaller company with the same number of
injuries and illnesses as a larger company is likely to have a higher
incident rate'' (Docket ID 0071).
In response, OSHA agrees with those commenters who stated that the
public will be able to use the published establishment-specific, case-
specific, injury and illness data to improve workplace safety and
health. The online availability of such data will allow members of the
public to determine which workplaces in a particular industry are the
safest, and identify emerging injury and illness trends in particular
industries. As noted by commenters, the public may use this data to
make decisions about what companies and industries they support and
want to work for. The availability of data will also facilitate the
press's ability to monitor and report on it, which will further ensure
that members of the public are well-informed and can make decisions
accordingly. For these reasons, and as explained above, OSHA finds that
public access to this data will ultimately help to improve workplace
safety and health.
Generally, to the extent the commenters suggest that the case-
specific data from Forms 300 and 301 will not be useful information to
the public, OSHA disagrees, and finds that the benefits of expanded
public access to this data outweigh commenters' concerns. As OSHA
explained in the final rule on Occupational Injury and Illness
Recording and Reporting Requirements (January 19, 2001), injury and
illness records have long made employers more aware of the injuries and
illnesses occurring in their workplaces, and are essential in helping
employers to effectively manage their safety and health programs.
Additionally, such records ensure employees are better informed about
hazards they face in the workplace and encourage employees to both
follow safe work practices and report workplace hazards to employers
(66 FR 5916-67). For similar reasons, as identified by commenters and
explained above, the public can use such data to improve workplace
safety and health.
However, OSHA acknowledges commenters' concerns about potential
misinterpretation and recognizes that the public may need more
assistance in understanding the data than employers, researchers, and
other similar interested parties. OSHA recognizes the need to provide
information to the public to aid their understanding of the data. The
web page for the ITA (https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data) contains several explanations of the data that
address commenters' specific concerns, including:
``Recording or reporting a work-related injury, illness,
or fatality does not mean that the 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.''
``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 in these files are accurate in
absolute terms. Efforts are 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 in these files are
the `most dangerous' or `worst' establishments in the nation.''
The web page for the data collected through the OSHA Data
Initiative (https://www.osha.gov/ords/odi/establishment_search.html)
also includes the second explanatory note.
OSHA also notes the many examples in the rulemaking record provided
by commenters on not only how various interested parties currently use
establishment-specific, case-specific, injury and illness data, but
also on how they will be able to use the greater access to such
information provided by this final rule to reduce occupational injuries
and illnesses. Some commenters' concerns seem to hinge on the
assumption that the general public lacks the sophistication necessary
to understand the collected data. However, this section of the preamble
provides many examples of the ways in which employers, employees,
government agencies, researchers, and other interested parties will use
this data to perform more detailed and accurate analyses of workplace
safety and health practices, create education and training programs to
reduce workplace hazards, develop resources, and conduct studies. To
the extent that members of the public require additional context to
make sense of injury and illness data, other interested parties will
make that information available through their own use of the data.
Additionally, as explained in more detail in Section III.B.14 of
this Summary and Explanation, commenters provided suggestions for ways
to make published data more useful to interested parties. The Seventeen
AGs also commented that the public may only benefit from the
publication of injury and illness data ``if it is aware of its
existence,'' and suggested that OSHA ``evaluate and choose effective
avenues
for publicizing the availability of the data'' (Docket ID 0045). OSHA
will take these comments into consideration when designing tools and
applications to make the published data more accessible and useful to
interested parties.
After consideration of these comments, OSHA has determined that
members of the public and other interested parties will be able to use
the collected data to improve workplace safety and health. OSHA will
continue to consider additional ways to assist the public in both
awareness of and understanding the data, including through web-based
search applications and other products. As explained in the preamble to
the proposed rule, the agency plans to make the data available and able
to be queried via a web-based tool. Interested parties who are
interested in learning about occupational injuries and illnesses will
have access to information on when injuries and illnesses occur, where
they occur, and how they occur. In addition, interested parties can use
the tool to analyze injury and illness data and identify patterns that
are masked by the aggregation of injury/illness data in existing data
sources. As explained in the preamble to the proposed rule, in
developing a publicly accessible tool for injury and illness data, OSHA
will review how other Federal agencies, such as the Environmental
Protection Agency (EPA), have made their data publicly available via
online tools that support some analyses.
For the above reasons, and based on the record in this rulemaking,
OSHA believes that the electronic submission requirements, along with
the subsequent publication of certain injury and illness data, set
forth in this final rule will result in significant benefits to
occupational safety and health. OSHA also concludes that the
significant benefits to employers, employees, OSHA, and other
interested parties described in this section outweigh the slight risk
to employee privacy. Accordingly, OSHA has determined that it is
necessary and appropriate to require certain establishments to
electronically submit case-specific, establishment-specific, data from
their Forms 300 and 301 to OSHA once a year.
5. The Freedom of Information Act (FOIA)
Many of the comments OSHA received on proposed Sec. 1904.41(a)(2)
related not to the proposed requirement to submit information from OSHA
Forms 300 and 301, per se, but rather to OSHA's plan to make some of
the data which it receives publicly available on its website (as
detailed above). The agency is doing so for two main reasons. First,
based on its experience with previous FOIA requests for particular
establishments' Forms 300A, 300, and 301 (as contained in inspection
files) and for all Form 300A data submitted electronically, OSHA
anticipates that it will receive FOIA requests for the Form 300 and 301
data submitted under the requirements of this final rule. Once the
agency releases the Form 300 and 301 data submitted under the
requirements of this final rule (after applying the appropriate FOIA
exemptions), OSHA anticipates (again based on the previous FOIA
requests) that it would be required to post the released information
online under 5 U.S.C. 552(a)(2)(D), which requires agencies to ``make
available for public inspection in an electronic format . . . copies of
all records . . . that because of the nature of their subject matter,
the agency determines have become or are likely to become the subject
of subsequent requests for substantially the same records; or . . .
that have been requested 3 or more times[.]'' OSHA finds that
proactively releasing the electronically submitted information from
establishments' Forms 300 and 301 would conserve resources that OSHA
would otherwise spend responding to such FOIA requests (before the
information would be posted online after the agency's initial responses
to such requests).
Second, and more importantly from a safety and health perspective,
as explained in detail in Section III.B.4 of this Summary and
Explanation, above, OSHA believes that the public release of case-
specific data from establishments' Forms 300 and 301 will generate many
worker safety and health benefits. In short, OSHA anticipates that
employers, employees, Federal and State agencies, researchers,
workplace safety consultants, members of the public, and other
interested parties can use the collected data to improve workplace
safety and health. (Comments related to benefits are addressed above in
Section III.B.4 of this Summary and Explanation.)
OSHA explained both of these reasons in the proposal (see 87 FR
18535, 18542). OSHA also discussed the similarities between the way it
intends to treat the data it would collect and publish under this rule
and the way it responds to requests for the same data under FOIA. OSHA
explained that it already collects Forms 300 and 301 during many
inspections, and often receives requests for them under FOIA. As a
rule, OSHA releases copies of the Forms 300 and 301 for closed cases
after redacting the same information that will either not be collected
or not be published under this rule. OSHA explained that it uses FOIA
Exemptions 6 and 7(C) to withhold from disclosure information in
personnel and medical files and similar files that ``would constitute a
clearly unwarranted invasion of personal privacy'' or records or
information compiled for law enforcement purposes to the extent that
the production of such law enforcement records or information ``could
reasonably be expected to constitute an unwarranted invasion of
personal privacy'' (5 U.S.C. 552(b)(6), 552(b)(7)(C)). OSHA intended
this discussion to reassure the regulated community that it has a great
deal of experience in protecting privacy interests when it releases the
forms that are at issue in this rule.
Separately, OSHA also pointed out that in multiple cases where it
had denied FOIA requests for Form 300A data, which does not include
personal information about injured employees, courts had ruled that
OSHA had to release the data (see 87 FR 18531). OSHA believes those
rulings support its decision here to release non-personal information
from the Forms 300 and 301. (One commenter said that the name and
telephone number of the executive certifying the accuracy of Form 300A
should be considered private information (Docket ID 0086); OSHA agrees;
in fact, the agency has never even collected this information as part
of its routine data collection of information from the Form 300A
through either the ODI or the ITA. Likewise, it will not do so pursuant
to this rule.)
A number of commenters reacted to OSHA's discussion of FOIA (e.g.,
Docket IDs 0042, 0050, 0070, 0071, 0072, 0076, 0088, 0090, 0094). For
example, the National Propane Gas Association (NPGA) said that it
``strongly disagrees'' with OSHA's argument ``that since case-specific,
establishment-specific information is subject to FOIA requests, the
information is available to the public inevitably and, thereby, the
agency's proposal to create a public website merely eliminates the
procedural step of a stakeholder submitting a FOIA request.'' According
to NPGA, a ``FOIA request is defined to a specific incident or event,
date, and establishment and initiated on the basis of a defined
interest by the submitter'' (Docket ID 0050). OSHA does not agree. FOIA
requests can be filed by any member of the public, with no requirement
to show why the requester is seeking the information, and researchers
and members of the press
file such requests frequently. These requests are often for large
quantities of data, not for material related to ``a specific incident
or event, date, and establishment.''
The Phylmar Regulatory Roundtable (PRR) also expressed concern with
OSHA's statements in the preamble about how the agency ``generally
releases copies of the 300 logs [(i.e., Form 300)] maintained in
inspection files in response to FOIA requests after redacting employee
names (column B)'' (see 87 FR 18532) commenting, ``[i]t is not clear
what is meant by `generally releases' but it can be assumed it is not
often. Currently, OSHA only has access and, more importantly, the
ability to release Form 300 Logs that are collected as part of an
inspection'' (Docket ID 0094). PRR added, '' It is commonly known, and
stated in the NPRM, that OSHA does not have the resources to conduct a
fraction of the inspections that collection through the proposed rule
would produce. In actuality, the previous risk is much lower than what
OSHA is now proposing. Also, the privacy is no longer central to FOIA
requests because once the data is posted, anyone will have access,
without having to make any official requests. Finally, the little
protection the FOIA process does provide to protect worker
confidentiality will be gone as well.'' (Docket ID 0094).
This comment misunderstands OSHA's purpose in discussing its FOIA
practice. The section of the NPRM preamble in which the OSHA statements
quoted by PRR appear is an explanation of which data from the OSHA
Forms 300 and 301 the agency proposed to make available on OSHA's
website. In the paragraph in which the sentence commented on by PRR
appears, OSHA explained that it plans to collect all the fields in
establishments' Form 300 except employee name (column B) and that
``[a]ll collected data fields on the 300 Log will generally be made
available on OSHA's website'' (87 FR 18532). At the end of this
paragraph, OSHA explained that it currently ``generally releases copies
of the 300 Logs maintained in inspection files in response to FOIA
requests after redacting employee names'' (87 FR 18532). This
information was included to explain that releasing information from
establishments' Forms 300s is not new; OSHA has been releasing
information from both the 300 and 301 forms for some time.
When OSHA said it ``generally releases'' data, it meant that the
default is to release it, unless there is a reason not to do so (i.e.,
one or more FOIA Exemptions). For example, if a Form includes
information that could reasonably be expected to identify individuals
directly, the agency would withhold that information from release under
FOIA Exemption 6 or 7(C). Likewise, and as discussed in more detail
below, OSHA is utilizing multiple layers of protection to ensure that
information which could reasonably be expected to identify individuals
directly is protected from disclosure.
OSHA also disagrees with PRR's assertion that ``the little
protection the FOIA process does provide to protect worker
confidentiality will be gone'' when this rulemaking goes into effect
and with its claim that the risk of worker identification under OSHA's
FOIA practice is far lower than that in this rulemaking (Docket ID
0094). As explained extensively throughout this section, OSHA has
included multiple layers of protection to protect information that
could reasonably be expected to identify individuals directly.
Significantly, this includes not collecting some information that is
included on the Forms 300 and 301 that OSHA collects during inspections
(e.g., employee names). Thus, the information obtained in this
rulemaking is already starting at a less-identifiable point than the
information obtained during inspections. And OSHA expects that the
remainder of the process, i.e., system design, only releasing certain
fields, and using scrubbing technology, will provide comparable
protection to that provided under the FOIA process.
OSHA also received comments from a number of interested parties
expressing concern about the proposed requirement for establishments to
submit and OSHA's plan to publish particular information that appears
on establishments' Forms 300 or 301. These commenters alleged that
their businesses would suffer in various ways if such information was
collected and released. For example, some of these commenters argued
that the proposed rule would require employers to submit to OSHA data
that the commenters consider to be proprietary and confidential to
their businesses, e.g., the number of employees and the hours worked at
a particular location are regarded as proprietary information by many
companies (Docket IDs 0042, 0071, 0072, 0088, 0090). A comment from the
Louisiana Chemical Association is representative of this argument:
``The number of employees and the hours worked at a particular location
[are] regarded as proprietary information by many companies. This
information if revealed provides details regarding the business
processes, production volumes, security, and operational status of a
facility'' (Docket ID 0042). Similar comments were made by the National
Retail Federation (Docket ID 0090), the U.S. Chamber of Commerce
(Docket ID 0088), and the Associated Builders and Contractors (Docket
ID 0071).
Similarly, other commenters opposed the publication of an
establishment's name and address, as well as case-specific injury and
illness data from the Forms 300 and 301, on the ground that doing so
would harm a company's overall reputation (e.g., Docket ID 0036, 0043,
0050, 0068, 0071).\7\ For example, according to NAM, ``This newly
available data immediately puts employers, manufacturers in particular,
in a defensive posture whereby compliance with this rule adds
unintended risks to company reputation. Prematurely publishing
sensitive establishment data would damage those companies who are
improving their safety programs, leaving smaller businesses the most
vulnerable in such a scenario. Manufacturers need to know that their
good faith compliance will not hurt their business.'' (Docket ID 0068).
---------------------------------------------------------------------------
\7\ OSHA notes some of the issues noted in this paragraph are
addressed below in Section III.E of the Summary and Explanation, on
section 1904.41(b)(10). However, OSHA sees some utility in reviewing
this issue in this part of the preamble as well.
---------------------------------------------------------------------------
When considering whether a particular piece of information OSHA
proposed to collect and make publicly available in this rulemaking will
be problematic in any way, including as to a company's competitiveness
or its reputation, it is important to consider which information is
currently publicly available and whether posting such data has actually
resulted in the harm raised by commenters on this rulemaking. OSHA
began publishing individual establishment 300A annual summary data,
then submitted through the OSHA Data Initiative (ODI), in 2009, and
data for calendar years 1996 through 2011 is posted in a searchable
format at: https://www.osha.gov/ords/odi/establishment_search.html. The
ODI data files include information on the number of employees and the
hours worked hours, as well as establishments' names and street
addresses (see ``DataDictionary1996-2001.txt'', ``DataDictionary2002-
2011.txt'' available at the ODI website cited in the previous
sentence). Despite the fact that these data have been publicly
available for more than a decade, OSHA is not aware of, and no
commenter has provided, any specific examples of reputational harm, of
firms losing business opportunities or potential
employees, or any other harm resulting from the public availability of
these data.
This point was emphasized in comments submitted by the Strategic
Organizing Center for this rulemaking (Docket ID 0079), including one
previously submitted during the proceeding leading the 2016 rule. That
comment pointed out that none of the employers expressing concern about
``reputational damage'' during a 2013 public meeting on what became the
2016 rule ``could point to a single instance of such damage arising
from the release of workplace injury/illness records.'' The comment
added that ``the representatives of several large trade associations .
. . made the same claim, and offered the same paucity of evidence.''
SOC further opined that if any of their members had actually suffered
any reputational damages, then these ``highly sophisticated
participants . . . would either already know about it or been able to
find at least a pattern of compelling examples worthy of the
Secretary's consideration in this rulemaking,'' but they did not offer
any such examples at the public meeting, ``even in response to repeated
questions by OSHA.'' Almost a decade has passed since that meeting,
even more information is available, and OSHA has still seen no evidence
of reputational or other harm to employers that submitted required
data.
Moreover, OSHA has also published data from establishments' Forms
300A for calendar years 2016 through 2021 in downloadable data files at
https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data.
These published data include, among other things, company name and
address, annual average number of employees, and total hours worked
(see Data Dictionary available at the OSHA website cited in the
previous sentence). Again, OSHA is not aware of, and no commenter has
provided, any specific examples of reputational harm, of firms losing
business opportunities or potential employees, or any other harm
resulting from the public availability of these data. Consequently,
OSHA is not persuaded that these unsubstantiated concerns regarding
potential harms that may result from OSHA's posting of information from
their recordkeeping forms in any way outweigh the worker safety and
health benefits that will be realized from OSHA's collection and
posting of certain data from establishments' recordkeeping forms.
OSHA also received comments arguing that the proposed rule was
arbitrary and capricious or that OSHA's statements within the proposed
rule's preamble were otherwise suspect, problematic, or confusing
because OSHA has taken a different position during past FOIA
litigation. For example, the U.S. Chamber of Commerce commented that in
the New York Times Co. v. U.S. Dep't of Labor, 340 F. Supp. 2d 394
(S.D.N.Y. 2004), and in OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220
F.3d 153 (3d Cir. 2000), OSHA took the position that the total number
of employees and hours worked at a particular establishment was
``confidential and proprietary business information,'' in contrast to
its position in the NPRM (Docket ID 0088, Attachment 2).
The Chamber accurately characterizes OSHA's arguments in the New
York Times case but fails to mention one key fact: the court found that
the information was not confidential. Specifically, in its 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). It 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).
In the years after the court's decision rejected the Secretary's
argument 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), the Secretary reconsidered their position. Beginning
in 2004, in response to FOIA requests, OSHA's policy has been to
release information from Form 300A on the annual average number of
employees and total hours worked by all employees during the past year
at an establishment. Similarly, OSHA began releasing establishment
Forms 300 and 301 in response to FOIA requests (after appropriately
redacting certain personal identifiers under Exemption 7(C)). And, as
noted above, the agency began posting information from establishments'
Forms 300A online in 2009 as part of ODI. Thus, OSHA included a
statement in the 2013 proposed rule and 2016 final rule explaining that
the Secretary no longer believes that the injury and illness
information entered on the OSHA recordkeeping forms constitutes
confidential commercial information.
OSHA's general practice of releasing recordkeeping forms to FOIA
requesters (with appropriate redactions largely related to information
that could identify employees, e.g., employee names) continued in the
years prior to the Supreme Court's decision in Food Marketing Institute
v. Argus Leader Media, 139 S. Ct. 2356 (2019) (``Argus Leader''). In
Argus Leader, the Court held that ``at least where commercial or
financial information is both customarily and actually treated as
private by its owner and provided to the government under an assurance
of privacy, the information is `confidential' within the meaning of
Exemption 4'' (id. at 2366). After the issuance of the Argus Leader
decision, OSHA changed its practice and began processing requests for
OSHA Forms 300, 300A, and 301 under Exemption 4, a decision which the
agency believed was supported by Argus Leader. Then, after several
courts disagreed with OSHA's interpretation, the agency reverted to its
previous practice and began releasing the recordkeeping forms as before
(see 87 FR 18531 (discussing three adverse rulings in which courts
rejected OSHA's position that electronically submitted 300A injury and
illness data are covered under the confidentiality exemption in FOIA
Exemption 4)). In other words, although OSHA has previously argued that
some of the Form 300, 300A, and 301 information should not be released
under FOIA, the agency changed its posture to comport with adverse
court rulings. Consequently, the agency is not persuaded by comments
reiterating those court-rejected arguments.
In making this decision, OSHA notes that 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 provide 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.
OSHA notes that it also received comments from interested parties
arguing that OSHA should rescind the requirement to submit the 300A
Summary Form to OSHA because that form contains confidential business
information (CBI) (e.g., Docket ID 0059). Such comments are reiterating
legal arguments which courts rejected in the cases discussed above.
Consequently, OSHA disagrees with the assertion that the 300A forms
contain CBI and declines to make the requested change.
6. Safeguarding Individual Privacy (Direct Identification)
As explained above, OSHA's decision to collect certain data from
establishments' Forms 300 and 301 stems from its determination that
OSHA will be able to use the data to improve worker safety and health.
Similarly, the agency's decision to publish some of the Forms 300 and
301 data it receives pursuant to this rulemaking flows from its
expectation that it will receive FOIA requests requesting the data and
its determination that such publication will result in many
occupational safety and health benefits. Importantly, in the proposal,
OSHA also preliminarily determined that these benefits would not be at
the expense of employee privacy. In other words, OSHA preliminarily
determined that it would be able to adequately protect information that
could reasonably be expected to identify individuals directly--both in
the collecting and possession of the data and in its decisions
surrounding which information will be made publicly available.
This question, i.e., whether OSHA would be able to adequately
protect information that could reasonably be expected to identify
individuals directly, was raised in the rulemaking that culminated in
the issuance of the 2016 final rule. It was also a major factor in
OSHA's decision to rescind the requirement for certain employers to
electronically submit information from Forms 300 and 301. Specifically,
in the preamble to the 2019 final rule, OSHA stated that it was
rescinding that requirement ``to protect sensitive worker information
from potential disclosure under the Freedom of Information Act (FOIA)''
and that ``OSHA has always applied a balancing test to weigh the value
of worker privacy against the usefulness of releasing the data'' (84 FR
383-384). The preamble to the 2019 final rule also stated the agency's
belief at the time that OSHA could withhold the data from Forms 300 and
301 from publication under FOIA Exemptions 6 and 7(C) (84 FR 386), but
OSHA concluded at that time that the risk of disclosure of case-
specific, establishment-specific, information could not be justified
``given [the agency's] resource allocation concerns and the uncertain
incremental benefits to OSHA of collecting the data'' (84 FR 387).
Moreover, in the preamble to the 2019 final rule, OSHA characterized
information such as descriptions of workers' injuries and the body
parts affected (Field F on Form 300, Field 16 on Form 301), as ``quite
sensitive,'' and stated that public disclosure of this information
under FOIA or through the OSHA Injury Tracking Application (ITA) would
pose a risk to worker privacy. It added that ``although OSHA believes
data from Forms 300 and 301 would be exempt from disclosure under FOIA
exemptions, OSHA is concerned that it still could be required by a
court to release the data'' (84 FR 383).
As noted in the preamble to the proposed rule for this rulemaking,
however, OSHA has determined those bases for the removal of the 300 and
301 data submission requirement are no longer compelling. As to the
risk to employee privacy, OSHA preliminarily determined that the
proposed data collection would adequately protect information that
could reasonably be expected to identify individuals directly, such as
name and address, with multiple layers of protection. Of particular
importance, OSHA explained that improvements in technology have
decreased the resources needed by the agency to collect, analyze, and
publish data from Forms 300 and 301 (87 FR 18538). In addition, OSHA
noted the 2019 final rule took an overly expansive view of the term
``personally identifiable information'' and preliminarily determined
that the 2019 final rule's position on such information was at odds
with the agency's usual practice of regularly releasing such data (87
FR 18539).\8\
---------------------------------------------------------------------------
\8\ In this preamble, OSHA generally uses the phrases
``information that could reasonably be expected to identify
individuals directly'' and ``information that could reasonably be
expected to identify individuals indirectly,'' rather than the
broader term ``personally identifiable information'' (PII) to aid
interested parties in understanding precisely what type of
information OSHA is referring to in the discussion. The information
referred to in both phrases can be considered PII.
---------------------------------------------------------------------------
A number of commenters expressed concern about OSHA's reasoning for
the collection and publication of Forms 300 and 301 data in the
preamble to the proposed rule (e.g., Docket ID 0038, 0058, 0059, 0072,
0088, 0091). For example, NPGA argued that OSHA should evaluate the
data it already collects from industries listed in appendix A to
determine whether additional information collection will further
workplace safety (Docket ID 0050). As discussed extensively above in
Section III.B.4 of this Summary and Explanation, OSHA has evaluated and
used the 300A data it collects and anticipates that many workplace
safety and health benefits will flow from the collection of the case-
specific data that will be submitted by establishments pursuant to
final 1904.41(a)(2).
Other commenters focused on whether OSHA had adequately explained
its change of opinion on whether the risk of collecting and publishing
Form 300 and 301 data outweighs the benefits to worker safety and
health. For example, the American Feed Industry Association (AFIA), the
Coalition for Workplace Safety, and the Flexible Packaging Association
all expressed disagreement with OSHA's determination that the
significant benefits of collecting establishment-specific, case-
specific data from the 300 and 301 forms outweigh the slight risk to
employee privacy (Docket IDs 0038, 0058, 0091). On the other hand, the
National Council for Occupational Safety and Health noted that OSHA
needs ``workplace injury and illness information . . . to work
effectively,'' and that it is ``unlike almost any other government
agency in charge of protecting public safety'' in not receiving it
already (Docket ID 0048).
As discussed above, OSHA believes it has good reasons to collect
and publish information from the covered establishments' Forms 300 and
301 (see Section III.B.4 of this Summary and Explanation). And, as to
the risk to employee privacy, OSHA has determined that it can implement
multiple layers of protection described above to protect such
information that could reasonably be expected to identify individuals
directly, e.g., names and addresses. These protective measures include
limiting the amount of information submitted by employers, reminding
employers not to submit information that could reasonably be expected
to identify individuals directly, withholding information from certain
fields from publication, and using automated information technology to
detect and remove any remaining information that could reasonably be
expected to identify individuals directly. These measures will ensure
that individual privacy is protected while key information on workplace
hazards is disseminated to employees, employee representatives, and
other interested parties. The following discussion explains how each
layer of protection will help to ensure that individual privacy is
protected.
In the proposed rule, OSHA stated that its first measure to prevent
the release of information that could reasonably be expected to
identify individuals directly is to not collect most of that
information in the first
place. Specifically, as discussed above and detailed in Section III.D
of this Summary and Explanation, on Sec. 1904.41(b)(9), the proposal
explained to establishments that employers did not need to submit the
following information: (1) from the Form 300 Log: the employee name
column (column B) and (2) from the Form 301 Incident Report: the
employee name (Field 1), employee address (Field 2), name of physician
or other health care professional (Field 6), and facility name and
address if treatment was given away from the worksite (Field 7). OSHA
explained that, since this information would not be collected, there
would be no risk of publication disclosure of the data in the fields
(87 FR 18538).
Some interested parties submitted comments agreeing with OSHA's
logic on this point (e.g., Docket IDs 0030, 0063, 0064). For example,
Worksafe supported the proposed omission of employee name and address,
physician names, and treatment facilities from collection and
publication to protect individual privacy (Docket ID 0063). And AIHA
commented that if PII is not collected by OSHA, there would be no need
to redact submitted information (Docket ID 0030). Based on this
feedback, and as discussed further in Section III.D of this Summary and
Explanation, the final rule, like the proposed rule, does not allow
employers to submit the above information.
Again, as discussed in Section III.D of this Summary and
Explanation, OSHA received comments from interested parties requesting
that OSHA add other fields from Forms 300 and 301 to the list of fields
which establishments are not required to submit under the final rule.
These comments are addressed in detail in Section III.D, but OSHA also
notes here that these interested parties' true concerns appear to
relate to whether OSHA can keep the collected data private (e.g., will
OSHA have to release it in response to a FOIA request or otherwise
release it accidentally, such as because an employee name or other
direct employee identifier is contained in a narrative field) or
whether the fields OSHA intends to release will allow third parties to
indirectly identify employees. OSHA's plan to mitigate each of these
concerns is discussed in detail below. Thus, again as stated in the
summary and explanation for Sec. 1904.41(b)(9), the agency declines to
add further fields to the list of fields from establishments' Forms 300
and 301 which will not be collected under this final rule.
As discussed in the proposal, OSHA's second measure to prevent the
release of information that could reasonably be expected to identify
individuals directly relates to system design (87 FR 18538).
Specifically, the agency explained that it planned to design its data
collection system to provide extra protections for the personal
information that establishments would be required to submit under the
proposal. For example, OSHA stated that although the proposal would
require employers to submit the employee's date of birth from Form 301
(Field 3), it planned to design the data collection system to
immediately calculate the employee's age based on the date of birth
entered and then store only the employee's age, not the employee's date
of birth. OSHA also indicated its intent to post reminders to
establishments to omit from the text fields they submit any information
that could reasonably be expected to identify individuals directly,
including names, addresses, Social Security numbers, and any other
identifying information (see 87 FR 18538).
In addition to these proposed system design solutions, OSHA
included a question in the proposal asking: ``What additional guidance
could OSHA add to the instructions for electronic submission to remind
employers not to include information that reasonably identifies
individuals directly in the information they submit from the text-based
fields on the OSHA Form 300 or Form 301?'' (87 FR 18546). OSHA received
a number of responses to this question. For example, AIHA commented,
``The electronic forms that OSHA provides should be designed to
automatically exclude personal identifiers with an option to include
the fields if required. The import side of the electronic form data
could also block the importation of these fields'' (Docket ID 0030).
The Plastics Industry Association (PIA) commented that, although it
does not believe the reminder would be ``an acceptable remedy for
inadequate software,'' ``[i]f OSHA were to proceed in this way. . .,
OSHA should include the warning about not including personal
identifiers in an online screen and require the submitter to click a
confirmation that it has not included any personal identifiers before
allowing the submitter to proceed to the data entry step.'' PIA also
stated that after the data entry is completed, the system should
provide the employer with an opportunity to review the complete data
submission, view how it would be presented to the public, and correct
any inaccurate data or inadvertently included personal identifiers.
After completing that step, PIA recommended that the submitter should
have to click through a second screen that repeats the warning about
not including personal identifiers and confirm that none were submitted
before allowing the submitter to click on the final submit button.
Finally, PIA said that ``[b]efore requiring compliance with the
contemplated data submission requirements for the OSHA Form 300 or Form
301 data, OSHA needs to have a qualified, independent body test and
validate that the software, as integrated into the OSHA ITA, will
reliably remove any personal identifiers'' (Docket ID 0086).
OSHA thanks the commenters who responded to the specific question
on additional instructions to employers on not submitting information
that identifies individuals. OSHA intends to take commenters' specific
responses into account when designing the expanded collection system.
Based on those comments, OSHA will include reminders in the
instructions for the data collection system for employers not to submit
information that could reasonably be expected to identify individuals
directly. OSHA agrees that is an effective way to reduce the amount of
identifiable information collected by the system. In turn, that will
decrease the likelihood that such information will be published. OSHA
has routinely used these types of instructions, such as when it
requests comments from interested parties in rulemakings such as this
one (see the section on ``Instructions'' above) and has found them to
be an effective way to prevent the unintentional submission of
information that could reasonably be expected to identify individuals
directly.
Also, OSHA notes that the current ITA manual data entry option
already includes a screen that provides establishments with an
opportunity to review the complete data submission of Form 300A
information and to make edits or corrections as appropriate. OSHA plans
to gather additional information from similar data collection systems
and incorporate best practices in the final design for the collection
system for data from the Forms 300 and 301. Moreover, the Forms 300 and
301 themselves already include a box with the warning, ``Attention:
This form contains information relating to employee health and must be
used in a manner that protects the confidentiality of employees to the
extent possible while the information is being used for occupational
safety and health purposes.'' In addition, the Form 301 includes the
warning, ``Re [F]ields 14 to 17: Please do not include any personally
identifiable information (PII) pertaining
to worker(s) involved in the incident (e.g., no names, phone numbers,
or Social Security numbers).'' Fields 14-17 do not ask for information
likely to implicate privacy concerns, rather, they request information
related to the injury or illness and how it occurred. OSHA believes
these warnings are adequate and does not believe it is practical to
develop a system that would remove remaining information between an
establishment's draft and final electronic submissions. Such systems
take time to run (see, e.g., Docket ID 0095), which would increase the
time between employer submission (i.e., when the employer clicks on the
`submit' or `upload' button) and employer receipt of confirmation of
successful submission, potentially creating concerns about whether the
submission system is working. OSHA therefore believes that it is more
appropriate to identify and remove any information that could
reasonably be expected to identify individuals directly after
submission and before publication, rather than during submission.
Moreover, OSHA thinks its plans to protect such data will adequately
protect worker privacy without adding this additional, impractical,
potentially expensive (adding additional functionality to system) step.
Finally, as to system design, OSHA's system will not allow
establishments to enter the fields that are excluded from collection
under Sec. 1904.41(b)(9).
As discussed in the proposal, OSHA's third measure to prevent the
release of information that could reasonably be expected to identify
individuals directly is to withhold certain information that is
submitted to it from public disclosure. As noted above, OSHA will not
collect employees' names from either form, and will not collect
employees' addresses or the names or addresses of healthcare providers
from Form 301. However, the proposed rule would have required (and the
final rule actually requires) submission of some fields that contain
personal information, including date of birth (which will be converted
to age) (Field 3), date hired (Field 4), gender (Field 5), whether the
employee was treated in the emergency room (Field 8), and whether the
employee was hospitalized overnight as an in-patient (Field 9) (see 87
FR 18539). OSHA proposed to collect that information, but not to make
it public, and specifically requested comment on those proposals (see
87 at FR 18540).
OSHA received a number of comments, virtually all from employers
and their representatives, expressing concern over the potential risk
to employee privacy presented by the proposed collection and potential
publication of information from Forms 300 and 301 that could reasonably
be expected to identify individuals directly (e.g., Docket IDs 0055,
0056, 0057, 0062, 0070, 0075, 0087, 0090, 0094). For example, the
Precision Machined Parts Association (PMPA) commented, the Form 300
contains sensitive information that may be released under FOIA or
``through the inadvertent publication of information due to the
agency's reliance on automated de-identification systems to remove
identifying information'' or through the actions of ``future
administrations'' (Docket ID 0055). The North American Die Casting
Association (Docket ID 0056) and National Tooling and Machining
Association and Precision Metalforming Association (Docket ID 0057)
expressed similar concerns. Rep. Virginia Foxx (R-North Carolina) and
Rep. Fred Keller (R-Pennsylvania) echoed that ``there are no guarantees
that this data may not be disclosed accidentally'' (Docket ID 0062).
In contrast, commenters representing the workers whose injuries and
illnesses are recorded on these forms did not share employers' concerns
about the potential publication of sensitive worker information. For
example, the AFL-CIO stated that ``The preamble to the 2016 final rule
included a comprehensive review of privacy issues raised by interested
parties in requiring the collection of detailed injury and illness data
and the final language was crafted to provide safeguards to protect the
release of personally identifiable information (PII).'' It explained
the NPRM ``has also considered PII and includes the same safeguards as
the 2016 final rule and discusses recent technological developments
that increase the agency's ability to manage information'' (Docket ID
0061 (citing 87 FR 18538-46)). In addition, AFL-CIO observed that the
type of information that OSHA proposed to collect in this rulemaking
``has already been shown by other agencies it can be collected and
shared without violating confidentiality, such as by Mine Safety and
Health Administration (MSHA)[, and a]ll data provided under the Freedom
of Information Act and Form 300 and Form 301 provided to workers and
their representatives upon request under Sec. 1904.35 provide detailed
injury and illness information without releasing PII.'' In summary,
AFL-CIO argued that ``OSHA should maintain the same privacy safeguards
in the rule it issued in 2016, also proposed in this preamble and used
by other agencies to protect sensitive information'' (Docket ID 0061).
Similarly, the National Nurses Union affirmed that the NPRM
``includes appropriate procedures to allow electronic data reporting
and publication while protecting worker privacy.'' To support this
statement, it specifically referenced OSHA's ``plans to instruct
employers to omit the fields on Form 301 that include personal
information about the worker'' and the agency's plan to use data
analysis tools to ensure that published data does not include any
personal data that employers may accidentally submit. NNU concluded
that ``[t]he multiple measures to remove identifying information in the
final rule will ensure that workers' privacy is protected while key
information on workplace hazards is shared'' (Docket ID 0064).
OSHA agrees with the latter commenters who stated that there are
multiple measures in place to protect the privacy of individuals under
this final rule. As discussed above, OSHA will not collect much of the
information the commenters opposing this provision expressed concern
about. In addition, the collection system will provide further
safeguards and reminders. For example, OSHA will redact any identifying
material from the portions of the forms it intends to publish (e.g.,
Fields 10 through 18 of Form 301).
Further, and as discussed in more detail below in Section III.B.7
of this Summary and Explanation, OSHA will withhold from publication
all of the collected information on the left side of the Form 301
(i.e., employee age, calculated from date of birth (Field 3), employee
date hired (Field 4), and employee gender (Field 5), as well as whether
the employee was treated in emergency room (Field 8) and whether the
employee was hospitalized overnight as an in-patient (Field 9)) that
could indirectly identify injured or ill employees when combined with
other potentially available information. As noted in the proposal, this
decision is consistent with OSHA's handling of FOIA requests, in
response to which the agency does not release data from Fields 1
through 9.
It is important to note that these forms have never been private.
The information that OSHA will publish from the Forms 300 and 301 under
this final rule is consistent with the information available in the
agency's longstanding records access provisions. The recordkeeping
regulation at 29 CFR 1904.35 allows current and former employees and
their representatives access to the occupational injury and illness
information kept by their employers, with some limitations. When an
employee, former employee, personal
representative, or authorized employee representative asks an employer
for copies of an employer's current or stored OSHA 300 Log(s), the
employer must give the requester a copy of the relevant OSHA 300 Log(s)
by the end of the next business day (see 29 CFR 1904.35(b)(2)(ii)).
Cases labeled as ``privacy concern cases,'' described below, are
excluded from this requirement. Finally, an authorized representative
is entitled, within 7 days of requesting them, to copies of the right-
hand portion of all 301 forms for the establishment(s) where the agent
represents one or more employees under a collective bargaining
agreement. As discussed above, the right-hand portion of the 301 form
contains the heading, ``Tell us about the case,'' and includes
information about how the injury or illness occurred, including the
employee's actions just prior to the incident, the materials and tools
involved, and how the incident occurred, but should not include the
employee's name. No information other than that included on the right-
hand portion of the Form 301 may be disclosed to the authorized
employee representative.
Put more simply, OSHA's decision not to release the collected
information on the left-hand side of the Form 301 (i.e., age
(calculated from date of birth), date hired, gender, whether the
employee was treated in the emergency room, and whether the employee
was hospitalized overnight as an in-patient) is consistent with records
access provisions in OSHA's recordkeeping regulation, Sec.
1904.35(b)(2)(v)(A) and (B), which prohibit the release of information
in fields 1 through 9 to individuals other than the employee or former
employee who suffered the injury or illness and their personal
representatives.
To protect employee privacy, Sec. 1904.29(b)(7) requires the
employer to enter the words ``privacy concern case'' on the OSHA 300
log, in lieu of the employee's name, for certain sensitive injuries and
illnesses: an injury or illness to an intimate body part or the
reproductive system; an injury or illness resulting from a sexual
assault; a mental illness; an illness involving HIV infection,
hepatitis, or tuberculosis; needlestick injuries and cuts from sharp
objects that are contaminated with another person's blood or other
potentially infectious material (see Sec. 1904.8 for definitions); and
other illnesses, if an employee independently and voluntarily requests
that their name not be entered on the log. In addition, under Sec.
1904.29(b)(9), if employers have a reasonable basis to believe that
information describing a privacy concern case may be personally
identifiable even though the employee's name has been omitted, they may
use discretion in describing the injury or illness as long as they
include enough information to identify the cause of the incident and
the general severity of the injury or illness. Thus, contrary to the
arguments of the Phylmar Regulatory Roundtable (PRR) (Docket ID 0094),
OSHA's recordkeeping rule distinguishes between PII and ``sensitive
PII,'' which is deserving of even higher protection. OSHA's definition
of privacy concern cases is very similar to the DHS definition of
``sensitive PII, which this comment urged OSHA to adopt (see https://www.dhs.gov/publication/handbook-safeguarding-sensitive-personally-identifiable-information, p. 15). Although DHS and OSHA collect and
maintain information for different purposes, the provisions in 29 CFR
1904.29 addressing privacy concern cases protect details about injuries
and illnesses that workers would consider sensitive to the same extent
that the DHS rule does. Therefore, it is unlikely that information
describing sensitive body parts will even be recorded by employers,
much less subsequently submitted to OSHA under the data collection
requirements of this final rule.
Section 1904.29(b)(10) also protects employee privacy if an
employer decides voluntarily to disclose the Forms 300 and 301 to
persons other than those who have a mandatory right of access, by
requiring employers to remove or hide employees' names or other
personally identifiable information before disclosing the forms to
anyone other than government representatives, employees, former
employees, or authorized employee representatives, with only a few
exceptions. The exceptions include disclosure to authorized consultants
hired by employers to evaluate their safety and health programs; where
disclosure is necessary to process a claim for workers' compensation or
other insurance benefits; and disclosure to a public health authority
or law enforcement entity for uses and disclosures for which consent,
or authorization, or opportunity to agree or object is not required
under the HIPAA privacy rule at 45 CFR 164.512. These exceptions are
not relevant here or are discussed in Section III.B.10 of this Summary
and Explanation, below.
OSHA acknowledged the tension between the safety and health
benefits of disclosing injury and illness records on the one hand, and
the desire for privacy by the subjects of those records on the other,
more than two decades ago. In OSHA's 2001 final rule overhauling its
recordkeeping system, it explained that while agency policy is that
employees and their representatives with access to records should treat
the information contained therein as confidential except as necessary
to further the purposes of the Act, the Secretary lacks statutory
authority to enforce such a policy against employees and
representatives (see 66 FR 6056-57 (citing, e.g., 29 U.S.C. 658, 659)
(Act's enforcement mechanisms directed solely at employers)). Thus, it
has always been possible for employees and their representatives to
make the recordkeeping data they have accessed public if they wish to
do so (see 81 FR 29684). Nonetheless, OSHA also concluded that the
benefits to employees and their representatives of accessing the health
and safety information on the recordkeeping forms carry greater weight
than any particular individual employee's possible right to privacy
(see 66 FR 6055). Similarly, in the current rulemaking, OSHA continues
to believe that the benefits of publication of injury and illness data
at issue in this rule, discussed in detail above, outweigh the slight
possibility that some employees could be identified from that data.
There are even more exclusions from the data that will be made public
under this rule than from the data available to employees and their
representatives, and OSHA is unaware of any instances where an employee
took the currently available recordkeeping information and used it to
publicize the identity of an injured or ill worker.
Some commenters, however, thought there should be a distinction
between the information available to workers at an establishment and
their representatives, and information available to the broader
community. The U.S. Poultry & Egg Association, the Plastics Industry
Association, and PRR all acknowledged the value of providing this
information to those workers but argued that similar value is not
provided by making the information available to others in the industry
(Docket IDs 0053, 0086, 0094). OSHA disagrees. As explained in Section
III.B.4 of this Summary and Explanation, OSHA believes that expanding
access to such information on a public website will increase
information about workplace hazards, create awareness of potential
hazards for other members of an industry, provide useful information
for potential and current employees, and allow all
establishments to address hazards more effectively.
OSHA notes that it also received comments from interested parties
expressing concern that courts might order the agency to release some
of the data it collects and does not plan to release in this
rulemaking, i.e., in a decision in a FOIA lawsuit. Based on its years
of experience processing FOIA requests to which establishments' Forms
300 and 301 were responsive and redacting and releasing those forms,
OSHA believes this outcome is highly unlikely. As noted in the proposal
and discussed in more detail above, the agency often collects such
forms during inspections. When releasing the forms to FOIA requesters,
it has long redacted the information that it will collect as a result
of this rulemaking but does not intend to publish.
Specifically, as noted above and explained in the proposal, OSHA
uses FOIA Exemption 7(C) to withhold from disclosure information that
reasonably identifies individuals directly included anywhere on the
three OSHA recordkeeping forms. And OSHA has used FOIA Exemption 6 to
protect 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)). Together, these Exemptions clearly cover the
information about which commenters are concerned (i.e., directly
identifying information--concerns about indirect identifiers are
discussed below) and OSHA is confident that it will continue to be able
to withhold such information from public exposure under these
Exemptions.
In addition, OSHA notes that its plan to release only certain
fields will also prevent accidental release of information that could
reasonably be expected to identify individuals directly. Specifically,
when OSHA publishes the information collected in this rulemaking, that
release will by design exclude the fields that OSHA does not intend to
release. This is similar to OSHA's current practice as to the
collection of information submitted with establishments' Forms 300 A.
Specifically, as part of the process for collecting information from
the Form 300A through the ITA, OSHA collects the name and contact
information for the person associated with the account that is
electronically submitting information from the Form 300A for a given
establishment. OSHA also previously collected this information for
establishment submissions of information from the Form 300A through the
ODI. OSHA does not make this information public. Indeed, there is
little risk that the agency might accidentally do so because the data
release only includes information from the Form 300A. It plans to
follow that same practice with the data from establishments' Forms 300
and 301.
OSHA's fourth measure to prevent the release of information that
could reasonably be expected to identify individuals directly is
through the use of scrubbing technology. In the preamble to the 2019
final rule, OSHA stated that ``de-identification software cannot fully
eliminate the risk of disclosure of PII or re-identification of a
specific individual and manual review of the data would not be
feasible'' (84 FR 388). However, in the preamble to this proposed rule,
OSHA preliminarily determined that this reason was no longer
compelling. The agency explained that recent advancements in technology
have reduced the risk that information that could reasonably be
expected to identify individuals directly will be disclosed to the
public. In addition, OSHA expected the improved technology used to
protect sensitive employee data to reduce costs and resource-allocation
issues for OSHA by eliminating the need to manually identify and remove
information that could reasonably be expected to identify individuals
directly from submitted data and by decreasing the resources required
to analyze the data. OSHA added that, because of these improvements in
automated de-identification systems, OSHA would now be better able to
collect, analyze, and publish data from the 300 and 301 forms, so the
anticipated benefits of collecting the data would be more certain. The
collection of case-specific data would allow the agency to focus its
enforcement and compliance assistance resources based on hazard-
specific information and trends, and to increase its ability to
identify emerging hazards, at the establishment level. Accordingly,
OSHA preliminarily believed that the significant benefits of collecting
establishment-specific, case-specific data from the 300 and 301 forms
would outweigh the slight risk to employee privacy (87 FR 18538).
In the preamble to the proposed rule, OSHA specifically asked the
following questions about automated de-identification systems:
What other agencies and organizations use automated de-
identification systems to remove information that reasonably identifies
individuals directly from text data before making the data available to
the general public? What levels of sensitivity for the automated system
for the identification and removal of information that reasonably
identifies individuals directly from text data do these agencies use?
What other open-source and/or proprietary software is
available to remove information that reasonably identifies individuals
directly from text data?
What methods or systems exist to identify and remove
information that reasonably identifies individuals directly from text
data before the data are submitted?
What criteria should OSHA use to determine whether the
sensitivity of automated systems to identify and remove information
that reasonably identifies individuals directly is sufficient for OSHA
to make the data available to the general public?
What processes could OSHA establish to remove
inadvertently-published information that reasonably identifies
individuals directly as soon as OSHA became aware of the information
that reasonably identifies individuals directly?
(87 FR 18546-47)
Overall, there were no comments about the technical aspects of
software to identify and remove information that could reasonably be
expected to identify individuals directly. However, Worksafe commented,
``Worksafe encourages OSHA to consult with technical experts. The
Federal Government has two groups of experts that may be able to help:
the U.S. Digital Service, a group of technology experts that assist
agencies with pressing technology modernization, and 18F, a `technology
and design consultancy' housed within the General Services
Administration. Technical experts should be able to advise on both the
capabilities and limits of software to accomplish the sort of filtering
that OSHA has proposed.'' (Docket ID 0063). In addition, AIHA's comment
supported use of software to remove the information before submission:
``If the personally identifiable information (PII) is not submitted,
there would be no reason to have an automated system capable of
removing the sensitive portions of the information. A unique identifier
could be auto-generated by the system instead of utilizing PII''
(Docket ID 0030).
There were also comments that OSHA should select, identify, test,
and demonstrate the results of de-identification software before
proceeding with a final rule. For example, the Coalition for Workplace
Safety commented, ``OSHA has not yet conducted tests of [its privacy
scrubbing] technology on the Forms 300 or 301,'' and ``OSHA
acknowledges that the information it will collect and publish can still
be used to identify individuals indirectly by combining it with other
publicly available information.'' The commenter also stated that OSHA
``relies heavily on automated information technology to remove
information that can directly identify individuals,'' which is ``not
100 percent accurate so there will still be information made publicly
available which can be used to directly identify individuals'' (Docket
ID 0058).
Similarly, the National Association of Manufacturers commented,
``The new online requirement places an unintentional burden on the
agency that it may not be prepared to implement. The agency's pledge to
design a system that both abides by FOIA protocols and uses scrubbing
technology to protect PII is problematic because such a system is
unproven and untested at OSHA. The agency should demonstrate the
effectiveness and stability of such a system before it proceeds further
with this rulemaking. (Docket ID 0068).
The Motor and Equipment Manufacturers Association commented, ``OSHA
says it will also address this risk by using existing privacy scrubbing
technology that it claims is capable of de-identifying information that
reasonably identifies individuals directly (such as name, phone number,
email address, etc.). However, OSHA made this same claim in the
preamble to the 2016 injury and illness reporting rule, which the
agency rejected in the preamble to the 2019 rescission rule . . . the
Proposed Rule provides no details on the systems, software, or
platforms that are available now but were not available at the time of
the 2019 rescission rule. In fact, all but one of the data scrubbing
products identified by OSHA in the Proposed Rule were commercially
available prior to the issuance of the rescission rule.'' (Docket ID
0075).
The Plastics Industry Association commented, ``First, we are
concerned that OSHA is referring to technically feasible automated
software that could identify unique personal identifiers, but it is
unclear whether it currently exists. Second, as the foregoing
discussion from the January 19, 2001 preamble makes clear, there are
likely to be many cases in which disclosure of a generic identifier or
data point becomes a personal identifier in the context of those with
knowledge of the site (e.g., ``only one woman works at the plant''), a
situation that we believe is beyond the shield that could be provided
by any automated software. If OSHA had identified automated software
capable of scrubbing unique personal identifiers, we would have
expected OSHA to have provided an appropriate certification from a
qualified testing organization that the software, after integration
into the OSHA ITA, will accurately perform that function--possibly with
some acceptable, minimal error rate. However, the following questions
OSHA posed in the preamble suggest the necessary software is not yet
available or, if it is, OSHA has not yet identified it and verified it
would be adequate and within the agency's budget.'' (Docket ID 0086).
The Employers E-Recordkeeping Coalition (Coalition) commented,
``The supposed improved technology to decrease the number of resources
required to analyze this data has neither been presented to employers
nor explained in the Notice of Proposed Rulemaking. The ``scrubbing
application'' and automated information technology is neither tested or
verified, nor is there any reason to consider it trustworthy. In fact,
the proposed use of automated information technology to detect and
remove information that reasonably identifies individuals is, OSHA
admits, a ``preliminary'' finding that has not been vetted. (The point
is further underscored by the Agency's request for information on what
proprietary software is out there that is capable of removing
information that reasonably identifies individuals directly from text
data).'' (Docket ID 0087).
The agency disagrees with the comments that it is necessary to
select, identify, test, and demonstrate the results of de-
identification software before proceeding with a final rule. AI and
machine learning--technologies that OSHA plans to use to detect,
redact, and remove information that reasonably identifies individuals
directly from structured and unstructured data fields--have advanced
rapidly in recent years. Commercially available products that were
introduced to the marketplace during the previous rulemaking process
are now well-established. In the preamble to the proposed rule, OSHA
listed and described three packages initially released between November
2017 and March 2018, as well a fourth package that was released in
March 2021 (87 FR 18540). There has now been time for these packages to
go through multiple updates, as well as for studies of comparative
performance to be performed and published. For example, a study
entitled ``A Comparative Analysis of Speed and Accuracy for Three Off-
the-Shelf De-Identification Tools'' was published in May 2020 in AMIA
Summits on Translational Science Proceedings; it compared three text
de-identification systems that can be run off-the-shelf (Amazon
Comprehend Medical PHId, Clinacuity's CliniDeID, and the National
Library of Medicine's Scrubber). This study found that ``No single
system dominated all the compared metrics. NLM Scrubber was the fastest
while CliniDeID generally had the highest accuracy'' (Docket ID 0095).
While the study concluded that ``no perfect solution exists for text
de-identification,'' the system with the highest accuracy displayed 97%
or greater precision (positive predicted value) and recall
(sensitivity) for name, age, and address. The study mentions but does
not compare two additional commercially available packages, and OSHA is
aware of at least two more packages that have become commercially
available since the publication of the proposed rule (see https://atlasti.com/ and https://privacy-analytics.com/health-data-privacy/health-data-software/).\9\ The PRR agreed that available software is
capable of ``scrap[ing] the data and remov[ing] direct identifiers''
and supported the agency's use of this technology (Docket ID 0094).
---------------------------------------------------------------------------
\9\ The inclusion of links to particular items or references to
particular companies or products is not intended to reflect their
importance, nor is it intended to endorse any views, or products, or
services.
---------------------------------------------------------------------------
As explained in the preamble to the proposed rule, OSHA intends to
test multiple systems, including systems that are commercially
available, and analyze the results carefully to select the best option
to secure and protect information that could reasonably be expected to
identify individuals directly. No option is expected to be 100%
effective. Therefore, OSHA will supplement the selected system with
some manual review of the data, in order to ensure the system
adequately protects such information.\10\
---------------------------------------------------------------------------
\10\ OSHA notes that the 2019 final rule contemplated two levels
of manual case-by-case review of submitted data (84 FR 400). In this
rulemaking, the agency finds that such review is not necessary. OSHA
will guard against the publication of information which could
directly identify or lead to the identification of workers using the
measures discussed above, including the use of automated de-
identification technology, supplemented with some manual review of
the data. OSHA finds that these measures appropriately mitigate
employee-privacy-related concerns.
---------------------------------------------------------------------------
In summary, OSHA has determined that the agency will be able to
adequately protect information that could reasonably be expected to
identify individuals directly using the safeguards in this final rule
and OSHA's planned data collection system, in combination with warnings
to
employers and available automated information technology. OSHA also
intends to consult with technical experts within the Federal
Government, and agrees with the commenters who pointed out the
relevance of MSHA's data collection to OSHA's proposed data collection
(see Section III.B.8 of this Summary and Explanation). In addition, the
use of the automated informational technology will significantly
decrease the need for the type of resource-intensive manual reviews
that OSHA was concerned about in the 2019 rulemaking. OSHA does
recognize the possibility that information could be released that could
be used to identify an employee--this is a risk whenever any
organization collects information that relates to individuals; however,
OSHA intends to minimize this risk to the extent possible. The most
reliable means of protecting individuals' information is by not
requiring its submission in the first instance; therefore, OSHA has
determined that it will not collect fields like employee name as part
of this expanded data collection (see Section III.D of this Summary and
Explanation). Even if some minimal risk to privacy remains, however,
OSHA finds that the benefits of collecting and publishing the data for
improving safety and health outweigh that risk.
7. Indirect Identification of Individuals
In the proposal, OSHA acknowledged that the OSHA Forms 300 and 301
also contain fields that are not direct identifiers but that could act
as indirect identifiers if released and combined with other
information, such as job title on the Form 300, time employee began
work on the Form 301, and date of death on the Form 301 (87 FR 18538).
However, because this risk of re-identification already exists (given
that OSHA has previously released such information in response to FOIA
requests) and OSHA had not been made aware of widespread issues
regarding employee reidentification, the agency preliminarily did not
see any cause for concern.\11\ Nonetheless, some commenters argued that
OSHA underestimated the possibility that personal information will be
disclosed under this rule because third parties (such as data miners,
the media, or even neighbors or acquaintances of an injured or ill
worker) will be able to determine the identity of that worker.
---------------------------------------------------------------------------
\11\ The only report OSHA has received regarding actual
reidentification of employees from data released by OSHA is
discussed below. And, as noted in that discussion, it is not clear
from the report that the information which caused the
reidentification is comparable to the information that would be
released pursuant to this rulemaking (e.g., the size of the
establishment where the identified employees worked, the information
that caused them to be reidentified). Given that uncertainty and the
fact that OSHA has been releasing information from establishments'
Forms 300 and 301 in response to FOIA requests for many years, this
single report does not persuade the agency that the benefits of this
rulemaking are outweighed by what OSHA believes is a minimal risk to
employee privacy.
---------------------------------------------------------------------------
Some of these comments seem to assume that establishments will
submit all information on the Forms 300 and 301 to OSHA, something that
has never been under consideration (see, e.g., Docket IDs 0007, 0013,
0062). Others, however, expressed concern that, even though OSHA
intends to delete names and other identifiable information from the
collected 300 and 301 data, enough information will remain in the
published data for the public to identify injured or ill employees
(Docket IDs 0053, 0059, 0062, 0081, 0086, 0090). For example, the Motor
and Equipment Manufacturers Association commented, ``concerns that
individual data fields could be linked and used to identify injured
employees--even if the information, standing alone, would not be
considered traditional PII--were raised in prior rulemakings and were a
part of OSHA's justification for issuing the 2019 rescission rule''
(Docket ID 0075).
Some such commenters expressed concerns about the publication of
specific fields. For example, the Plastics Industry Association (PIA)
expressed concern about the identification of workers through the
publication of information about job title, department, and gender
(Docket ID 0086). PIA also noted that ``many employees have established
social network accounts that list their name and position with their
employer. Those profiles typically include the month and year the
employee began working for the employer, a potentially reliable
personal identifier that corresponds to the date of hire listed in
field 4. Some unknown number of those profiles include birth dates, a
potentially reliable personal identifier that corresponds to field 3''
(Docket ID 0086). Consequently, PIA argued that OSHA should either
exclude birth date and hiring date data from the collected information
or reliably establish certain fields of collected information that are
available only to OSHA and not the general public (Docket ID 0086).
An anonymous commenter also stated that ``columns C, D, E, and F of
the 300 form and [(job title, date of injury of onset of illness, where
the event occurred, and the description of the injury or illness, parts
of body affected, and object/substance that directly injured or made
person ill)] and fields 3, 11, 13, 14, 15, 16, and 17 of the 301 form
[(date of birth, date of injury or illness, time of event, and
descriptions of what the employee was doing just before the incident
occurred, what happened, what the injury or illness was, and what
object or substance directly harmed the employee)] should be submitted
but not made accessible by an member of the public on the internet''
(Docket ID 0074).
According to some of the commenters who expressed concern about
indirect identification, the concern is particularly acute in smaller
communities where more of the residents know each other. The U.S.
Poultry and Egg Association commented, ``We emphasize that many of our
members operate establishments in small, rural locations. People know
one another. Publishing this information and data will significantly
impact employee privacy. And simply redacting the names of the persons
affected will not prevent people--particularly in small towns--from
knowing exactly who was injured and the extent of the injury.'' (Docket
ID 0053). The North American Insulation Manufacturers Association and
National Association of Home Builders made similar comments (Docket IDs
0081, 0059).
A related concern involves data companies that have developed tools
that scrape data and link to relational databases. PRR commented that
``developers will be able to create tools that scrape [public injury
and illness data] . . ., including job titles, facility locations,
company names and facts from open narrative text fields'' and, when
used in combination with information obtained via other internet
sources, ``developers will be able to potentially re-identify
individuals with a high degree of accuracy.'' In addition, this
commenter stated that developers will be able to use the same tools,
including artificial intelligence algorithms, for a multitude of
reasons including to develop targeted sales campaigns and recruitment
strategies, which would not contribute to workplace safety (Docket ID
0094).
As discussed in detail in Section III.B.4.c-h of this Summary and
Explanation, other commenters supported the publication of the fields
OSHA proposed to publish. For example, AFL-CIO agreed with the agency's
determination about what to publish and what to collect but not
publish, noting that the agency ``carefully considered issues of worker
privacy'' (Docket ID 0061). Similarly, the National Employment Law
Project (NELP) stated that ``adopting the proposed standard will not
put individual privacy at risk'' (Docket ID 0049, Attachment 2). NELP
cited to OSHA's preliminary decision to withhold certain fields from
disclosure as one of the reasons it believed that worker privacy was
not at risk (Docket ID 0049, Attachment 2).
Still other interested parties argued in favor of publication of
such information. For example, NIOSH noted that information such as age
and date of hire could be useful information to publish (Docket ID
0035, Attachment 2; see also Docket ID 0083 (agreeing with NIOSH's
comment)). However, NIOSH added that if cannot be released as part of
the individual injury case records, it is still important for this data
to be used in aggregate analysis of injuries on the industry and
occupation levels'' (Docket ID 0035, Attachment 2). NIOSH further
requested that OSHA facilitate analysis of these data ``under terms of
data use agreements with other Federal or State government agencies
(such as NIOSH or State health departments) (Docket ID 0035, Attachment
2). The Council of State and Territorial Epidemiologists also generally
supported the dissemination of collected information from existing
records, stating that ``[m]aking this information broadly available is
consistent with the growing recognition, predominant in the patient
safety field, that transparency--sharing of information, including
information about hazards--is a critical aspect of safety culture
(Docket ID 0040). Further, again as discussed in Section III.B.4.c-h of
this Summary and Explanation, commenters argued that the publication of
the data OSHA proposed to make public will be beneficial to employers,
employees, Federal and State agencies, researchers, workplace safety
consultants, members of the public and other interested parties.
Having considered the comment on these issues, OSHA recognizes the
concerns of interested parties who are concerned about publication of
select information from establishments' Forms 300 and 301, but believes
these risks are mitigated by decisions OSHA has made with regard to
which data should be collected and published and other safeguards that
OSHA will be observing (e.g., only requiring larger establishments to
submit data). First, as noted above, OSHA has decided to collect but
not publish five fields from Form 301 that it has decided contain
information about personal characteristics, employment history, and
medical treatment: Age (calculated from date of birth in field 3), date
hired (field 4), gender (field 5), whether the employee was treated in
the emergency room (field 8), and whether the employee was hospitalized
overnight as an in-patient (field 9). The agency believes it is
appropriate to refrain from releasing these data because of privacy
concerns and the potential risk of indirect individual identification
raised by commenters regarding the publication of this information. As
noted above, this decision is consistent with the manner in which OSHA
handles responses to FOIA requests, as well as 29 CFR
1904.35(b)(2)(v)(A)-(B).
However, as discussed below in Section III.D of this Summary and
Explanation, OSHA still finds that there is a significant safety and
health benefit with the collection and analysis of information about
these fields. For example, in some cases, young workers lack necessary
training and experience and may be assigned to more hazardous tasks,
subjecting them to higher rates of injury or illness in some industries
and occupations. Likewise, it is important for OSHA to know whether
older workers are more vulnerable to certain types of injuries and
illnesses. Also, information about gender is valuable to OSHA in
determining whether men or women face greater risk to certain workplace
hazards (e.g., injury victims of intentional attacks in the workplace
are disproportionately likely to be women). In addition, information
about visits to emergency rooms and hospitals assists OSHA in tracking
the type and severity of employee injuries and illnesses in specific
industries and occupations. Further, OSHA could use these data in
combination with other available data, such as Severe Injury Reporting
data, to assess data accuracy and reporting compliance.
Although OSHA has found that it is not appropriate to publish the
five fields from Form 301, the agency notes and will consider NIOSH's
suggestion that those fields could be shared with NIOSH and other
government agencies outside of this rulemaking utilizing appropriate
privacy protections, e.g., via a written data sharing agreement with
robust privacy protections.
As to the fields that OSHA plans to collect and publish (e.g., job
title), the agency believes that the final rule appropriately protects
against re-identification of individuals via the release of this
information. Specifically, the final rule requires only establishments
with 100 or more employees, in certain designated, high-hazard
industries, to electronically submit information from their Forms 300
and 301. OSHA believes it is less likely that employees in these larger
establishments would be identified based on the limited recordkeeping
data posted on the public website, even in small towns. Moreover, in
the vast majority of cases, at establishments with 100 or more
employees, OSHA believes it is unlikely that anyone other than
employees at the workplace would be able to use the collected and
published data from the Forms 300 and 301 to identify the injured or
ill employee. For example, if only one individual performs a certain
job at an establishment with 100 or more employees, OSHA believes that
it is highly unlikely that anyone other than employees with specific
knowledge of that workplace would be able to use the remaining
information from the Forms 300 and 301 to identify that employee. As
discussed above, employees at the worksite already have access to
information from the Forms 300 and 301, and thus publication of these
forms would not add any risk of individual employee identification.
In fact, even though OSHA has released redacted Forms 300 and 301
in response to FOIA requests for more than a decade (see the discussion
of the Freedom of Information Act in Section III.B.5 of this Summary
and Explanation for more details), only one commenter claimed knowledge
of any employees being identified through OSHA data. Specifically, the
Coalition asserted that several members of the Coalition have had third
parties, including the media, contact their employees about their
personal and medical information, including information related to
COVID-19, because their identities were discerned from information
provided to and released by OSHA (Docket ID 0087).
The Coalition's comment did not specify the size of the
establishments at which the employees contacted by the third parties
worked (i.e., whether the establishments employed fewer than 100
employees), how the third parties used the information OSHA released to
identify those employees, or whether there is any reason to believe
that the employees' identities were not already publicly known. It also
does not specify whether the employee identities became known through
the release of the injury and illness data at issue in this rulemaking
(i.e., Forms 300 and 301), another document in the released portion of
the inspection files, or a combination of the two. Consequently, based
on the information submitted by this commenter, it is impossible to
tell whether the third parties would have been able to identify these
``several'' employees using the case-specific information OSHA plans to
collect and
release in this rulemaking--information that will be submitted by
relatively large establishments.
Nevertheless, OSHA takes the issue of employee privacy and the
possibility of employee re-identification very seriously. As discussed
in Section III.B.1 of this Summary and Explanation, OSHA chose the 100-
employee threshold for the collection of case-specific data, in part,
to minimize the burden on small businesses and to protect the identity
of employees by only requiring relatively large businesses to submit
their data. It similarly has carefully considered which fields from
these forms should be collected and released with employee re-
identification in mind. With these safeguards, OSHA believes the risk
of indirect employee identification is minimal.
Moreover, as discussed throughout this preamble, OSHA finds that
the benefits to worker and safety and health that stem from the release
of this information outweigh any privacy risks. For example, as to job
title specifically, researchers will be able to use this information to
analyze and identify specific occupations associated with particular
types of injuries and illnesses in the workplace. Also, publication of
such data will allow the public to better understand and evaluate the
injury and illness rates for certain jobs, tasks, and/or occupations.
Potential employees will be able to review published data to assess the
workplace injury/illness experience of a given job at a particular
facility. In turn, employers will focus their safety and health efforts
to reduce the number of injuries and illnesses associated with certain
jobs as a way to attract well-qualified job candidates. Similarly, the
publication of information about job title will assist researchers in
analyzing and identifying injury and illness trends for specific jobs,
tasks, or occupations. Better analysis of these data should result in
the development of improved mitigation strategies and result in the
reduction of injuries and illnesses for certain jobs. Similarly, OSHA
believes that the publication of the other fields it proposed to
publish will have safety and health benefits that outweigh any small
risks to worker privacy. For example, time employee began work will
help OSHA, employers, researchers, and others assess the relationship
between workplace safety/health and known risks such as shift work and
fatigue.
8. The Experience of Other Federal Agencies
As noted above, OSHA's belief that it can collect and publish the
data at issue without harm to privacy or other interests is supported
by the experience of its sister agency, the Mine Safety and Health
Administration (MSHA). Under 30 CFR part 50, MSHA requires mine
operators to submit an incident report (Mine Accident, Injury and
Illness Report, MSHA Form 700-1) within ten working days for every
occupational injury, illness, or near-miss incident occurring at a
mine. The MSHA Form 700-1 includes 27 mandatory fields, including a
description of the incident, the nature of the injury or illness, the
job title of the affected worker, and the employee's work activity at
the time of the injury or illness. Under this reporting system, mine
operators use an authentication code and password to securely submit
establishment-specific, case-specific, injury and illness data online.
MSHA maintains the injury and illness information on its website and
the information is made available to the public through downloadable
format. The submitted information is reviewed by at least three
approving authorities, and PII is redacted, before it is uploaded to
the database for public release. This system has been in place since
1999 with no adverse results.
Several commenters also suggested that MSHA's experience supports
OSHA's plan to publish redacted information on occupational injuries
and illnesses (e.g., Docket IDs 0049, 0061, 0063). The National
Employment Law Project commented, ``MSHA keeps and has kept for decades
the PII on the form protected. Clearly, MSHA's system demonstrates that
the Department of Labor can post case specific data without releasing
PII'' (Docket ID 0049). The AFL-CIO recommended that OSHA collaborate
with MSHA, NIOSH and other agencies ``with a demonstrated commitment
and capability to collect and utilize injury and illness data, while
protecting employee privacy, and institute similar procedures for the
collection, sharing and utilization of injury and illness data reported
on the OSHA Form 300 and Form 301'' (Docket ID 0061). Worksafe
submitted similar comments and added that OSHA's proposed rule is quite
modest compared to the reporting requirements for employers in the
mining industry (Docket ID 0063). OSHA has been and expects to continue
consulting with MSHA, NIOSH, and other Federal agencies while
implementing the injury and illness data collection and publication
requirements of this final rule.
Finally, on this topic, OSHA notes that MSHA is not alone in its
release of information that theoretically could identify individuals
indirectly if released and combined with other information. 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). In addition, the Federal Aviation Administration (FAA) posts
National Transportation Safety Board (NTSB) reports about aviation
accidents. These reports include information about employees, including
job history and medical information. Again, OSHA is not aware of any
issues related to the release of such information, a lack that OSHA
believes supports its decision to release the relevant information
collected in this rulemaking.
9. Risk of Cyber Attack
Cyber security is another issue that OSHA has considered in
thinking through how to protect the Form 300 and 301 information safe.
OSHA received comments on this issue in the rulemaking that led to the
2016 final rule and, after considering those comments, the agency
disagreed with those commenters who suggested that OSHA would not be
able to protect employee information (81 FR 29633). In so doing, OSHA
observed that ``[a]ll 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'' (81 FR 29633). Similarly, in the 2019
final rule, OSHA again received and considered comments on the issue of
cyber security, ultimately finding that ``the ITA data meet the
security requirements for government data'' (84 FR 388). In addition,
the agency did ``not find that collecting the data from Forms 300 and
301 would increase the risk of a successful cyber-attack'' (84 FR 388).
However, the agency noted that some risk of cyberattack and subsequent
data risk remained (84 FR 388). And OSHA Stated that it shared concerns
of some commenters about how having thousands of businesses upload a
large volume of additional data could
generally increase risk for cyber-security issues (84 FR 388).
OSHA received some comments about cyber security in response to the
NPRM in this rulemaking. For example, the U.S. Poultry & Egg
Association commented, ``On August 14, 2017, the U.S. Department of
Homeland Security notified OSHA of a security breach of the recently
activated online incident reporting page. While the full extent of this
breach is unknown, it is an unsettling circumstance for employers that
a security incident occurred and to learn of the occurrence of a
security breach significant enough to shut down the reporting system.''
(Docket ID 0053).
The Coalition submitted a comment that addressed the same potential
security breach: ``As OSHA is well aware, industry concerns about
worker privacy breaches came to fruition shortly after the ITA was
rolled-out. As determined by the Department of Homeland Security
(``DHS''), a serious potential breach of the ITA system occurred . . .
virtually immediately after the ITA system had gone live. Although the
security issues associated with that breach have since been resolved,
industry is fearful of submitting hundreds of thousands of pieces of
personal data with personal identifier information (``PII'') on a
portal that has already had suspicious activity that warranted DHS
scrutiny. As OSHA notes, the ITA episode demonstrated that such large
data collection will inevitably encounter malware and may even
incentivize cyber-attacks on the Department of Labor's (``DOL'')'s IT
system. We are aware of OSHA's view that, since 2019, the DOL's
cybersecurity protective software has improved. However, the cyber
security risk of employees' highly confidential and personal medical
information being hacked and published, or used in other even more
nefarious ways, has become even more serious since the Agency decided
it was too risky to collect 300 and 301 level data a few years ago.
Since 2019, the threat and sophistication of cybersecurity attacks has
also grown immensely, outpacing the development of cybersecurity
protections. The lack of confidence in protecting data has never been
greater in this country.'' (Docket ID 0087).
In response, OSHA notes that an investigation of the 2017 incident
by the Department of Labor's IT team found there was no breach of data.
The ITA detected a virus on a user's computer and blocked that user
from accessing the system, as it was designed to do. In other words,
the ITA's security system functioned properly and there was no security
breach. No other cyber-security issues have been reported. In addition,
as explained above, the agency's decision to change course on
collecting information from Forms 300 and 301 was not based on cyber-
security concerns.
This successful performance of the ITA's security system in this
attempted breach underscores OSHA's finding in 2016: although here is
some risk cyber attack, the Department of Labor's systems are prepared
to defend against such attacks. As explained in the 2016 final rule,
regardless of the category of information, all Department of Labor
agencies must comply with the Privacy and Security Statement posted on
DOL's website. 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.
Consequently, in this rulemaking, OSHA finds that the data that will be
collected in compliance with this final rule will be protected from
cyber attack in accordance with the appropriate government standards.
10. The Health Information Portability and Accountability Act (HIPAA)
OSHA also received comments from some interested parties expressing
concern about how the proposed rule would relate to the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), Public
Law 101-191 (e.g., Docket IDs 0007, 0013, 0059, 0082). For example, two
interested parties commented that the OSHA Forms 300 and 301 include
personal and private information about an employee's health and
wellness, and that requiring the submission of such information to OSHA
will place employers in legal liability due to HIPAA restrictions
(Docket IDs 0007, 0013). But as explained below, HIPAA's implementing
regulations specifically allow employers to release workplace injury
and illness data to OSHA.
The U.S. Department of Health and Human Services (HHS) implements
HIPAA through regulations at 45 CFR parts 160 and 164, known as the
HIPAA ``Privacy Rule.'' The Privacy Rule protects the privacy of
individually identifiable health information (referred to as
``protected health information'' or ``PHI'') maintained or transmitted
by HIPAA-covered entities and their business associates. The term
``covered entity'' includes health plans, health care clearing houses,
and health care providers who transmit health information in electronic
form (see 45 CFR 160.104). OSHA is not a covered entity for purposes of
the Privacy Rule, so the use and disclosure requirements of the Privacy
Rule do not apply to OSHA.
The HIPAA Privacy Rule also excludes certain individually
identifiable health information from the definition of PHI. For
example, employment records held by a covered entity in its role as an
employer are not PHI and the HIPAA Privacy Rule does not prohibit the
disclosure of health information contained in employment records to
OSHA (see 45 CFR part 160.103). Even for information that qualifies as
PHI, the Privacy Rule specifically permits disclosures of PHI without
an individual's authorization for certain purposes, including when they
are required to do so by another law (see 45 CFR 164.512(a)). HHS has
made clear that this provision encompasses an 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). Similarly, a covered entity may also disclose PHI
without an individual's authorization to ``public health authorities''
and to ``health oversight agencies'' (see 45 CFR parts 164.512(b) and
(d)). The preamble to the Privacy Rule issued in 2000 specifically
mentions OSHA as an example of both (see 65 FR 82492, 82526). Finally,
the Privacy Rule also permits a covered entity who is a member of the
employer's workforce and provides healthcare 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 Federal Mine Safety and Health Act, or under similar State law
to keep records on or act on such information. Accordingly, covered
entities generally may not restrict or refuse to disclose PII required
by an OSHA standard or regulation based on the provisions of the
Privacy Rule.
OSHA also received comments from interested parties that, while
recognizing that HIPAA does not apply to the information disclosures at
issue here, argued that OSHA ``should examine the principles of HIPPA
in determining how to proceed--or not proceed--with this rule'' (Docket
ID 0059; see also Docket ID 0082). For example, NAHB asserted ``HIP[A]A
recognizes the legitimate privacy interests that individuals have with
respect to their own health information.
HIP[A]A also recognizes that aspects of a person's health record can
serve as an identifier of a person under certain circumstances. And
HIP[A]A recognizes that this is not acceptable'' (Docket ID 0059). NAHB
further argued that ``[t]he procedure for OSHA reviewing this should
have been thoroughly considered and addressed in the proposed
regulation; it was not'' (Docket ID 0059).
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. 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 are no longer 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 OSHA's website.
However, OSHA disagrees with NAHB's claim that ``OSHA has provided
no thought regarding what types of information it will or should redact
to protect employees, except to mention that it may redact names and
other information that it would otherwise need to redact under the
Freedom of Information Act'' or that the agency's procedure was not
``thoroughly considered and addressed'' in the proposal (Docket ID
0059). As reiterated above, the proposal specified which fields the
agency proposed to collect and what subset of that collected
information it planned to release. It also detailed its plans to ensure
that it did not collect certain data (e.g., by not requiring the
submission of certain data fields and designing the system to remind
establishments not to submit certain data) and ways to protect the data
it does receive (e.g., carefully choosing which fields would be
publicly released and using scrubbing technology to ensure that data
contained in the fields to be released did not unintentionally include
information which could reasonably be expected to identify individuals
directly). In sum, contrary to NAHB's assertion, the agency has
carefully considered how to protect information that could reasonably
be expected to identify individuals directly and explained its plans
and thinking in the proposal.
11. The Americans With Disabilities Act (ADA)
OSHA also received comments related to the Americans with
Disabilities Act (ADA). Specifically, in their comment, the Seventeen
AGs noted that ``if a certain type of occupational injury regularly
leads to ongoing disability in a particular industry or place of
work,'' the case-specific data that would be collected and published
under the proposed rule would allow States to ``explore what
accommodations those employers provide, for example, whether affected
workers have been placed in appropriate positions with reasonable
accommodations as required under the [(ADA)] and similar State laws''
(Docket ID 0045). OSHA agrees with this commenter that this kind of
inquiry is one of the many benefits that will stem from this final
rule.
The Seventeen AGs' mention of the ADA raises the question of its
applicability to this final rule, a question that has been raised in
the rulemakings culminating in the 2016 and 2019 final rules (see 81 FR
29665-66; 84 FR 387). At various times as OSHA has considered whether
to collect and publish information from establishments' Forms 300 and
301 (and 300A, as well), commenters have raised concerns about whether
the ADA would prohibit establishments from releasing health and
disability-related information to OSHA. It would not. The ADA would
permit the collection by employers of such information.
By its terms, the ADA limits disability-related inquiries and
medical examinations of job applicants or employees and requires
confidentiality for medical information obtained from any such
inquiries or medical examinations. However, the ADA also 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 the OSH Act and the 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.). 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 (see Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the ADA [verbar]
U.S. Equal Employment Opportunity Commission (eeoc.gov) Enforcement
Guidance on Disability-Related Inquiries and Medical Examinations of
Employees under the ADA [verbar] U.S. Equal Employment Opportunity
Commission (eeoc.gov) (available at: https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees), at Question 21). The ADA recognizes the
primacy of other Federal laws including Federal safety and health
regulations; therefore, such regulations, including mandatory OSHA
recordkeeping requirements and disclosure 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.'')).
It also is worth noting that 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 Title I of the ADA, which addresses
employment, 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
generally 29 CFR 1630.15(e) and EEOC Enforcement Guidance: Workers'
Compensation and the ADA (available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada), (September
3, 1996)). 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.
12. The Privacy Act
The Plastics Industry Association commented that a failure by OSHA
to exclude or reliably redact all personal identifiers and personally
identifiable medical information would violate the Privacy Act of 1974,
5 U.S.C. 552a, as well as other privacy laws (Docket ID 0086).
In response, OSHA notes that the Privacy Act is a Federal statute
that establishes a code of fair information practices that governs the
collection, maintenance, use, and dissemination of personal
identifiable information by Federal agencies. 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
website. However, OSHA again wishes to emphasize that, consistent with
the applicable exemptions under FOIA, the agency does not intend to
post personally identifiable information on the website.
13. Privacy Impact Assessment
Section 208 of the E-Government Act requires Federal agencies to
conduct a Privacy Impact Assessment when developing or procuring new
information technology involving the collection, maintenance, or
dissemination of information in identifiable form or when making
substantial changes to existing information technology that manages
information in identifiable form. In the preamble to the proposed rule,
OSHA stated that it expected to complete a Privacy Impact Assessment
before issuing the final rule (87 FR 18540). Several commenters
supported this step (Docket IDs 0058, 0068, 0072, 0077, 0094).
OSHA now has completed a Privacy Impact Assessment for this final
rule which is available at https://www.dol.gov/agencies/oasam/centers-offices/ocio/privacy (Docket ID 0107). In the Privacy Impact
Assessment, OSHA determined that the safeguards and controls described
in this preamble will adequately protect the collected and published
data addressed in the final rule.
14. Other Issues Related to OSHA's Proposal To Require the Submission
of and Then Publish Certain Data From Establishments' Forms 300 and 301
a. Miscellaneous Comments
OSHA received a variety of other comments related to its proposal
to require certain establishments to submit certain data from their
Forms 300 and 301 and its plan to then publish a subset of that data.
For example, some interested parties expressed concern over repeated
rulemakings addressing the electronic submission of injury and illness
data to OSHA (e.g., Docket IDs 0058, 0060, 0071, 0072, 0077). The
Associated Builders and Contractors (ABC) commented, ``we hope that
OSHA recognizes that the frequent revisions it has made related to the
requirements surrounding electronic reporting of injury and illness
data has caused confusion and uncertainty among construction contractor
employers in respect to what requirements apply to their businesses,
especially for small businesses'' (Docket ID 0071). Similarly, the
Window and Door Manufacturers Association commented, ``OSHA must also
consider the impact that the agency's repeated changes and reversals to
its recordkeeping policies has had on employers, especially smaller
entities. This year's proposed rule is now the third such rulemaking by
OSHA on injury and illness recordkeeping since 2014.'' This commenter
added that the frequent changes to recordkeeping regulations have
resulted in confusion among employers regarding what requirements apply
to their business (Docket ID 0072). The Coalition for Workplace Safety,
the National Demolition Association, and the National Lumber and
Building Materials Association submitted similar comments (Docket IDs
0058, 0060, 0077).
OSHA acknowledges that some employers may be confused by the
multiple rulemakings amending the part 1904 requirements for certain
employers to electronically submit injury and illness data from their
Forms 300 and 301. However, OSHA believes this rulemaking provided
potentially affected employers with clear notice of the possibility
that their obligations might change. And OSHA plans to implement a
robust roll-out plan to alert employers of the final rule's
requirements. Moreover, even if some confusion remains, OSHA must place
primary importance on whether new occupational safety and health
requirements will help ``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'' (see 29 U.S.C. 651(b)(12)). As discussed above in
Section II, Legal Authority, Section 8 of the OSH Act provides OSHA
with broad authority to prescribe regulations as necessary or
appropriate for the enforcement of the OSH Act and for developing
information about the causes and prevention of occupational injuries
and illnesses. Federal agencies, furthermore, are permitted to change
or reverse prior policies, provided that they provide a reasoned
explanation for the change. In this rulemaking, OSHA has made every
effort to balance the benefits of this rule to occupational safety and
health against any potential burden created for the regulated
community, and has explained the reasons supporting any changes in
OSHA's prior policies throughout this preamble.
As explained in more detail below, based on its experience with the
collection of injury and illness data through the ITA, and with the
advancements in technology to protect individual privacy, OSHA has
determined that it is necessary and appropriate at this time to require
certain larger establishments in higher hazard industries to
electronically submit data from their Forms 300 and 301 to OSHA once a
year. OSHA believes that this requirement to submit case-specific data
will have significant benefits for occupational safety and health,
especially since the requirement applies to certain establishments in
higher hazard industries where such reporting will have the greatest
impact on reducing injury and illness rates.
b. The Effect of the Rule on the Accuracy of Injury and Illness Records
OSHA received comments expressing concern that OSHA collection and
publication of data from Forms 300 and 301 would lead to less accurate
data, because employers may respond by recording fewer injuries and
illnesses (i.e., under-recording) (e.g., Docket IDs 0052, 0053, 0088,
0090). One commenter, Angela Rodriguez, stated that some employers may
be tempted to avoid logging recordable cases (Docket ID 0052). The U.
S. Poultry & Egg Association commented that employers might record less
information because of fears that recording more cases could
harm recruitment and retention of employees (Docket ID 0053), while the
National Retail Federation stated that ``fear of developing a negative
image in their communities, may cause managers to underreport injuries
and illnesses that occur at the workplace to protect their business
reputation'' thereby reducing the accuracy of the data OSHA collects
(Docket ID 0090). NIOSH commented that employers might submit inflated
employee counts to OSHA in order to reduce their injury and illness
rates or alter their NAICS code to avoid the rule's requirements
(Docket ID 0035, Attachment 2).
In response, OSHA notes that, as discussed above in Section III.B.4
of this Summary and Explanation, the agency already publishes
establishment-specific information from the OSHA Form 300A. Because the
new information employers will be submitting under the final rule
(i.e., the information from Forms 300 and 301) is simply the more
specific information underlying the data from the 300A that employers
are already submitting (and that is already being published online), it
is not clear to OSHA why publishing the additional information would
change any existing incentives to under-record or to falsify
information. Commenters did not provide any examples of increased
under-recording as a result of the collection and publication of Form
300A data, nor is OSHA aware of any. While OSHA believes that most
employers act in good faith when carrying out their recordkeeping
duties under the OSH Act, failing to record injuries or illnesses, or
submitting false information to OSHA, could result in a citation for a
violation of OSHA's recordkeeping regulations. In addition, employers
that falsify information provided to the government could also be found
to have violated 18 U.S.C. 1001(a), which prohibits the knowing and
willful provision of false information regarding material facts on
matters that are under the jurisdiction of the Executive branch, or
Section 17(g) of the OSH Act, 29 U.S.C. 665(g), which prohibits
knowingly making any false statement, representation, or certification
in any application, record, report, plan, or other document filed or
required to be maintained pursuant to the OSH Act.
Some commenters raised the possibility that expanded data
collection and publication could lead some employers to record fewer
injuries and illnesses for which work-relatedness is unclear (e.g.,
Docket IDs 0042, 0086, 0088). For example, the Chamber of Commerce
stated that employers ``will reconsider whether to record as many
injuries or illnesses'' and pointed in particular to cases in which
work-relatedness is difficult to determine (Docket ID 0088).
While OSHA recognizes that there are cases in which the analysis of
work-relatedness may not be straightforward, OSHA also notes that
employers are required to make good faith efforts to determine whether
an injury or illness is work-related in order to establish whether the
case is recordable under part 1904 (see Sec. 1904.4(a)). There is a
good deal of guidance in OSHA's recordkeeping regulations themselves
(see Sec. 1904.5) on how to determine if an employee's injury or
illness is work-related, including: general guidance for when a case is
considered to be work-related and when work-relatedness is presumed
(Sec. 1904.5(a)); a list of circumstances in which cases that occur in
the work environment are not work-related (Sec. 1904.5(b)(2)); and
instructions for how to determine work relatedness when employees are
injured or become ill during work travel or while working from home
(Sec. 1904.5(b)(6), (7)). Further guidance on the work-relatedness
determination, as well as useful examples, can be found on OSHA's web
page, Detailed Guidance for OSHA's Injury and Illness Recordkeeping
Rule (https://www.osha.gov/recordkeeping/entry-faq). While OSHA does
not issue citations for over-recording, to the extent that this rule
encourages employers to record only cases that they have determined are
work-related, OSHA would expect the rule to increase the accuracy of
the data that is recorded and then submitted to OSHA. Indeed, the
Chamber of Commerce appears to support this as a likely outcome,
stating that employers ``may look more closely as to whether the injury
or illness is work related and needs to be recorded'' (Docket ID 0088).
Some commenters also expressed concern that expanded data
collection and publication would lead to greater underreporting by
employees of their workplace injuries and illnesses, thereby reducing
the data's accuracy (e.g., Docket IDs 0042, 0055, 0056, 0070, 0086,
0087). The Employers E-Recordkeeping Coalition stated that it ``is very
concerned that the increased risk of employee personal and medical
information being collected by a Federal agency and then publicized,
albeit inadvertently, will create a significant disincentive for
employees to report workplace injuries that are recordable events''
(Docket ID 0087). Worksafe and the Strategic Organizing Center
suggested that OSHA add a provision to prohibit employer practices that
discourage the reporting of injuries and illnesses by employers,
pointing to employer programs that disincentive reporting as well as
workers' fear of retaliation for reporting an injury or illness to
their employer (Docket IDs 0063, 0079).
With respect to the impact of privacy concerns on employee
reporting, OSHA understands the importance of protecting personally
identifiable information and notes that there is a very low risk that
information that could reasonably be expected to identify individuals
directly will be disclosed as a result of this final rule. OSHA
acknowledges commenters' concerns about the potential posting of this
type of information on a publicly accessible website. However, the
posting or disclosure of information that could reasonably be expected
to identify an individual directly is not the intent, nor is it a
likely result, of this rulemaking. As explained in more detail in
Section III.B.6 of this Summary and Explanation, above, OSHA believes
it has, and will have, effective safeguards in place to prevent the
disclosure of that type of information. Further, OSHA hopes that
employers will educate their employees about the safeguards OSHA is
putting into place to protect against the disclosure of information
that could reasonably be expected to identify individuals directly.
OSHA also intends to include materials for employees in the materials
that will be created to educate interested parties about the
requirements of the rule as well as those safeguards.
In response to Worksafe's comment proposing a new regulatory
provision prohibiting employer practices that discourage employee
reporting, OSHA notes that the recordkeeping regulations, at Sec.
1904.35(b)(1)(i), already require employers to establish reasonable
procedures for reporting work-related illnesses and injuries that do
not deter or discourage employees from accurately reporting their
injuries or illnesses. Furthermore, the regulations explicitly prohibit
employers from discharging or otherwise discriminating against
employees for reporting work-related injuries and illnesses (Sec.
1904.35(b)(1)(iv); see also Sec. 1904.36). And as OSHA clarified in
the 2016 final rule which contained these recordkeeping provisions, a
workplace safety incentive program could be found to violate Sec.
1904.35 if employees are penalized for reporting work-related injuries
or illnesses as part of the program (81 FR 29673-74). OSHA further
stated that the changes were designed 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'' (81 FR 29669). Thus,
OSHA has addressed this issue in its regulations since 2016. Moreover,
OSHA has recognized since at least 2012 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 https://www.osha.gov/laws-regs/standardinterpretations/2012-03-12-0; 81 FR 29673-74).
In contrast to those who argued that the final rule will lead to
less accurate data, other commenters argued that the expanded data
collection and publication will lead to more accurate data, because of
increased transparency and oversight (e.g., Docket IDs 0049, 0066,
0084, 0089). For example, the United Food and Commercial Workers
International Union (UFCW) stated, ``We anticipate that the requirement
that companies submit data electronically will improve the quantity,
quality, and accuracy of their records, and increase OSHA's and the
public's oversight ability, all of which will improve worker health and
safety also'' (Docket ID 0066). Cal/OSHA noted that the increased
transparency created by the publication of the data will encourage and
support accuracy in injury and illness reporting (Docket ID 0084).
OSHA agrees with commenters who stated that the final rule will
result in improved accuracy of injury and illness records, due to
increased transparency and oversight by OSHA, employees, and others, as
well as awareness by employers that their records could be subject to
additional scrutiny. Section 1904.32 already requires company
executives subject to part 1904 requirements to certify the annual
summary (Form 300A); this process requires them to examine the OSHA 300
Log and certify that the annual summary is correct and complete based
on their examination of the OSHA 300 Log and their knowledge of the
process by which the information was recorded. OSHA recognizes that
most employers are diligent in complying with this requirement.
However, a minority of employers is less diligent, leading to
violations of the recordkeeping regulations. It is OSHA's hope that, if
these employers know that their data must be submitted to the agency
and may also be examined by members of the public and their own
employees, 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.
Increased oversight by labor unions or a company's employees could lead
to corrections to the data if, for example, a labor union discovers
that a known workplace injury of a union member is not included in the
published data and reports the omission to the employer (e.g., Docket
ID 0049). Finally, OSHA notes the comment from NIOSH suggesting various
means of investigating the effect of implementation of this final rule
on compliance with the requirements of part 1904 (Docket ID 0035,
Attachment 2). While the agency has determined that staggered
implementation, where industries with the highest injury rates would be
required to comply first, would be too confusing to implement, OSHA
encourages future studies to assess the effect of the final rule on
injury and illness recording, reporting, and data submission, and to
identify solutions if problems are found.
c. Collecting and Processing the Data From Forms 300 and 301 Will Help
OSHA Use Its Resources More Effectively
In the preamble to the 2019 final rule, OSHA stated that collecting
and processing the Form 300 and 301 data and keeping information
confidential which could reasonably be expected to identify an employee
directly would require the agency to divert resources from other
priorities, including the analysis of Form 300A data (84 FR 392; see
also 84 FR 387). In particular, OSHA was concerned that collecting and
processing this data would prevent it from ``fully utilizing the data
from the Form 300As and severe injury reports it is already collecting
to improve its enforcement and outreach objectives to ensure compliance
with the OSH Act'' (84 FR 393). However, in the NPRM, OSHA explained
that because of improvements in available technology, it would no
longer need to rely on manual review or analysis for Form 300 and 301
data and had preliminarily determined that the agency's resource-
related concerns described in the 2019 final rule were no longer
compelling (87 FR 18541-42). In addition, OSHA explained that the
proposed rule would increase the agency's ability to focus resources on
those workplaces where workers are at high risk (87 FR 18533). In other
words, the proposal would, in some ways, save agency resources by
helping the agency be more efficient, e.g., ``allow[ing] the agency to
focus its enforcement and compliance assistance resources based on
hazard-specific information and trends, and . . . increas[ing] its
ability to identify emerging hazards, at the establishment level'' (87
FR 18538).
A number of interested parties submitted comments on this issue and
generally agreed that the data collected and published under this final
rule will actually help OSHA use its limited resources more effectively
to protect workers. For example, some interested parties, including the
Council of State and Territorial Epidemiologists, National COSH, the
Laborers' Health and Safety Fund of North America, Worksafe, the
International Brotherhood of Teamsters, Centro de los Derechos del
Migrante, and Public Citizen, commented that requiring regular
electronic submission of injury and illness data would help OSHA to use
its limited enforcement and compliance assistance resources more
effectively (Docket IDs 0040, 0048, 0063, 0080, 0083, 0089, 0093). The
AFL-CIO agreed that because OSHA's resources are very limited, it
``must maximize the use of existing tools'' (Docket ID 0061).
Commenters also provided examples of how this data would help OSHA
use its resources more effectively. For example, National COSH, the
National Employment Law Project, and the Centro de los Derechos del
Migrante commented that ``case-specific data will help the agency
identify the hazard-specific materials and other compliance assistance
resources they could direct to employers who report high rates of
injuries or illnesses related to those hazards,'' and ``to workers in
those industries'' (Docket IDs 0048, 0049, 0089). These commenters also
said that the data would ``aid the agency in identifying emerging
hazards . . . and focus outreach to employers and workers whose
workplaces might include those hazards.''
Similarly, Public Citizen commented that the collected data would
enable OSHA to ``quickly pinpoint workplace hazards . . . and target
its enforcement efforts'' (Docket ID 0093). The International Union of
Painters and Allied Trades/AFL-CIO commented that this requirement
would ``ensure factors responsible for those pronounced illness and
injuries trends are identified and addressed in a timely manner for the
well-being of workers'' (Docket ID 0073). Worksafe also noted that
electronic submission would allow the agency ``to search and analyze
the data'' and provide ``timely and systematic'' injury and illness
information that will help OSHA to focus its enforcement efforts on
``hazards that are affecting workers now'' (Docket ID 0063).
On the other hand, the Chamber of Commerce questioned whether the
data
could actually help OSHA target its enforcement efforts (Docket ID
0088, Attachment 2). The Chamber stated that injury and illness data
are complex and ``unavoidably subjective,'' and asserted that because
the log only includes work-related injuries, it does not show actual
risks--rather, ``it shows whether the employer believes that there is a
connection between the working environment and the injuries.''
Additionally, several commenters reiterated OSHA's concerns from the
2019 final rule regarding the diversion of OSHA's resources from other
important initiatives (e.g., Docket IDs 0058, 0070, 0076). Some such
commenters argued that any resource diversion would be inappropriate
because OSHA is incapable of processing and utilizing the Forms 300 and
301 data that would be received under the proposal. OSHA has addressed
those comments elsewhere in this preamble, explaining that the agency
has the capability to collect and use such data (see, e.g., Section
III.B.14.d of this Summary and Explanation). Other commenters merely
referenced OSHA's 2019 determination that its resources would be
diverted without analyzing the reasons OSHA gave for reconsidering its
previous decision. Still other commenters attacked OSHA's findings that
improvements in technology will decrease the resources required to
collect and process the Form 300 and 301 information and ensure that
information which could reasonably be expected to identify an
individual directly is not publicly released. OSHA has covered these
comments elsewhere as well (see, e.g., Section III.B.6 of this Summary
and Explanation).
Finally, the International Bottled Water Association (IBWA) pointed
to district court rulings on the 2019 final rule and argued, ``[T]he
reviewing court agreed with OSHA's determinations that costly manual
review of collected 300 and 301 data would be needed to avoid a
meaningful risk of exposing sensitive worker information to public
disclosure, finding that the uncertain benefits of collecting the 300
and 301 data did not justify diverting OSHA's resources from other
efforts.'' (Docket ID 0076).
IBWA's comment misconstrues the court's decision. The court did not
``agree'' with OSHA's determination. Rather, the court found that
OSHA's decision was neither arbitrary nor capricious, i.e., that OSHA
had not ``entirely failed to consider an important aspect of the
problem, [or] offered an explanation for its decision that runs counter
to the evidence before the agency'' at the time OSHA made its decision
(see State of New Jersey et al. v. Pizzella, No. 1:19-cv-00621 (D.D.C.
Jan. 11, 2021) (citation and internal quotations omitted)).
Importantly, the court stated that ``the arbitrary and capricious
standard is narrow, and a court is not to substitute its judgment for
that of the agency (id. (citation and internal quotations omitted)).
Rather, reviewing court's decisions are ``based on a consideration of
the relevant factors and whether there has been a clear error in
judgment'' (id. (citation and internal quotations omitted)). In short,
the court did not do an independent review of all the record evidence
and determine that OSHA made the correct decision. Instead, it looked
to see if OSHA considered all the relevant factors and made a
reasonable decision. The fact that an agency's decision based on the
record at the time was reasonable does not prevent the agency from
subsequently making a different reasonable decision based on new
information.\12\ That is what OSHA has done here.
---------------------------------------------------------------------------
\12\ It also does not necessarily follow that an agency could
not have made a different, non-arbitrary-and-capricious decision
based on the record before the agency at the time it made its
original decision. This is part of the reason why reviewing courts
do not substitute their judgment for that of the agency: at times,
more than one reasonable decision could follow from a given record.
---------------------------------------------------------------------------
After consideration of these comments, OSHA agrees with commenters
that collection of case-specific information from the Form 300 and 301
will help the agency use its enforcement and compliance assistance
resources more effectively by enabling OSHA to identify the workplaces
where workers are at high risk. As explained in the 2001 final rule,
and as identified by commenters, establishment-specific injury and
illness information will help OSHA target its intervention efforts on
the most dangerous worksites and the worst safety and health hazards,
and injury and illness data will help OSHA to identify the scope of
safety and health hazards and decide whether regulatory intervention,
compliance assistance, or other measures are warranted (see 66 FR
5917). OSHA disagrees with the Chamber's claim that the case-specific
data would not help OSHA target its enforcement efforts because it does
not show actual risks. The Chamber is correct in that a single recorded
injury or illness, in and of itself, does not necessarily indicate the
existence of a risk. Similarly, recording a work-related injury,
illness, or fatality does not mean that the 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 (see Note to Sec.
1904.0). However, an injury or illness recorded under part 1904 is an
indicator of a potential risk in the workplace, i.e., the employer has
determined that a particular injury or illness of an employee meets the
definition of work-relatedness in 29 CFR 1904.5(a). In other words,
such data can indicate a failure in an area of an establishment's
safety and health program or the existence of a hazard. The fact that
they do not always do so is not persuasive (see Section III.B.4 of this
Summary and Explanation). Thus, rather than diverting OSHA's resources
from higher priority issues, OSHA has determined that the data
collected and published under this rule will help OSHA use its limited
resources more effectively to protect workers.
d. OSHA's Capacity To Collect and Process the Data From Forms 300 and
301
The preamble to the 2019 final rule cited the costs of building the
data collection system and processing the data from Forms 300 and 301
as one reason OSHA was rescinding some of the 2016 rule's data
submission requirements (84 FR 389). As discussed throughout this
preamble, in the NPRM to this rulemaking, OSHA found that the reasons
given in the preamble to the 2019 final rule for the removal of the 300
and 301 data submission requirement are no longer compelling (87 FR
18538).
As to the collection of the data, OSHA (and more broadly, the
Department of Labor) has the technical capacity to build the necessary
data collection system. OSHA's ability is supported by its success in
building and utilizing the system to collect data from establishments'
Forms 300A. Since 2017, the ITA has collected submissions of Form 300A
from roughly 300,000 establishments per year. In addition, OSHA's
ability to build such a system is supported by the fact that other
Department of Labor agencies, i.e., BLS and MSHA, successfully built
and are utilizing similar collection systems (see, e.g., Docket ID
0079). BLS's system, in particular, is illustrative of the Department's
ability to create and utilize such systems: each year, the BLS Survey
of Injuries and Illnesses (SOII) collects the same case-specific
information, from the same OSHA records, from roughly 200,000
employers, nearly 150,000 more submitters than will provide data to
OSHA under this final rule. NIOSH also effectively built and is using a
similar system (Docket IDs 0035, Attachment 2, 0079). Based upon this
information, it is
reasonable to anticipate that OSHA will have the technical capacity to
collect the case-specific submissions. OSHA discusses the costs to
build the data collection system in Section IV, Final Economic
Analysis.
As to data processing, the preamble to the 2019 rule does not
specifically explain what is included in the ``processing'' of data;
however, the discussion included a comment from NIOSH ``offering to
help with data analysis'' and ``not[ing] that it has already developed
auto-coding methods for categorizing occupation and industry based on
free text data and has successfully utilized similar free text data
collected from workers' compensation claims'' (84 FR 389, referencing
Document ID 2003-A2). As explained in the NPRM for the current
rulemaking, the agency preliminarily found that these concerns about
``processing'' costs were no longer compelling, due to technological
developments in automated data coding for text-based fields that have
made it easier and more cost-effective for OSHA to efficiently use
electronically submitted, establishment-specific, case-specific injury
and illness data. As discussed below, coding data is helpful for
characterizing, analyzing, and making use of large amounts of text-
based information.
In the preamble to the proposed rule, OSHA declared an intention to
use automated systems to assign standardized codes based on the
information contained in the text fields (e.g., type of accident is
``fall'') to categorize and more efficiently use the data (87 FR
18540). This standardized, automated coding of information from text
fields in Forms 300 and 301 is already being done by BLS. As explained
in the preamble to the proposed rule, in 2018, after the beginning of
the previous rulemaking process, BLS switched to an autocoding system
that uses deep neural networks (87 FR 18541). This system outperformed
the alternatives across all coding tasks and made an average of 24%
fewer errors than the logistic regression autocoders, and an estimated
39% fewer errors than the manual coding process.\13\ OSHA explained in
the preamble that, by 2019, according to BLS, ``automatic coding had
been expanded to include all six primary coding tasks (occupation,
nature, part, source, secondary source, and event), with the model
assigning approximately 85% of these codes.'' \14\ OSHA asked for
public comment on the issue of automated coding of text-field data and
other available technology that would enable OSHA to automatically code
these data and also specifically asked, ``In addition to the automated
methods for coding text-based data discussed above, what additional
automated methods exist to code text-based data?'' (87 FR 18547).
---------------------------------------------------------------------------
\13\ See ``Deep neural networks for worker injury autocoding'',
Alexander Measure, U.S. Bureau of Labor Statistics, draft as of 9/
18/2017 (Ex. 96).
\14\ See https://www.bls.gov/iif/automated-coding/deep-neural-networks.pdf.
---------------------------------------------------------------------------
In response, NIOSH commented, that it ``collects occupational
injury data from a national probability sample of emergency
departments.'' It further explained: ``These data are collected through
the occupational supplement to the National Electronic Injury
Surveillance System (NEISS-Work) [NIOSH 2022a]. Beginning with the 2018
NEISS-Workdata, injury event or exposure and source codes from the BLS
Occupational Injury and Illness Classification System (OIICS) Version
2.01 were assigned through a machine learning algorithm with manual
quality control efforts.'' (Docket ID 0035).
NIOSH clarified that the machine learning algorithm ``relies mostly
on the information in the narrative injury incident description
field.'' Further, NIOSH explained that it ``has continued to enhance
[its] machine learning process using more technologically advanced
approaches, including incorporating additional quantitative variables,
which has increased the coding accuracy and further reduced the need
for manual coding.'' It also noted that it recently collaborated with a
partner university to develop a machine learning algorithm that assigns
Bureau of Census industry codes based on the narrative fields of
employer name and business type (Docket ID 0035).
Similarly, the Strategic Organizing Center (SOC) referenced the
work that BLS has done, stating that BLS ``faced a problem of similar
magnitude when constructing the addition to the Annual Survey of
Occupational Injuries and Illnesses in the early 1990's--the Detailed
Case and Demographic series, based on its sampling of the exact same
data types from employers Form 301's'' and it ``developed and refined
the Occupational Injury and Illness Coding System (OIICS).'' SOC
extolled BLS's system: ``[t]his system is now successfully used
annually to code all those cases, with extraordinary benefits for all
parties interested in both the BLS survey and the underlying data from
the employer sources themselves'' (Docket ID 0079).
In contrast, AIHA commented, ``Automated methods to analyze text-
based responses are very difficult to develop due to the variation of
words and writing styles used around the United States. It would be
more cost effective to expand the use of checkboxes and radio buttons
to assist in interpreting and extracting data from text responses.''
(Docket ID 0030). Similarly, the U.S. Poultry and Egg Association
commented, ``the idea that OSHA will assess the OSHA 301's is
unrealistic. The amount of data from the OSHA 301 will be massive and
the answers for most questions are not standardized'' (Docket ID 0053).
The Phylmar Regulatory Roundtable also expressed doubts about
OSHA's ability to process the data it would receive pursuant to the
proposed rule, commenting that, ``[t]he amount of information and data
points that this regulation will produce is exponentially larger than
what OSHA currently collects from Form 300A alone.'' It added that
``[i]t is also not clear whether, despite the use of technology such as
AI or deep learning models to process and interpret the data, OSHA has
the resources in place to constructively utilize the information.'' PRR
estimated that OSHA would receive ``1,065,363'' documents if the
proposed rule was promulgated, a number which PRR claimed is ``3 times
more than the number of documents OSHA has experience working with''
(Docket ID 0094).
The Employers E-Recordkeeping Coalition (Coalition) similarly
expressed concerns with OSHA's plans, arguing that ``[t]he proposed use
of an automated system to assign standardized codes based on text
identified in the 300 and 301 forms is unrealistic.'' Specifically, the
Coalition doubted that a system which relies on keyword searches would
be helpful because ``[they] are literal in the sense that computers
find terms wherever they appear--even if part of a larger phrase or
used in a different context. Words often have multiple meanings, so
keyword searches tend to return irrelevant results (false positives),
failing to disambiguate unstructured text.'' The Coalition added that
such ``searches also may fail to identify useful information that does
not use the express search terms (false negatives).'' Further, it
noted, ``OSHA's proposed use depends on employers typing words without
spelling errors, abbreviated text, or industry-specific language,
acronyms or codes that are not encapsulated in a word search. Under
these conditions, OSHA would miss mountains of pertinent information,
be flooded by
irrelevant information, and, in our view, simply would not effectively
identify workplaces that should be targeted for enforcement.'' The
Coalition concluded: ``[a]n accurate analysis of employer 300 and 301
information requires individualized analyses by real people--not IT
systems using word searches'' (Docket ID 0087; see also Docket ID
0076).
In response, OSHA notes that no coding system, including manual
coding, is 100% accurate. However, as discussed in the preamble to the
proposed rule, a system to collect and autocode text-based data from
OSHA Forms 300 and 301 already exists, and BLS is effectively using it
(see, e.g., Docket ID 0102 \15\). In fact, BLS continues to expand use
of autocoding, explaining that ``For survey year 2020, all cases
mentioning `covid' or `corona' were manually coded due to their novel
nature and prevalence, dropping the percentage of cases autocoded.
Since then, COVID-19 cases were integrated into the autocoder training
process, allowing for the automated coding of approximately 92 percent
of codes for survey year 2021. Starting with survey year 2021, BLS
expanded collection of case data from all sampled establishments to
include details for cases involving days of job transfer or restriction
only. Previously BLS collected complete details only for cases
involving days away from work. Biennial estimates of detailed case
circumstances for cases involving days away from work, job transfer, or
restriction covering survey years 2021-2022 will first be published in
the fall of 2023.'' \16\ Chart 1, below, illustrates the SOII autocoder
performance for data collected annually.
---------------------------------------------------------------------------
\15\ Measure, Alexander. ``Six Years of Machine Learning in the
Bureau of Labor Statistics.'' Advances in Business Statistics,
Methods and Data Collection, Jan. 2023, pp. 561-72.
\16\ https://www.bls.gov/iif/automated-coding.htm.
[GRAPHIC] [TIFF OMITTED] TR21JY23.000
NIOSH also currently has the capability to accurately autocode
text-based data related to occupational injuries and illnesses. OSHA is
continuing discussions with BLS and NIOSH about adopting and/or
modifying their autocoding source code to create a pilot system where
the autocoding of OSHA data collected by OSHA could be tested and
compared to manual coding of the same data. Upon successful testing and
adoption of the autocoding system, OSHA plans to consult and work with
BLS, NIOSH, and other agencies with experience autocoding text-based
occupational safety and health data for long-term system maintenance to
continuously update the neural network code and refine automation of
the data. Until the autocoding system has been tested and is in place,
OSHA intends to only use and publish uncoded data. Both uncoded and
coded data can be useful for OSHA, as well as researchers, employers,
and employees.
Once the data are coded, OSHA expects to use the data similarly to
how the agency currently uses coded data from the Severe Injury
Reporting (SIR) program (see Docket ID 0005 for an example of a search
interface for the data that will be collected under this final rule).
OSHA also intends to combine the coded data with other data sources
(e.g., inspection data or SIR data) to increase the utility of the data
for both the agency as well as other users (e.g., employers, employees,
researchers, and the public). The specific estimated cost burden on
OSHA and employers for data collection and processing is discussed in
Section IV, Final Economic Analysis, below.
e. Data Submission
In the preamble to the proposed rule, OSHA also asked the following
two questions related to helping employers meet the requirements of the
proposed rule:
Are there electronic interface features that would help
users electronically submit part 1904 data, particularly for case data
from the OSHA Form 300 and Form 301 and for
establishments that submit using batch files? For example, would it be
helpful for OSHA to provide a forms package or software application
that exports the required files into a submission-ready format?
What features could OSHA provide to help establishments
determine which submission requirements apply to their establishment?
OSHA received a number of comments related to these questions.
Electric Boat commented that their company currently uses proprietary
recordkeeping software to compile injury and illness data. Data from
the Form 300A is then manually entered in order to submit it to OSHA.
Electric Boat asked how OSHA will require data on the Forms 300 and 301
to be submitted and noted that manually entering data for each case
would be difficult, costly, and could result in errors in the submitted
data. The company asked for ``clarification on the method of submission
and whether or not scanned versions or PDF uploads of the forms would
be an acceptable means of submission'' (Docket ID 0028).
The Sheet Metal and Air Conditioning Contractors' National
Association expressed concern about being required to use OSHA-provided
software on their systems, alleging that this would require additional
resources for familiarization with the software and that it could
create potential cyberliability claims for their member companies
(Docket ID 0046). On the other hand, AIHA urged OSHA to ``consider
providing software with recordkeeping logic to enable the completion of
data forms and automatic generation of logs for posting and reporting.
. . . Employers struggle with interpreting recordkeeping requirements,
and a user interface could include interpretation logic as well as
assist in paperwork completion'' (Docket ID 0030). The AFL-CIO
similarly stated that it would be useful for OSHA to provide basic
software for ``injury and illness recordkeeping from which the data can
be easily uploaded/reported to OSHA through a secure website as OSHA
envisions'' (Docket ID OSHA-2013-0023-1350, Attachment 2). And Cal/OSHA
``encourage[d] the design of a data submission system that is
compatible with other existing electronic systems used to track and
report establishment-specific injury and illness data'' (Docket ID
0084).
For the expanded data collection under this final rule, OSHA plans
to continue to enable three methods of data submission: manual data
entry, batch file, and API. In manual data entry, the user enters the
data into a web form and then submits the web form. In batch file
submission, the user uploads a csv file (a delimited text file in which
commas separate the values). In API (application programming
interface), the user uses a software program that communicates directly
with OSHA's data collection program. In response to Cal/OSHA's comment,
OSHA notes that the API submission method is compatible with other
existing electronic systems used to track and report injury and illness
data. In addition, OSHA intends to continue to require electronic
submission of the recordkeeping data, i.e., OSHA will not permit the
uploading of scanned documents or pdfs.
None of the data submission methods described above require
establishments to use OSHA-provided software on their systems. Indeed,
OSHA has never provided, and does not intend to require employers to
use, OSHA-developed software for data submission. OSHA, however, is
aware that some employers--particularly small employers--might find
OSHA-provided software useful for data submission, as reflected in the
comments from the AIHA and the AFL-CIO. OSHA will therefore consider
developing and providing such software in the future; however, use of
such software would not be required and the other data submission
options would remain available. Regardless of whether OSHA decides to
provide such software, OSHA expects that developers of proprietary
recordkeeping software will expand their applications that enable
automated electronic submission of the required information from the
OSHA Form 300A to also include submission of information from the Forms
300 and 301; this is further discussed in the Final Economic Analysis,
below.
AIHA noted that ``Built-in error checks for key data problems would
be helpful,'' stating that the usefulness of the online data could be
affected by errors in submissions: ``For example, the 2020 data for
NAICS codes in the 331500 industry series contain five entries with
more than 150,000 hours worked per employee. In one case, an employer
with 150 employees reported working 24 million hours. On the other
hand, there were a couple of anomalies in the opposite direction,
including an employer with 27 employees who reported a total of only 40
hours worked for the entire year, less than two hours per employee. The
result of these obvious errors is that the average hours for the
industry were 3,713 per worker, almost double the expected number. . .
. OSHA should consider adding some editing features that would
highlight potential errors.'' (Docket ID 0030).
In response, OSHA notes that the Injury Tracking Application (ITA)
already contains built-in edits that warn users of potential data
errors, including warnings about too many or too few hours worked per
employee. However, OSHA decided to allow the user to bypass the warning
in order to avoid discouraging or prohibiting the user from meeting
their reporting obligations. Each year, OSHA follows up with users who
submitted questionable data by informing them of the potential errors
and providing step-by-step guidance on how to correct the error. OSHA
encourages data corrections, but does not require them. This follow-up
process is limited to establishments under Federal OSHA jurisdiction.
OSHA anticipates incorporating similar built-in edits into the expanded
ITA for collection of Form 300/301 information in order to warn users
of potential errors in their submissions; the agency, however, does not
intend to prevent users from submitting their information if they
bypass the warning.
On a related topic, the Coalition for Workplace Safety (CWS)
requested that OSHA ``establish clear procedures for employers to make
corrections to already-submitted data, and improve internal processes
to ensure those corrections are reflected in the publicly posted data''
because ``[c]urrently, upon notice from an employer of a required
correction, it takes months for OSHA to make these corrections online''
(Docket ID 0058). OSHA notes that these comments seem to reflect a
misunderstanding of the process for correcting injury and illness
information that has already been submitted. For changes to data for
the current collection year, the Injury Tracking Application allows
respondents to edit their already submitted data, and those changes
take place immediately within the application. To make the data
publicly available, OSHA posts each year's data on its public website
three times: (1) an initial file is posted in April of the collection
year; (2) an updated file is posted in September of the collection
year; and (3) a final file is posted in the beginning of the following
year. Users may also make requests for changes to previous years via
the Help Request Form on the Frequently Asked Questions page for the
Injury Tracking Application (https://www.osha.gov/injuryreporting/ita/help-request-form). During the six years OSHA has been collecting
information from the Form 300A, OSHA is aware of only one request to
change the data for an establishment in the publicly posted
file. That change was made within days, and a revised file was posted.
Because this system has been working so far to incorporate changes made
to already-submitted data, OSHA intends to continue to follow these
procedures for correcting and posting updated data.
More generally, the NSC recommended that OSHA develop tools and
resources to help employers understand the forms and questions, ``which
could include a mentoring program allowing for larger, more
sophisticated employers to assist small and mid-sized businesses with
reporting'' (Docket ID 0041). While OSHA certainly does intend to
develop additional tools and resources to enable employers to comply
with the final rule, it does not currently have plans to develop such a
mentoring program. However, OSHA encourages collaboration between
regulated entities, whether as part of industry associations, union
efforts, or the type of collaboration mentioned by NSC. In addition,
OSHA notes that the compliance assistance materials the agency will
offer could be used as part of such collaborative efforts.
Regarding the means of determining an establishment's NAICS codes
and number of employees, NIOSH recommended that employers use, as a
starting point, the NAICS and employee counts that are reported
quarterly, on a per-establishment basis, to their State workforce
agencies. NIOSH noted that these reports are submitted as part of their
unemployment insurance (UI) filings and/or as part of the Quarterly
Census of Employment and Wages (QCEW), a Federal-State partnership
(Docket ID 0035). In addition, NIOSH suggested that ``a single summary
`lookup' table be provided to make it easy to simply look up any
industry and see the requirements for form submission by establishment
size.'' Furthermore, NIOSH suggested that OSHA could provide a table or
tables that would include different generations of NAICS codes, to
account for the fact that different employers will be using NAICS codes
from different years. (Docket ID 0035, Attachment 2).
In response, OSHA agrees with NIOSH that it would be appropriate
for employers to use the reports they make to State workforce agencies
as a starting point for determining their NAICS and employee numbers.
OSHA also concurs that a look-up table by industry and establishment
size could help establishments determine whether and how they are
affected by the data submission requirements. The agency currently has
a look-up app at https://www.osha.gov/itareportapp to help employers
determine if their establishment is required to submit 300A data to
OSHA, based on State location, peak employment in the previous year,
whether the establishment is a government facility, and the
establishment's NAICS code. The agency plans to modify the app to cover
the new requirements before they become effective.
Finally, OSHA asked the following question in the proposal about
requiring versus allowing establishments that already have accounts in
the ITA to update their accounts to the 2022 NAICS: ``Going forward,
OSHA intends to use the 2022 NAICS in the ITA for establishments that
are newly creating accounts. However, for establishments that already
have accounts in the ITA, the version of NAICS used is the 2012 NAICS.
BLS anticipates that establishments that already have accounts in the
ITA, are also subject to the SOII, and have 2022 NAICS codes that are
different from their 2012 NAICS codes, would be unable to use the data-
sharing feature . . . to prefill their BLS SOII submission with data
already submitted through the OSHA ITA, unless these establishments
updated their accounts to revise their industry classification from the
2012 NAICS to the 2022 NAICS. What are the advantages and disadvantages
of requiring establishments that already have accounts in the ITA to
update their accounts to the 2022 NAICS? How much time would an
establishment require to determine whether their 2022 NAICS is
different from their 2012 NAICS? How much time would an establishment
require to edit their NAICS code in the ITA to reflect any changes?''
(87 FR 18547).
In response to this question, NIOSH expressed a preference for all
users to update their NAICS codes to the 2022 version in the OSHA ITA:
``As potential end users of the data, NIOSH believes the use of
multiple NAICS code schemes will require extra work to analyze the data
and increase the potential for errors during data entry and data
analysis because the codes often change between versions. . . . For end
users who are interested in analyzing the submitted data, the first
step will be to crosswalk the codes across the various coding schemes,
mapping old codes to new codes so that a single coding scheme can be
used. Depending on the changes from version to version, crosswalking
codes is often a tedious, time-consuming task and can potentially
introduce error when the crosswalked categories are not the same or
certain codes cannot be easily crosswalked.'' (Docket ID 0035,
Attachment 2).
CWS also commented on the issue of updating NAICS codes in the OSHA
ITA: ``OSHA also states that establishments creating new accounts
within the Injury Tracking Application (``ITA'') that OSHA uses for
data submission will be identified using 2022 NAICS codes, while
establishments with existing ITA accounts will continue to be
identified by the 2017 NAICS code. These inconsistencies will cause
confusion for employers, may require employers to keep multiple sets of
records, and may result in either over- or under-reporting.'' (Docket
ID 0058).
OSHA has decided to allow, but not require, employers that already
have accounts in the ITA to update the NAICS for their establishments
to the 2022 codes. OSHA understands NIOSH's concern about the time-
consuming and potentially inaccurate process of using crosswalks to
convert from 2012 NAICS to 2022 NAICS when using the data for research
purposes. However, the same concern applies to individual
establishments using a crosswalk to update their NAICS. In fact, end
users of the data may have more experience with NAICS and crosswalk use
than those submitting data. OSHA has therefore determined not to burden
establishments that already have accounts in the ITA with a requirement
to update their NAICS codes from 2012 NAICS to 2022 NAICS.
Establishments will have the option to update, but the update will not
be required. Establishments that want to take advantage of the data-
sharing feature to prefill their BLS SOII submission with data
submitted to OSHA will, therefore, be able to use that feature if they
update their NAICS.
In response to CWS comment, OSHA notes that establishments creating
new accounts in the ITA choose their NAICS from a pull-down menu of
NAICS codes; with an update optional but not required, the only
difference under this final rule will be that the pull-down menu will
be loaded with 2022 NAICS codes instead of 2012 NAICS codes. (No
accounts in the ITA use the 2017 codes, as the Coalition mistakenly
stated in its comment). Establishments that already have accounts in
the ITA will not have to do anything with respect to their NAICS codes.
It is not clear to OSHA why this would cause confusion for employers,
require employers to keep multiple sets of records, or result in over-
or under-reporting. And, even if it did, an employer could simply
choose to update their NAICS code in the ITA.
f. Tools To Make the Collected Data From Forms 300 and 301 More Useful
In the preamble to the proposed rule, OSHA also asked for comment
about tools that would make the published data more available and
useful to interested parties (including employers, employees, job-
seekers, customers, researchers, workplace safety consultants, and the
general public) (87 FR 18543). Several commenters provided suggestions
for ways to make published data more useful to interested parties.
NIOSH's primary concern was that ``some data users might draw
unwarranted conclusions about the overall safety record of
establishments or employers when the numbers of employees and injuries
are low.'' To prevent misinterpretation, NIOSH suggested that ``OSHA
could publish statistical estimates of the extent to which an observed
injury rate for an individual industry or establishment is predictive
of future injury rates, or the extent to which any such injury rate
reflects the underlying risk of injury.'' NIOSH also commented that to
address potential inaccuracies in OIICS codes and ``increase data
users' understanding of the degree of reliability of the coding, OSHA
may consider posting or making available the probabilities of code
accuracy that are generated by the autocoding system, both on the
individual injury case level and the aggregate level'' (Docket ID
0035).
Additionally, Unidos U.S., Farmworker Justice, and Texas RioGrande
Legal Aid suggested that OSHA ``publish the data in a way that is
accessible, searchable, and sortable using a greater level of detail
than is currently available'' and make the data ``available in a way
that allows the public to search for injuries and deaths among workers
in specific industries--including by six-digit NAICS codes'' and to
``refine that data by type of hazard down to the most detailed
subcategories of event, exposure, or source, and then to sort by other
relevant fields such as location, employer, race, and ethnicity''
(Docket ID 0078). Additionally, the commenters suggested that OSHA make
the data available in multiple languages, including Spanish, to
``ensure that Spanish-speaking Latinos themselves have access to the
information'' (Docket ID 0078).
The International Brotherhood of Teamsters suggested that OSHA
``develop tools and resources within its website, especially where data
is to be downloaded, that would allow better user interface and help
users understand what they are looking at and what conclusions to
draw,'' such as providing more information on Total Case Rate (TCR),
and Days Away Restricted or Transferred (DART) rates (Docket ID 0083).
OSHA will take these comments into consideration when designing
tools and applications to make the published data more available and
useful to interested parties. As discussed above, there are
considerable potential benefits to occupational safety and health
resulting from publishing the collected data, and the easier it is for
all interested parties to access and use the published data, the more
these benefits will be realized.
C. Section 1904.41(b)(1)
Section 1904.41(b)(1) of the final rule includes clarifying
information on the injury and illness record submission requirements
for establishments of various sizes that are contained in final Sec.
1904.41(a)(1) and (2). The information, like many of the provisions in
part 1904, is conveyed in question-and-answer format. The final
provision addresses the question of whether every employer has to
routinely make an annual electronic submission of information from part
1904 injury and illness recordkeeping forms to OSHA. The answer
clarifies that not every employer has to routinely submit this data,
and that, in fact, only three categories of employers must routinely
submit information from these forms. The answer then describes the
three categories of employers and the information they must submit. The
first category is establishments that had 20-249 employees at any time
during the previous calendar year, and are classified in an industry
listed in appendix A. Establishments in this category must submit the
required information from Form 300A to OSHA once a year. The second
category is establishments that had 250 or more employees at any time
during the previous calendar year, and are required by part 1904 to
keep records. Establishments in this second category must also submit
the required information from Form 300A to OSHA once a year. The third
category is establishments that had 100 or more employees at any time
during the previous calendar year, and are classified in an industry
listed in appendix B. Establishments in this category must submit the
required information from Forms 300 and 301 to OSHA once a year, in
addition to the required information from Form 300A.
The answer in Sec. 1904.41(b)(1) also specifies that employers in
these three categories have to submit the required information by the
date listed in Sec. 1904.41(c) of the year after the calendar year
covered by the form. Since the date in paragraph (c) is March 2, that
means that, for example, employers must submit the required information
covering calendar year 2023 by March 2, 2024. Finally, the answer
clarifies that establishments that are not in any of the three
categories must submit information to OSHA only if OSHA notifies that
establishment that it must do so for an individual data collection.
Proposed Sec. 1904.41(b)(1) would have provided employers with
further clarity on which employers and establishments needed to submit
data under proposed Sec. 1904.41(a)(1) and (2) and how the
requirements of those provisions interacted with each other. These
proposed provisions, like the final provision, were written in
question-and-answer format to help employers easily identify the
information they seek.
Proposed Sec. 1904.41(b)(1)(i) reiterated the question posed in
the previous version of Sec. 1904.41(b), which asked whether every
employer has to routinely make an annual electronic submission of
information from part 1904 injury and illness recordkeeping forms to
OSHA. The proposed answer was updated to be consistent with the
requirements in proposed Sec. 1904.41(a)(1) and (2). Proposed Sec.
1904.41(b)(1)(ii) would have clarified that an establishment that has
100 or more employees, and is in an industry included in both appendix
A and appendix B, need only make one submission of the OSHA Form 300A
in order to fulfill the requirements of both proposed Sec.
1904.41(a)(1) and (2).
OSHA welcomed public comment on proposed Sec. 1904.41(b)(1)(i) and
(ii), including on whether the proposed provisions appropriately
clarified the proposed requirements for employers. OSHA did not receive
any comments specifically related to the text of proposed Sec.
1904.41(b)(1), and the agency has addressed comments related to the
substantive submission requirements in Sec. 1904.41(a)(1) and (2),
above. Therefore, OSHA has decided to finalize Sec. 1904.41(b)(1) with
changes from the proposal to reflect the revised structure of final
Sec. 1904.41(a)(1) and (2). Final Sec. 1904.41(b)(1) therefore
describes three categories of establishments that are required to
submit information under the final rule, as opposed to the two
categories described in proposed Sec. 1904.41(b)(1)(i). The three
categories are: (1) establishments with 20-249 employees in industries
on appendix A that are required to submit information from their Form
300A under final Sec. 1904.41(a)(1)(i); (2) establishments
with 250 or more employees that are required to keep records under part
1904 and are required to submit information from their Form 300A under
final Sec. 1904.41(a)(1)(ii); and (3) establishments with 100 or more
employees in industries on appendix B that are required to submit
information from their OSHA Forms 300 and 301.
Similar to the proposal, the remainder of final Sec. 1904.41(b)(1)
notes that employers with establishments falling into any of these
three 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. The example given in the final regulatory
text--which specifies that submission for 2023 forms must occur in
2024--has been updated to reflect the first year OSHA anticipates
employers having to submit information under this final rule. Finally,
the provision specifies that if an establishment is not in any of the
three specified categories, the employer must submit information to
OSHA only if OSHA notifies the employer to do so for an individual data
collection. OSHA anticipates that final Sec. 1904.41(b)(1), along with
the additional compliance information the agency intends to issue, will
assist employers in determining their compliance responsibilities under
the final rule.
Proposed Sec. 1904.41(b)(1)(ii) has not been included in the final
rule; it is no longer necessary due to the restructuring of the final
regulation. As discussed above, final Sec. 1904.41(a)(1) relates only
to the OSHA Form 300A, and final Sec. 1904.41(a)(2) relates only to
the OSHA Forms 300 and 301. This restructuring is expected to eliminate
any confusion regarding whether an establishment might be required to
submit information from its Form 300A twice. Therefore, there is only
one question under final Sec. 1904.41(b)(1), as opposed to the two
that were proposed.
One commenter requested additional guidance related to how the
submission requirements will work. S.W. Anderson Company asked for
clearer guidance for companies in designated industries that have 100
employees across multiple sites. The company stated that ``we have just
reached the 100-employee threshold. We have previously only submitted
electronically the OSHA 300A for our company headquarters since we have
more than 20 employees. Our other locations all have less than 20
employees'' (Docket ID 0008).
In response, OSHA clarifies that this final rule does not affect
how employees are counted for recordkeeping or information submission
purposes under part 1904. As OSHA states in reporting requirement FAQs
on the agency's Injury Tracking Application website (https://www.osha.gov/injuryreporting), OSHA's electronic reporting requirements
are based on the size of the establishment, not the firm. An
establishment is a single physical location where business is conducted
or where services or industrial operations are performed (see 29 CFR
1904.46). Therefore, under the facts described by this commenter, if
the firm has only one establishment (the company's headquarters) with
more than 20 employees, that is the only establishment for which the
commenter might need to submit injury and illness information. That
single establishment would have to submit the required information from
its Form 300A under final Sec. 1904.41(a)(1)(i) if the establishment
falls under a NAICS code listed in appendix A. The company would not,
however, have to submit information from its Form 300 or 301 for that
establishment, regardless of NAICS, because the establishment does not
have at least 100 employees. More generally, OSHA plans to revise and
expand the FAQs on its recordkeeping website as part of its compliance
efforts related to this final rule.
D. Section 1904.41(b)(9)
Section 1904.41(b)(9) of the final rule specifies which information
employers must submit from the OSHA Forms 300 and 301. Final Sec.
1904.41(b)(9) asks and answers the following question: If I have to
submit information under paragraph (a)(2) of this section, do I have to
submit all of the information from the recordkeeping forms? Paragraph
(a)(2) contains the submission requirements for information from the
OSHA Forms 300 and 301.
The answer in the final rule is no, employers who have to submit
information under paragraph (a)(2) of this section must submit all the
information from the OSHA Forms 300 and 301 except for the following
case-specific information:
Employee name (column B), from the Log of Work-Related
Injuries and Illnesses (OSHA Form 300).
Employee name (field 1), employee address (field 2), name
of physician or other health care professional (field 6), and facility
name and address if treatment was given away from the worksite (field
7) from the Injury and Illness Incident Report (OSHA Form 301).
Proposed Sec. 1904.41(b)(9) was the same as final Sec.
1904.41(b)(9). In the preamble to the proposed rule, OSHA explained
that collecting data from these fields would not add to OSHA's ability
to identify establishments with specific hazards or elevated injury and
illness rates. Therefore, OSHA proposed excluding these fields from the
submittal requirements to minimize any potential release or
unauthorized access to any PII contained in those fields. Because the
data collection would not include the information from these fields,
there would be no risk of public disclosure of the information from
these fields through the data collection. OSHA requested comment on all
aspects of proposed Sec. 1904.41(b)(9), including whether the proposed
specified fields should be excluded from data that would be collected,
and whether other data should be similarly excluded to protect employee
privacy or for other reasons. OSHA also asked more specific questions,
as addressed below.
1. Collecting Employee Names
In the preamble to the proposed rule, OSHA specifically asked the
following question about collecting employee names, in the context of
data-sharing between OSHA and BLS: ``OSHA is proposing not to collect
employee names under proposed Sec. 1904.41(a)(2) and (b)(9),
consistent with worker privacy concerns expressed in public comments
during previous rulemakings. However, BLS uses the ``employee name''
field on the Form 300 and Form 301 in their data collection for the
SOII. Beginning in 2021, a data-sharing feature has allowed some
establishments that are required to submit Form 300A information to
both OSHA and BLS, under the current regulation, to use their data
submission to the OSHA ITA in their submission to the BLS SOII. BLS
anticipates an inability to use this data-sharing feature for
establishments required to submit under proposed Sec. 1904.41(a)(2),
unless OSHA requires these establishments to submit the ``employee
name'' field on the Form 300 and 301. Without the data-sharing feature,
establishments that submit data to OSHA under proposed Sec.
1904.41(a)(2), and that also submit data to the BLS SOII, would not be
able to use their OSHA data submission of case-specific data to prefill
their BLS SOII submission. What would be the advantages and
disadvantages, in terms of employer burden and worker privacy concerns
or otherwise, of requiring all establishments subject to proposed Sec.
1904.41(a)(2) to submit employee names, to support this data-sharing
feature for Form 300 and 301 submissions? (Please note that OSHA would
not intend to publish employee names.)'' (87 FR 18547).
In response, OSHA received multiple comments about the desirability
of data-sharing between BLS and OSHA, but there were no comments
supporting the collection of employee names. In fact, as discussed in
more detail above in this preamble, numerous commenters expressed
concerns about worker privacy and advocated that employee names be
excluded from the data submission.
The Coalition for Workplace Safety commented in support of data-
sharing, ``Employers who submit data to OSHA should not be required to
separately submit the same data to BLS. These duplicative reporting
requirements are unacceptable, and OSHA's current proposal only serves
to exacerbate this existing problem'' (Docket ID 0058). Similarly, the
National Association of Manufacturers commented that it would be in the
best interest of OSHA and manufacturers for OSHA to gather detailed
information about workplace injuries and illnesses ``in conjunction
with the BLS SOII survey rather than in a separate data collection
process'' (Docket ID 0068). However, the Coalition for Workplace Safety
and the National Association of Manufacturers also expressed great
concern in their comments that collection of case-specific information
from the Form 300 and Form 301 would risk employee privacy.
Other commenters also expressed support for data-sharing without
expressing support for collection of employee names. For example, the
American College of Occupational and Environmental Medicine commented
in support of avoiding duplicate reporting and encouraged streamlining
and simplifying the importation of data from OSHA to SOII (Docket ID
0037). Similarly, the National Safety Council commented, ``OSHA and BLS
should continue their collaboration to enable more businesses to
benefit from single reporting and make reporting easier'' (Docket ID
0041).
Having reviewed the comments on this issue as well as the comments
on employee privacy described in more detail elsewhere in this
preamble, OSHA has decided not to collect employee names under final
Sec. 1904.41(a)(2) and (b)(9). This decision is consistent with worker
privacy concerns expressed in a number of public comments during this
rulemaking and discussed elsewhere in this preamble. Not collecting
employee names is, of course, the best way to ensure that this
information does not get released online. The agency also, however,
recognizes the value in providing ways to reduce the time and burden
for employers that are required to submit data to both OSHA and BLS. As
such, the agency will continue to work with BLS to identify and
implement data-sharing methods that do not require submission of
employee names to OSHA in order to reduce the burden for the subset of
establishments that are required to submit their Form 300 and 301 data
to OSHA and also to submit data to the BLS SOII.
2. Excluding Other Specified Fields
In addition, in the preamble to the proposed rule, OSHA welcomed
more general public comment on proposed Sec. 1904.41(b)(9), including
whether the proposed specified fields should be excluded from data that
would be collected, and whether other data should be similarly excluded
to protect employee privacy or for other reasons (87 FR 18546). OSHA
asked that any comments suggesting exclusion of other fields or data
from the proposed submission requirements also address whether the
exclusion of that particular field or data from collection would hinder
OSHA's ability to use the collection to protect employee safety and
health. Exclusion of employee names is discussed above. Similar to
employee names, there were no comments arguing that OSHA should collect
the fields listed in proposed Sec. 1904.41(b)(9) (i.e., from Form 301
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)).
However, there were some commenters that wanted additional fields
to be excluded. For example, the Plastics Industry Association
commented that OSHA should not collect job title, department, gender,
birth date, date of hire, and date of death to avoid identifying
individual employees, and urged excluding job titles in particular
because there may only be a small number of employees, or a single
employee, with a job title in a facility (Docket ID 0086). Other
comments discussed elsewhere in the preamble also expressed concern
that employees may be identified by the data fields OSHA intends to
make public, (see, e.g., Docket IDs 0062, 0094). The Plastics Industry
Association also commented on the possibility that these data fields
could be cross-referenced with other data available publicly online,
such as social network accounts like LinkedIn, to identify employees
(Ex. 86). Similarly, R. Savage commented that ``job title, date of
hire, date of injury, and social media'' could be used to identify the
injured employee (Ex. 18). However, other commenters countered that the
detailed data can be used to improve workplace safety and health, (see,
e.g., Docket IDs 0030, 0079, 0090). The Plastics Industry Association's
comments did not address whether the exclusion of these fields from the
collection would hinder OSHA's ability to use the collection to protect
employee safety and health.
In response to these concerns and, as discussed elsewhere in this
preamble, OSHA has determined that the benefits of collecting the data
for improving safety and health outweigh potential privacy concerns.
Each of these data variables included in the data collection gives OSHA
the ability to identify unique hazards. The age of workers is relevant
to indicating increased hazards for certain age groups. The date of
hire demonstrates when injuries disparately impact new employees versus
more experienced employees. An injury that occurs mostly in recent
hires may indicate a greater need for training and monitoring new
employees, while other illnesses or injuries can occur predominantly in
longer term employees. Gender is similarly helpful to indicate workers
at higher risk. For example, women are at a higher risk for workplace
violence. Job titles aid OSHA in indicating specific jobs with higher
rates of illnesses and injuries. The date of injury and date of death
are also useful to OSHA for identifying hazards. For example, certain
illnesses may have a lag time between the date of injury and the date
of death. Other injuries and illnesses may have a seasonal component,
such as heat illnesses in the summer.
Further, as part of OSHA's determination that the benefits of
collecting and publishing the data outweigh potential privacy concerns,
the agency emphasizes that it will be able to adequately protect
workers' information that could reasonably be expected to identify
individuals directly. OSHA notes that employee birth dates will not be
made available to OSHA for outreach, enforcement, or research/
analytical purposes.\17\ Instead, establishments will enter the birth
date, the system will convert the information to age, and OSHA will
retain the age. The data from the fields for age (calculated from date
of birth in field 3),
date hired (field 4), gender (field 5), whether the employee was
treated in an emergency room (field 8), and whether the employee was
hospitalized overnight (field 9) will be collected, but these fields
will not be published. OSHA also notes regarding the date of death
field that deceased individuals do not have a right to privacy;
further, since January 1, 2015, Sec. 1904.39(a)(1) has required
employers to report the death or hospitalization or amputation or lose
of an eye of any employee as a result of a work-related incident within
eight hours of the death, and OSHA publishes the reports at https://www.osha.gov/severeinjury, including narrative information. In
addition, as discussed elsewhere, HIPAA does not apply.
---------------------------------------------------------------------------
\17\ Note that, as explained in the Privacy Impact Assessment
(Docket ID 0107), establishments that submit their data by uploading
a csv file (see III.B.14.e Data Submission) will include the Date of
Birth field in the csv file, and the csv files will be temporarily
stored in a secure, encrypted folder on the Department's IT network
(see III.B.9 Risk of cyber attack) for technical support purposes
only, and purged on a regular basis.
---------------------------------------------------------------------------
After consideration of these comments, OSHA has decided to exclude
the following fields from the data collection, as proposed:
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).
E. Section 1904.41(b)(10)
Section 1904.41(b)(10) of the final rule addresses how
establishments identify themselves in their electronic recordkeeping
submissions. As noted above, OSHA's recordkeeping regulation requires
employers to maintain and report their injury and illness data at the
establishment level. An establishment is defined as a single physical
location where business is conducted or where services or industrial
operations are performed (see 29 CFR 1904.46). Part 1904 injury and
illness records must be specific for each individual establishment. The
text of final Sec. 1904.41(b)(10) is in question-and-answer format and
responds to the question of whether a company may use numbers or codes
as its establishment name when submitting data to OSHA. The answer to
the question is yes, a company may use numbers or codes as its
establishment name. However, the submission must also include a legal
company name, either as part of the establishment name or separately as
the company name.
Final Sec. 1904.41(b)(10) is identical to the proposed provision
except for changing ``company name'' to ``legal company name.'' The
final version of Sec. 1904.41(b)(10) is intended to address a problem
OSHA identified with the previous rule, which was that the company name
was not required. Specifically, as OSHA explained in the preamble of
the proposed rule, the ITA (the data submission portal) includes two
text fields which OSHA uses to identify each establishment: Company
Name and Establishment Name. The Establishment Name field is a
mandatory field, and users must provide a unique Establishment Name for
each establishment associated with their user account. In contrast, the
Company Name field is an optional field. OSHA's review of five years of
data electronically submitted under Sec. 1904.41 showed that some
firms submitted data with codes in the required Establishment Name
field and nothing in the optional Company Name field. For example, in
the 2020 submissions of 2019 Form 300A data, users submitted data for
more than 18,000 establishments with a code in the Establishment Name
field and no information in the Company Name field. The data are
considerably less useful and more difficult for both OSHA and other
interested parties to work with when establishments have a code in the
Establishment Name field and no information in the Company Name field.
For example, it is not possible for a data user to search for data by
company for companies that use codes without including a company name.
In addition, without the legal company name, OSHA is unable to
determine whether a particular establishment in that company met the
reporting requirements.
To address this problem of missing data under the previous rule,
OSHA proposed a provision to require employers who use codes for the
Establishment Name to include a legal company name. The proposed
provision, Sec. 1904.41(b)(10), provided: ``My company uses numbers or
codes to identify our establishments. May I use numbers or codes as the
establishment name in my submission? Yes, you may use numbers or codes
as the establishment name. However, the submission must include the
company name, either as part of the establishment name or separately as
the company name.''
The final provision, Sec. 1904.41(b)(10), states: ``My company
uses numbers or codes to identify our establishments. May I use numbers
or codes as the establishment name in my submission? Yes, you may use
numbers or codes as the establishment name. However, the submission
must include the legal company name, either as part of the
establishment name or separately as the company name.''
OSHA changed ``company name'' to ``legal company name'' in the
final regulatory text to clarify that the legal company name should be
entered as opposed to a more generic company name. For example,
``Company X, LLC'' would be entered if that is the legal company name
for the establishment, not ``Company X.'' This clarification is
consistent with the Summary and Explanation for proposed Sec.
1904.41(b)(10), which stated ``[t]he submission must include the legal
company name, either as part of the establishment name or separately as
the company name'' (87 FR 18523, 18546 (March 30, 2022)). All companies
must enter a legal company name, either as part of the establishment
name field or the company name field. Users will be reminded during
data submission that the information about the establishment must
include the company's legal name, either in the establishment field or
in the company name field.
OSHA welcomed public comment on the proposed requirement to submit
the company name, including any comments on the utility of such a
requirement and how the company name should be included in an
establishment's submission (87 FR 18456). The agency received a number
of comments in response to the comment solicitation on this topic. For
example, Worksafe supported the proposed requirement to submit both
establishment name and company name (Docket ID 0063). Similarly, Cal/
OSHA commented, ``The proposed inclusion of employers' entity names,
which we support, makes detailed information usable even when employers
use numbers or codes to identify their facilities'' (Docket ID 0084).
In their comment, Seventeen AGs also supported the requirement, which
they described as ``critical[ ]'' (Docket ID 0045). The comment further
described the proposal as an improvement to existing reporting
requirements, noting that the requirement to disclose a legal name will
aid job-seekers in making informed decisions about the injury and
illness data for a specific employer (Docket ID 0045).
In contrast, several organizations argued against requiring a
company name. For example, the National Propane Gas Association argued
that ``any research to evaluate the general performance or safety of a
particular industry can be investigated on the basis of industry NAICS
code; not company name'' (Docket ID 0050). OSHA recognizes the value of
data that is industry-wide for industry-based research, but there is
additional value obtained through collecting and
publishing company names. OSHA intends to use the data to engage in
company-specific activities to effectively address occupational health
and safety issues, and such activities require the company name.
The Phylmar Regulatory Roundtable (PRR) also opposed OSHA's
proposed requirement to include the legal company name. It explained
that it is concerned ``about OSHA's, and particularly the public's,
ability to remain objective. To alleviate this concern, PRR recommends
OSHA does not publish this information publicly, does not collect the
company name, and uses this data for statistical purposes only''
(Docket ID 0094). In addition, the Association of the Wall and Ceiling
Industry also expressed strong opposition to including the company's
name, noting its concern ``about provisions in the proposed rule that
would unintentionally and unnecessarily harm construction businesses,''
such as ``any requirement that would result in public access to any
affected company's name and address, and/or signatory executive's name
and telephone number'' (Docket ID 0043). The National Propane Gas
Association similarly argued that OSHA's assessment of the utility of
the collected information did ``not include the regulated companies
because there is no evaluation of the potential damage by
misunderstanding or misconstruing the information that is proposed for
the public website'' (Docket ID 0050). It further stated that ``[t]he
injury and illness reports do not include explanations of employees'
conduct, variations from company policies, common practices, or
comparisons to indicate positive safety practices, days without
injuries or illnesses, or other safeguards companies implement''
(Docket ID 0050).
OSHA understands these commenters' concerns. However, as discussed
elsewhere, OSHA notes that it has published injury and illness data by
company name since 2009, and most establishments were already
submitting company name under the previous requirements. Despite this
history, opposing commenters did not provide any examples of burden or
damage resulting from the publication of company names, nor is OSHA
aware of any. Moreover, as discussed in more detail in Section III.G of
this Summary and Explanation, OSHA's existing Note to Sec. 1904.0
makes clear that ``[r]ecording or reporting a work-related injury,
illness, or fatality does not mean that the 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.'' Further, OSHA
notes that the signatory executive's name and telephone number will not
be collected or published under the final rule, nor were they under the
previous rule. Consequently, OSHA does not find these comments
persuasive.
OSHA agrees with comments that inclusion of the legal company name
will improve workplace safety and health. The primary purpose of
collecting the company name is to make the data more useful for OSHA
for activities at the company level, such as inspection targeting,
compliance outreach, research, and assessment of company-wide
compliance with the submission requirement. With the company name
included, OSHA will, for example, be able to identify company-wide
trends of occupational illnesses or injuries. Additionally, interested
parties may also use company name data to improve workplace health and
safety or to inform themselves about the injury and illness records of
specific employers.
One commenter offered an example of how it used company-specific
information to improve workplace safety. The Strategic Organizing
Center explained in its comment how it used the release of the 2020 and
2021 Injury Tracking Application data to publish reports on the rate of
serious injuries at a particular company, which was much higher than
the rate at other similar businesses. After the reports were published,
the company responded by announcing that safety improvements were
underway. OSHA agrees with this commenter that ``the availability of
more detailed information, including names and locations of employers,
allows employers and others to make more meaningful comparisons''--and,
as a result, can lead to improvements in worker safety and health
(Docket ID 0079).
After consideration of these comments, OSHA has decided to require
establishments to submit company name, as proposed, in order to aid
both OSHA and other interested parties in using the data more
effectively. Users will be reminded during data submission that the
information about the establishment must include the company's legal
name, either in the establishment field or in the company name field.
F. Section 1904.41(c)
Section 1904.41(c) of the final rule requires employers to
electronically submit the required information to OSHA by March 2 of
each year. The final provision simplifies the regulatory language in
Sec. 1904.41(c)(1)-(2) of the previous rule concerning the dates by
which establishments must make their annual submissions. Previously,
Sec. 1904.41(c)(1) included information for establishments on what to
submit to OSHA during the phase-in period of the 2016 final rule and
the deadlines for submission during that phase-in period. That
information is no longer relevant and, thus, OSHA removed it to
streamline the section. The substantive information already contained
in the previous Sec. 1904.41(c)(1) was consolidated into Sec.
1904.41(c) of the final rule. Like previous Sec. 1904.41(c)(2), Sec.
1904.41(c) of the final rule requires all covered establishments to
make their electronic submissions by March 2 of the year after the
calendar year covered by the form(s). Also, Sec. 1904.41(c) of the
final rule provides an updated example of that requirement, explaining
that the forms covering calendar year 2023 would be due by March 2,
2024. As the example indicates, because this final rule becomes
effective on January 1, 2024, OSHA intends for March 2, 2024 to be the
first submission deadline for the new information required to be
submitted under this rule.
The Coalition for Workplace Safety commented, ``Employers must have
notice of the exact requirements of any final rule at the beginning of
the year for which collected data will be submitted.'' Otherwise, they
argued, employers will not have sufficient notice and time to adjust
their information collection and review processes (Docket ID 0058). The
Flexible Packaging Association made a similar comment (Docket ID 0091).
On the other hand, the AFL-CIO expressed frustration that the date of
the proposed rule ``already delayed the ability of OSHA to institute
final reporting requirements . . . until at least 2024'' (Docket ID
0061).
OSHA does not agree that employers must have notice of the
requirements of any final rule at the beginning of the calendar year
for which the data will be submitted. The commenters who made this
assertion cite no official rule or other legal authority to support it,
and OSHA is not aware of any such rule regarding calendar years and
reporting requirements. It is OSHA's position that it was not necessary
for the final rule to be published before the end of 2022 in order for
OSHA to begin collecting 2023 data in 2024. OSHA anticipates that
employers will have sufficient time between publication of the final
rule in 2023 and the first submission deadline in 2024 to make any
changes to their submission systems that they determine should be made.
Indeed, the final rule
does not make any changes to the recordkeeping requirements for 2023;
employers will continue to record the same information as they were
required to record before this final rule was issued.
Both the Flexible Packaging Association and the Coalition for
Workplace Safety commented that the changes in the final rule will
require technological changes within and outside of OSHA that will
require testing for accuracy and effectiveness, and that OSHA must
account for the time it will take to make such adjustments (Docket IDs
0058, 0091). To the extent that these commenters are concerned about
changes they plan to make to their own recordkeeping or data submission
systems, OSHA notes that these types of changes are not a requirement
of the final rule. The final rule simply requires submission of the
data. OSHA will continue to provide three options for employers to
submit the data (manual entry via web form, batch upload via csv file,
and API), and it will continue to be up to the individual employer to
decide which option to use. To the extent that these comments focus on
changes OSHA must make to the ITA to accept the new submissions, OSHA
has considered this issue and anticipates being prepared to accept
these submissions beginning in early 2024.
Some commenters also argued for an annual submission date later
than March 2 to allow employers more time to collect and submit the
data from the previous year. For example, the Coalition for Workplace
Safety commented that ``OSHA should push future deadlines to allow
companies to submit past March 2; this date is too early in the year
and does not provide enough time for companies to collect and submit
this data'' (Docket ID 0058; see also Docket ID 0091). The Employers E-
Recordkeeping Coalition similarly commented: ``For example, one
national employer with approximately 700 establishments that would be
covered by the new requirement to submit 300 and 301 level data
currently takes approximately 3 months to audit and submit its injury
and illness records to ensure that its 300A data submissions are
accurate. Manually keying in every line of hundreds of 300 log data, or
if that is not necessary, at least keying in thousands of 301 Reports
would be exponentially more burdensome--likely infeasible given the
annual March 2nd submission deadline.'' (Docket ID 0087).
In response, OSHA is not persuaded that the March 2 date is too
early in the year to submit data for the previous year. OSHA notes that
Sec. 1904.32 already requires employers to review the Form 300 Log
entries and complete, certify, and post the Form 300A annual summary no
later than February 1 of the year following the year covered by the
records. Therefore, employers must already have collected and reviewed
all of their establishments' 300 Log information for the previous year
by February 1 of each year. Having completed this review, they will
then have an additional month to submit the data. The scenario posed by
the Employers E-Recordkeeping Coalition regarding manually typing in
hundreds or thousands of lines of data would only arise if a company
with many establishments chose to enter all the data via webform. There
are three data submission methods available, as discussed further
elsewhere in this preamble, and entering data via webform would be the
least efficient method for a company with many establishments.
After consideration of these comments, OSHA has decided to retain
the proposed data submission deadline in the final rule and require
submission of the previous calendar year's data by March 2 of each
year.
G. Additional Comments Which Concern More Than One Section of the
Proposal
1. General Comments
There were several comments asking OSHA to add data submission
requirements for other types of establishments. For example, Worksafe
recommended adding a requirement for companies with five or more
establishments to collect and submit part 1904 occupational injury and
illness data for those work locations and establishments (Docket ID
0063). Similarly, the National Nurses Union recommended adding a
submission requirement for companies with 500 or more employees across
multiple establishments (Docket ID 0064). Neither of these
recommendations is being incorporated into the final rule. Data
submission requirements for multi-establishment companies, regardless
of the number of establishments or size of the employer, were not
included in any proposed regulatory provision or alternative in the
NPRM; nor was the topic otherwise addressed by OSHA as part of the
proposed rule. As such, OSHA does not believe that a requirement for
multi-establishment employers to submit data to OSHA would be a logical
outgrowth of the proposal. (Although OSHA believes that these
recommendations are out of the scope of the proposal, the agency notes
that it proposed similar ideas as Alternative I in the 2016 rulemaking
and rejected that Alternative, in part, due to practicality concerns.
OSHA does not believe that those concerns have been obviated in the
years since the issuance of the 2016 final rule.)
Similarly, there was a comment expressing concern that the rule
will not capture data for workers classified as independent
contractors, and ``encourag[ing] OSHA to study the benefits of data
collection for all workers, regardless of classification, including
those who may be improperly designated as independent contractors''
(Docket ID 0045). As interested parties are generally aware, the
Occupational Safety and Health (OSH) Act of 1970 only applies to
``employment'' (see 29 U.S.C. 653(a)). Businesses do not meet the
definition of the term ``employer'' in Section 3(5) of the OSH Act, 29
U.S.C. 652(5), unless they have employees. Similarly, individuals are
not considered ``employees'' under the OSH Act unless they are employed
by an employer (29 U.S.C. 652(6)). Thus, independent contractors are
not covered under the OSH Act. The agency understands that, at times,
employees are misclassified as independent contractors and are
consequently not receiving the protections that they should. OSHA has
other initiatives to address that important issue. However, the agency
finds that it is beyond the scope of this rule, which only covers
employees.
There were also comments asking OSHA to expand the data requested
on OSHA's recordkeeping forms. For example, the National Safety Council
commented that OSHA should collect more demographic data, such as race
or ethnic origin, and that OSHA should include a method to identify and
collect basic information on musculoskeletal disorders (MSDs) (Docket
ID 0041). Similarly, Unidos US, Farmworker Justice, and Texas RioGrande
Legal Aid commented that OSHA should require employers to report race
and ethnicity data in case-specific reports and publish the data
alongside the other case-specific information (Docket ID 0078).
ConnectiCOSH proposed a requirement for employers to document when
workers have complained about retaliation (Docket ID 0069).
Also related to expanding the data requested on the OSHA
recordkeeping forms, the Phylmar Regulatory Roundtable (PRR) commented
that instead of requesting information from the Forms 300 and 301, OSHA
should revise the Form 300A to include more useful identifiers. For
example, including ``heat'' as a type of illness,
and ``indoor,'' ``outdoor,'' ``office,'' ``distribution facility,'' and
``off-site'' for a field titled ``location'' would give OSHA more
information without identifying employees (Docket ID 0094). More
generally, the Employers E-Recordkeeping Coalition commented that OSHA
should create a committee or task an existing committee to explore
changes to injury and illness recordkeeping, including to consider
adopting ASTM E2920-14 (Standard Guide for Recording Occupational
Injuries and Illnesses), an international standard that would allow
data comparisons with other countries (Docket ID 0087).
These recommendations to expand or change recordkeeping forms, or
to explore broader changes to injury and illness recordkeeping, such as
adopting an ASTM standard, were not included in any proposed regulatory
provision or alternative in the NPRM, nor were these topics otherwise
addressed by OSHA as part of the proposed rule. As such, these topics
are not within the scope of this rulemaking. Similarly, comments
raising issues with OSHA's recording criteria or other parts of part
1904 that are not at issue in this rulemaking (e.g., Docket ID 0017
(related to the recordability of COVID-19 cases)) are out of scope of
this rulemaking.
The National Safety Council (NSC) provided a comment about OSHA
enforcement of the reporting requirements: ``First, OSHA must take
steps to improve reporting compliance. The Department of Labor Office
of Inspector General report provides some key recommendations for OSHA
to improve reporting: 1. Develop guidance and train staff on
identifying underreporting, 2. Issue citations for all late reporters,
3. Clarify guidance on documenting essential decisions, collecting
evidence to demonstrate employers corrected all identified hazards, and
monitoring employer conducted investigations, and 4. Conduct
inspections on all Category 1 incidents. These are key recommendations
to improve the original data. Additionally, the National Academy of
Sciences (NAS) produced a 2018 study on OSHA data collections
acknowledging the limitations of the current data system(s) and made
several recommendations for improving and supplementing the OSHA data
that should also guide OSHA actions.'' (Docket ID 0041; see also Docket
ID 0080 (recommending OSHA evaluate procedures for compliance and
enforcement)).
With respect to the Office of the Inspector General's 2018 Report,
OSHA Needs to Improve the Guidance for its Fatality and Severe Injury
Reporting Program to Better Protect Workers, OSHA agreed that better
case documentation can help promote consistency in the issuance of
citations, as well as the determination of whether to conduct an
inspection or a rapid response investigation. However, OSHA was
concerned that the OIG's report suggested that the burden to ensure
reporting falls on the agency when the OSH Act clearly states that it
is the employer's responsibility to comply with the standards under
Section 5(a)(2). The agency encourages employers to comply with illness
and injury reporting requirements through a variety of enforcement,
outreach, and compliance assistance tools. OSHA's full response to the
OIG's report can be found in Appendix B of that report at https://www.oig.dol.gov/public/reports/oa/2018/02-18-203-10-105.pdf.
With respect to the National Academies of Science, Engineering, and
Medicine (NAS) report, A Smarter National Surveillance System for
Occupational Safety and Health in the 21st Century, OSHA concludes the
final rule is responsive to that report (see OSHA-2021-0006-0097). This
NAS report was the result of a joint request from NIOSH, BLS, and OSHA
to NAS, asking NAS to conduct a study in response to the need for a
more coordinated, cost-effective set of approaches for occupational
safety and health surveillance in the United States. The NAS report
suggested that electronic collection of Form 300 and 301 data would
allow OSHA to focus its interventions and prevention efforts on
hazardous industries, workplaces, exposures, and high-risk groups.
Additionally, the NAS report made recommendations on ways the public
data could be utilized by employers, researchers, government agencies,
and workers (Docket ID 0061). Further, according to the report,
collecting Form 300 and 301 data electronically would also allow for
expanding and targeting outreach to employers to improve hazard
identification and prevention efforts, and would give OSHA the
opportunity to advise employers on how their rates of injury and
illness compare with the rest of their industry. OSHA agrees with these
assessments regarding the value of electronically collecting Form 300
and 301 data, as reflected by the final rule.
PRR commented, ``to ensure the Agency remains fair, balanced, and
trusted, any targeting for enforcement that results from submission of
Forms 300, 301 and 300A should be based on a systematic approach that
is standardized and impacts all industries in [a]ppendix B subpart E,
equally'' (Docket ID 0094). In response, OSHA agrees that it should
take a systematic approach to enforcement targeting based on the data
it collects from these recordkeeping forms. As addressed elsewhere in
this preamble (e.g., Section III.B.4 of this Summary and Explanation),
OSHA's systematic approach to enforcement in site-specific targeting
using data collected from the Form 300A is illustrated by OSHA's
directive on Site-Specific Targeting (SST) (CPL 02-01-064, issued on
February 7, 2023, https://www.osha.gov/enforcement/directives/cpl-02-01-064). In this directive, OSHA states that it will generate
inspection lists of: (1) establishments with elevated Days Away,
Restricted, or Transferred (DART) rates for CY 2021; (2) establishments
with upward trending rates for the range of CY 2019-2021; (3)
establishments that did not provide the required 2021 Form 300A data to
OSHA; and (4) establishments with low DART rates in CY 2021 to verify
data accuracy and quality control. OSHA's Office of Statistical
Analysis provides each Area Office (AO) with access to software and
databases that include the establishments on the Inspection List. AOs
must generate inspection cycles using the SST software that randomly
selects the establishments and shall determine inspection cycle size
(i.e., 5 to 50 establishments) based on available resources and the
geographic range of the office. Once initiated, the entire cycle must
be completed. Within a cycle, the AO may schedule and inspect the
selected establishments in any order that makes efficient use of
available resources.
As indicated by the content of the directive, while OSHA does take
a systematic approach to enforcement targeting, OSHA does not agree
that any targeting for enforcement resulting from submission of the
data from Forms 300, 301, and 300A should necessarily impact all
industries in appendix B subpart E equally. If reported data were to
show a particular industry had a very high rate of occupational
illnesses or injuries, enforcement targeting that particular industry
would be appropriate. The final rule provides more accurate and
detailed information that will be used to protect workplace health and
safety.
Reps. Foxx and Keller commented, ``DOL further revealed its
intention to reward Big Labor in its extension of the proposed rule's
comment period, citing a single request from the AFL-CIO, despite the
fact that it has routinely denied similar requests from business
stakeholders and members of Congress''
(Docket ID 0062). In response, OSHA notes that the agency received two
requests for extension of the comment period: from the AFL-CIO in a
letter dated May 5, 2022 (Docket ID 0027), and from the Employers E-
Recordkeeping Coalition in a letter dated May 20, 2022 (Docket ID
0032). OSHA determined that it would be reasonable to extend the
comment period and offered the same additional 30 days to everyone (see
87 FR 31793-4 (May 25, 2022)).
2. Misunderstandings About Scope
Some commenters expressed concern that the proposal would expand
the number of employers required to submit data. The Chamber of
Commerce commented that the lists of designated industries in
Appendices A and B ``are long and not that limiting,'' and the National
Propane Gas Association commented, ``[a]ccording to the proposed
revisions to [a]ppendix A and proposed creation of [a]ppendix B, the
NPRM would expand reporting requirements to more establishments within
the propane industry'' (Docket IDs 0050, 0088). The National Propane
Gas Association also expressed disagreement with ``the proposed
creation of [a]ppendix B to the extent that it includes all the
industries already listed in [a]ppendix A'' (Docket ID 0050). In
response, OSHA notes that appendix B does not include all the
industries listed in appendix A; rather, appendix B is a subset of
appendix A. Additionally, as explained in the NPRM and elsewhere in
this preamble, all of the establishments that will be required to
submit information to OSHA under the new requirements in this final
rule were already required to submit information to OSHA under the
previous requirements, so it is not the case that this rule expands the
number of establishments required to report.
The National Propane Gas Association also recommended that ``OSHA
retain the current scope and applicability of [Sec. ]1904.41(a)(1) to
apply to employers with 250 or more employees within the industries
identified in [a]ppendix A,'' rather than ``expanding'' the requirement
to ``more employers and more establishments'' (Docket ID 0050). As
explained in the NPRM and the preamble to this final rule, OSHA did not
propose to expand the scope of [Sec. ]1904.41(a)(1). Rather, the
agency explicitly stated that the proposal ``would not impose any new
requirements on establishments to electronically submit information
from their Form 300A,'' however, ``proposed Sec. 1904.41(a) would
remove the electronic submission requirement for certain establishments
with 250 or more employees.'' Accordingly, the commenter's concerns are
misplaced.
The National Propane Gas Association also stated that OSHA is
proposing to increase ``the frequency of submissions'' of injury and
illness reports (Docket ID 0050). OSHA did not propose to increase the
frequency of submissions of injury and illness data; rather, employers
required to submit such data will continue to be required to do so once
a year, as under the current requirements.
3. Diversion of Resources
In the 2019 final rule, OSHA stated that rescinding the information
submission requirements would allow employers to devote more of their
resources towards compliance with safety and health standards (84 FR
394). Similarly, several commenters to the current NPRM also asserted
that the proposed rule would be counterproductive to the goal of
improving safety and health because complying with the rule would
divert resources that would otherwise be devoted to other worker safety
and health efforts (e.g., Docket IDs 0060, 0062, 0070, 0088). In most
cases these assertions were unsupported (e.g., Docket ID 0062 (simply
asserting that compliance with the rule would divert employer resources
from workplace safety and health initiatives without further explaining
how it would do so)).
A few commenters, however, did make more concrete statements that
might relate to this issue. For example, the Chamber of Commerce, in
challenging OSHA's economic analysis, claimed that the proposal would
require safety department personnel to spend time on preparation of the
data for submission, presumably at the cost of spending time improving
safety (Docket ID 0088). But that diversion, if it occurs, would be
required by the recordkeeping rule itself, not by the requirement to
submit records. Employers have always been required to keep accurate
records. To the extent that the argument is that employers will take
greater care with records to be submitted to OSHA and eventually
published, that is not a result of the rule so much as it is a result
of employers not having taken adequate care previously. Similarly, the
need to ensure that information that could compromise workers' privacy
is not submitted inappropriately (see, e.g., Docket ID 0081) should be
obviated by entering the information carefully in the first place (see,
e.g., the instructions on Form 301: ``Re fields 14 to 17: Please do not
include any personally identifiable information (PII) pertaining to
worker(s) involved in the incident (e.g., no names, phone numbers, or
Social Security numbers'')).
4. Lagging v. Leading Indicators
OSHA also received several comments which focused on OSHA's
recordkeeping system's use of lagging, rather than leading indicators.
Broadly speaking, leading indicators are proactive, preventive, and
predictive measures that provide information about the effective
performance of an employer's safety and health activities. They measure
events leading up to injuries, illnesses, and other incidents and
reveal potential problems in an employer's safety and health program.
In contrast, lagging indicators measure the occurrence and frequency of
events that occurred in the past, such as the number or rate of
injuries, illnesses, and fatalities (see https://www.osha.gov/sites/default/files/OSHA_Leading_Indicators.pdf).
On the issue of lagging versus leading indicators, the American
Society of Safety Professionals (ASSP) commented, ``ASSP advocates a
comprehensive risk-based approach that measures leading as well as
lagging indicators. Leading indicators provide critical information
about an organization's true commitment to safety and health, at times
acting as a better gauge of a system's vulnerabilities or effectiveness
than lagging indicators'' (Docket ID 0031; see also Docket IDs 0041,
0053). Similarly, PRR commented, ``The safety community has been
actively moving away from using case rates as indicators of a safety
program's effectiveness and has been experimenting with various leading
indicators'' (Docket ID 0094). PRR further commented that the use of
lagging indicators ``leads the general public, which is uninformed, to
think that there is direct correlation between injury and illness rates
and the effectiveness of an employer's worker safety and health
programs and practices'' (Docket ID 0094; see also Docket IDs 0043,
0088).
In addition, ASSP ``recommends that OSHA develop guidance on
leading indicators and overhaul the current recordkeeping system to use
both leading and lagging indicators as indicators of the effectiveness
of a business' safety and health management system'' (Docket ID 0031).
In its comment, ASSP referred the ANSI/ASSP Z16.1-2022 standard
(``Safety and Health Metrics and Performance Measures''), which
contains leading indicators, to OSHA for consideration. (OSHA has
placed a copy of ANSI/ASSP Z16.1-2022 standard in the docket as a
copyright protected reference (Docket ID 0101).)
In response to ASSP's recommendation that OSHA ``overhaul the
current recordkeeping system to use both leading and lagging indicators
as indicators of the effectiveness of a business' safety and health
management system[,]'' including through a review of the referenced
ANSI/ASSP standard, OSHA notes that such an overhaul is outside of the
scope of this rulemaking, which focuses only on the annual electronic
submission of data which employers are already required to keep. The
agency did not propose changes to the data which should be kept, e.g.,
whether such data should include leading indicators, and if so, which.
That said, OSHA agrees with ASSP that leading indicators are an
important tool to assess the effectiveness of workplace safety and
health programs. However, as ASSP acknowledges, leading indicators are
not the only such tool. As OSHA has explained many times before (see,
e.g., https://www.osha.gov/safety-management/program-evaluation), both
leading and lagging indicators are valuable performance measures. These
two measures work together to provide a comprehensive picture of worker
safety and health in an industry or particular workplace. (For more
information on the benefits and utility of the lagging indicators that
will be collected and published in this rulemaking, see Section III.B.4
of this Summary and Explanation.) This rulemaking and OSHA's
recordkeeping system in general focuses on lagging indicators. Other
OSHA programs, such as the Voluntary Protection Programs (VPP) which
recognizes employers and workers in the private industry and Federal
agencies who have implemented effective safety and health management
systems and maintain injury and illness rates below national Bureau of
Labor Statistics averages for their respective industries, encourage
the use of leading indicators. And, as ASSP suggests, OSHA has
previously published guidance related to leading indicators (see, e.g.,
https://www.osha.gov/sites/default/files/OSHA_Leading_Indicators.pdf;
https://www.osha.gov/leading-indicators).
Moreover, OSHA notes that its recordkeeping system is in line with
Congress' instructions in the OSH Act (see, e.g., Section 8(c)(2)
(``The Secretary . . . shall 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[;]''); see also Section 8(g)(1) (``The
Secretary and Secretary of Health and Human Services are authorized to
compile, analyze, and publish, either in summary or detailed form, all
reports or information obtained under this section.'')).
As to the argument that OSHA's planned publication of lagging
information will mislead the public, OSHA has previously published data
from establishments' CY 2016-2021 300A forms online and has long given
out redacted Forms 300 and 301 in response to FOIA requests, and the
agency has not received reports of widespread public confusion, nor
have interested parties pointed to such reports of confusion in their
comments in this rulemaking. Consequently, OSHA is not persuaded that
these parties' hypothetical concerns should change the course of this
rulemaking. Nevertheless, to help decrease the risk that members of the
public might inaccurately assume that an establishment's report of an
injury or illness always suggests a deficiency in that establishment's
safety and health system, OSHA will continue to include a reference to
the Note to 29 CFR 1904.0 in the notes below the links to the website
on which it publishes the safety and health data submitted pursuant to
this rulemaking (see Note to Sec. 1904.0 (``Recording or reporting a
work-related injury, illness, or fatality does not mean that the
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 also received comments arguing that requiring the submission
of injury and illness data from the recordkeeping forms, and publishing
data from the submissions, will divert employer focus from leading
indicators. For example, ASSP commented, ``OSHA's focus on lagging
injury and illness data has at times created a stumbling block to
systemic safety program improvements by actively discouraging employers
from embracing a holistic risk-based approach'' (Docket ID 0031).
Similarly, the U.S. Poultry & Egg Association commented, ``In this
proposal, OSHA is myopically focusing on injuries and injury rates . .
. Despite what OSHA may believe, because employers will know that their
information will be made available worldwide, they will focus greater
attention on these issues at the expense of focusing on leading safety
metrics'' (Docket ID 0053). The North American Meat Institute made a
similar comment (Docket ID 0076).
In response, OSHA notes that, as discussed in Section III.G of this
Summary and Explanation, employers are already required to complete
these forms, and there is no reason why the new requirement to submit
information from these forms would prevent employers from additionally
implementing proactive measures as part of a comprehensive safety and
health program. The agency is unaware of any resulting increase in
inappropriate focus by employers on recordable injuries/illnesses vs.
leading indicators, commenters did not provide any examples, and it is
not clear why publishing case-specific information from the OSHA Form
300 and 301 would cause employers to focus inappropriately on
recordable injuries and illnesses in a way that collecting and
publishing establishment-specific information from the OSHA Form 300A
Annual Summary did not. Moreover, as discussed in Section III.B.4 of
this Summary and Explanation, OSHA's publication of the establishment-
specific, case-specific, injury and illness data will benefit employers
by giving them access to a larger data set that can be used for
benchmarking. This increased access to information will enable
employers to proactively improve their workplace safety and health.
5. Employer Shaming
The National Propane Gas Association commented: ``It is assumed
that the agency's ambition is to embarrass, shame, or otherwise damage
the reputation of employers as a means to induce some undefined
improvement. Underscoring this ambition is the agency's presumption
that employers are not invested in employees' safety; that public
scrutiny is the only enticement to improve the workplace rather than an
employers' natural concern for employees' safety. We disagree with the
agency's lack of faith in employers . . . .'' (Docket ID 0050).
In response, this appears to be a misunderstanding. There is no
mention in the preamble to the proposed rule of shaming, embarrassing,
or damaging the reputation of employers; nor is this the agency's
intent. On the contrary, the preamble specifically stated that
``publication of establishment-specific, case-specific injury and
illness data would benefit the majority of employers who want to
prevent injuries and illnesses among their employees, through several
mechanisms'' (87 FR 18533-4). Those mechanisms include ``enable[ing]
interested parties to gauge
the full range of injury and illness case types at the establishment,''
allowing employers to ``compare case-specific injury and illness
information at their establishments to those at comparable
establishments, and set workplace safety/health goals benchmarked to
the establishments they consider most comparable,'' and ``allow[ing]
employees to compare their own workplaces to the safest workplaces in
their industries'' (id.). OSHA further stated that, ``if employees were
able to preferentially choose employment at the safest workplaces in
their industries, then employers might take steps to improve workplace
safety and health (preventing injuries and illnesses from occurring) in
order to attract and retain employees'' (id.). As OSHA has discussed
elsewhere in this preamble, the currently available 300A data has
already been critical to efforts to improve worker safety and health,
and publishing the case-specific data required to be submitted under
this rule will further improve workplace safety and health (see, e.g.,
Section III.B.4 of this Summary and Explanation). The purpose of this
rule is to improve workers' well-being not by shaming their employers,
but by providing employers and other interested parties with valuable
information that can be used to better understand and address
occupational safety and health hazards.
6. Impact on Employee Recruiting
The Precision Machined Parts Association commented, ``PMPA believes
that posting this information on the internet without explanation will
not improve workplace safety but will make it tougher for manufacturers
to recruit young people and qualified employees into manufacturing
careers'' (Docket ID 0055).
Similarly, the North American Die Casting Association commented,
``This proposed rulemaking will only serve to hurt the image of the
industry and discourage individuals from seeking careers in
manufacturing. In a recent survey, 96 percent of NADCA members report
they have job openings in their facilities, and OSHA's actions in
making these reports public will create a false image of the industry
as dangerous. . . . At a time when businesses are already struggling to
recruit employees and compete globally, OSHA should not continue to
erect additional barriers to job growth and drive a wedge between
employer and employee.'' (Docket ID 0056). The Precision Metalforming
Association and National Tooling and Machining Association expressed
similar concerns in their joint comment (Docket ID 0057).
In response, OSHA notes that supporting and explanatory information
has always been included on its website for ODI as well as ITA data,
and the agency plans to continue this practice. For example, the ITA
website contains several explanations of the data that address
commenters' specific concerns, including a note that ``[r]ecording or
reporting a work-related injury, illness, or fatality does not mean
that the 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'' (https://www.osha.gov/Establishment-Specific-Injury-and-Illness-Data). The ODI website also includes explanatory notes
(https://www.osha.gov/ords/odi/establishment_search.html). The agency
has published establishment-specific information from the Form 300A
summary since 2009 but is unaware of any resulting detrimental effects
on the recruitment of young people and qualified employees into
manufacturing careers; nor did the commenters provide any examples. On
the other hand, OSHA notes that the data could assist with new employee
recruitment efforts by providing prospective employees with more
information about injuries and illnesses occurring at the
establishment. For example, a prospective employee might be concerned
by the number of injuries or illnesses listed in the information from
an establishment's 300A Summary, but the case-specific forms allow
establishments to provide more information regarding the injuries and
illnesses summarized in the 300A, allowing prospective employees to
make more informed decisions.
7. Legal Disputes
AIHA commented, ``Data related to personal injury can be combined
with other readily available data from newspapers, community `gossip',
etc., and then used to identify the affected individuals. Once
identified, the individuals could be harassed or encouraged to file
lawsuits or additional claims against employers'' (Docket ID 0030).
Similarly, the National Propane Gas Association stated that OSHA
ignored the ``potential for frivolous lawsuits or investigations that
could be fueled by the incomplete information that the agency intends
to publish'' (Docket ID 0050).
The Motor and Equipment Manufacturers Association commented,
``Making such data publicly available would allow third parties to use
it for reasons wholly unrelated to safety.'' This commenter provided
the following example: ``plaintiffs' attorneys, labor unions,
competitors, and special interest groups would be able to use such
information--selectively or otherwise--as leverage against companies
during legal disputes, union organizing drives, contract negotiations,
or as part of an effort to prevent a company from entering a specific
market'' (Docket ID 0075; see also Docket ID 0088).
The Chamber of Commerce similarly argued that, ``[M]aking these
data publicly available would very likely lead to less desirable
outcomes, such as increased litigation from plaintiffs' attorneys
looking to assert that the employer was at fault to overcome workers'
compensation no-fault limitations, as well as unions using these data
to mischaracterize an employer's safety record during organizing
campaigns or contract negotiations.'' (Docket ID 0088).
As discussed above, the agency has published establishment-specific
information from the Form 300A summary since 2009 but is unaware of any
resulting increase in legal disputes or unwarranted reputational
damage; nor did the commenters provide any specific examples. As noted
above, given that this final rule requires the submission of
information that can provide details on, and context for, the
information from the Form 300A that is already being made public, the
new information may help provide a fuller, more accurate picture of
worker safety and health at a given establishment. This additional
context and detail could actually help protect businesses against
attempts to mischaracterize their safety records, whether in the legal
context or otherwise. As discussed above, it is also important to note
that employees and their representatives already have the right to
request and receive injury and illness records from their employers
(see 29 CFR 1904.35). While OSHA recognizes that such access is on a
smaller scale, there is already the potential for the data to be used
for these purposes, independent of this regulation. Finally, also as
discussed above, to the extent that the published data serves to
address the problem of information asymmetry in the labor market, OSHA
considers that a positive consequence of the final rule.
8. No Fault Recordkeeping
OSHA also received several comments asserting that the proposed
rule would be inconsistent with the ``no fault'' nature of the
recordkeeping system, as set forth in the note to 29 CFR 1904.0:
``Recording or reporting a work-related injury, illness, or fatality
does not mean that the 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'' (e.g., Docket IDs 0053, 0086, 0087,
0090, 0091). OSHA received similar comments on the 2013 NPRM (the
rulemaking which culminated in the 2016 final rule) (see 81 FR 29666-
67).
These comments misconstrue what OSHA means by no fault reporting.
As OSHA has explained previously, it will not use the mere fact that an
employer has recorded or reported and injury or illness as evidence
that the employer violated the OSH Act or an OSHA standard. But that is
not the same as saying that the data recorded and reported have no
valid use or effect. OSHA has used employer reports of worker deaths
and injuries, as well as press reports and referrals from other
agencies, as a basis for investigating conditions at an affected
workplace throughout its entire history. For just as long, OSHA's first
step in all of its workplace inspections has been an examination of the
establishment's injury and illness records. OSHA's very first
Compliance Operations Manual, issued in January 1972, states that
``During the course of a routine inspection, the CSHO shall inspect
those employer records required to be kept by the Act and by [p]art
1904'' (Docket ID 0100, p. V-15). And today, the instruction is the
same: ``At the start of each inspection, the CSHO shall review the
employer's injury and illness records (including the employer's OSHA
300 logs, 300A summaries, and 301 incident reports) for three prior
calendar years'' (see OSHA's Field Operations Manual, CPL 02-00-164,
Chapter III, Paragraph VI.A.1 (April 14, 2020) available at https://www.osha.gov/enforcement/directives/cpl-02-00-164).
And OSHA has always used the information in those records to guide
the nature of its inspections (see, e.g., McLaughlin v. A.B. Chance
Co., 842 F.2d 724 (4th Cir. 1988) (noting that during a complaint
inspection about a particular machine, ``it would be reasonable for the
investigator to determine if there had been injuries from the use of
said machine'')). Indeed, for many years, OSHA's inspections plans
explicitly conditioned the scope of inspections on the data found in
those records (In re Establishment Inspection of Kohler Co., 935 F.2d
810 (7th Cir. 1991) (``OSHA applied to a federal magistrate for an
administrative search warrant that would require Kohler to produce the
records and to submit to a comprehensive inspection of its entire
facility if those records revealed that Kohler's injury rate exceeded
the national average for manufacturing concerns.'')). In the last five
years OSHA has used information from establishments' 300A Forms
submitted under the 2016 final rule to prioritize which workplaces to
inspect through OSHA's Site-Specific Targeting program. It does so by
using a neutral administrative scheme to identify hazards that OSHA
wants to address through its enforcement resources. However, OSHA will
not use the case-specific injury and illness information submitted to
simply choose a particular employer to inspect outside of the neutral
administrative scheme noted above (see Marshall v. Barlow's Inc., 436
U.S. 307 (1978)). Thus, the assertion by the Employers E-Recordkeeping
Coalition, ``that the principal reason that the data collected pursuant
to this proposed rule is published by OSHA presumes and is based on a
premise of employer fault,'' is wrong (see Docket ID 0087).
OSHA continues to recognize that the mere fact of any particular
injury or illness occurring is not an indication of employer fault. But
the reports of those injuries and illnesses can provide important
information about hazards that exist at workplaces, whether or not
those hazards are addressed by existing OSHA standards. As explained
elsewhere, this information can be useful not only to OSHA, but also to
researchers, workers, and even other employers with similar facilities
(see, e.g., Docket IDs 0030, 0045). For the same reasons, as discussed
elsewhere in this preamble, publication of the submitted data is not
intended to ``shame'' employers (see Docket ID 0081); it is merely to
allow use of the data in ways that will promote occupational safety and
health.
9. Confidentiality of Business Locations
One commenter was concerned about the consequences of disclosing
business locations for certain establishments. Specifically, the
National Retail Federation commented that some business locations need
to remain confidential because ``[m]any retailers deal with
pharmaceuticals, hazardous materials, or other highly sought after and/
or dangerous products,'' and ``[e]xposing the locations of these
operations could leave them vulnerable to bad actors seeking the
materials for their own use or sale on the black market'' (Docket ID
0090).
In response, OSHA notes that it has long published certain
information from employers' Form 300A, including business locations. As
explained elsewhere, the agency began publishing information from
establishments' electronic submissions of Form 300A annual summary data
in 2020; in addition, beginning in 2009, OSHA published information
from the establishments' submissions of the Form 300A to the OSHA Data
Initiative (ODI), which was replaced by the current data collection.
The information published from both data collections included
establishments' addresses. Furthermore, OSHA is not aware of any
instances of damage from bad actors as a result of data collected
through the ITA or the ODI and published since 2009, and commenters did
not provide any examples. Nor is OSHA aware of any law that classifies
business addresses as confidential business information or personally
identifiable information, and commenters have provided none.
Moreover, OSHA notes that the Environmental Protection Agency
already publishes information about the location of workplaces with
hazardous materials and chemicals. For example, facilities must inform
local communities of the presence of hazardous chemicals at specific
worksites under the Emergency Planning and Community Right-to-Know Act.
Also, EPA maintains hazardous materials information in the Resource
Conservation and Recovery Act Information (RCRAInfo), which provides a
searchable public website for the identification of facilities that
generate, handle, and store hazardous materials (see, e.g., the Toxic
Release Inventory: https://www.epa.gov/enviro/tri-search and the
Emergency Planning and Community Right-to-Know Act (EPCRA) Reporting
Requirements: https://www.epa.gov/epcra/state-tier-ii-reporting-requirements-and-procedures). Given the availability of such
information, OSHA does not expect that the minimal amount of
information regarding hazardous materials that it may publish will lead
to the problems envisioned by this commenter.
Finally, OSHA believes that the benefits of publishing this
information outweigh the purported risks. As discussed in greater
detail in Section III.B.4 of this Summary and Explanation, OSHA has
identified a number of ways in which employees, researchers,
consultants, and the general public may benefit from the publication of
data from Forms 300 and 301, and if those groups do not have access to
businesses' addresses, many of those benefits will not be realized. For
example, injury and illness data may help job seekers make more
informed decisions regarding their employment, but only if they can
accurately identify their potential employers. Accordingly, OSHA
declines to change its
longstanding practices regarding publication of business locations.
10. Employer-Vaccine-Mandate-Related Concerns
OSHA also received a comment from an interested party who was
concerned that non-OSHA actors will mischaracterize the injury and
illness data which OSHA intends to publish on its websites as
``vaccine-related,'' especially if those injuries and illnesses occur
in establishments with known vaccine mandates. Specifically, the
National Retail Federation (NRF) commented that ``throughout the COVID-
19 pandemic and continuing beyond, various groups have targeted
employers for implementing vaccine mandates in their workplaces. Such
employers could face unwarranted attacks or unfair mischaracterizations
of their workplace safety records due to vaccination policies. Sadly,
we have already seen anti-vaccine advocates manipulate publicized
workplace injuries and unjustly characterize them as vaccine-related.
Employers who implemented vaccine mandates consistent with the
Administration's wishes, should not be unfairly targeted by those who
would eagerly mischaracterize the impact of mandates and policies''
(Docket ID 0090).
OSHA understands this commenter's concern. However, OSHA published
calendar year 2021 data from OSHA Form 300A on its website in April
2022, September 2022, and January 2023. The information made available
in that release (like previous releases of the data from Form 300A)
includes, among other things, company names and data regarding total
number of deaths; total numbers of cases with days away from work and
job transfers or restrictions, total number of other restrictions, and
injury and illness types (e.g., the total number of injuries, skin
disorders, respiratory conditions, poisonings, and all other
illnesses). If the groups referenced by NRF were going to use OSHA data
to target the establishments with vaccine mandates, OSHA believes that
they already had the opportunity to do so using the published 300A
data. There is no such evidence of OSHA data being used for these kinds
of attacks in the record, and NRF did not point to any such evidence.
Moreover, the publication of case-specific data will provide more
information about the injuries and illnesses occurring at
establishments, perhaps making it more obvious that a
mischaracterization of an injury or illness as vaccine-related is just
that: a mischaracterization.
Finally, if NRF is suggesting that the groups referenced in its
comment could somehow determine that a given employer or establishment
had a vaccine mandate in place by viewing the Form 300 or 301 data
which OSHA plans to make publicly available, OSHA thinks such a thing
is unlikely. This final rule does not include a vaccination mandate for
employees, nor does it require the collection and publication of
information about vaccine mandates at a given establishment. Further,
OSHA is currently not enforcing 29 CFR 1904's recording requirements in
the case of worker side effects from COVID-19 vaccination. Thus, OSHA
does not expect that any information regarding vaccine side effects
will appear in establishment's injury and illness data. And NRF has not
pointed to any other data or evidence that would be submitted and made
public pursuant to this rulemaking that could alert the groups
discussed above of an employer or establishment's vaccine mandate.
Consequently, for the reasons discussed above, OSHA is not persuaded
that the potential harm referenced by NRF is anything other than purely
speculative.
11. Constitutional Issues and OSHA's Authority To Publish Information
From Forms 300 and 301
a. The First Amendment
OSHA received two comments relating to the First Amendment of the
U.S. Constitution. On the one hand, a comment from the U.S. Chamber of
Commerce argues that OSHA's proposed rule would violate the First
Amendment because it would force employers to submit their confidential
and proprietary information for publication on a publicly available
government online database (Docket ID 0088, Attachment 2). In its
comment, the Chamber noted that the First Amendment protects both the
right to speak and the right to refrain from speaking. The Chamber
commented: ``While OSHA's stated goal of using the information it
collects from employers ``to improve workplace safety and health,'' 78
FR 67254, 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))).'' (Docket ID 0088, Attachment 2)
(footnote omitted).
In support of these arguments, the Chamber alleged that OSHA's
proposal would undermine (not improve) workplace safety and health
because it ``would substantially deplete OSHA's resources.'' In
addition, the Chamber asserted that ``even if OSHA were able to
maintain this database and analyze this information in an effective and
timely manner, there is no evidence that publication of this
information will have any effect on workplace safety'' (Docket ID 0088,
Attachment 2).
On the other hand, Worksafe commented that the rule would merely
compel employers to submit to OSHA information that they are already
required to maintain about workplace incidents (Docket ID 0063). It
further explained that this is a form of commercial speech, in which
the speaker's constitutional interest in non-disclosure is minimal
(Docket ID 0063 (citing Zauderer v. Office of Disciplinary Counsel, 471
U.S. 626, 651 (1985))). Additionally, Worksafe argued that OSHA could
address First Amendment concerns by identifying the following in the
final rule (1) OSHA's interest in the case-specific reports and
publication, (2) how the rule advances that interest, and (3) why the
rule is not unduly burdensome (Docket ID 0063).
After considering these comments, OSHA disagrees with the Chamber's
assertion 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 424 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)).
Further, OSHA agrees with WorkSafe that Zauderer is applicable to
this rulemaking. In Zauderer, the Supreme Court upheld Ohio State rules
requiring disclosures in attorney advertising relating to client
liability for court costs (471 U.S. at 653). 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. at
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.). More recently, in American Meat
Institute v. U.S. Dept. of Agriculture, the U.S. Court of Appeals for
the D.C. 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) (en
banc) (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), cert denied, 547 U.S. 1179 (2006)).
This 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)). Further, as discussed in more
detail in Section III.B.4 of this Summary and Explanation, OSHA has
determined that the collection and publication of this information will
have a positive effect on worker safety and health. In addition, as
discussed in Section III.B.14 of this Summary and Explanation, OSHA
does not believe that its decision to devote a portion of its resources
to collecting the workplace injury and illness data covered by this
final rule will negatively impact worker safety and health. On the
contrary, OSHA expects that the data submitted in response to the
requirements put into place by this final rule will allow OSHA to
allocate its resources in a more informed fashion. The remainder of the
Chamber's comment addresses the requirement that the government
``narrowly tailor'' regulations that deal with essential rights, which,
as explained above, does not apply to an employer's minimal interest in
non-disclosure of purely factual and uncontroversial information.
b. The Fourth Amendment
The Plastics Industry Association (Docket ID 0086), as well as one
private citizen commenter (Docket ID 0023), generally assert that the
collection and publication of site- and case-specific data would
violate employers' Fourth Amendment rights. However, as discussed above
in Section II, Legal Authority, the Fourth Amendment protects against
government searches and seizures of private property only when a person
has a legitimate expectation of privacy related to the thing being
searched or seized. There is little or no expectation of privacy for
records of occupational injuries and illnesses kept in compliance with
OSHA regulations, which employers are legally required to disclose to
OSHA and others on request. Moreover, even if there were an expectation
of privacy in these records, the Fourth Amendment prohibits only
unreasonable incursions by the government. The test for reasonableness
requires balancing the need to search against the invasion that the
search entails (see Camara v. Mun. Ct. of City & Cnty. of San
Francisco, 387 U.S. 523, 536-537 (1967)). The information submission
requirement in this final rule is reasonable. As explained in Section
II, Legal Authority, the submission requirement serves a substantial
government interest in protecting the health and safety of workers, has
a strong statutory basis, and uses reasonable, objective criteria for
determining which employers must report information to OSHA. In
addition, again, as noted above and below, the submission requirement
results in little to no invasion of employer or establishment privacy
given that employers must already retain these forms and provide them
to multiple individuals and entities upon request.
OSHA also received a comment from the U.S. Chamber of Commerce (the
Chamber) asserting that OSHA's use of injury and illness data submitted
under the proposed rule for enforcement purposes would violate
employers' Fourth Amendment rights. The Chamber argued 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) (Docket ID 0088, Attachment 2). Additionally, the Chamber
maintained 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.'' '' (Docket ID 0088, Attachment 2 (quoting
78 FR 67256)).
In response, OSHA notes that Barlow's concerned the question of
whether OSHA must have a warrant to enter and inspect the nonpublic
areas of a worksite without the employer's 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 Chamber'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 statutory 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, as noted above, all of the injury and illness
information establishments will be required to submit under this final
rule will be 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 employers and industries for greater
enforcement attention. More specifically, the agency will use the data
submitted by employers under this final rule in essentially the same
manner in which OSHA has used data from the ODI and the current
collection of Form 300A data in all of its iterations of the Site-
Specific Targeting (SST) program. The SST includes for selection
establishments that meet pre-determined injury and illness rate
thresholds. All establishments at or above the threshold are eligible
for inspection. Establishments in this pool are then randomly selected
for inspection. In the future, OSHA plans to analyze the recordkeeping
data submitted by employers to identify injury and illness trends,
establish neutral criteria to determine which employers may be
inspected, and then make appropriate decisions regarding enforcement
efforts based on those criteria. OSHA also notes that the agency
currently uses establishment-specific fatality, injury, and illness
reports submitted by employers under Sec. 1904.39 to target
enforcement and compliance assistance resources. As with the SST and
National Emphasis programs, a neutral-based scheme is used to identify
which establishments are inspected and which fall under a compliance
assistance program. Accordingly, OSHA's using injury and illness
recordkeeping data to target employers for inspection will not be
arbitrary or unconstitutional under the Fourth Amendment.
c. The Fifth Amendment
One commenter raised concerns that the proposed rule would violate
the Fifth Amendment's requirement that the Federal Government ensure
equal protection. Specifically, Hunter Cisiewski commented that the
proposal to remove the requirement from former Sec. 1904.41(a)(1) for
certain establishments with 250 or more employees to electronically
submit Form 300A data, ``would deprive workers in the affected
industries of holding their employers accountable to produce workplace
related injury data to OSHA while simultaneously providing this
protection to workers in similar industries'' and ``presents no reason
for why employees in these affected industries should no longer have
the guarantee that their employers will report workplace injury and
illness data to the governing agency'' (Docket ID 0024).
As explained in Section III.A of this Summary and Explanation, OSHA
has decided not to make the proposed change of restricting the universe
of large establishments that are required to submit data from Form
300A. Instead, the agency will maintain the requirement for all
establishments with 250 or more employees that are covered by part 1904
to submit the information from their OSHA Form 300A to OSHA, or its
designee, once a year. Therefore, although OSHA disagrees with this
commenter's assertion that the proposal would have violated the Fifth
Amendment's guarantee of equal protection had it been finalized, the
agency finds that this particular comment is moot.
d. OSHA's Authority To Publish Information Submitted Under This Rule
Several commenters asserted that OSHA lacks the statutory authority
under the OSH Act to publish a database that makes submitted injury and
illness recordkeeping data available to the general public (Docket IDs
0050, 0059, 0071, 0086, 0088, 0090). 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 on a public website.
The National Retail Federation (NRF) stated: ``NRF believes the NPRM
itself is fundamentally flawed in that the agency does not have the
statutory authority to publish the data as proposed'' (Docket ID 0090).
The National Propane Gas Association commented: ``Lastly, the agency
radically interprets its authority to justify the publicly accessible
website. In the NPRM, OSHA argues that its general purpose justifies
any rulemaking that presents the potential to improve safety. The
general purpose of the agency to improve workplace safety is not
equivalent to a foregone conclusion that any proposal by the agency
will result in improvements to workplace safety. The NPRM fails to
present information to demonstrate that public shaming is an effective
means to improve workplace safety.'' (Docket ID 0050).
Similarly, NAHB pointed to other statutes, such as the Federal Coal
Mine Safety and Health Act of 1969, Public Law 91-173 (December 30,
1969), which it maintains provided more express authority to publish
records than the OSH Act (Docket ID 0059). NAHB further argues that the
language in the OSH Act only authorizes OSHA to publish analysis, not
``raw data'' (Docket ID 0059).
As OSHA stated in the 2016 final recordkeeping rule, the OSH Act
provides ample statutory authority for OSHA to issue this final rule
and publish the submitted data. As explained in Section II, Legal
Authority, 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 ensure safe and healthy working conditions through
appropriate reporting procedures designed to further the objectives of
the OSH Act and accurately characterize the nature of workplace safety
and health hazards (29 U.S.C. 651(b)(12)).
Section 8(c)(1) requires employers to create and retain the records
that OSHA has specified are necessary and appropriate either for the
Act's enforcement or to develop information related to the underlying
reasons for and prevention of work-related illnesses and accidents (29
U.S.C. 657(c)(1)). Section 8(c)(1) also requires employers to make such
records available to the Secretary. 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 tasks the
Secretary with promulgating regulations which require employers to keep
accurate records of, and to make periodic reports on, occupational
illnesses, injuries, and deaths (29 U.S.C. 657(c)(2)).
The grant of authority in Section 8(g)(1) is particularly pertinent
to OSHA's stated intention to publish the collected information online.
Section 8(g)(1) authorizes the Secretary to compile, analyze, and
publish, either in summary or detailed form, all reports or information
the Secretary obtains under section 8 of the OSH Act. Section 8(g)(2)
of the Act generally empowers the Secretary to promulgate any rules and
regulations that the Secretary determines are necessary to perform the
Secretary's duties under the OSH Act (29 U.S.C. 657(g)(2)).
Section 24 contains a related grant of regulatory authority.
Section 24(a) directs the Secretary to create and maintain an effective
program of collection, compilation and analysis of work-related safety
and health statistics. In addition, Section 24(a) states that the
Secretary shall compile accurate
statistics on occupational illnesses and injuries (29 U.S.C. 673(a)).
Finally, Section 24(e) provides that, based on the records the
employers create and retain in accordance with Section 8(c) of the OSH
Act, employers must file, with the Secretary, the reports prescribed by
regulation as necessary to carry out the Secretary's functions under
the OSH Act (29 U.S.C. 673(e)). Given the numerous statutory provisions
authorizing and requiring OSHA to collect information about
occupational safety and health, along with the provision (Section
8(g)(1)) specifically addressing the publication of such information,
it is clear that Congress determined that both collection and
publication of this information were critical to OSHA's mission of
protecting the health and safety of the nation's workers.
In addition, as described in Section III.B of this Summary and
Explanation, OSHA has made the determination that electronic submission
and publication of injury and illness recordkeeping data are
``necessary and appropriate'' for the enforcement of the OSH Act and
for gathering and sharing 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)).
OSHA further notes that, contrary to comments made by some
commenters, and as explained above, 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 and
publication of submitted injury and illness recordkeeping data will be
conducted in accordance with applicable Federal law (see discussion
above in this preamble). The purpose of increasing access to injury and
illness report data is not to conduct public shaming, but rather to
allow employers to compare their safety records to other employers,
enable employees to gain greater awareness of the hazards and safety
records in their workplaces without fear of retribution, and pursue the
numerous other safety and health-related purposes discussed in this
rulemaking.
Many commenters stated that collection and publication of detailed
injury and illness data will support the OSH Act's goals of reducing
occupational accidents and illnesses through greater understanding,
prevention, and effective enforcement (e.g., Docket IDs 0010, 0011,
0012, 0024, 0029, 0030, 0031, 0035, Attachment 2, 0045, Attachment 1,
0048, 0049, Attachment 1). The Seventeen AGs summarized the ways that
publication of data will enhance the effectiveness of OSHA's efforts to
achieve the purposes of the OSH Act: ``Requiring the submission of
certain data from Forms 300 and 301, in addition to the summary Form
300A, will provide the public with injury-specific data that is
critical for helping workers, employers, regulators, researchers, and
consumers understand and prevent occupational injuries and illnesses. .
. . These [case-specific] fields paint a far more detailed picture of
the nature and severity of workplace safety incidents and risks. The
proposed rule recognizes the importance of this more detailed
information, which will help OSHA and States better target their
workplace safety and enforcement programs; encourage employers to abate
workplace hazards; empower workers to identify risks and demand
improvements; and provide information to researchers who work on
occupational safety and health.'' (Docket ID 0045).
OSHA agrees. In sum, publication of the data required to be
submitted under this final rule is clearly within the broad authority
granted the agency by the OSH Act.
OSHA also received comments arguing 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) (Docket ID 0088,
Attachment 2). For example, the Chamber of Commerce 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.
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 non-statistical purposes,
including for the targeting of OSHA enforcement activities. Therefore,
the CIPSEA confidentiality provisions are not applicable to the final
rule.
12. Administrative Issues
a. Public Hearing
The Chamber of Commerce recommended that OSHA hold formal public
hearings throughout the United States for this rulemaking (Docket ID
0088, Attachment 2). The Chamber felt that, given both the burden on
employers and the far-reaching implications of publishing confidential
and proprietary information, formal public hearings were necessary to
give people outside Washington, DC the opportunity to participate in
the rulemaking process. Additionally, the National Propane Gas
Association commented that OSHA should hold ``public listening sessions
to solicit more concepts from employers, employees, and other
stakeholders'' (Docket ID 0050).
OSHA considered these requests and is not persuaded that hearings
or public listening sessions are required or necessary. First, as to
whether a hearing is required, because this rulemaking involves a
regulation rather than a standard, it 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 1911.11. Section 6 of the OSH
Act and 29 CFR 1911.11 only apply to promulgating, modifying, or
revoking occupational safety and health standards. Therefore, the OSH
Act's requirement to hold an informal public hearing (29 U.S.C.
655(b)(3)) on a proposed rule, when requested, does not apply to this
rulemaking.
Similarly, Section 553 of the APA 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)). In the NPRM, OSHA invited
the public to submit written comments on all aspects of the proposal
and received 87 comments in response (see 87 FR 18555). OSHA believes
that interested parties had a full and fair opportunity to participate
in the rulemaking and comment on the proposed rule through the
submission of written comments. This belief is supported by the fact
that OSHA extended the comment period for an additional thirty days
based on requests from the public (87 FR 31793). With that extension,
interested parties were afforded 92 days to review and comment on
OSHA's proposal. OSHA did not receive any requests to further extend
the comment period.
Second, as to the necessity of the hearing to provide interested
parties outside of Washington, DC an opportunity to participate in the
rulemaking process, or holding public listening sessions, OSHA does not
believe it needs to do so for the same reasons it does not find that
the APA requires a hearing. Specifically, the opportunity for notice
and comment afforded by the NPRM was sufficient to both allow
participation by interested parties and fully develop the record.
b. The Advisory Committee on Construction Safety and Health (ACCSH)
The National Association of Homebuilders (NAHB) commented that OSHA
must seek input from the Advisory Committee on Construction Safety and
Health (ACCSH) during this rulemaking ``to better understand the
impacts and consequences of its proposal'' (Docket ID 0059).
As pointed out by NAHB in their comments, ACCSH is a continuing
advisory body established under Section 3704(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 of Labor 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 construction standards
under the OSH Act.
OSHA notes that both the Construction Safety Act (40 U.S.C.
3704(a)) and 29 CFR 1912.3 only require OSHA to consult with ACCSH
regarding the formulation of new construction ``standards.'' As
discussed above, the requirements in 29 CFR part 1904 are regulations,
not standards. Therefore, as NAHB itself acknowledged in its comment
(``the statute and the agency's own regulations only require OSHA to
consult with the ACCSH regarding the setting of construction standards,
and not regulations'' (Docket ID 0059)), OSHA was not required to
consult with ACCSH in formulating this final regulation. In addition,
as noted in the NPRM, OSHA consulted and received advice from the
National Advisory Council on Occupational Safety and Health (NACOSH)
prior to issuing the proposed rule. NACOSH 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, government agencies, and members of the public.
c. Reasonable Alternatives Considered
Associated Builders and Contractors commented that under the APA,
OSHA is required ``to consider reasonable alternatives to its proposed
reversal of the current reporting requirements,'' and asserts that
``the failure to do so will likely lead to nullification upon judicial
review'' (Docket ID 0071). In response, OSHA notes that the Supreme
Court has held that an agency is not required to ``consider all policy
alternatives in reaching [its] decision,'' but when an agency rescinds
a prior policy, it must consider the alternatives that are ``within the
ambit of the existing [policy]'' (Dep't of Homeland Security v. Regents
of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (alterations in
original)).
The commenter does not point to a particular policy alternative
that OSHA failed to consider, nor is OSHA required to consider every
possible policy alternative. To the extent the comment suggests that
OSHA should have considered, as an alternative, maintaining the
requirements of the 2019 rule, OSHA has complied with this requirement.
As explained in the NPRM, OSHA proposed requiring establishments with
100 or more employees at any time during the previous calendar year,
and in an industry listed in proposed appendix B to subpart E, to
electronically submit certain information from OSHA Forms 300, 301, and
300A (87 FR 18537). This was a change from the 2019 final rule, which
had removed the requirement for the annual electronic submission of 300
and 301 data to OSHA because of both the risk of disclosure of
sensitive worker information and resource concerns. In the NPRM, OSHA
explained that it had preliminarily determined that the reasons given
in the preamble to the 2019 rule for the removal of the 300 and 301
data submission requirement were no longer compelling. The agency
discussed in detail the ways in which the benefits of collecting data
from the 300 and 301 forms outweighed the slight risk to employee
privacy and explained how technological improvements have mitigated
resource concerns (87 FR 18537-18542). The NPRM also explained the ways
in which publication of 300 and 301 data may benefit interested parties
and improve worker safety and health (87 FR 18542-18543). Furthermore,
in Section III.B of this Summary and Explanation, OSHA has discussed
these issues in further detail and responded to a number of comments
opposing the new reporting requirement. By analyzing these issues and
responding to comments, OSHA has weighed the proposal against
maintaining the status quo and provided a well-reasoned explanation for
its decision, which illustrates OSHA's consideration of alternatives to
its proposal and fulfills its obligations under the APA.
OSHA also considered alternatives to several aspects of this final
rule. In the preliminary economic analysis of the NPRM, the agency
explained that appendix A is based on 2011-2013 injury rates from the
SOII, and that OSHA was not proposing to modify appendix A because it
took several years for the regulated community to understand which
industries were required to submit information and which were not (87
FR 18552). However, OSHA asked for comment on a possible alternative:
updating appendix A to reflect 2017-2019 injury rates, which would
result in the addition of one industry and the removal of 13 (87 FR
18552-53). Additionally, OSHA explained that the 2016 final rule did
not include a requirement to regularly update the list of designated
industries in appendix A because it believed that moving industries in
and out of the appendix would be confusing (87 FR 18553). The agency
requested comment on another possible alternative: regularly updating
the list of designated industries in proposed appendix B (87 FR 18553).
In Section III.A of this Summary and Explanation, OSHA has responded to
the comments received in response to the first alternative and provided
explanations for its decision not to adopt the alternative. Likewise,
in Section III.B of this Summary and Explanation, OSHA responded to
comments received in response to the
second alternative, and its decision not to adopt that alternative.
OSHA also proposed to change the requirement in Sec. 1904.41(a)(1)
that required establishments with 250 or more employees, in all
industries routinely required to keep OSHA injury and illness records,
to electronically submit information from their 300A to OSHA once a
year. The proposal would have required this submission only for
establishments in industries listed in appendix A, thus reducing the
number of establishments required to electronically submit 300A data
(see 87 FR 18536). The agency received many comments on the proposal,
which overwhelmingly opposed it, and urged OSHA to retain the existing
requirement for establishments with 250 or more employees that are
normally required to report under part 1904 to submit data from their
300As. In Section III.A of this Summary and Explanation, these comments
are discussed in greater detail, as is OSHA's explanation for rejecting
the proposed change and retaining current reporting requirements for
Form 300A data.
OSHA's presentation of proposed alternatives, analysis of comments,
and ultimate decisions to reject those proposals illustrates OSHA's
consideration of alternatives within the ambit of its current policy.
For these reasons, OSHA has met its obligations under the APA to
consider alternatives to its proposal.
IV. Final Economic Analysis and Regulatory Flexibility Certification
A. Introduction
As described above, OSHA is amending its recordkeeping regulations
in 29 CFR part 1904 to revise the requirements for the electronic
submission of information from employers' injury and illness
recordkeeping forms. Specifically, OSHA is amending its recordkeeping
regulation at Sec. 1904.41 to require establishments with 100 or more
employees in certain designated industries (i.e., those on appendix B
in subpart E of part 1904) to electronically submit information from
their OSHA Forms 300 and 301 to OSHA once a year. This is the only new
requirement of the final rule, and therefore the only one that imposes
new costs on employers. The other main provisions in the final rule,
which involve submission of data from the Form 300A annual summary,
represent non-substantive changes to requirements that already exist.
OSHA intends to post the data from the annual electronic submissions on
a public website after identifying and removing information that could
reasonably be expected to identify individuals directly, such as
individuals' names and contact information.
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of the intended regulation and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, and public health and
safety effects; distributive impacts; and equity). Executive Order
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This rule is not an economically significant regulatory action under
Section 3(f) of Executive Order 12866 and has been reviewed by the
Office of Information and Regulatory Affairs in the Office of
Management and Budget, as required by executive order.
As explained in this analysis, OSHA estimates that this rule will
have economic costs of $7.7 million per year. These costs include $7.1
million per year to the private sector to become familiar with the
rule's requirements, update software, and submit forms electronically
to OSHA, and $0.6 million per year to the government for processing the
data, updating and maintaining software, and providing additional IT
support. OSHA estimates average costs of $136 per year for affected
establishments (those with 100 or more employees in NAICS industries
listed on appendix B of subpart E of part 1904), annualized over 10
years with a discount rate of seven percent.
The final rule is not a significant regulatory action under
Executive Order 12866 Section 3(f)(1), 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 the Congressional Review Act for an economically
significant regulatory action or major rule.\18\ This Final Economic
Analysis (FEA) addresses the costs, benefits, and economic impacts of
the rule.
---------------------------------------------------------------------------
\18\ The Chamber of Commerce objected to the preliminary finding
that this rule is not an economically significant regulatory action
under Executive Order 12866 (Ex. 88), arguing that the first-year
costs of compliance require such a finding. This assertion is based
on the Chamber of Commerce's own estimates of the costs of
compliance with this rule, which are significantly higher than
OSHA's. The Chamber estimates first-year costs of $130 million,
whereas OSHA's estimated annual costs in the FEA to affected
employers are just over $7 million. The Chamber of Commerce's more
specific comments regarding costs are discussed throughout this
section.
---------------------------------------------------------------------------
B. Changes From the Preliminary Economic Analysis (PEA) (Reflecting
Changes in the Final Rule From the Proposal)
The final rule makes limited substantive changes to employer
obligations when compared to the requirements that were costed as part
of the proposed rule. These changes, as described in more detail below,
are to the requirement for establishments with 250 or more employees to
submit data from their 300A annual summaries to OSHA and to the
industries included on appendix B to subpart E of part 1904.
More generally, the final rule does not add to or change any
employer's obligation to complete, retain, and certify injury and
illness records under OSHA's regulations at 29 CFR part 1904. The final
rule also does not add to or change the recording criteria or
definitions for these records. Nor does the final rule change the
requirement to electronically submit information from the OSHA 300A
Annual Summary. As discussed in Section III.A of the Summary and
Explanation, the final rule does not remove the reporting requirement
from any establishment that is currently required to electronically
report Form 300A information to OSHA nor impose a new reporting
requirement on any establishment that is not currently required to
electronically report Form 300A information to OSHA.
1. Continued Submission of OSHA 300A Annual Summaries by Establishments
With 250 or More Employees
In the NPRM, OSHA proposed removing the requirement for
establishments with 250 or more employees in select industries to
submit information from their OSHA 300A annual summary forms
electronically. To reflect this proposed change, OSHA estimated in its
PEA that the reduction in the number of establishments required to
submit this information would result in a total annual cost savings of
$27,077 (87 FR 18549). For this final rule, as explained in Section
III.A of the Summary and Explanation, OSHA has decided not to make the
proposed change and to retain the existing requirement. Therefore,
these cost savings have been removed from the cost analysis.
2. Additional Appendix B Industries
In the NPRM, the agency proposed a selected list of industries, in
appendix B, to designate which establishments
with 100 or more employees would have to submit information from their
OSHA Form 300 Log and Form 301 Incident Reports electronically. The
industries on proposed appendix B were based on the average total case
rate (TCR) of injuries and illnesses in each industry. Because the
requirement for establishments in industries on appendix B to submit
data from Forms 300 and 301 is a new requirement, OSHA analyzed the
costs and impacts to establishments in those industries in the PEA. For
the final rule, OSHA has decided to add additional industries to the
list of industries that were on appendix B in the proposed rule; these
additional industries are listed in Table 1, below. As explained in
Section III.B.1 of the Summary and Explanation, OSHA has decided to add
industries from appendix A that meet the criteria of having either a
high DART rate (defined as 1.5 times the private industry DART rate) or
a high fatality rate (defined as 1.5 times the private industry
fatality rate). Employers that have 100 or more employees and are in an
industry listed on final appendix B must submit information from their
Forms 300 and 301 to OSHA, electronically, on an annual basis.
Table 1--Industries Added to Appendix B
----------------------------------------------------------------------------------------------------------------
High fatality rate
2017 NAICS 4-digit Industry High DART rate criteria criteria
----------------------------------------------------------------------------------------------------------------
1133.............................. Logging................... No..................... Yes.
1142.............................. Hunting and Trapping...... Yes.................... No.
3379.............................. Other Furniture Related Yes.................... No.
Product Manufacturing.
4239.............................. Miscellaneous Durable No..................... Yes.
Goods Merchant
Wholesalers.
4853.............................. Taxi and Limousine Service No..................... Yes.
4889.............................. Other Support Activities Yes.................... No.
for Transportation.
----------------------------------------------------------------------------------------------------------------
With the additions in Table 1, above, the final appendix B to
subpart E is as follows:
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
1111......................... Oilseed and Grain Farming.
1112......................... Vegetable and Melon Farming.
1113......................... Fruit and Tree Nut Farming.
1114......................... Greenhouse, Nursery, and Floriculture
Production.
1119......................... Other Crop Farming.
1121......................... Cattle Ranching and Farming.
1122......................... Hog and Pig Farming.
1123......................... Poultry and Egg Production.
1129......................... Other Animal Production.
1133......................... Logging.
1141......................... Fishing.
1142......................... Hunting and Trapping.
1151......................... Support Activities for Crop Production.
1152......................... Support Activities for Animal Production.
1153......................... Support Activities for Forestry.
2213......................... Water, Sewage and Other Systems.
2381......................... Foundation, Structure, and Building
Exterior Contractors.
3111......................... Animal Food Manufacturing.
3113......................... Sugar and Confectionery Product
Manufacturing.
3114......................... Fruit and Vegetable Preserving and
Specialty Food Manufacturing.
3115......................... Dairy Product Manufacturing.
3116......................... Animal Slaughtering and Processing.
3117......................... Seafood Product Preparation and
Packaging.
3118......................... Bakeries and Tortilla Manufacturing.
3119......................... Other Food Manufacturing.
3121......................... Beverage Manufacturing.
3161......................... Leather and Hide Tanning and Finishing.
3162......................... Footwear Manufacturing.
3211......................... Sawmills and Wood Preservation.
3212......................... Veneer, Plywood, and Engineered Wood
Product Manufacturing.
3219......................... Other Wood Product Manufacturing.
3261......................... Plastics Product Manufacturing.
3262......................... Rubber Product Manufacturing.
3271......................... Clay Product and Refractory
Manufacturing.
3272......................... Glass and Glass Product Manufacturing.
3273......................... Cement and Concrete Product
Manufacturing.
3279......................... Other Nonmetallic Mineral Product
Manufacturing.
3312......................... Steel Product Manufacturing from
Purchased Steel.
3314......................... Nonferrous Metal (except Aluminum)
Production and Processing.
3315......................... Foundries.
3321......................... Forging and Stamping.
3323......................... Architectural and Structural Metals
Manufacturing.
3324......................... Boiler, Tank, and Shipping Container
Manufacturing.
3325......................... Hardware Manufacturing.
3326......................... Spring and Wire Product Manufacturing.
3327......................... Machine Shops; Turned Product; and Screw,
Nut, and Bolt Manufacturing.
3328......................... Coating, Engraving, Heat Treating, and
Allied Activities.
3331......................... Agriculture, Construction, and Mining
Machinery Manufacturing.
3335......................... Metalworking Machinery Manufacturing.
3361......................... Motor Vehicle Manufacturing.
3362......................... Motor Vehicle Body and Trailer
Manufacturing.
3363......................... Motor Vehicle Parts Manufacturing.
3366......................... Ship and Boat Building.
3371......................... Household and Institutional Furniture and
Kitchen Cabinet Manufacturing.
3372......................... Office Furniture (including Fixtures)
Manufacturing.
3379......................... Other Furniture Related Product
Manufacturing.
4231......................... Motor Vehicle and Motor Vehicle Parts and
Supplies Merchant Wholesalers.
4233......................... Lumber and Other Construction Materials
Merchant Wholesalers.
4235......................... Metal and Mineral (except Petroleum)
Merchant Wholesalers.
4239......................... Miscellaneous Durable Goods Merchant
Wholesalers.
4244......................... Grocery and Related Product Merchant
Wholesalers.
4248......................... Beer, Wine, and Distilled Alcoholic
Beverage Merchant Wholesalers.
4413......................... Automotive Parts, Accessories, and Tire
Stores.
4422......................... Home Furnishings Stores.
4441......................... Building Material and Supplies Dealers.
4442......................... Lawn and Garden Equipment and Supplies
Stores.
4451......................... Grocery Stores.
4522......................... Department Stores.
4523......................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533......................... Used Merchandise Stores.
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.
4859......................... Other Transit and Ground Passenger
Transportation.
4871......................... Scenic and Sightseeing Transportation,
Land.
4881......................... Support Activities for Air
Transportation.
4883......................... Support Activities for Water
Transportation.
4889......................... Other Support Activities for
Transportation.
4911......................... Postal Service.
4921......................... Couriers and Express Delivery Services.
4931......................... Warehousing and Storage.
5322......................... Consumer Goods Rental.
5621......................... Waste Collection.
5622......................... Waste Treatment and Disposal.
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 (Skilled Nursing
Facilities).
6232......................... Residential Intellectual and
Developmental Disability, Mental Health,
and Substance Abuse Facilities.
6233......................... Continuing Care Retirement Communities
and Assisted Living Facilities for the
Elderly.
6239......................... Other Residential Care Facilities.
6243......................... Vocational Rehabilitation Services.
7111......................... Performing Arts Companies.
7112......................... Spectator Sports.
7131......................... Amusement Parks and Arcades.
7211......................... Traveler Accommodation.
7212......................... RV (Recreational Vehicle) Parks and
Recreational Camps.
7223......................... Special Food Services.
------------------------------------------------------------------------
3. Updated Data
The FEA has updated data used in the PEA to the most recent data
available. The data from the PEA and the updated data used for this FEA
appear in Table 2, below.
Table 2--Data in the PEA and the FEA
--------------------------------------------------------------------------------------------------------------------------------------------------------
PEA estimates FEA estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Name Value Source Name Value Source
--------------------------------------------------------------------------------------------------------------------------------------------------------
Base Wages SOC 19-5011.......... $37.55............. BLS OEWS 5/2020............ Base Wages SOC 19- $37.86............. BLS OEWS 5/2021.\1\
5011 (safety
specialist).
Base Wages 15-1252 $58.17............. BLS OEWS 5/2021.\1\
(software
developer).
Fringe Benefits Civilian........ 0.312.............. BLS ECEC 6/2021............ Fringe Benefits 0.310.............. BLS ECEC 9/2022.\2\
Civilian.
Base Wages GS-13 Step 6......... $48.78............. OMB FY 2020................ Base Wages GS-13 $55.06............. OMB 2023.\3\
Step 6.
Fringe Benefits Government...... 0.381.............. BLS ECEC 6/2021............ Fringe Benefits 0.381.............. BLS ECEC 9/2022.\2\
Government.
Appendix B Establishments....... 48,919............. OSHA/OSA 2021.............. Appendix B 52,092............. OSHA/OSA 2022.\4\
Establishments.
Total Submissions............... 718,316............ OSHA/OSA 2021.............. Total Submissions. 766,257............ OSHA/OSA 2022.\4\
Manual Submission Time 300/301.. 10 minutes......... PRA 04/22 \5\.............. Manual Submission 15 minutes......... OSHA/OSA. 2022.\4\
Time 300/301.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ BLS May 2021 Occupational Employment and Wage Statistics data, released March 31, 2022. https://www.bls.gov/oes/current/oes195011.htm#nat. Accessed
October 05, 2022.
\2\ BLS September 2022 Employer Costs for Employee Compensation, released December 15, 2022. https://www.bls.gov/news.release/pdf/ecec.pdf. Accessed
February 20, 2023.
\3\ OMB January 2023 Salary Table 2022-RUS. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/RUS_h.pdf.
Accessed February 22, 2023.
\4\ Docket ID 0103.
\5\ Recordkeeping and Reporting Occupational Injuries and Illnesses (29 CFR part 1904). OMB Control #1218-0176.
C. Cost
Sec. 1904.41(a)(2): Annual Electronic Submission of Information From
OSHA Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form
301 Injury and Illness Incident Report by Establishments With 100 or
More Employees in Designated Industries
OSHA is retaining the same cost methodology in this FEA as in the
PEA. In the PEA, the agency estimated the cost of electronic data
submission per establishment by multiplying the hourly compensation (in
dollars) of the person expected to submit the records electronically by
the time required for the submission. OSHA then multiplied this cost
per establishment by the estimated number of Appendix B establishments
required to submit data, resulting in the total estimated cost of this
part of the proposed rule.
OSHA also calculated the estimated cost for establishments to
become familiar with the process of electronically submitting the
required information. The total estimated cost of this part of the
proposed rule was calculated by multiplying the hourly wages (in
dollars) of the person expected to submit the records electronically by
the time required to learn how to use OSHA's system. The resulting
value was then multiplied by the number of establishments in appendix B
(87 FR 18549-551).
1. Wages
a. Wage Estimates in the PEA
OSHA has retained the same wage assumptions and methodology from
the PEA but has updated the figures to include current data. In the
PEA, the agency estimated the compensation of the person expected to
perform the task of electronic data submission, assuming that this task
would be performed by an Occupational Health and Safety Specialist. As
indicated in Table 2, above, the agency used BLS's Occupational
Employment and Wage Statistics (OEWS) data to determine that the mean
hourly wage for an Occupational Health and Safety Specialist was $37.55
per hour. Then, OSHA used June 2021 data from the BLS National
Compensation Survey to derive a mean fringe benefit factor of 1.45 for
civilian workers in general.\19\ OSHA then multiplied the mean hourly
wage ($37.55) by the mean fringe benefit factor (1.45) to obtain an
estimated total compensation (wages and benefits) for Occupational
Health and Safety Specialists of $54.58 per hour ([$37.55 per hour] x
1.45). OSHA next applied a 17 percent overhead rate to the base wage
([$37.55 per hour] x 0.17), totaling $6.38 per hour.\20\ The $6.38 was
added to the total compensation ($54.58), yielding a fully loaded wage
rate of $60.96 [$54.58 + $6.38] per hour.
---------------------------------------------------------------------------
\19\ Fringe benefit factor calculated as [1/(1-0.312)], where
0.312 is the proportion of the average total benefits constituted by
fringe benefits among civilian workers in all industries, as
reported on Table 2 of the BLS's ECEC report, June 2021: https://www.bls.gov/news.release/archives/ecec_09162021.pdf.
\20\ Seventeen percent is OSHA's standard estimate for the
overhead cost incurred by the average employer.
---------------------------------------------------------------------------
b. Comments on OSHA's Wage Estimates
Some commenters expressed the opinion that the wage rate estimates
used in the PEA were too low. For example, the National Federation of
Independent Business (NFIB) and the Chamber of Commerce commented that
the potential impacts from OSHA publishing work-related injury and
illness information would require that companies have senior executives
and legal counsel review the logs for both employee privacy and
reputational harm (Docket IDs 0036, 0088). The Chamber estimated that
involving executives and legal counsel would increase the wage rate
used for this analysis to $67.01 per hour (Docket ID 0088).
OSHA concludes that an appropriate wage rate has been used for this
rule. While some companies may choose to involve executives or lawyers
in the submission process, others will delegate duties to
administrative assistants or office managers. OSHA considers the wage
rate for Occupational Safety and Health Specialists to represent a
rough average among the wages for various possible job categories that
might submit the data under this rule.\21\ It should be emphasized,
however, that this wage is intended to reflect only the cost of
entering the data to submit it electronically to the agency--the
employer is already responsible for recording the data correctly. If
some employers consider it necessary for employees in very high wage
categories to review the cases that are already required to be
recorded, that is not an incremental cost of this rule.\22\ In
addition, the Chamber of Commerce commented that OSHA is using an
incorrect overhead estimate when calculating the loaded wage of the
Occupational Health and Safety Specialist (Docket ID 0088). It argued
that the correct factor for computation of overhead is 0.6949 (rather
than OSHA's longstanding reliance on the PEA's 0.17 for overhead
costs), which the commenter sourced from the Bureau of Economic
Analysis, Table 7 (Relation of Gross Domestic Product, Gross National
Income, and National Income). The Chamber of Commerce's overhead factor
estimate would increase the overhead amount from $6.38 per labor hour
to $26.09 per labor hour.
---------------------------------------------------------------------------
\21\ This wage category has also been widely used for similar
administrative purposes for other OSHA rulemakings, without
controversy (e.g., the 2016 recordkeeping rulemaking--see 81 CFR
29675).
\22\ One commenter even suggested the physicians may be needed
to determine whether injuries were work-related now that the injury
and illness reports will be made public (Docket ID 0088). However,
like related discussions elsewhere in this FEA, this obligation
(i.e., the need to determine work-relatedness of an injury) existed
prior to this rule. Because it is not an additional cost created by
this rule, it is not included.
---------------------------------------------------------------------------
The agency believes the Chamber has incorrectly inflated the
``overhead'' cost factor by including what it refers to as a ``profit
opportunity cost element'' (Docket ID 0088). The overhead rate that
OSHA uses in this cost analysis (17 percent) is based on the EPA's
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002. OSHA has used this overhead rate for several
economic impact analyses previously, and it is a standard estimate for
this agency, the Employment and Training Administration,\23\ the Wage
and Hour Division,\24\ and the EPA.\25\ As expressed in a prior OSHA
rule, OSHA does not believe the inclusion of ``profit opportunity cost
elements'' in an overhead estimate is appropriate in the context of
this economic analysis.\26\
---------------------------------------------------------------------------
\23\ See ETA Final Rule, Adverse Effect Wage Rate Methodology
for the Temporary Employment of H-2A Nonimmigrants in Non-Range
Occupations in the United States, 88 FR 12760, 12788 (Feb. 28,
2023).
\24\ See Wage and Hour Division Final Rule, Increasing the
Minimum Wage for Federal Contractors, 86 FR 67126, 67205 (Nov. 24,
2021).
\25\ For an example of an earlier OSHA economic analysis that
used the EPA overhead rate, see OSHA's final rule on Walking-Working
Surfaces and Personal Protective Equipment (Fall Protection Systems)
at 81 FR 82494, 82931 (Nov. 18, 2016).
\26\ As noted in a previous related Federal Register notice (see
81 FR 29683), in principal, the labor costs of affected workers
reflect the opportunity costs of that labor.
---------------------------------------------------------------------------
c. Wage Estimates in the FEA
For the final rule, OSHA has updated the fully loaded wages to
$61.31 per hour, using the same calculation method as in the PEA and
the updated data listed in Table 2, above.\27\ Specifically, OSHA
multiplied the mean hourly wage ($37.86) by the mean fringe benefit
factor (1.45) \28\ to obtain an estimated total compensation (wages and
benefits) for Occupational Health and Safety Specialists of $54.87 per
hour ([$37.86 per hour] x 1.45). OSHA next applied a 17 percent
overhead rate to the base wage ([$37.86 per hour] x 0.17), totaling
$6.44.\29\ The $6.44 was added to the total compensation ($54.87)
yielding a fully loaded wage rate of $61.31 [$54.87 + $6.44]. In
response to comments, OSHA has added additional costs to the FEA that
use loaded wages for a Software Developer at $94.19,\30\ based on an
hourly base wage of $58.17, in the calculation of those costs.
---------------------------------------------------------------------------
\27\ See Docket ID 0103 for a spreadsheet with the full
calculations. Slight discrepancies in results are likely due to
rounding.
\28\ The fringe benefit factor was calculated as [1/(1-0.310)],
where 0.310 is the proportion of average total benefits constituted
by fringe benefits among civilian workers in all industries, as
reported on Table 2, above.
\29\ Seventeen percent is OSHA's standard estimate for the
overhead cost incurred by the average employer.
\30\ For BLS Occupational Code 15-1252 ``Software Developer,''
total compensation is $84.30 ($58.17 mean hourly wage + $26.13
fringe benefits) plus $9.89 in overhead [$58.17 x 0.17].]
---------------------------------------------------------------------------
2. Estimated Case Counts
In the PEA, based on the 2020 data collection of 2019 OSHA Form
300A data, OSHA estimated that establishments with 100 or more
employees, in proposed appendix B industries, reported 718,316 cases to
OSHA. The Phylmar Regulatory Roundtable (PRR) asserted, without
pointing to specific support, that ``industries required to submit have
a history of higher incident rates'' and questioned the average of 14.7
cases per establishment on this basis (Docket ID 0094). PRR stated that
``it does not seem plausible that there are enough establishments with
zero cases to bring the estimates this low.'' In support, PRR described
several large employers, with up to 12,000 employees each, that
recorded more than 14.7 cases (up to 155 cases) in certain years. OSHA
notes that it used the average number of cases submitted by
establishments with 100 or more employees in NAICS industries on
appendix B. PRR's limited examples do not disturb the calculated
averages, which are based on data from affected establishments. OSHA
used the average number of cases on Form 300A submissions across all
affected establishments to represent the average number of cases an
establishment would submit via manual entry. For this final rule, OSHA
has updated the estimate of total cases reported by establishments with
100 or more employees in appendix B industries to 766,257 cases,\31\ as
mentioned in Table 2, above. This estimate has been updated from the
PEA. OSHA has expanded the number of establishments to include all
establishments with at least 100 employees in industries that are on
final appendix B, which includes six industries that were not included
on proposed appendix B.
---------------------------------------------------------------------------
\31\ OSHA's estimate of injury and illness cases is based on
calendar year 2019 data submitted to the agency through the Injury
Tracking Application (ITA) (Docket ID 0106). Establishments with 100
or more employees in appendix B industries reported a total of
766,257 recordable fatalities, injuries, and illnesses for that
year.
---------------------------------------------------------------------------
3. Familiarization
In the PEA, OSHA estimated that establishments would take 10
minutes, on average, to familiarize themselves with changes to the
recordkeeping requirements in the proposed rule. Based on this, the
agency calculated a one-time cost for familiarization of $497,033
[(48,919 establishments) x (10 minutes/establishment) x (1 hour/60
minutes) x ($60.96/hour)]. The number of establishments in the PEA was
based on submissions in 2019 to the ITA for establishments that were in
the proposed appendix B in the NPRM.
The U.S. Poultry and Egg Association, the North American Meat
Institute, the Chamber of Commerce, and the Phylmar Regulatory
Roundtable argued that OSHA undercounted the amount of time required to
complete rule familiarization for the proposed rule (Docket IDs 0054,
0070, 0088, 0094). The Chamber of Commerce asserted that OSHA's
estimate ``ignores the familiarization time cost that establishments
not covered will incur to determine their non-covered status, and it
suggests an extremely optimistic but empirically baseless view of the
time that will be required by those covered to read the rule, review
its requirements relative to their current operations and procedures,
identify and implement new policies and procedures to comply with the
new rule, and to train administrative and operational employees in
their new compliance duties'' (Docket ID 0088). Other commenters
claimed additional time would be required for processing by a corporate
safety department subject matter expert (Docket ID 0054) and for
``legal analysis'' (Docket ID 0070).\32\
---------------------------------------------------------------------------
\32\ One of those commenters suggested that OSHA include costs
for creating training materials and conducting training sessions as
part of familiarization (Docket ID 0054). Another made a more
general statement that the agency's estimate for rule
familiarization did not account for the time it will take to prepare
or implement OSHA's proposed changes or develop processes to comply
with the new requirements (Docket ID 0094). These elements are
discussed under Training later in this analysis.
---------------------------------------------------------------------------
For the establishments that do not need to submit the Form 300 and
301 data but must determine if they are subject to the requirement, the
Chamber of Commerce estimated, based on unspecified sources, that the
1.9 million establishments with 10 to 99 employees will spend 5 minutes
determining that
they are not affected. According to the Chamber of Commerce, at $1.65
per minute, the total cost would be $15.9 million. Additionally, ``for
the 172,277 establishments with 100 or more employees, on average a 15-
minute review by senior managers or in-house legal counsel may be able
to answer the basic affected or not affected question for an aggregate
familiarization cost of $4.3 million.'' (Docket ID 0088).
Finally, the Chamber of Commerce asserted that rule familiarization
is more complicated than OSHA estimates. The commenter believed that
OSHA failed to consider that each establishment that has determined
that it is subject to the reporting requirement ``must now consider how
the new requirements impact existing policies and procedures, what are
the risks of reputational damage or of employee privacy violation
liability and how can those risks be mitigated by changing policies and
procedures'' (Docket ID 0088). For the PEA's estimated 48,919
establishments required to comply with the new reporting requirement,
the commenter estimates a lower bound estimate of 8 hours of
professional time, which would result in an aggregate cost of $38.7
million. OSHA does not, however, require such considerations: the final
rule has accounted for privacy concerns (comments on costs related to
privacy are addressed later in this section) and, as discussed later,
employers should already be familiar with the reporting system because
they are using it to submit Form 300A data. Furthermore, the
commenter's recommendation of an average of 8 hours per establishment
vastly exceeds OSHA's traditional estimates of familiarization time.
For comparison, in the 2016 final recordkeeping rule, OSHA included
only 10 minutes for familiarization costs, which included the time for
establishments to create accounts and enter basic establishment
information in the ITA (see 81 FR 29680), none of which has to be done
again for purposes of complying with the final rule at issue here.
OSHA disagrees that more than 10 minutes will be required for rule
familiarization in this case. Under the existing recordkeeping rule,
employers are already required to keep part 1904 injury and illness
records. In addition, all establishments that will have to submit case-
specific information from their Form 300 Log and 301 Incident Report
under this rule are already required to submit establishment
information from their Form 300A Annual Summary, using the same
interface (the ITA) they will use to submit their case information.
OSHA intends to notify all establishments required to submit data under
the new rule of this new obligation. In addition, OSHA will update its
online ITA application to be consistent with this final rule. Employers
unsure about whether they are covered by this final rule can use this
application (at https://www.osha.gov/itareportapp) to immediately
determine their data submission obligations. Thus, there will be no
need for establishments to spend time to determine whether they are
affected by the final rule or not. Altogether, OSHA concludes that 10
minutes is an appropriate amount of time for employers to become
familiar with the rule (with assistance from OSHA's application or OSHA
website materials, if necessary).
OSHA has decided to retain the assumptions and the methodology from
the PEA for this final rule. Using the updated numbers reported in
Table 2, above, OSHA now estimates the one-time cost for
familiarization as $532,257, calculated as [(52,092 establishments) x
(0.17 hours/establishment) \33\ x ($61.31/hour)]. Annualizing this rate
over ten years with a 7 percent discount rate yields an annual cost of
$75,781 \34\ to the private sector.
---------------------------------------------------------------------------
\33\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per establishment.
\34\ $62,397 annualized over ten years with a 3 percent discount
rate.
---------------------------------------------------------------------------
4. Record Submission
For the time required for the data submission in the PEA, OSHA used
the estimated unit time requirements reported in OSHA's paperwork
burden analysis for 29 CFR part 1904 Recording and Reporting
Occupational Injuries and Illnesses (OMB Control Number 1218-0176). The
agency estimated that it would take 10 minutes to submit information
about each case manually; this estimate does not apply when
establishments submit the records as batch files, because batch files
are a means of submitting multiple cases at one time.
In the PEA, OSHA estimated that there would be 48,919
establishments reporting 718,386 cases total, or 14.7 cases per
establishment, on average (87 FR 18549-50). The agency estimated that
about half of all reporting establishments (24,460) would submit half
of the total cases (359,193 cases) via one batch file per
establishment.\35\ This yielded an estimated cost of $248,517 [(24,460
establishments) x (10 minutes/establishment) x (1 hour/60 minutes) x
($60.96/hour)]. The average cost per establishment was estimated to be
$10.16 per establishment for establishments submitting via batch file.
---------------------------------------------------------------------------
\35\ Form 300A data submitted to OSHA through the Injury
Tracking Application (ITA) for 2019 indicated that almost half of
establishments (47 percent) were already submitting their data by
batch file at that time (Docket ID 0103).
---------------------------------------------------------------------------
OSHA then estimated that the other half of establishments (24,460)
would manually submit each case from their establishment individually.
Using the mean of 14.7 cases per establishment (718,386 total cases
divided by 48,919 total establishments) and an estimated time of 10
minutes per case, OSHA estimated 147 minutes per establishment to
submit records electronically, on an individual case basis. This
produced a total cost for manual submission of $3,649,520 [(24,460
establishments) x (0.17 hours/case) \36\ x (14.7 cases) x ($60.96/
hour)], or $149 per establishment]. Finally, OSHA summed the estimated
batch-file submissions ($248,517) and manual submission ($3,649,520),
which resulted in estimated total cost of $3,898,037 to submit the
718,316 records.
---------------------------------------------------------------------------
\36\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per case.
---------------------------------------------------------------------------
Dow, the Chamber of Commerce, and the Phylmar Regulatory Roundtable
(PRR) commented that OSHA is underestimating the amount of time
required for an establishment to submit Form 300A information (Docket
IDs 0054, 0088, 0094). Dow said that establishments must spend time to
``locate the website, create an account, retrieve password, read
instructions, gather, and prepare incident information etc.'' (Docket
ID 0054). The commenter indicated that it would take more than 10
minutes per case per establishment. Specifically, it would take 1-2
hours to prepare the submission, and 15-20 minutes per case to input
the information because there are more than 25 fields that must be
filled in. Dow added that when the submission is completed via batch
file, 1-2 hours is required to generate and review the reports for
submission, even if it only takes 10 minutes to actually upload the
300A data. It asserted that this time estimate will only increase with
additional forms (Docket ID 0054).
The Chamber of Commerce commented that OSHA's reporting burden
estimate of 10 minutes per case is not based on empirical data. It
indicated that this reporting burden should be inclusive of the
following activities: compiling, analyzing, preparing, reviewing
internally, and submitting the data electronically. The Chamber's
estimate was 60 minutes per case using a blended management and
professional rate. It maintained that its
higher time estimate accounted for the ``necessity for internal review
of each case and of the final compiled reports by various levels of
management and internal legal counsel.'' The Chamber added that its
``more realistic estimate of aggregate internal labor time for
preparation and review increases the previous calculation of $11.9
million to $71.1 million. (718,386 cases x 60 minutes per case x $1.65
per minute).'' Finally, the Chamber suggested that firms would need to
hire outside legal counsel to complete their review process which the
Chamber estimated would increase costs by $4.8 million ($6.67 per
minute of outside legal counsel time) for the total estimated 718,386
cases (Docket ID 0088).
The National Federation of Independent Businesses and the Precision
Machined Products Association commented on the differences in small and
medium employers compared to large employers (Docket IDs 0036, 0055).
These commenters noted that small and medium employers typically cannot
afford the experts, accountants, and lawyers needed to comply with
regulations. Additionally, they asserted that small and medium
employers do not have the resources or technology to submit batch files
and therefore must manually input each case. The Precision Machined
Products Association added that the cost per submission for small and
medium companies is closer to double what OSHA estimated in the PEA
(Docket ID 0055).
The North American Meat Institute, the Plastics Industry
Association, the Employers E-Recordkeeping Coalition, and the Chamber
of Commerce specifically cited time spent on quality assurance as a
concern (Docket IDs 0070, 0086, 0087, and 0088). The Plastics Industry
Association wrote that ``the cost of quality assurance procedures
necessary to ensure compliance with a proposed rule must be treated as
a component of the burden hours required by the rule. The audit is, in
effect, not a voluntary measure, but one that needs to be incurred to
ensure compliance and avoid over-reporting'' (Docket ID 0086). The
Chamber of Commerce focused on the risk associated with publicly
posting these injury and illness records, which in turn would result in
increased ``pre-submission due diligence'' (Docket ID 0088).
OSHA concludes that more information must be submitted from the
Form 300 Log and Form 301 Incident Report than from the Form 300A
Annual Summary. Therefore, the agency is adjusting the estimated time
required to manually submit electronic records from 10 minutes per case
per establishment to 15 minutes per case per establishment. Given the
additional amount of information required, OSHA believes that a 50
percent increase in the burden estimate is sufficient. OSHA notes,
however, that employers are likely to spend less time, because
employers will likely only copy and paste information from existing
forms into the fields in OSHA's ITA. Employers for which it takes
longer per case to submit the information could choose instead to
transmit all their data in one batch-file submission.
OSHA disagrees with commenters' assertions that the final rule
necessitates the use of additional experts, accountants, senior
managers, physicians, or lawyers beyond those employers currently
engage to comply with existing recordkeeping and submission
requirements under part 1904. The final rule does not change employer
obligations beyond the requirement that establishments electronically
submit specific illness and injury information that the establishment
already records. Furthermore, there is a requirement in Sec. 1904.32
for employers to verify the entries on the Form 300 Log to ensure that
they are complete and accurate. Section 1904.32 also requires a company
executive to certify the Form 300A once it is completed, by examining
the Form 300 Log. Costs to perform these verification and certification
tasks were accounted for in the previous rule that imposed these
requirements (see 66 FR 6092-93). Thus, OSHA's expectation is that
employers have already taken measures to ensure the information
employers have recorded and will be submitted is accurate. Any due
diligence or audit measures an establishment chooses to take should
predate this rule and should not be attributed as an additional cost
specific to this rule. Finally, OSHA's estimate of an hourly wage for
the recordkeeper submitting the data is based on the assumption that
this task is performed by a safety and health specialist who is already
familiar with the establishment's safety and health records.
While OSHA is not requiring submission via batch filing, OSHA
disagrees that smaller companies affected by this rule do not have the
capability to do batch file submissions. Currently, approximately half
of all establishments that are required to submit their records
electronically do so using batch files, and an analysis of that
information shows that smaller establishments actually use batch file
submission more frequently than some categories of larger
establishments.\37\ Further, OSHA believes that the time estimated to
manually upload the required information is appropriate for small,
medium, and large employers. It is also worth reiterating that the new
requirement to submit data from the Form 300 and Form 301 only affects
establishments with more than 100 employees, so the smallest employers
are not affected.
---------------------------------------------------------------------------
\37\ For example, 2019 Form 300A data submitted to OSHA through
the ITA indicate that establishments with 100-199 employees
submitted 50% of data by batch file, which was higher than the
percentage submitted by batch file for employers with 500 or more
employees (Docket ID 0103).
---------------------------------------------------------------------------
A couple of commenters argued that OSHA should account for
additional costs for compliance due to the necessity of maintaining two
sets of records as a result of the final rule's submission requirements
(Docket IDs 0042, 0058). As the Louisiana Chemical Association said,
``[b]esides the out-of-pocket expenses associated with compliance,
there are other administrative burdens, for example, the duplicative
work of maintaining two sets of 300 and 301 forms (a hard copy and one
form for electronic submission with redacted information)'' (Docket ID
0042).
This rule does not, however, require duplicative recordkeeping. As
noted in Section III.B of the Summary and Explanation, OSHA cautions
employers against including personally identifiable information on the
Forms 300 and 301 when they initially fill out those forms. The forms
themselves contain language about confidentiality of personal
information and indicate that PII should not be included. To the extent
employers choose to include PII on those forms despite these warnings,
it is per a decision by the employer. Such data can be excluded during
data submission to the extent it is on the employer's forms.
Furthermore, as described elsewhere in this preamble, OSHA is taking
multiple steps to protect against the publication of any information
that could reasonably be expected to identify individuals directly,
including not collecting certain information and using de-
identification software to remove any such information that is
submitted by employers.
OSHA has decided to retain the methodology from the PEA for
estimating the cost of data submission but has added an additional 5
minutes (an increase from 10 to 15) per submitted case for
establishments that do not submit batch files and has
updated other data to more recent figures. Using the updated data in
Table 2, above, OSHA calculated a new average cost per establishment
for batch file submitters of $10.22 per establishment. Additionally,
OSHA calculated an updated cost to those submitting manually of $242.41
per establishment. That yields a total cost for electronic submission
of OSHA Forms 300 and 301 of $133.46 per establishment on average,\38\
or a total of $6.9 million annually, to submit the currently estimated
766,257 records.
---------------------------------------------------------------------------
\38\ The average cost per establishment to submit the Form 300
and 301 data to OSHA ($133.46) was calculated as [(Cost per
establishment to submit batch files ($10.22) x establishments
submitting batch files (24,668)) + (Cost per establishment to submit
individual files ($242.41) x establishments submitting cases
manually (27,424,))]/Total establishments (52,092).
---------------------------------------------------------------------------
The calculations above are based on an estimated 52,092
establishments reporting 766,257 cases total, or 15.82 cases per
establishment submitting manually and 13.48 cases per establishment
reporting with batch-files. An estimated 47 percent of all reporting
establishments (24,668) submitting via batch file would submit 43
percent of the total cases (332,498 cases), at an estimated total cost
of $252,048 [(24,668 establishments) x (0.17 hours/establishment) \39\
x ($61.31/hour)], or $10.22 per establishment on average for batch file
submission. For the other 53 percent of establishments (27,424) that
OSHA estimates would manually submit each case, using OSHA's assumption
of a mean of 15.82 cases per establishment and the increased time of 15
minutes per case, the result is an estimated 237 minutes per
establishment to submit their information electronically each year.
This produces a total cost for manual submission of $6,647,982 [(27,424
establishments) x (0.25 hours/case) \40\ x (15.82 cases) x ($61.31/
hour)], or $242.41 per establishment for manual submission.
---------------------------------------------------------------------------
\39\ 0.17 hours is a rounded value representing 10 minutes, or
10/60th of an hour, per establishment.
\40\ 0.25 hours represents 15 minutes, or 15/60th of an hour,
per case.
---------------------------------------------------------------------------
As suggested in the PEA, the agency believes that this approach
likely overestimates costs, because while OSHA's estimates reflect
manual entry of the data for nearly half of establishments, in the
agency's experience, as indicated previously, nearly half of the
covered establishments were already submitting data to the ITA by
uploading a batch file in 2019. This percentage will likely increase
over time as a result of this rule. As indicated elsewhere in the FEA,
OSHA expects more of the cases to be submitted by batch file once this
rule goes into effect, because OSHA expects companies with many
establishments and/or many cases will have computer systems that can
export their part 1904 injury and illness recordkeeping data into an
easily uploaded file format.\41\
---------------------------------------------------------------------------
\41\ OSHA's assumption that batch files are submitted on a per
establishment basis may overestimate the costs of the rule, as batch
files are typically submitted at the firm level on behalf of
multiple establishments. As documented in the accompanying
spreadsheet (Docket ID 0103), if OSHA assumed that batch files are
submitted by firms rather than establishments, the costs would be a
fraction of the estimate presented here--approximately $7,316
annually, as opposed to the estimated $252,048.
---------------------------------------------------------------------------
The agency notes that some establishments will have no recordable
injuries or illnesses in a given year; thus, their time and cost burden
for submission under this rule will be zero. In contrast,
establishments with many recordable injuries and illnesses could have a
time burden of significantly more than the average of about four hours
if they enter the data manually. OSHA believes that establishments with
many cases are likely to submit a single batch file, while
establishments that only have a few cases are more likely to submit
cases manually than by batch file.\42\
---------------------------------------------------------------------------
\42\ For example, data submitted from 2019 Form 300A to OSHA
through the ITA shows submissions from 52,092 establishments with
100+ employees. The information for these establishments was
submitted by 18,156 users. Of those, 716 users submitted the data
for 24,668 establishments and 332,498 recordable cases using batch
files (Docket ID 0103).
---------------------------------------------------------------------------
5. Custom Forms
OSHA received multiple comments regarding the difficulty of
submitting electronic records when the establishments use custom forms
for their recordkeeping. The International Bottled Water Association,
the Plastics Industry Association, the Employers E-Recordkeeping
Coalition, and the Phylmar Regulatory Roundtable (PRR) explained that
forms such as California Form 502025 require most, or all of, the same
information as the OSHA forms (Docket IDs 0076, 0086, 0087, 0094). PRR
noted that forms such as 502025 contain other information that is PII
and are organized differently, both of which mean that manual entry
will take longer than 10 minutes (Docket ID 0094). PRR added that
significant additional time is required to review and ensure PII and
sensitive information is not included. The North American Meat
Institute said that current use of other forms would require
significant administrative burden to translate the required information
into the online form (Docket ID 0070).
OSHA notes that Sec. 1904.29(a) states 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) further states that an equivalent form is
one that has the same information, is just as readable and
understandable, and is completed using the same instructions as the
OSHA form it replaces. As discussed earlier in the summary and
explanation of the rule, OSHA acknowledges that while it may be
possible to avoid duplication in recording by reliance on equivalent
forms, it will be necessary in some cases for reporting to re-enter
that information into a system that is compatible with OSHA's system.
OSHA is aware, for instance, that for reporting, many employers use an
insurance form instead of the Form 300 or the Form 301 or supplement an
insurance form by adding any additional information required by OSHA.
The agency notes, however, that use of a custom form for recordkeeping
does not change the information the employer copies into the electronic
system to comply with OSHA data submission requirements, including the
submission requirements included in this final rule. To the extent that
an insurance form or other form includes information not relevant to
OSHA reporting, it would not increase the time and cost for OSHA
reporting. Where relevant, the employer may just skip inapplicable
sections of a custom form when submitting their information to OSHA.
Therefore, the time for transmitting the information from the Forms 300
and 301 is just the time to manually copy the required information into
OSHA's system, regardless of which form the information is recorded on
initially. In addition, the use of custom forms that can capture
information for multiple purposes does not prevent employers from
designing those forms so that they can export the appropriate data and
submit their data to OSHA via batch file.
While OSHA did not find compelling evidence to increase the
estimated compliance costs based on potential difficulties companies
face from using custom forms, the agency has increased, by 50 percent,
the estimated time it takes to submit records manually in response to
comments received on other issues. This increased time could be
considered as accounting for costs associated with using custom forms
in the event employers face costs due to this issue. Elements of this
discussion run parallel to and may interface with the discussion of
potential software upgrades, discussed below.
6. Batch-File Submissions
In the PEA, OSHA estimated that half of all respondents would
upload their logs in one batch-file submission. The Strategic
Organizing Center (SOC) expressed strong agreement with OSHA's
assumption that larger, more sophisticated users will use batch file
submission (Docket ID 0079). It added that OSHA's cost estimates, which
rely on this assumption, are appropriate and that OSHA is correct to
not assume widespread use of manual-entry submission. Further, SOC
agreed that OSHA's assumption that half of employers will submit
records manually ``may result in an overestimate of the total and per-
establishment costs of this part of the proposed rule'' (Docket ID
0079).
The Chamber of Commerce disagreed with OSHA's PEA assumption that
half of the 48,919 affected establishments will be able to
``drastically reduce their report submission times and costs by using a
`batch' process of submitting multiple individual case records through
an electronic portal that OSHA will provide.'' Specifically, it stated
that the assumption is not realistic because the portal has not yet
been built or tested. The Chamber further argued that it would be more
reasonable to assume, at least for the first year of submission and
maybe for subsequent years, that ``all 48,919 affected establishments
will upload the required case information manually or will have to
delete various fields to accommodate data OSHA does not want to
collect.'' This would double the cost of data submission (Docket ID
0088).
Data from 2019 on usage of batch uploads for OSHA 300A information
indicates that data for approximately 47 percent of establishments were
already being submitted via batch files (Docket ID 0103). For the
purposes of the FEA, OSHA estimates that the usage of batch files
submissions will at least continue at the same rate as was the case in
2019 (47 percent). However, as noted above, OSHA believes it is likely
that batch filing will increase as a result of the requirements
associated with this rule. As a comment from the Laborers Health Safety
Fund of North America emphasized, electronic recordkeeping and data
submission is a more cost-effective way for establishments to meet OSHA
standards (Docket ID 0080). Additionally, Eastern Research Group (ERG)
(Docket ID 0105) interviewed a number of commercial aftermarket
software vendors who remarked that the number of users of their
software is rapidly growing.
Notwithstanding the agency's belief that electronic submission will
become increasingly common, OSHA has decided to adjust its projected
estimate from the PEA, that 50 percent of establishments would submit
their Form 300 and Form 301 information via a single batch file, based
on OSHA's analysis of existing data collected in 2019. These data show
that approximately 47 percent \43\ of establishments submitted their
records by batch file in 2019. However, to the extent that more
employers continue to adopt this time-saving technology, the cost of
submission will decrease, and the average reporting costs will be below
OSHA's cost estimate in this FEA.
---------------------------------------------------------------------------
\43\ This percent was calculated by dividing the 24,668
establishments submitting individual 300/301 data manually (i.e.,
not by batch file) by the 52,092 total establishments submitting
data (Docket ID 0103).
---------------------------------------------------------------------------
7. Software/System Upgrades Needed
The PEA did not include a cost for employers to upgrade their
systems in order to submit their files electronically or in batch
files. OSHA received several comments on this topic. Electric Boat, the
International Bottled Water Association, and the Employers E-
Recordkeeping Coalition indicated that software currently used by
employers does not easily facilitate transmission of 300 and 301
information to OSHA (Docket IDs 0028, 0076, 0087). The Employers E-
Recordkeeping Coalition stated that the ``costs to modify the internal
software, purchase new software, automate injury and illness
recordkeeping, audit the records, and in many instances, manually key
in huge volumes of data would cost hundreds of thousands of dollars''
(Docket ID 0087). Electric Boat stated that proprietary recordkeeping
software for OSHA logs is not compatible with requirements to upload to
OSHA and that large companies may have many cases in their logs. It
further maintained that a requirement to manually enter data for each
case would be ``very difficult, costly and potentially inaccurate due
to transcription errors'' (Docket ID 0028). For employers not currently
using software, Electric Boat surmised that information for the Form
301 incident report is often recorded on handwritten forms at
individual establishments, and thus the time and resources needed to
transition to a fully automated system would be considerable.
The U.S. Poultry and Egg Association, the Employers E-Recordkeeping
Coalition, the Chamber of Commerce, the National Retail Federation, and
the Flexible Packaging Association, and Phylmar Regulatory Roundtable
wrote about increased costs due to either reprogramming recordkeeping
software to meet OSHA's format or investing in new software altogether
(Docket IDs 0053, 0087, 0088, 0090, 0091, 0094). The U.S. Poultry and
Egg Association commented that OSHA's analysis ``does not consider that
some employers utilize proprietary electronic recordkeeping systems
that would require program changes, possibly at a high cost, so that
the information could be electronically submitted to OSHA'' (Docket ID
0053). The Phylmar Regulatory Roundtable (Docket ID 0094) stated that
two or three days of labor would be necessary to reconfigure the coding
and modify programs currently used to electronically upload Form 300A
to include submission of Forms 300 and 301. The Chamber of Commerce
addressed the issue of small businesses that do not have electronic
recordkeeping programs in place and was concerned that small businesses
would not be able to afford the software (Docket ID 0088).
OSHA believes that employers who use custom software for their
recordkeeping will incur some, though limited, additional costs to
upgrade custom computer systems. OSHA also believes that employers who
use commercially available software are unlikely to incur any
costs.\44\ Many establishments required to submit injury and illness
data from their Form 300A already use software to submit that data.\45\
The larger employers that have created their own custom software,
instead of relying on commercially available software, likely have IT
employees already on staff that conduct system upgrades as part of
their daily
routine. For these companies, existing IT staff can conduct any
software upgrades needed, and OSHA has included a discussion of these
costs below. If upgrading systems is cost prohibitive for an
establishment, the establishment can still submit the required
information from their part 1904 forms manually, which is accounted for
in OSHA's estimates.
---------------------------------------------------------------------------
\44\ OSHA believes employers who already own and use
commercially available software are unlikely to face any additional
costs because aftermarket software vendors will need to upgrade
their software to ensure the software does not become irrelevant to
the needs of their customers. Research conducted by ERG indicates
that software vendors plan to upgrade software free of charge
(Docket ID 0104). The business model selected by the software
vendors means that they will inherently incur some minor costs as a
result of providing a service without charge. The record is not
sufficient for OSHA to provide a quantitative estimate of what those
costs would be, but the fact that the vendors chose to offer this
service without charge makes it clear that providing this update
would not pose any threat to the economic stability of the software
vendor industry.
\45\ The use of recordkeeping software provides significant
advantages in terms of streamlining recordkeeping and data
submission capabilities. Specifically, software is available that
produces OSHA-ready reports for work-related injuries and illnesses;
generates files in the exact format required for the OSHA ITA; and
offers additional features, including ways to capture near-misses
and hazards of all types, detailed incident investigations, and the
root cause of an injury.
---------------------------------------------------------------------------
Nonetheless, after a full consideration of comments, and
notwithstanding the possibility that switching to commercial
aftermarket software might be more economical, OSHA recognizes that
there may be an incremental cost to modifying custom software unique to
the rule. While comments provided limited guidance on what the cost of
updating software may be, including how many firms might be affected,
the agency determined that 20 hours of reprogramming is a reasonable
time for the task (Docket ID 0104). This estimate also corresponds to
the estimate submitted in the comment by the Phylmar Regulatory
Roundtable of 2-3 days (Docket ID 0094).\46\
---------------------------------------------------------------------------
\46\ The agency has also performed a sensitivity analysis to
recognize that some of the more complex software in the typically
larger firms, with many establishments, might take as much as 50
hours to reprogram, depending on the complexity of the software
(Docket ID 0103). These estimates assume there are not time savings
from bundling these software updates with others needed to maintain
and update the software, or efficiencies to be gained from
incorporating commercial software.
---------------------------------------------------------------------------
OSHA also estimates that the group of firms affected by the custom
software modification costs is a limited set. OSHA found that
approximately 40 percent of employers who must report injuries
currently already use software to report the files,\47\ and the number
is growing. The agency believes the set of firms using customized
software to report cases is not a randomly distributed group but sorts
heavily by the size of the firm. The agency examined the current
universe of firms currently electronically batch-filing injury reports
via its ITA system and found that of the 716 firms reporting for
affected establishments, approximately 36 percent are reporting for
only one establishment (Docket ID 0106). OSHA believes the cost of
updating custom software would predominantly affect only the other 64
percent of firms (456) that represent more than one establishment and
report data using batch files (ITA cite). Those 456 firms also account
for a disproportionate number of cases reported to the agency. For
those 456 firms to upgrade their software, the agency assumes that this
work would be performed by a software engineer at the wage rate
($94.19) referenced in Table 2. The FEA therefore calculated the cost
of custom software as $859,042 [(456 firms) x (20 hours) x ($94.19/
hour)], or $122,308 annualized over 10 years at a 7 percent discount
rate.\48\
---------------------------------------------------------------------------
\47\ Docket ID 0105.
\48\ $100,706 annualized over 10 years at a 3 percent discount
rate.
---------------------------------------------------------------------------
As indicated previously, employers are not required to modify their
software to comply with the standard, but for very large employers,
this might be their least-cost method for compliance. As laid out
earlier in the analysis, other employers might decide that for purposes
of OSHA compliance, it makes more sense to employ commercially
available software, or even manually enter the cases. Therefore, issues
of software modification do not raise questions of technological
feasibility, as discussed later in the analysis, nor do they pose
questions of economic feasibility.
8. Other Costs
OSHA also received comments on other potential cost items,
addressed below.
a. Harm to Reputation
OSHA received multiple comments stating that OSHA should include
costs to capture the argued negative reputational effects to companies
after OSHA publishes their illness and injury information. The Plastics
Industry Association and the Chamber of Commerce commented on the
potential liabilities associated with publishing these work-related
injury reports (Docket IDs 0086, 0088). The Plastics Industry
Association noted the ``unknown consequences of public shaming and
misuse of the information'' that could lead to reputational damage
(Docket ID 0086).
Related comments are covered in Section III.G of the Summary and
Explanation, but the agency emphasizes here that there is insufficient
basis for altering the economic analysis to reflect this issue.
Regarding reputational and civil liability damages, OSHA disagrees that
the mere posting of injury and illness recordkeeping data on a publicly
available website 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. In addition, OSHA already
publishes data from the Form 300A that is collected through the ITA, as
well as establishment-specific, case-specific information about
reported work-related fatalities, hospitalizations, amputations, and
losses of an eye (see https://www.osha.gov/severeinjury and https://www.osha.gov/fatalities). Despite online publication of this
information for a number of years, commenters did not provide any
examples of harm to reputation occurring as a result, nor did they
provide any examples of misuse of the data that has already been
published.
b. Additional Time Needed To Review for PII
As an adjunct to the earlier discussion regarding quality assurance
concerns and the appropriate wage rate for the cost of submitting
cases, some commenters also suggested that it will take additional time
to remove PII from case files before they are submitted. As in that
discussion, OSHA reiterates that this is an action that should already
be addressed when the cases are recorded under existing practices to
meet existing recordkeeping requirements at Sec. 1904.4, Sec.
1904.29, and Sec. 1904.41.\49\ Therefore, this is not a new cost of
this rule, and the agency is not including cost for privacy checks in
the Final Economic Analysis.
---------------------------------------------------------------------------
\49\ Additionally, OSHA will use software capable of detecting
and redacting PII not redacted by establishments.
---------------------------------------------------------------------------
c. Company Name
One commenter, the National Demolition Association, stated that the
final rule's new requirement for establishments to submit their company
name as part of their data submissions would impose an additional
administrative and financial burden on employers. This commenter argued
that the requirement, which is in final Sec. 1904.41(b)(10), ``would
be particularly onerous and complex for employers who have multiple
establishments and limited staff resources to comply with the
additional administrative paperwork and reporting requirements''
(Docket ID 0060).
Submission of an establishment's company name is not expected to be
particularly time consuming. First, most establishments are already
including their company names as part of their 300A data submissions,
so this new requirement will only affect
establishments that are using only codes to identify their
establishments. Second, establishments that are not already submitting
their company name only have to input that one additional field, and
they have to do that only one time if they are doing a batch file
submission (i.e., once per batch file).\50\ Regardless, the time
necessary to include the company name is included in the 15 minutes
OSHA has estimated as the time necessary to complete one
submission.\51\
---------------------------------------------------------------------------
\50\ As OSHA said in the NPRM, OSHA's review of five years of
electronically submitted Form 300A data indicates that many large
firms with multiple establishments use codes for the Establishment
Name field in their submission (87 FR 18546). This is the type of
employer this new requirement will likely apply to and, because they
are large firms submitting for multiple establishments, they are
likely submitting via batch file. This means that company name would
only need to be inputted once.
\51\ To the extent the commenter is arguing that determining a
firm's legal name is administratively difficult or would take
substantial time, OSHA presumes that employers know their company
names and has included no cost for that.
---------------------------------------------------------------------------
d. Training Costs
The U.S. Poultry and Egg Association, Dow, the North American Meat
Institute, the Motor and Equipment Manufacturers Association, the
Chamber of Commerce, and the National Retail Federation commented that
training costs should be included in the cost analysis (Docket IDs
0053, 0054, 0070, 0088, 0090). The U.S. Poultry and Egg Association
wrote that the analysis ``does not consider additional training of
staff that might be required, nor does the rule consider costs
associated with training existing and new staff on the variety of state
and federal privacy laws that could be impacted by employers now
knowing that the information they submit will necessarily be made
available worldwide'' (Docket ID 0053). The Chamber of Commerce
commented on the need for training managers on how to comply with
reporting formats, schedules, and procedures, as well as training for
additional staff ``to cover multiple shifts, absences, and internal
review needs.'' The Chamber further stated that time would be needed to
``train administrative and operational employees in their new
compliance duties'' (Docket ID 0088).
OSHA concludes that additional training should not be necessary
either to fill in a web form with information that has already been
recorded, or to transmit records from an existing electronic
recordkeeping system with which the employee is already familiar.
Employees have already been trained on how to record injuries and
illnesses on the Forms 300 and 301, pursuant to other previously
existing requirements under part 1904. Thus, OSHA has already accounted
for the time required to learn how to keep the records themselves. Any
time required to learn how to submit the Form 300 and Form 301 data to
the ITA (the only new requirement in this rule) is already included in
OSHA's rule familiarization time estimate, described above.\52\
---------------------------------------------------------------------------
\52\ This approach is also consistent with that taken in OSHA's
2016 final recordkeeping rule, which also required electronic
submission of injury and illness data to OSHA (see 81 FR 29674).
---------------------------------------------------------------------------
D. Effect on Prices
An anonymous commenter commented, ``This is unnecessary overreach
which is going to cost employers and cost the tax payers additional
resources to process the collected data . . . It will only cost
employers more, who will charge the consumer more'' (Docket ID 0025).
OSHA disagrees. As discussed throughout this section, the costs to
comply with the final rule for individual employers are expected to be
about $136 per establishment to submit the Form 300 and 301 data. Costs
at this level of magnitude are not expected to lead to price increases
or raise issues of economic feasibility.\53\
---------------------------------------------------------------------------
\53\ As discussed in the Regulatory Flexibility Certification,
the costs would be no more than approximately .01% of revenues ($136
costs/$13,627 being the 1% threshold of revenues), implying a
negligible price increase, if any, to recoup the increase in costs.
---------------------------------------------------------------------------
E. Budget Costs to the Government
In the PEA, OSHA included an estimate of the costs of the new
requirement to the government because these costs represent a
significant fraction of the total costs of the new requirement. OSHA
received estimates for the costs from the U.S. Department of Labor
Office of the Chief Information Officer (DOL OCIO). OSHA estimated that
modification of the reporting system hardware and software
infrastructure to accept submissions of Form 300 and 301 data would
have an initial one-time cost of $1.2 million. If annualized over 10
years at a 7 percent discount rate, the $1.2 million total cost would
equal $170,853 per year, or if annualized at 3 percent, it would be
$140,677 per year. The agency also estimated $201,128 as the annual
cost of additional IT transactions necessary to implement this rule
($0.28 per case times 718,316 cases for additional internal IT support
services). Finally, OSHA estimated that annual help desk support costs
would increase by $25,000. This estimate was based on the annual help
desk support costs under the 300A submission provisions. This resulted
in a total cost to the government, annualized over 10 years at a 7
percent rate, of $397,001.\54\
---------------------------------------------------------------------------
\54\ When preparing the final rule, the agency found inadvertent
discrepancies between the written text of the PEA that was in the
Federal Register notice for the NPRM (87 FR 18550-51) and the
spreadsheet (Ex. 2) used to calculate the estimated governmental
costs in the PEA. The agency describes those discrepancies here for
the purposes of transparency. The annual cost of IT transactions was
listed in the spreadsheet as $107,309 rather than $201,128 in the
Federal Register notice. Annual help desk support costs were listed
as $50,000 in the spreadsheet and $25,000 in the Federal Register
notice. And, the cost of an additional IT Specialist was included in
the spreadsheet (at an estimated $181,162) but omitted from the
discussion in the Federal Register notice. Whereas the total costs
to the government reported in the spreadsheet were $509,324, the
total costs to the government in the Federal Register notice were
$397,001. Because the costs listed in the spreadsheet are more
inclusive of the universe of estimated costs, the estimates in the
FEA are derived from those costs.
---------------------------------------------------------------------------
OSHA sought comment on this methodology and cost estimate and
received no responses. After consideration, OSHA has decided to
maintain the framework used in the proposal but has updated the
estimate to account for the current wage rate indicated in Table 2,
above. Therefore, OSHA retained the estimate of $1.2 million for the
one-time cost of modifying the reporting system hardware and software
infrastructure to accept submissions of Form 300 and 301 data. If
annualized over 10 years at a 7 percent discount rate, the $1.2 million
total cost would equal $170,853 per year. If annualized at 3 percent,
it would be $140,677 per year. The agency also estimated $128,716 as
the annual cost of additional IT transactions necessary to implement
this rule ($0.28 per case times 459,701 cases for additional internal
IT support services). Next, the agency estimated $204,485, based on
2023 wages, for OSHA to hire an additional IT Specialist. Finally, OSHA
estimated that annual help desk support costs will increase by $50,000.
Summing these figures, and assuming a seven percent discount rate,
results in a total annualized cost to the government of $554,054.
F. Total Cost
Summing the estimated batch-file submission ($252,048) and manual
submission ($6,647,982) costs results in an estimated total cost of
$6,900,030 to submit 766,257 records. Combined with the annualized cost
of $75,781 per year for familiarization, and $122,308 for software
upgrade cost to employers submitting batch-files using custom computer
software, estimated above (at 7 percent), the estimated total annual
private-sector cost of this part of the
final rule is $7,098,120. To obtain the estimated average cost of
submission per establishment of $136.26, OSHA divided the total
estimated cost of submission ($7,098,120) by the estimated number of
establishments that would be required to submit data (52,092
establishments). Total costs are detailed in Table 3,
below.55 56
---------------------------------------------------------------------------
\55\ OSHA has determined that the other new regulatory
provisions in this final rule, such as Sec. 1904.41(b)(1) (which is
a clarifying provision), Sec. 1904.41(b)(9) (which sets out which
data should be excluded from submissions), Sec. 1904.41(b)(10)
(which requires employers to provide their company name as part of
their submission), and Sec. 1904.41(c) (which sets the submission
deadline), do not impose costs beyond those accounted for in the
costs of submission and familiarization discussed in this FEA.
\56\ One commenter, the US Poultry & Egg Association, objected
to OSHA's estimate of costs and suggested that OSHA should ``conduct
a pilot program (preferably on Federal Government agencies) to
determine the actual cost of compliance'' (Ex. 53). OSHA has a long
history of estimating costs of its regulations and standards without
the need for a pilot program. It is confident that the estimates in
this rulemaking, which carefully consider comments from interested
parties, are sufficient to accurately characterize the costs of
compliance for employers.
Table 3--Total Cost Summary
------------------------------------------------------------------------
Cost element Annual cost One-time cost
------------------------------------------------------------------------
Annual electronic submission of $6,900,030........ $0
OSHA Form 300 Log and OSHA Form
301 Incident Report by
establishments with 100 or more
employees in designated
industries.
One-Time Rule Familiarization NA................ 532,257
Cost.
Annualized 10 yr at 7%...... 75,781............ NA
Annualized 10 yr at 3%...... 62,397............ NA
One-Time Software Upgrade....... NA................ 859,042
Annualized 10 yr at 7%...... 122,308........... NA
Annualized 10 yr at 3%...... 100,706........... NA
---------------------------------------
Total Private Sector 7,098,120......... 1,391,299
Costs * **.
Average Cost per 52,092 136............... NA
Establishments.
------------------------------------------------------------------------
Processing of annual electronic 128,360........... 0
submissions of OSHA 300/301.
Annual Contractor Software 50,000............ 0
Support.
Annual Government Software 204,485........... 0
Support.
One-Time Software Design and NA................ 1,200,000
Development.
Annualized 10 yr at 7%...... 170,853........... NA
Annualized 10 yr at 3%...... 140,677........... NA
---------------------------------------
Total Government Costs * 553,698........... 1,200,000
**.
---------------------------------------
Total *................. 7,651,818......... 2,591,299
------------------------------------------------------------------------
* One-time costs are annualized and appear in annual cost column; the
one-time cost is not an additional cost.
** Annualized over 10 years at 7%.
G. Benefits
As explained in the PEA and elaborated on elsewhere in this
preamble, in particular in Section III.B of the Summary and
Explanation, the main purpose of the final rule is to prevent worker
injuries and illnesses through the collection and use of timely,
establishment- and case-specific injury and illness data. With the
information obtained through this rule, OSHA, employers, employees,
employee representatives, State and local agencies, consultants, and
researchers will be better able to identify and mitigate workplace
hazards and thereby prevent worker injuries and illnesses. The final
rule will support OSHA's statutory directive to assure safe and
healthful working conditions for working people by providing for
appropriate reporting procedures regarding occupational safety and
health that will help achieve the objectives of the OSH Act (29 U.S.C.
651(b); (b)(12)).
The number of workers in the U.S. who are injured or made ill on
the job remains unacceptably high, and the importance of this final
rule lies largely in increasing access to information to better enable
OSHA and other organizations to prevent workplace injuries and
illnesses. According to BLS's Survey of Occupational Injuries and
Illnesses (SOII), in 2021, employees experienced 2.6 million recordable
nonfatal injuries and illnesses at work.\57\ This number is widely
recognized to be an undercount of the actual number of occupational
injuries and illnesses that occur annually.\58\ As described
extensively above in Section III.B of the Summary and Explanation, the
final rule will increase the agency's ability to focus resources on
those workplaces where workers are at greatest risk. 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 leverage its resources for workplace
safety at the many thousands of establishments in which workers are
being injured or made ill but which OSHA does not have the resources to
inspect.
---------------------------------------------------------------------------
\57\ See ``Employer-Reported Workplace Injuries and Illnesses--
2021'', news release from the Bureau of Labor Statistics/U.S.
Department of Labor, November 9, 2022 (https://www.bls.gov/news.release/pdf/osh.pdf).
\58\ See, e.g., Leigh JP, Du J, McCurdy SA. An estimate of the
U.S. government's undercount of nonfatal occupational injuries and
illnesses in agriculture. Ann Epidemiol. 2014 Apr; 24(4):254-9
(https://pubmed.ncbi.nlm.nih.gov/24507952/); Spieler EA, Wagner GR.
Counting matters: Implications of undercounting in the BLS survey of
occupational injuries and illnesses. Am J Ind Med. 2014 Oct;
57(10):1077-84 (https://onlinelibrary.wiley.com/doi/10.1002/ajim.22382).
---------------------------------------------------------------------------
As discussed in more detail in Section III, Summary and
Explanation, the final rule will help OSHA prevent worker injuries and
illnesses by greatly expanding OSHA's access to the establishment-
specific, case-specific information employers are already required to
record under part 1904. The
provisions requiring regular electronic submission of case-specific
injury and illness data will allow OSHA to obtain a much larger data
set of establishment-specific, case-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. 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.
In addition to OSHA obtaining better information, this information
will be available to employers, employees, members of the public,
employee representatives, trade associations, and workplace safety and
health professionals, among others. This increased access and
transparency of information about workplace injuries and illnesses can
be used by all interested parties to better understand workplace
hazards and improve occupational safety and health. OSHA also expects
the information to improve research on the occurrence and prevention of
workplace hazards, injuries, and illnesses.
In response to the PEA, the National Propane Gas Association and
the Chamber of Commerce said that OSHA should quantify benefits for the
rule (Docket IDs 0050, 0088, Attachments). The National Propane Gas
Association stated that OSHA ``does not provide any details as to how
publicly available information could improve workplace safety'' and
argued that OSHA should ``provide concrete benchmarks to define the
safety improvements that the agency expects to be met by publicly
accessible case-specific, establishment-specific information'' (Docket
ID 0050). The Chamber of Commerce said that OSHA ``makes no attempt to
estimate or quantify the purported economic benefits of this Proposed
Rule; instead, it asserts that these benefits will `significantly
exceed the annual costs,' '' going on to say that OSHA did not
``explain how electronic quarterly reporting or the creation of a
public database that will publish the private and confidential
information of employers and employees will provide any increase in
workplace safety'' (Docket ID 0088).\59\
---------------------------------------------------------------------------
\59\ Note that the agency did not propose quarterly reporting;
the proposed rule envisioned annual reporting, and the final rule
similarly will require annual reporting.
---------------------------------------------------------------------------
The agency respectfully disagrees about quantifying the economic
benefits. Quantifying benefits is not always feasible in practice.
However, the infeasibility of quantifying benefits does not demonstrate
a lack of benefits. In contrast to the occupational safety and health
standards the agency promulgates, quantifying benefits for a
recordkeeping regulation is particularly challenging.\60\ OSHA notes
that the commenters did not attempt to themselves quantify the benefits
of the proposed rule, nor did commenters propose any approach that
would allow the agency to effectively quantify those benefits in order
to compare them against the costs.
---------------------------------------------------------------------------
\60\ For the difference between a standard and a regulation,
please see the discussion in Section II, Legal Authority.
---------------------------------------------------------------------------
H. Economic Feasibility
In the PEA, OSHA preliminarily concluded that the proposed rule
would be economically feasible and received no comment specifically on
this conclusion. After further consideration, OSHA has concluded that
the final rule will be economically feasible. Under the final rule, for
establishments with 100 or more employees in the industries designated
in appendix B, the average additional cost of electronically submitting
information from the OSHA Forms 300 and 301 will be roughly $136 per
year. These costs will not affect the economic viability of these
establishments.
I. Regulatory Flexibility Certification
The requirement in the final rule requiring the electronic
submission of Form 300 and 301 information from establishments with 100
or more employees in designated industries will affect some small
entities, as determined by the definitions of small entity used by the
Small Business Administration (SBA). In some sectors, such as
construction, where SBA's definition only includes relatively smaller
firms, there are unlikely to be many entities with establishments with
100 or more employees that meet SBA small entity definitions. In other
sectors, such as manufacturing, many SBA-defined small entities will be
subject to this rule. Thus, this part of the final rule will affect
only a small percentage of all SBA-defined small entities.\61\ However,
because some SBA-defined small entities will be affected, especially in
manufacturing, OSHA has examined the impacts of this final rule on
small businesses.
---------------------------------------------------------------------------
\61\ The portion of the rule that addresses the submission of
Form 300A information does affect smaller entities, as
establishments with 20 or more employees are required to
electronically submit Form 300A information. However, because this
final rule makes no substantive changes to that submission
requirement, which was enacted as part of the 2016 final rule, there
are no new costs for entities with fewer than 100 employees.
---------------------------------------------------------------------------
OSHA did not convene a Small Business Advocacy Review panel under
the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA
Panel) for this rule. At least one commenter, the Chamber of Commerce,
argued that OSHA should have convened a SBREFA Panel to further
evaluate the effect of the proposed rule on small businesses (Docket ID
0088). The commenter said that the panel was particularly important
because ``the vast majority of employers and establishments that will
be affected by this Proposed Rule's electronic-only reporting
requirements will be small businesses, many of which do not currently
record injuries electronically.'' This commenter offered no evidence to
support its assertion that the majority of the employers and
establishments affected would be small businesses, nor did it offer
evidence that small businesses do not currently record injuries
electronically.
OSHA considers the possibility of disproportionate impacts on small
businesses when deciding whether a Small Business Advocacy Review
(SBAR) panel is warranted. Because OSHA preliminarily determined that
the proposed rule would not result in a significant impact on a
substantial number of small businesses (see 87 FR 18553), OSHA
determined that a SBREFA panel was not required for this rule. Nothing
in the record has disturbed OSHA's preliminary determination that this
rule will not have a significant impact on a substantial number of
small businesses. Therefore, OSHA does not believe a SBREFA panel was
required for this rule.
OSHA's typical procedure for assessing the significance of final
rules on small businesses is to first determine if costs are greater
than one percent of revenues or five percent of profits for the average
firm. If so, OSHA conducts an additional assessment. To meet this level
of significance at an estimated annual average cost of $136 per
affected establishment per year (including annualized familiarization
costs), annual revenues for an establishment with 100 or more employees
would have to be less than $13,627 (or less than $136 per employee,
assuming 100 employees), and annual profits would have to be less than
$2,725 (or less than $28 per employee, assuming 100 employees). There
are no impacted industries that have average revenues of
less than $13,627.\62\ Furthermore, integrating those data with profit
data from the 2013 Corporation Source Book \63\ indicates there are no
impacted industries earning less than $2,725 in profit per
establishment among establishments with 5 or more employees.\64\ These
are extremely unlikely combinations of revenues and profits for firms
of this size and would only occur for a very small number of firms in
severe financial distress. As indicated, OSHA's cost estimates would
have to be in error by more than an order of magnitude to reach these
thresholds.\65\
---------------------------------------------------------------------------
\62\ The average revenue numbers were obtained from the 2017
Economic Census. This is the most current information available from
this source, which OSHA considers to be the best available source of
revenue data for U.S. businesses. OSHA adjusted these figures to
2019 dollars using the Bureau of Economic Analysis's GDP deflator,
which is OSHA's standard source for inflation and deflation
analysis. These average revenue figures would include any non-
profits falling within the affected industries.
\63\ Profits were calculated as profit rates multiplied by
revenues. The before-tax profit rates that OSHA used were estimated
using corporate balance sheet data from the 2013 Corporation Source
Book (Internal Revenue Service, 2013; https://www.irs.gov/statistics/soi-tax-stats-corporation-source-book-publication-1053).
The IRS discontinued the publication of these data after 2013, and
therefore the most current years available are 2000-2013. The most
recent version of the Source Book represents the best available
evidence for these data on profit rates.
\64\ While descriptive of most establishments in these
industries, this figure would significantly underestimate the
profits of the average affected establishment covered by this rule,
which only affects those with 100 or more employees.
\65\ The lowest potential threshold of impact (for profits) is
$2,725 per establishment. The agency estimates an average cost per
establishment of $136. It would need to be approximately 20 times
higher to reach this threshold.
---------------------------------------------------------------------------
As a result of these considerations, per Section 605 of the
Regulatory Flexibility Act (5 U.S.C. 605), OSHA certifies that the
final rule will not have a significant economic impact on a substantial
number of small entities. Thus, OSHA has not prepared a final
regulatory flexibility analysis.
V. OMB Review Under the Paperwork Reduction Act of 1995
A. Overview
The final ``Improve Tracking Workplace Injury and Illness'' rule
contains information collection (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 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). The aforementioned regulations mandate that the Department
consider the impact of paperwork and other information collection
burdens imposed on the public. Under the PRA, a Federal agency
generally cannot conduct or sponsor a collection of information and the
public will generally not be penalized for not responding to an
information collection, unless it is approved by OMB and the agency
displays a currently valid OMB Control Number. See 44 U.S.C. 3507 and
3512, 5 CFR 1320.5(a) and 1320.6.
On March 30, 2022, OSHA published a notice of proposed rulemaking
(NPRM) (87 FR 18528) to amend its occupational injury and illness
recordkeeping regulation to require establishments with 100 or more
employees in certain designated industries to be able to electronically
submit information from their OSHA Forms 300, 301, and 300A once a
year. OSHA prepared and submitted an Information Collection Request
(ICR) to OMB, proposing to revise certain collection requirements
currently contained in the package, as required under 44 U.S.C.
3507(d). The proposed rule invited the public to submit comments to
OMB, in addition to OSHA, on the proposed collections of information.
On May 25, 2022, OSHA published a second Federal Register notice (87 FR
31793), extending the comment period to allow the public an additional
30 days to comment on the proposed rule and the information collection
requirements contained in the proposed rule. OSHA received 87 public
comments.
In accordance with the PRA (44 U.S.C. 3506(c)(2)), OSHA solicited
public comments on the collection of information contained in the 2022
proposed rule. OSHA encouraged commenters to submit their comments on
the information collection requirements contained in the proposed rule
under docket number OSHA-2021-0006, along with their comments on other
parts of the proposed rule. In addition to generally soliciting
comments on the collection of information requirements, the proposed
rule indicated that OSHA and OMB were particularly interested in
comments that addressed the following:
Whether the collection of information is necessary for the
proper performance of the agency's functions, including whether the
information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the collection of information, including the validity of the
methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information.
On May 5, 2022, OMB issued a Notice of Action (NOA) assigning the
proposal's ICR a new control number, 1218-0279, to be used in future
ICR submissions. OMB noted that this action had no effect on any
current approvals. OMB also noted that the NOA is not an approval to
conduct or sponsor the information collection contained in the revision
proposal. Finally, OMB requested that, ``[p]rior to publication of the
final rule, [OSHA] should provide a summary of any comments related to
the information collection and their response, including any changes
made to the ICR as a result of comments. In addition, the agency must
enter the correct burden estimates.'' OSHA did not receive any comments
in response to the proposed ICR submitted to OMB for review. However,
the agency did receive 87 comments related to the proposed rule.
Concurrent with publication of this final rule, the Department of
Labor submitted the final ICR, containing the full analysis and
description of the burden hours and costs associated with the final
rule, to OMB for approval. A copy of this ICR is available at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1218-0279
(this link will become active on the day following publication of the
final rule). OSHA will publish a separate notice in the Federal
Register that will announce the results of that review. This notice
will also include a list of OMB-approved information collection
requirements and total burden hours and costs imposed by the new
regulation.
B. Summary of Information Collection Requirements
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: Improve Tracking Workplace Injury and Illness.
2. Description of the ICR: This final rule revises the currently
approved Recordkeeping and Reporting Occupational Injuries and
Illnesses Information Collection and changes the existing information
collection requirements currently approved by OMB.
3. Brief Summary of the Information Collection Requirements.
Under ``Information Requirements on Recordkeeping and Reporting
Occupational Injuries and Illnesses,'' OMB Control Number 1218-0176,
OSHA currently has OMB approval to conduct an information collection
that requires covered employers to, among other things, record each
recordable employee injury and illness on an OSHA Form 300, which is
the ``Log of Work-Related Injuries and Illnesses,'' or equivalent. In
addition, 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, and,
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.
Under 29 CFR 1904.41, certain employers were only required to
electronically submit injury and illness information from their OSHA
Forms 300A (the summary) annually. OSHA did not receive establishment-
specific, case-specific, injury and illness data. For the purposes of
the PRA, the final rule makes two changes to Sec. 1904.41.
First, OSHA newly requires all establishments that have 100 or more
employees and are in certain designated industries to electronically
submit information from the OSHA Form 300 and 301 to OSHA or OSHA's
designee. This is in addition to the current requirement for these
establishments to electronically submit information from the OSHA Form
300A. Each establishment subject to this provision will require time to
familiarize themselves with the reporting website. This change is
similar to requirements contained in OSHA's Improve Tracking of
Workplace Injuries and Illnesses final rule, 81 FR 29624 (May 12, 2016)
which were removed by the Tracking of Workplace Injuries and Illnesses
final rule, 84 FR 380 (January 25, 2019).
Second, OSHA newly requires establishments that are required to
electronically report information from their injury and illness records
to OSHA under part 1904, to include their company name as part of the
submission. No additional paperwork burden is associated with the
provision.
In addition, Docket exhibit OSHA-2021-006-0004 shows an example of
an expanded interface to collect case-specific data. Screenshots of
this interface can also be viewed on OSHA's website at http://www.osha.gov/recordkeeping/proposed_data_form.html.
4. OMB Control Number: 1218-0279 .
5. Affected Public: Business or other for-profit.
6. Total Estimated Number of Respondents: 52,092.
7. Frequency of Responses: Annually.
8. Total Estimated Number of Responses: 475,943.
9. Average Time per Response: Average time per response varies from
10 minutes for establishments using batch file submission to 237
minutes for establishments using manual submission.
10. Total Estimated Annualized Burden Hours): 118,485.
11. Total Estimated Costs (Capital-Operation and Maintenance): 0.
VI. Unfunded Mandates
OSHA reviewed this final rule according to the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.), as well as Executive
Order 13132 (64 FR 43255 (Aug. 4, 1999)). As discussed above in Section
IV, Final Economic Analysis, the agency has determined that 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 $100 million or more in any one
year. In addition, OSHA's regulations do not apply to State and local
governments except in States that have elected voluntarily to adopt a
State Plan approved by OSHA. Consequently, this final rule does not
meet the definition of a ``federal intergovernmental mandate'' (see 2
U.S.C. 1502, 658(5)). Therefore, for the purposes of the UMRA, the
agency certifies that this final rule does not mandate that State,
local, or Tribal governments adopt new, unfunded regulatory obligations
of, or increase expenditures by the private sector by, $100 million or
more in any year.
VII. Federalism
OSHA reviewed this final rule in accordance with Executive Order
13132 (64 FR 43255 (Aug. 4, 1999)), regarding federalism. E.O. 13132
requires that Federal agencies, to the extent possible, refrain from
limiting State policy options, consult with States before taking
actions that would restrict States' policy options, and take such
actions only when clear constitutional authority exists and the problem
is of national scope.
Section 18(a) of the OSH Act states that nothing in the Act shall
prevent any State agency or court from asserting jurisdiction under
State law over an occupational safety or health issue with respect to
which no standard is in effect under Section 6 of the Act (29 U.S.C.
667(a)). Because this rulemaking involves 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), the rule will not preempt State law under
Section 18(a) (see 29 U.S.C. 667(a)). The effect of the final rule on
States and territories with OSHA-approved occupational safety and
health State Plans is discussed in Section VIII, State Plans.
VIII. State Plans
Pursuant to Section 18 of the OSH Act (29 U.S.C. 667) and the
requirements of 29 CFR 1904.37, 1902.3(j), 1902.7, 1953.4(b), and
1956.10(i), within 6 months after publication of the final OSHA rule,
State Plans must promulgate occupational injury and illness recording
and reporting requirements that are substantially identical to those in
29 CFR part 1904. State Plans must have the same requirements as
Federal OSHA for determining which injuries and illnesses are
recordable and how they are recorded (29 CFR 1904.37(b)(1)). All other
part 1904 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 Plans 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)).
There are 29 State Plans. The States and territories that cover
both private sector and public 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, Maine, Massachusetts, New Jersey, New
York, and the Virgin Islands have OSHA-approved State Plans that apply
to State and local government employees only.
IX. National Environmental Policy Act
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.
X. 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. The 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 in 29 CFR Part 1904
Health statistics, Occupational safety and health, Reporting and
recordkeeping requirements.
Authority and Signature
This document was prepared under the direction of Douglas L.
Parker, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Avenue NW,
Washington, DC 20210. 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. 8-2020 (85 FR 58393 (Sept. 18, 2020)).
Signed at Washington, DC, on July 12, 2023.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
For the reasons stated in the preamble, OSHA amends part 1904 of
chapter XVII of title 29 as follows:
PART 1904--[AMENDED]
Subpart E--Reporting Fatality, Injury and Illness Information to
the Government
0
1. The authority citation for part 1904, subpart E, is revised to read
as follows:
Authority: 29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of
Labor's Order No. 08-2020 (85 FR 58393, Sept. 18, 2020) or 1-2012
(77 FR 3912, Jan. 25, 2012), as applicable.
0
2. Amend Sec. 1904.41 as follows:
0
a. Revise paragraphs (a)(1) and (2) and (b)(1);
0
b. Add paragraphs (b)(9) and (10); and
0
c. Revise paragraph (c).
The revisions and additions read as follows:
Sec. 1904.41 Electronic submission of Employer Identification Number
(EIN) and injury and illness records to OSHA.
* * * * *
(a) * * *
(1) Annual electronic submission of information from OSHA Form 300A
Summary of Work-Related Injuries and Illnesses. (i) If your
establishment had 20-249 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.
(ii) 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 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.
(2) Annual electronic submission of information from OSHA Form 300
Log of Work-Related Injuries and Illnesses and OSHA Form 301 Injury and
Illness Incident Report by establishments with 100 or more employees in
designated industries. If your establishment had 100 or more employees
at any time during the previous calendar year, and your establishment
is classified in an industry listed in appendix B to subpart E of this
part, then you must electronically submit information from OSHA Forms
300 and 301 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.
* * * * *
(b) * * *
(1) Does every employer have to routinely make an annual electronic
submission of information from part 1904 injury and illness
recordkeeping forms to OSHA? No, only three categories of employers
must routinely submit information from these forms. The first category
is establishments that had 20-249 employees at any time during the
previous calendar year, and are classified in an industry listed in
appendix A to this subpart; establishments in this category must submit
the required information from Form 300A to OSHA once a year. The second
category is establishments that had 250 or more employees at any time
during the previous calendar year, and are required by this part to
keep records; establishments in this category must submit the required
information from Form 300A to OSHA once a year. The third category is
establishments that had 100 or more employees at any time during the
previous calendar year, and are classified in an industry listed in
appendix B to this subpart; establishments in this category must also
submit the required information from Forms 300 and 301 to OSHA once a
year, in addition to the required information from Form 300A. Employers
in these three 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 (for example, 2024 for the 2023
form(s)). If your establishment is not in any of these three
categories, then you must submit the information to OSHA only if OSHA
notifies you to do so for an individual data collection.
* * * * *
(9) If I have to submit information under paragraph (a)(2) of this
section, do I have to submit all of the information from the
recordkeeping forms? No, you are required to submit all of the
information from the forms 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).
(10) My company uses numbers or codes to identify our
establishments. May I use numbers or codes as the establishment name in
my submission? Yes, you may use numbers or codes as the establishment
name. However, the submission must include a legal company name, either
as part of the establishment name or separately as the company name.
(c) Reporting dates. Establishments that are required to submit
under paragraph (a)(1) or (2) of this section
must submit all of the required information by March 2 of the year
after the calendar year covered by the form(s) (for example, by March
2, 2024, for the forms covering 2023).
* * * * *
0
3. Revise appendix A to subpart E to read as follows:
Appendix A to Subpart E of Part 1904--Designated Industries for Sec.
1904.41(a)(1)(i) Annual Electronic Submission of Information From OSHA
Form 300A Summary of Work-Related Injuries and Illnesses by
Establishments With 20-249 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.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
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 (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living 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.
7223....................... Special Food Services.
8113....................... Commercial and Industrial Machinery and
Equipment (except Automotive and
Electronic) Repair and Maintenance.
8123....................... Drycleaning and Laundry Services.
------------------------------------------------------------------------
0
4. Add appendix B to subpart E to read as follows:
Appendix B to Subpart E of Part 1904--Designated Industries for Sec.
1904.41(a)(2) Annual Electronic Submission of Information From OSHA
Form 300 Log of Work-Related Injuries and Illnesses and OSHA Form 301
Injury and Illness Incident Report by Establishments With 100 or More
Employees in Designated Industries
------------------------------------------------------------------------
NAICS Industry
------------------------------------------------------------------------
1111....................... Oilseed and Grain Farming.
1112....................... Vegetable and Melon Farming.
1113....................... Fruit and Tree Nut Farming.
1114....................... Greenhouse, Nursery, and Floriculture
Production.
1119....................... Other Crop Farming.
1121....................... Cattle Ranching and Farming.
1122....................... Hog and Pig Farming.
1123....................... Poultry and Egg Production.
1129....................... Other Animal Production.
1133....................... Logging.
1141....................... Fishing.
1142....................... Hunting and Trapping.
1151....................... Support Activities for Crop Production.
1152....................... Support Activities for Animal Production.
1153....................... Support Activities for Forestry.
2213....................... Water, Sewage and Other Systems.
2381....................... Foundation, Structure, and Building
Exterior Contractors.
3111....................... Animal Food Manufacturing.
3113....................... Sugar and Confectionery Product
Manufacturing.
3114....................... Fruit and Vegetable Preserving and
Specialty Food Manufacturing.
3115....................... Dairy Product Manufacturing.
3116....................... Animal Slaughtering and Processing.
3117....................... Seafood Product Preparation and Packaging.
3118....................... Bakeries and Tortilla Manufacturing.
3119....................... Other Food Manufacturing.
3121....................... Beverage Manufacturing.
3161....................... Leather and Hide Tanning and Finishing.
3162....................... Footwear Manufacturing.
3211....................... Sawmills and Wood Preservation.
3212....................... Veneer, Plywood, and Engineered Wood
Product Manufacturing.
3219....................... Other Wood Product Manufacturing.
3261....................... Plastics Product Manufacturing.
3262....................... Rubber Product Manufacturing.
3271....................... Clay Product and Refractory Manufacturing.
3272....................... Glass and Glass Product Manufacturing.
3273....................... Cement and Concrete Product Manufacturing.
3279....................... Other Nonmetallic Mineral Product
Manufacturing.
3312....................... Steel Product Manufacturing from Purchased
Steel.
3314....................... Nonferrous Metal (except Aluminum)
Production and Processing.
3315....................... Foundries.
3321....................... Forging and Stamping.
3323....................... Architectural and Structural Metals
Manufacturing.
3324....................... Boiler, Tank, and Shipping Container
Manufacturing.
3325....................... Hardware Manufacturing.
3326....................... Spring and Wire Product Manufacturing.
3327....................... Machine Shops; Turned Product; and Screw,
Nut, and Bolt Manufacturing.
3328....................... Coating, Engraving, Heat Treating, and
Allied Activities.
3331....................... Agriculture, Construction, and Mining
Machinery Manufacturing.
3335....................... Metalworking Machinery Manufacturing.
3361....................... Motor Vehicle Manufacturing.
3362....................... Motor Vehicle Body and Trailer
Manufacturing.
3363....................... Motor Vehicle Parts Manufacturing.
3366....................... Ship and Boat Building.
3371....................... Household and Institutional Furniture and
Kitchen Cabinet Manufacturing.
3372....................... Office Furniture (including Fixtures)
Manufacturing.
3379....................... Other Furniture Related Product
Manufacturing.
4231....................... Motor Vehicle and Motor Vehicle Parts and
Supplies Merchant Wholesalers.
4233....................... Lumber and Other Construction Materials
Merchant Wholesalers.
4235....................... Metal and Mineral (except Petroleum)
Merchant Wholesalers.
4239....................... Miscellaneous Durable Goods Merchant
Wholesalers.
4244....................... Grocery and Related Product Merchant
Wholesalers.
4248....................... Beer, Wine, and Distilled Alcoholic
Beverage Merchant Wholesalers.
4413....................... Automotive Parts, Accessories, and Tire
Stores.
4422....................... Home Furnishings Stores.
4441....................... Building Material and Supplies Dealers.
4442....................... Lawn and Garden Equipment and Supplies
Stores.
4451....................... Grocery Stores.
4522....................... Department Stores.
4523....................... General Merchandise Stores, including
Warehouse Clubs and Supercenters.
4533....................... Used Merchandise Stores.
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.
4859....................... Other Transit and Ground Passenger
Transportation.
4871....................... Scenic and Sightseeing Transportation,
Land.
4881....................... Support Activities for Air Transportation.
4883....................... Support Activities for Water
Transportation.
4889....................... Other Support Activities for
Transportation.
4911....................... Postal Service.
4921....................... Couriers and Express Delivery Services.
4931....................... Warehousing and Storage.
5322....................... Consumer Goods Rental.
5621....................... Waste Collection.
5622....................... Waste Treatment and Disposal.
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 (Skilled Nursing
Facilities).
6232....................... Residential Intellectual and Developmental
Disability, Mental Health, and Substance
Abuse Facilities.
6233....................... Continuing Care Retirement Communities and
Assisted Living Facilities for the
Elderly.
6239....................... Other Residential Care Facilities.
6243....................... Vocational Rehabilitation Services.
7111....................... Performing Arts Companies.
7112....................... Spectator Sports.
7131....................... Amusement Parks and Arcades.
7211....................... Traveler Accommodation.
7212....................... RV (Recreational Vehicle) Parks and
Recreational Camps.
7223....................... Special Food Services.
------------------------------------------------------------------------
* * * * *
[FR Doc. 2023-15091 Filed 7-17-23; 8:45 am]
BILLING CODE 4510-26-P
