Improve Tracking of Workplace Injuries and Illnesses, 29623-29694 [2016-10443]

Agencies

• DEPARTMENT OF LABOR
• Occupational Safety and Health Administration

[Federal Register Volume 81, Number 92 (Thursday, May 12, 2016)]
[Rules and Regulations]
[Pages 29623-29694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10443]



[[Page 29623]]

Vol. 81

Thursday,

No. 92

May 12, 2016

Part II





Department of Labor





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





29 CFR Parts 1904 and 1902





Improve Tracking of Workplace Injuries and Illnesses; Final Rule

Federal Register / Vol. 81 , No. 92 / Thursday, May 12, 2016 / Rules 
and Regulations

[[Page 29624]]


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

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Parts 1904 and 1902

[Docket No. OSHA-2013-0023]
RIN 1218-AC49


Improve Tracking of Workplace Injuries and Illnesses

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

ACTION: Final rule.

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

SUMMARY: OSHA is issuing a final rule to revise its Recording and 
Reporting Occupational Injuries and Illnesses regulation. The final 
rule requires employers in certain industries to electronically submit 
to OSHA injury and illness data that employers are already required to 
keep under existing OSHA regulations. The frequency and content of 
these establishment-specific submissions is set out in the final rule 
and is dependent on the size and industry of the employer. OSHA intends 
to post the data from these submissions on a publicly accessible Web 
site. OSHA does not intend to post any information on the Web site that 
could be used to identify individual employees.
    The final rule also amends OSHA's recordkeeping regulation to 
update requirements on how employers inform employees to report work-
related injuries and illnesses to their employer. The final rule 
requires employers to inform employees of their right to report work-
related injuries and illnesses free from retaliation; clarifies the 
existing implicit requirement that an employer's procedure for 
reporting work-related injuries and illnesses must be reasonable and 
not deter or discourage employees from reporting; and incorporates the 
existing statutory prohibition on retaliating against employees for 
reporting work-related injuries or illnesses. The final rule also 
amends OSHA's existing recordkeeping regulation to clarify the rights 
of employees and their representatives to access the injury and illness 
records.

DATES: This final rule becomes effective on January 1, 2017, except for 
Sec. Sec.  1904.35 and 1904.36, which become effective on August 10, 
2016. Collections of information: There are collections of information 
contained in this final rule (see Section XI, Office of Management and 
Budget Review Under the Paperwork Reduction Act of 1995). 
Notwithstanding the general date of applicability that applies to all 
other requirements contained in the final rule, affected parties do not 
have to comply with the collections of information until the Department 
of Labor publishes a separate document in the Federal Register 
announcing that the Office of Management and Budget has approved them 
under the Paperwork Reduction Act.

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

FOR FURTHER INFORMATION CONTACT: For press inquiries: Frank Meilinger, 
OSHA, Office of Communications, Room N-3647, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1999; email: meilinger.francis2@dol.gov
    For general and technical information: Miriam Schoenbaum, OSHA, 
Office of Statistical Analysis, Room N-3507, U.S. Department of Labor, 
200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-
1841; email: schoenbaum.miriam@dol.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Table of Contents

    The following table of contents identifies the major sections of 
the preamble to the final rule revising OSHA's Occupational Injury and 
Illness Recording and Reporting Requirements regulation (Improving 
tracking of workplace injuries and illnesses):

I. Background
    A. Table of Contents
    B. References and Exhibits
    C. Introduction
    D. Regulatory History
II. Legal Authority
III. Section 1904.41
    A. Background
    B. The Proposed Rule
    C. Comments on the Proposed Rule
    D. The Final Rule
IV. Section 1902.7--State Plan Requirements
V. Section 1904.35 and Section 1904.36
    A. Background
    B. The Proposed Rule
    C. The Final Rule
VI. Final Economic Analysis and Regulatory Flexibility Analysis
    A. Introduction
    B. Costs
    C. Benefits
    D. Economic Feasibility
    E. Regulatory Flexibility Certification
VII. Unfunded Mandates
VIII. Federalism
IX. State Plan States
X. Environmental Impact Assessment
XI. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995
XII. Consultation and Coordination With Indian Tribal Governments

B. References and Exhibits

    In this preamble, OSHA references documents in Docket No. OSHA-
2013-0023, the docket for this rulemaking. The docket is available at 
https://www.regulations.gov, the Federal eRulemaking Portal.
    References to documents in this rulemaking docket are given as 
``Ex.'' followed by the document number. The document number is the 
last sequence of numbers in the Document ID Number on https://www.regulations.gov. For example, Ex. 1, the proposed rule, is Document 
ID Number OSHA-2013-0023-0001.
    The exhibits in the docket, including public comments, supporting 
materials, meeting transcripts, and other documents, are listed on 
https://www.regulations.gov. All exhibits are listed in the docket index 
on https://www.regulations.gov. However, some exhibits (e.g., 
copyrighted material) are not available to read or download from that 
Web page. All materials in the docket are available for inspection and 
copying at the OSHA Docket Office, Room N-2625, U.S. Department of 
Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone 
(202) 693-2350.

C. Introduction

    OSHA's regulation at 29 CFR part 1904 requires employers with more 
than 10 employees in most industries to keep records of occupational 
injuries and illnesses at their establishments. Employers covered by 
these rules must record each recordable employee injury and illness on 
an OSHA Form 300, which is the ``Log of Work-Related Injuries and 
Illnesses,'' or equivalent. Employers must also prepare a supplementary 
OSHA Form 301 ``Injury and Illness Incident Report'' or equivalent that 
provides additional details about each case recorded on the OSHA Form 
300. Finally, at the end of each year, employers are required to 
prepare a summary report of all injuries and illnesses on the OSHA Form 
300A, which is the ``Summary of Work-Related Injuries and Illnesses,'' 
and post the form in a visible location in the workplace.
    This final rule amends OSHA's recordkeeping regulations to add 
requirements for the electronic submission of injury and illness 
information employers are already required to keep under part 1904. 
First,

[[Page 29625]]

the final rule requires establishments with 250 or more employees to 
electronically submit information from their part 1904 recordkeeping 
forms (Forms 300, 300A, and 301) to OSHA or OSHA's designee on an 
annual basis. Second, the final rule requires establishments with 20 or 
more employees, but fewer than 250 employees, in certain designated 
industries, to electronically submit information from their part 1904 
annual summary (Form 300A) to OSHA or OSHA's designee on an annual 
basis. Third, the final rule requires, upon notification, employers to 
electronically submit information from part 1904 recordkeeping forms to 
OSHA or OSHA's designee.
    The electronic submission requirements in the final rule do not add 
to or change any employer's obligation to complete and retain injury 
and illness records under OSHA's regulations for recording and 
reporting occupational injuries and illnesses. The final rule also does 
not add to or change the recording criteria or definitions for these 
records.
    OSHA intends to post the establishment-specific injury and illness 
data it collects under this final rule on its public Web site at 
www.osha.gov. The publication of specific data fields will be in part 
restricted by applicable federal law, including the Freedom of 
Information Act (FOIA), as well as specific provisions within part 
1904. OSHA does not intend to post any information on the Web site that 
could be used to identify individual employees.
    Additionally, OSHA's existing recordkeeping regulation requires 
employers to inform employees about how to report occupational injuries 
and illnesses (29 CFR 1904.35(a), (b)). This final rule amends OSHA's 
recordkeeping regulations to require employers to inform employees of 
their right to report work-related injuries and illnesses; clarifies 
the existing implicit requirement that an employer's procedure for 
reporting work-related injuries and illnesses must be reasonable and 
not deter or discourage employees from reporting; and incorporates the 
existing statutory prohibition on retaliating against employees for 
reporting work-related injuries or illnesses.
    OSHA estimates that this final rule will have economic costs of $15 
million per year, including $13.7 million per year to the private 
sector, with costs of $7.2 million per year for electronic submission 
for affected establishments with 250 or more employees and $4.6 million 
for electronic submission for affected establishments with 20 to 249 
employees in designated industries. With respect to the anti-
discrimination requirements of this final rule, OSHA estimates a first-
year cost of $8.0 million and annualized costs of $0.9 million per 
year. When fully implemented, the first-year economic cost for all 
provisions of the final rule is estimated at $28 million. The rule will 
be phased in, which moves the annual cost for reporting case 
characteristic data from OSHA Forms 300 and 301 by 33,000 
establishments from 2017 to 2018. This phase-in removes about $6.9 
million from the first year costs, but those costs would reappear in 
years two through 10.
    The Agency believes that the annual benefits, while unquantified, 
exceed the annual costs. These benefits include better compliance with 
OSHA's statutory directive ``to assure so far as possible every working 
man and woman in the Nation safe and healthful working conditions and 
to preserve our human resources'' (29 U.S.C. 651(b)). They also include 
increased prevention of workplace injuries and illnesses as a result of 
expanded access to timely, establishment-specific injury/illness 
information by OSHA, employers, employees, employee representatives, 
potential employees, customers, potential customers, and researchers. 
The benefits of the final rule also include promotion of complete and 
accurate reporting of work-related injuries and illnesses.

D. Regulatory History

    OSHA's regulations on recording and reporting occupational injuries 
and illnesses (29 CFR part 1904) were first issued in 1971 (36 FR 
12612, July 2, 1971). This regulation requires the recording of work-
related injuries and illnesses that involve death, loss of 
consciousness, days away from work, restriction of work, transfer to 
another job, medical treatment other than first aid, or diagnosis of a 
significant injury or illness by a physician or other licensed health 
care professional (29 CFR 1904.7).
    On December 28, 1982, OSHA amended these regulations to partially 
exempt establishments in certain lower-hazard industries from the 
requirement to record occupational injuries and illnesses (47 FR 
57699). OSHA also amended the recordkeeping regulations in 1994 
(Reporting fatalities and multiple hospitalization incidents to OSHA, 
29 CFR 1904.39) and 1997 (Annual OSHA injury and illness survey of ten 
or more employers, 29 CFR 1904.41).
    In 2001, OSHA issued a final rule amending its requirements for the 
recording and reporting of occupational injuries and illnesses (29 CFR 
parts 1904 and 1902), along with the forms employers use to record 
those injuries and illnesses (66 FR 5916 (Jan. 19, 2001)). The final 
rule also updated the list of industries that are partially exempt from 
recording occupational injuries and illnesses. In 2014, OSHA again 
amended the part 1904 regulations to require employers to report work-
related fatalities, in-patient hospitalizations, amputations, and 
losses of an eye to OSHA and to allow electronic reporting (79 FR 56130 
(Sept. 18, 2014)). The final rule also revised the list of industries 
that are partially exempt from recording occupational injuries and 
illnesses.
    On November 8, 2013, OSHA issued a proposed rule to amend its 
recordkeeping regulations to add requirements for electronic submission 
of injury and illness information that employers are already required 
to keep (78 FR 67254). In the preamble to the proposed rule, OSHA 
explained that, consistent with applicable Federal law, such as FOIA 
and specific provisions of part 1904, the Agency intended to post the 
recordkeeping data it collects on its public Web site. A public meeting 
on the proposed rule was held on January 9-10, 2014. A concern raised 
by many meeting participants was that the proposed electronic 
submission requirement might create a motivation for employers to 
under-report injuries and illnesses. Some participants also commented 
that some employers already discourage employees from reporting 
injuries or illnesses by disciplining or taking other adverse action 
against employees who file injury and illness reports. As a result, on 
August 14, 2014, OSHA issued a supplemental notice to the proposed rule 
seeking comments on whether to amend the part 1904 regulations to 
prohibit employers from taking adverse action against employees for 
reporting occupational injuries and illnesses. OSHA received 311 
comments on the electronic submission section of the proposed rule and 
142 comments on the supplemental notice to the proposed rule. The 
comments for the proposed rule and the supplemental notice to the 
proposed rule are addressed below.

II. Legal Authority

    OSHA is issuing this final rule pursuant to authority expressly 
granted by sections 8 and 24 of the Occupational Safety and Health Act 
(the ``OSH Act'' or ``Act'') (29 U.S.C. 657, 673). Section 8(c)(1) 
requires each employer to ``make, keep and preserve, and make available 
to the Secretary [of Labor] or the

[[Page 29626]]

Secretary of Health and Human Services, such records regarding his 
activities relating to this Act as the Secretary . . . may prescribe by 
regulation as necessary or appropriate for the enforcement of this Act 
or for developing information regarding the causes and prevention of 
occupational accidents and illnesses'' (29 U.S.C. 657(c)(1)). Section 
8(c)(2) directs the Secretary to prescribe regulations ``requiring 
employers to maintain accurate records of, and to make periodic reports 
on, work-related deaths, injuries and illnesses other than minor 
injuries requiring only first aid treatment and which do not involve 
medical treatment, loss of consciousness, restriction of work or 
motion, or transfer to another job'' (29 U.S.C. 657(c)(2)). Finally, 
section 8(g)(2) of the OSH Act broadly empowers the Secretary to 
``prescribe such rules and regulations as he may deem necessary to 
carry out [his] responsibilities under this Act'' (29 U.S.C. 
657(g)(2)).
    Section 24 of the OSH Act (29 U.S.C. 673) contains a similar grant 
of authority. This section requires the Secretary to ``develop and 
maintain an effective program of collection, compilation, and analysis 
of occupational safety and health statistics'' and ``compile accurate 
statistics on work injuries and illnesses which shall include all 
disabling, serious, or significant injuries and illnesses . . .'' (29 
U.S.C. 673(a)). Section 24 also requires employers to ``file such 
reports with the Secretary as he shall prescribe by regulation'' (29 
U.S.C. 673(e)). These reports are to be based on ``the records made and 
kept pursuant to section 8(c) of this Act'' (29 U.S.C. 673(e)).
    Further support for the Secretary's authority to require employers 
to keep and submit records of work-related illnesses and injuries can 
be found in the Congressional Findings and Purpose at the beginning of 
the OSH Act (29 U.S.C. 651). In this section, Congress declares the 
overarching purpose of the Act to be ``to assure so far as possible 
every working man and woman in the Nation safe and healthful working 
conditions'' (29 U.S.C. 651(b)). One of the ways in which the Act is 
meant to achieve this goal is ``by providing for appropriate reporting 
procedures . . . [that] will help achieve the objectives of this Act 
and accurately describe the nature of the occupational safety and 
health problem'' (29 U.S.C. 651(b)(12)).
    The OSH Act authorizes the Secretary of Labor to issue two types of 
occupational safety and health rules: Standards and regulations. 
Standards, which are authorized by section 6 of the Act, specify 
remedial measures to be taken to prevent and control employee exposure 
to identified occupational hazards, while regulations are the means to 
effectuate other statutory purposes, including the collection and 
dissemination of records of occupational injuries and illnesses. For 
example, the OSHA requirements at 29 CFR 1910.95 are a ``standard'' 
because they include remedial measures to address the specific and 
already identified hazard of employee exposure to occupational noise. 
In contrast, a ``regulation'' is a purely administrative effort 
designed to uncover violations of the Act and discover unknown dangers.
    Recordkeeping requirements promulgated under the Act are 
characterized as regulations (see 29 U.S.C. 657 (using the term 
``regulations'' to describe recordkeeping requirements)). Also, courts 
of appeal have held that OSHA recordkeeping rules are regulations and 
not standards. See, Workplace Health & Safety Council v. Reich, 56 F.3d 
1465, 1468 (D.C. Cir. 1995) (citing Louisiana Chemical Association v. 
Bingham, 657 F.2d 777, 781-82 (5th Cir. 1981); United Steelworkers of 
America v. Auchter, 763 F.2d 728, 735 (3d Cir. 1985)). Standards aim to 
correct particular identified workplace hazards, while regulations 
further the general enforcement and detection purposes of the OSH Act. 
Id.
    This final rule does not infringe on employers' Fourth Amendment 
rights. The Fourth Amendment protects against searches and seizures of 
private property by the government, but only when a person has a 
``legitimate expectation of privacy'' in the object of the search or 
seizure (Rakas v. Illinois, 439 U.S. 128, 143-47 (1978)). There is 
little or no expectation of privacy in records that are required by the 
government to be kept and made available (Free Speech Coalition v. 
Holder, 729 F.Supp.2d 691, 747, 750-51 (E.D. Pa. 2010) (citing cases); 
United States v. Miller, 425 U.S. 435, 442-43 (1976); cf. Shapiro v. 
United States, 335 U.S. 1, 33 (1948) (no Fifth Amendment interest in 
required records)). Accordingly, the Fourth Circuit held, in McLaughlin 
v. A.B. Chance, that an employer has little expectation of privacy in 
the records of occupational injuries and illnesses kept pursuant to 
OSHA regulations, and must disclose them to the Agency on request (842 
F.2d 724, 727-28 (4th Cir. 1988)).
    Even if there were an expectation of privacy, the Fourth Amendment 
prohibits only unreasonable intrusions by the government (Kentucky v. 
King, 131 S. Ct. 1849, 1856 (2011)). The information submission 
requirement in this final rule is reasonable. The requirement serves a 
substantial government interest in the health and safety of workers, 
has a strong statutory basis, and rests on reasonable, objective 
criteria for determining which employers must report information to 
OSHA (see New York v. Burger, 482 U.S. 691, 702-703 (1987)).
    OSHA notes that two courts have held, contrary to A.B. Chance, that 
the Fourth Amendment requires prior judicial review of the 
reasonableness of an OSHA field inspector's demand for access to injury 
and illness logs before the Agency could issue a citation for denial of 
access (McLaughlin v. Kings Island, 849 F.2d 990 (6th Cir. 1988); Brock 
v. Emerson Electric Co., 834 F.2d 994 (11th Cir. 1987)). Those 
decisions are inapposite here. The courts based their rulings on a 
concern that field enforcement staff had unbridled discretion to choose 
the employers they would inspect and the circumstances in which they 
would demand access to employer records. The Emerson Electric court 
specifically noted that in situations where ``businesses or individuals 
are required to report particular information to the government on a 
regular basis[,] a uniform statutory or regulatory reporting 
requirement [would] satisf[y] the Fourth Amendment concern regarding 
the potential for arbitrary invasions of privacy'' (834 F.2d at 997, 
fn.2). This final rule, like that hypothetical, establishes general 
reporting requirements based on objective criteria and does not vest 
field staff with any discretion. The employers that are required to 
report data, the information they must report, and the time when they 
must report it are clearly identified in the text of the rule and in 
supplemental documents that will be published pursuant to the Paperwork 
Reduction Act. The final rule is similar in these respects to the 
existing regulation in Sec.  1904.41 that authorized reporting pursuant 
to the OSHA Data Initiative and is reasonable under the Fourth 
Amendment (see 62 FR 6434, 6437-38 (Feb. 11, 1997) for a discussion of 
Fourth Amendment issues in the final rule on Reporting Occupational 
Injury and Illness Data to OSHA). The existing regulation in Sec.  
1904.41 required employers who received OSHA's annual survey form to 
report the following information to OSHA for the year described on the 
form: Number of workers the employer employed, the number of hours the 
employees worked, and the requested information from the records that 
the employers keep under part 1904.

[[Page 29627]]

    The Act's various statutory grants of authority that address 
recordkeeping provide authority for OSHA to prohibit employers from 
discouraging employee reports of injuries or illnesses. If employers 
may not discriminate against workers for reporting injuries or 
illnesses, then discrimination will not occur to deter workers from 
reporting their injuries and illnesses, and their employers' records 
and reports may be more ``accurate'', as required by sections 8 and 24 
of the Act. Evidence in the administrative record establishes that some 
employers engage in practices that discourage injury and illness 
reporting, and many commenters provided support for OSHA's concern that 
the electronic submission requirements of this final rule and 
associated posting of data could provide additional motivation for 
employers to discourage accurate reporting of injuries and illnesses. 
Therefore, prohibiting employers from engaging in practices that 
discourage their employees from reporting injuries or illnesses, 
including discharging or in any manner discriminating against such 
employees, is ``necessary to carry out'' the recordkeeping requirements 
of the Act (see 29 U.S.C. 657(g)(2)).
    As noted by many commenters, section 11(c) of the Act already 
prohibits any person from discharging or otherwise discriminating 
against any employee because that employee has exercised any right 
under the Act (29 U.S.C. 660(c)(1)). Under this provision, an employee 
who believes he or she has been discriminated against may file a 
complaint with OSHA, and if, after investigation, the Secretary has 
reasonable cause to believe that section 11(c) has been violated, then 
the Secretary may file suit against the employer in U.S. District Court 
seeking ``all appropriate relief,'' including reinstatement and back 
pay (29 U.S.C. 660(c)(2)). Discriminating against an employee who 
reports a fatality, injury, or illness is a violation of section 11(c) 
(see 29 CFR 1904.36), so the conduct prohibited by Sec.  
1904.35(b)(1)(iv) of the final rule is already proscribed by section 
11(c).
    The advantage of this new provision (Sec.  1904.35(b)(1)(iv)) is 
that it provides OSHA with additional enforcement tools to promote the 
accuracy and integrity of the injury and illness records employers are 
required to keep under part 1904. For example, under section 11(c), 
OSHA may not act against an employer unless an employee files a 
complaint. Under Sec.  1904.35(b)(1)(iv) of the final rule, OSHA will 
be able to cite an employer for taking adverse action against an 
employee for reporting an injury or illness, even if the employee did 
not file a complaint. Moreover, citations can result in orders 
requiring employers to abate violations, which may be a more efficient 
tool to correct employer policies and practices than the remedies 
authorized under section 11(c), which are often employee-specific.
    The fact that section 11(c) already provides a remedy for 
retaliation does not preclude the Secretary from implementing 
alternative remedies under the OSH Act. Where retaliation threatens to 
undermine a program that Congress required the Secretary to adopt, the 
Secretary may proscribe that retaliation through a regulatory provision 
unrelated to section 11(c). For example, under the medical removal 
protection (MRP) provision of the lead standard, employers are required 
to pay the salaries of workers who cannot work due to high blood lead 
levels (29 CFR 1910.1025(k); see United Steelworkers, AFL-CIO v. 
Marshall, 647 F.2d 1189, 1238 (D.C. Cir. 1980)). And it is well 
established that the Occupational Safety and Health Review Commission 
may order employers to pay back pay as abatement for violations of the 
MRP requirements (see United Steelworkers, AFL-CIO v. St. Joe 
Resources, 916 F.2d 294, 299 (5th Cir. 1990); Dole v. East Penn 
Manufacturing Co., 894 F.2d 640, 646 (3d Cir. 1990)). If the reason 
that an employer decided not to pay MRP benefits was to retaliate for 
an employee's exercise of a right under the Act, OSHA can still cite 
the employer and seek the benefits as abatement, because payment of the 
benefits is important to vindicate the health interests underlying MRP. 
The mere fact that section 11(c) provides one remedial process does not 
require that OSHA treat the matter as an 11(c) case (see St. Joe 
Resources, 916 F.2d at 298 (stating that that 11(c) was not an 
exclusive remedy, because otherwise the remedial purposes of MRP would 
be undermined)). This would also be the case under the final rule. If 
employers reduce the accuracy of their injury and illness records by 
retaliating against employees who report an injury or illness, then 
OSHA's authority to collect accurate injury and illness records allows 
OSHA to proscribe such conduct even if the conduct would also be 
proscribed by section 11(c).

III. Section 1904.41

A. Background

    OSHA regulations at 29 CFR part 1904 currently require employers 
with more than 10 employees in most industries to keep records of work-
related injuries and illnesses at their establishments. Employers 
covered by these rules must prepare an injury and illness report for 
each case (Form 301), compile a log of these cases (Form 300), and 
complete and post in the workplace an annual summary of work-related 
injuries and illnesses (Form 300A).
    OSHA currently obtains the injury and illness data entered on the 
three recordkeeping forms only through onsite inspections, which 
collect only the data from the individual establishment being 
inspected, or by inclusion of an establishment in a survey pursuant to 
the previous 29 CFR 1904.41, Annual OSHA injury and illness survey of 
ten or more employers. From 1997 to 2012, OSHA used the authority in 
the previous Sec.  1904.41 to collect establishment-specific injury and 
illness data through the OSHA Data Initiative (ODI). Through the ODI, 
OSHA requested injury and illness data from approximately 80,000 larger 
establishments (20 or more employees) in selected industries each year.
    The ODI collected only the aggregate data from the 300A annual 
summary form, and the data were not required to be submitted 
electronically. OSHA used the information obtained through the ODI to 
identify and target the most hazardous worksites.
    The Department of Labor also collects occupational injury and 
illness data through the annual Survey of Occupational Injuries and 
Illnesses (SOII), which is conducted by the Bureau of Labor Statistics 
(BLS) pursuant to 29 CFR 1904.42, Requests from the Bureau of Labor 
Statistics for data. The SOII provides annual rates and numbers of 
work-related injuries and illnesses, but BLS is prohibited from 
releasing establishment-specific data to OSHA or the general public. 
The final rule does not affect the SOII.
    OSHA's recordkeeping regulation currently covers more than 600,000 
employers with approximately 1,300,000 establishments. Although the OSH 
Act gives OSHA the authority to require all employers covered by the 
Act to keep records of employee injuries and illnesses, two classes of 
employers are partially-exempted from the recordkeeping requirements in 
part 1904. First, as provided in Sec.  1904.1, employers with 10 or 
fewer employees at all times during the previous calendar year are 
partially exempt from keeping OSHA injury and illness records. Second, 
as provided in Sec.  1904.2, establishments in certain lower-hazard 
industries are also partially exempt. Partially-exempt employers are 
not required to maintain OSHA injury and illness records unless 
required to do so

[[Page 29628]]

by OSHA under the previous Sec.  1904.41 or by BLS under Sec.  1904.42.
    The records required by part 1904 provide important information to 
OSHA, as well as to consultants in OSHA's On-Site Consultation Program. 
However, OSHA enforcement programs currently do not have access to the 
information in the records required by part 1904 unless the 
establishment receives an onsite inspection from OSHA or is part of an 
OSHA annual survey under the previous Sec.  1904.41. At the beginning 
of an inspection, an OSHA representative reviews the establishment's 
injury and illness records to help focus the inspection on the safety 
and health hazards suggested by the records. (OSHA consultants conduct 
a similar review when an establishment has requested a consultation.) 
OSHA has used establishment-specific injury and illness information 
obtained through the ODI to help target the most hazardous worksites.
1. OSHA Data Initiative (ODI)
    In the past, OSHA has used the authority in previous Sec.  1904.41 
to conduct injury and illness surveys of employers through the ODI. The 
purpose of the ODI was to collect data on injuries and acute illnesses 
attributable to work-related activities in private-sector industries 
from approximately 80,000 establishments in selected high-hazard 
industries. The Agency used these data to calculate establishment-
specific injury/illness rates, and in combination with other data 
sources, to target enforcement and compliance assistance activities. 
The ODI consisted of larger establishments (20 or more employees) in 
the manufacturing industry and in an additional 70 non-manufacturing 
industries. These are industries with historically high rates of 
occupational injury and illness. Typically, there were over 180,000 
unique establishments subject to participation in the ODI. The ODI was 
designed so that each eligible establishment received the ODI survey at 
least once every three-year cycle. In a given year, OSHA would send the 
ODI survey to approximately 80,000 establishments (1.1 percent of all 
establishments nationwide), which typically accounted for approximately 
700,000 recordable injuries and illnesses (19 percent of injuries and 
illnesses recorded by employers nationwide).
    The ODI survey collected the following data from the Form 300A 
(annual summary) from each establishment:

     Number of cases (total number of deaths, total number of 
cases with days away from work, total number of cases with job transfer 
or restrictions, and total number of other recordable cases);
     Number of days (total number of days away from work and 
total number of days of job transfer or restriction);
     Injury and illness types (total numbers of injuries, skin 
disorders, respiratory conditions, poisonings, hearing loss, and all 
other illnesses);
     Establishment information (name, street address, industry 
description, SIC or NAICS code, and employment information (annual 
average number of employees, and total hours worked by all employees));
     Contact information (Company contact name, title, 
telephone number, and date).

Employers had the option of submitting their data on paper forms or 
electronically. OSHA then calculated establishment-specific injury and 
illness rates and used the rates in its Site-Specific Targeting (SST) 
enforcement program and High Rate Letter outreach program. The Agency 
also made the establishment-specific data available to the public 
through its Web site at https://www.osha.gov/pls/odi/establishment_search.html and through President Obama's Open Government 
Initiative at Data.gov (https://www.data.gov/raw/1461).
2. BLS Survey of Occupational Injuries and Illnesses (SOII)
    The primary purpose of the SOII is to provide annual information on 
the rates and numbers of work-related non-fatal injuries and illnesses 
in the United States, and on how these statistics vary by incident, 
industry, geography, occupation, and other characteristics. The 
Confidential Information Protection and Statistical Efficiency Act of 
2002 (Pub. L. 107-347, Dec. 17, 2002) prohibits BLS from releasing 
establishment-specific data to the general public or to OSHA.
    Each year, BLS collects data from the three recordkeeping forms 
from a scientifically-selected probability sample of about 230,000 
establishments, covering nearly all private-sector industries, as well 
as state and local government. Employers may submit their data on paper 
forms or electronically. As stated above, the final rule will not 
affect the authority for the SOII.
3. OSHA Access to Establishment-Specific Injury and Illness Information
    OSHA currently has only a limited ability to obtain part 1904 
records, or the establishment-specific injury and illness information 
included on these forms. Right now, OSHA can access the information in 
three limited ways.
    First, OSHA is able to obtain establishment-specific injury and 
illness information from employers through workplace inspections. OSHA 
inspectors examine all records kept under part 1904, including detailed 
information about specified injuries and illnesses. However, each year, 
OSHA inspects only a small percentage of all establishments subject to 
OSHA authority. For example, in Fiscal Year 2014, OSHA and its state 
partners inspected approximately 1 percent of establishments under OSHA 
authority (approximately 83,000 inspections, out of approximately 8 
million total establishments). As a result, the Agency is not able to 
compile a comprehensive and timely database of establishment-specific 
injury/illness information from inspection activities.
    Second, OSHA has been able to obtain establishment-specific injury 
and illness information from employers through the ODI. However, 
because the ODI collected only summary data from the Form 300A, it did 
not enable OSHA to identify specific hazards or problems in 
establishments included in the ODI. In addition, the data were not 
timely. The injury/illness information in each year's Site-Specific 
Targeting Program came from the previous year's ODI, which collected 
injury/illness data from the year before that. As a result, OSHA's 
site-specific targeting typically was based on injury/illness data that 
were two or three years old. Additionally, the group of 80,000 
establishments in a given year's ODI was a very small fraction of 
establishments subject to OSHA oversight.
    Finally, OSHA is able to obtain limited establishment-specific 
injury and illness information from employers through 29 CFR 1904.39, 
Reporting fatalities, hospitalizations, amputations, and losses of an 
eye as a result of work-related incidents to OSHA. OSHA's current 
regulation requires employers to report work-related fatalities to OSHA 
within 8 hours of the event. The regulation also requires employers to 
report work-related in-patient hospitalizations, amputations, and 
losses of an eye to OSHA within 24 hours of the event. These most 
severe workplace injuries and illnesses are fortunately rare. OSHA 
receives fewer than 2,000 establishment-specific reports of fatalities 
each year. From January 1, 2015, to April 10, 2015, OSHA had received 
roughly 2,270 reports of single in-patient hospitalizations, 750 
reports of amputations, and 4 reports of a loss of

[[Page 29629]]

an eye. These fatality/severe injury reports do not include the 
establishment's injury and illness records unless OSHA also collects 
these records during a subsequent inspection.
    Given the above, OSHA currently obtains limited establishment-
specific injury and illness information from an establishment in a 
particular year only if the establishment was inspected or was part of 
the ODI.
    As noted above, OSHA does obtain aggregate information from the 
injury and illness records collected through the BLS SOII. SOII data 
have a time lag of almost a year, with data for a given year not 
available until November of the following year.
d. Benefits of Electronic Data Collection
    The main purpose of this section of the final rule is to prevent 
worker injuries and illnesses through the collection and use of timely, 
establishment-specific injury and illness data. With the information 
obtained through this final rule, employers, employees, employee 
representatives, the government, and researchers may be better able to 
identify and mitigate workplace hazards and thereby prevent worker 
injuries and illnesses.
    This final rule will support OSHA's statutory directive to ``assure 
so far as possible every working man and woman in the Nation safe and 
healthful working conditions and to preserve our human resources'' (29 
U.S.C. 651(b)) ``by providing for appropriate reporting procedures with 
respect to occupational safety and health which procedures will help 
achieve the objectives of this Act and accurately describe the nature 
of the occupational safety and health problem'' (29 U.S.C. 651(b)(12)).
    The importance of this rule in preventing worker injuries and 
illnesses can be understood in the context of workplace safety and 
health in the United States today. The number of workers injured or 
made ill on the job remains unacceptably high. According to the SOII, 
each year employees experience more than 3 million serious (requiring 
more than first aid) injuries and illnesses at work, and this number is 
widely recognized to be an undercount of the actual number of 
occupational injuries and illnesses that occur annually. As described 
above, OSHA currently has very limited information about the injury/
illness risk facing workers in specific establishments, and this final 
rule increases the agency's ability to target those workplaces where 
workers are at greatest risk. However, even with improved targeting, 
OSHA Compliance Safety and Health Officers can inspect only a small 
proportion of the nation's workplaces each year, and it would take many 
decades to inspect each covered workplace in the nation even once. As a 
result, to reduce worker injuries and illnesses, it is of great 
importance for OSHA to increase its impact on the many thousands of 
establishments where workers are being injured or made ill but which 
OSHA does not have the resources to inspect. The final rule may 
accomplish this, through application of advances made in the field of 
behavioral economics in understanding and influencing decision-making 
in order to prevent worker injuries and illnesses. Specifically, the 
final rule recognizes that public disclosure of data can be a powerful 
tool in changing behavior. In this case, the objective of disclosure of 
data on injuries and illnesses is to encourage employers to abate 
hazards and thereby prevent injuries and illnesses, so that the 
employer's establishment can be seen by members of the public, 
including investors and job seekers, as one in which the risk to 
workers' safety and health is low.
    OSHA believes that disclosure of and public access to these data 
will (using the word commonly used in the behavioral sciences 
literature) ``nudge'' some employers to abate hazards and thereby 
prevent workplace injuries and illnesses, without OSHA having to 
conduct onsite inspections (see the book Nudge: Improving Decisions 
About Health, Wealth, and Happiness, by Richard H. Thaler and Cass R. 
Sunstein (Penguin Books, 2009)).
    The application of behavioral science insights to the prevention 
injuries and illnesses is consistent with Executive Order 13707 ``Using 
Behavioral Insights to Better Serve the American People,'' which 
states, ``(a) Executive departments and agencies (agencies) are 
encouraged to (i) identify policies, programs, and operations where 
applying behavioral science insights may yield substantial improvements 
in public welfare, program outcomes, and program cost effectiveness.''
    This approach is also consistent with other Administration 
policies, including:
     Executive Order 13563, which states, ``Where relevant, 
feasible, and consistent with regulatory objectives, and to the extent 
permitted by law, each agency shall identify and consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public. These approaches include warnings, appropriate 
default rules, and disclosure requirements as well as provision of 
information to the public in a form that is clear and intelligible.''
     The September 8, 2011 memorandum from Cass R. Sunstein, 
Administrator of the Office of Information and Regulatory Affairs, 
entitled ``Informing Consumers through Smart Disclosure'', which 
provides guidance to agencies on how to promote smart disclosure, 
defined as ``the timely release of complex information and data in 
standardized, machine readable formats in ways that enable consumers to 
make informed decisions.''
    In addition, the rule is consistent with President Obama's Open 
Government Initiative. In his Memorandum on Transparency and Open 
Government, issued on January 21, 2009, President Obama instructed the 
Director of the Office of Management and Budget (OMB) to issue an Open 
Government Directive. On December 8, 2009, OMB issued a Memorandum for 
the Heads of Executive Departments and Agencies, Open Government 
Directive, which requires federal agencies to take steps to ``expand 
access to information by making it available online in open formats.'' 
The Directive also states that the ``presumption shall be in favor of 
openness (to the extent permitted by law and subject to valid privacy, 
confidentiality, security, or other restrictions).'' In addition, the 
Directive states that ``agencies should proactively use modern 
technology to disseminate useful information, rather than waiting for 
specific requests under FOIA.''
    A requirement for the electronic submission of recordkeeping data 
will help OSHA encourage employers to prevent worker injuries and 
illnesses by greatly expanding OSHA's access to the establishment-
specific information employers are already required to record under 
part 1904. As described in the previous section, OSHA currently does 
not have systematic access to this information. OSHA has limited access 
to establishment-specific injury and illness information in a 
particular year. Typically, OSHA only had access if the establishment 
was inspected or was part of an OSHA injury and illness survey. In 
addition, the injury and illness data collected through the ODI were 
summary data only and not timely.
    The final rule's provisions requiring regular electronic submission 
of injury and illness data will allow OSHA to obtain a much larger data 
set of more timely, establishment-specific information about injuries 
and illnesses in the workplace. This information will help OSHA use its 
enforcement and compliance assistance resources more effectively by 
enabling OSHA to identify

[[Page 29630]]

the workplaces where workers are at greatest risk.
    For example, OSHA will be better able to identify small and medium-
sized employers who report high overall injury/illness rates for 
referral to OSHA's free on-site consultation program. OSHA could also 
send hazard-specific educational materials to employers who report high 
rates of injuries or illnesses related to those hazards, or letters 
notifying employers that their reported injury/illness rates were 
higher than the industry-wide rates. A recent evaluation by Abt 
Associates of OSHA's practice of sending referral letters to high-
hazard employers identified by OSHA through the ODI confirmed the value 
of these letters in increasing the number of workplaces requesting a 
consultation visit (Ex. 1833). OSHA has also found that such high-rate 
notification letters were associated with a 5 percent decrease in lost 
workday injuries and illnesses in the following three years. In 
addition, OSHA will be able to use the information to identify emerging 
hazards, support an Agency response, and reach out to employers whose 
workplaces might include those hazards.
    The final rule will also allow OSHA to more effectively target its 
enforcement resources to establishments with high rates or numbers of 
workplaces injuries and illnesses, and better evaluate its 
interventions. Prior to 1997, OSHA randomly selected establishments in 
hazardous industries for inspection. This targeting system was based on 
aggregated industry data. Relatively safe workplaces in high-rate 
industries were selected for inspection as well as workplaces that were 
experiencing high rates of injuries and illnesses. In 1997, OSHA 
changed its method of targeting general-industry establishments for 
programmed inspections. The Agency began using establishment-specific 
injury and illness data collected through the OSHA Data Initiative 
(ODI) to identify and target for inspection individual establishments 
that were experiencing high rates of injury and illness. OSHA's Site-
Specific Targeting (SST) program has been OSHA's main programmed 
inspection plan for non-construction workplaces from 1997 through 2014. 
OSHA intends to use the data collected under this final rule in the 
same manner for targeting inspections. This rule greatly expands the 
number and scope of establishments that will provide the Agency with 
their injury and illness data. As a result, the Agency will be able to 
focus its inspection resources on a wider population of establishments. 
The data collection will also enable the Agency to focus its Emphasis 
Program inspections on establishments with high injury and illness 
rates, as it did for the National Emphasis Program (NEP) addressing 
hazards in Nursing Homes (see CPL 03-00-016, April 5, 2012).
    The new collection will provide establishment-specific injury and 
illness data for analyses that are not currently possible with the data 
sets from inspections, the ODI, and reporting of fatalities and severe 
injuries. For example, OSHA could analyze the data collected under this 
system to answer the following questions:
    1. Within a given industry, what are the characteristics of 
establishments with the highest injury or illness rates (for example, 
size or geographic location)?
    2. Within a given industry, what are the relationships between an 
establishment's injury and illness data and data from other agencies or 
departments, such as the Wage and Hour Division, the Environmental 
Protection Agency, or the Equal Employment Opportunities Commission?
    3. Within a given industry, what are the characteristics of 
establishments with the lowest injury or illness rates?
    4. What are the changes in types and rates of injuries and 
illnesses in a particular industry over time?
    Furthermore, without access to establishment-specific injury and 
illness data, OSHA has had great difficulty evaluating the 
effectiveness of its enforcement and compliance assistance activities. 
Having these data will enable OSHA to conduct rigorous evaluations of 
different types of programs, initiatives, and interventions in 
different industries and geographic areas, enabling the agency to 
become more effective and efficient. For example, OSHA believes that 
some employers who have not been inspected, but who learn about the 
results (include monetary penalties) of certain OSHA's inspections in 
the same industry or geographic area, may voluntarily abate hazards out 
of concern that they will be the target of a future inspection. Access 
to these data will allow OSHA to compare injuries and illnesses at non-
inspected establishments in the same industry or geographic areas as 
the inspected ones.
    Publication of worker injury and illness data will encourage 
employers to prevent injuries and illnesses among their employees 
through several mechanisms:
    First, the online posting of establishment-specific injury and 
illness information will encourage employers to improve workplace 
safety and health to support their reputations as good places to work 
or do business with. Many corporations now voluntarily report their 
worker injury and illness rates in annual ``Sustainability Reports'', 
in order to show investors, stakeholders, and the public that they are 
committed to positive social values, including workplace safety and 
health. Public access to these data will help address a well-known 
information problem present in all voluntary reporting initiatives: 
Voluntary disclosure tends to lead those with the worst records to 
underreport outcomes. By requiring complete, accurate reporting, 
interested parties will be able to gauge the full range of injury and 
illness outcomes.
    Second, these data will be useful to employers who want to use 
benchmarking to improve their own safety and health performance. Under 
OSHA's current recordkeeping regulation, employers have access only to 
their own data, aggregate injury/illness data in the SOII, historic 
summary data from establishments in the ODI, and other severe injury/
illness event reports. Using data collected under this final rule, 
employers can compare injury and illness rates at their establishments 
to those at comparable establishments, and set workplace safety/health 
goals benchmarked to the establishments they consider most comparable.
    Third, online availability of establishment-specific injury and 
illness information will allow employees to compare their own 
workplaces to the safest workplaces in their industries. Further, while 
the current access provisions of the part 1904 regulation provide 
employees the right to access the information on the part 1904 
recordkeeping forms, evidence shows that few employees exercise this 
right. During 2,836 inspections conducted by OSHA between 1996 and 2011 
to assess the injury and illness recordkeeping practices of employers, 
2,599 of the recordkeepers interviewed (92 percent) indicated that 
employees never requested access to the records required under part 
1904. OSHA believes that employees in establishments with 250 or more 
employees will access and make use of the data more frequently when the 
case-specific information is available without having to request the 
information from their employers. Uninhibited access to the information 
will allow employees in these establishments to better identify hazards 
within their own workplace and to take actions to have the hazards 
abated. In addition, if employees preferentially choose employment at 
the safest

[[Page 29631]]

workplaces in their industries, then employers may take steps to 
improve workplace safety and health (preventing injuries and illnesses 
from occurring) in order to attract and retain employees.
    Fourth, access to these data will improve the workings of the labor 
market by providing more complete information to job seekers, and, as a 
result, encourage employers to abate hazards in order to attract more 
desirable employees. Potential employees currently have access only to 
the limited injury/illness information currently available to the 
public, as discussed above. Injury and illness data for the vast 
majority of establishments are not publicly available. Using data newly 
accessible under this final rule, potential employees could examine the 
injury and illness records of establishments where they are interested 
in working, to help them make a more informed decision about a future 
place of employment. This would also encourage employers with more 
hazardous workplaces in a given industry to make improvements in 
workplace safety and health to prevent injuries and illnesses from 
occurring, because potential employees, especially the ones whose 
skills are most in demand, might be reluctant to work at more hazardous 
establishments. In addition, this would help address a problem of 
information asymmetry in the labor market, where the businesses with 
the greatest problems have the lowest incentive to self-disclose.
    Fifth, access to data will permit investors to identify investment 
opportunities in firms with low injury and illness rates. If investors 
believe that firms that have low rates outperform firms with higher 
rates, presumably because the low-rate firms are better managed, and 
they preferentially invest in firms with low rates, then employers may 
take steps to improve workplace safety and health and prevent injuries 
and illnesses from occurring in order to attract investment.
    Sixth, using data collected under this final rule, members of the 
public will be able to make more informed decisions about current and 
potential places with which to conduct business. For example, potential 
customers might choose to patronize only the businesses in a given 
industry with the lowest injury/illness rates. This is not possible at 
present because, as noted above, the general public has access only to 
very limited injury and illness data. Such decisions by customers would 
also encourage establishments with higher injury/illness rates in a 
given industry to improve workplace safety in order to become more 
attractive to potential customers.
    Finally, in large construction contracts, particularly those 
involving work contracted for by state and local governments, 
preference is often given to subcontractors with lower injury and 
illness rates. In some cases, employers with rates above a certain 
level are not eligible for the contract work. Public disclosure of 
employers' injury and illness rates will be to enable corporate and 
individual customers to consider these rates in the selection of 
vendors and contractors. These data will also be useful to people who 
believe that low injury rates are correlated with high production 
quality, and who therefore prefer to purchase products made by 
manufacturers with low injury rates (Paul S. Adler, 1997) (Ex. 1832).
    Disclosure of and access to injury and illness data have the 
potential to improve research on the distribution and determinants of 
workplace injuries and illnesses, and therefore to prevent workplace 
injuries and illnesses from occurring. Like the general public, 
researchers currently have access only to the limited injury/illness 
data described above. Using data collected under this final rule, 
researchers might identify previously unrecognized patterns of injuries 
and illnesses across establishments where workers are exposed to 
similar hazards. Such research would be especially useful in 
identifying hazards that result in a small number of injuries or 
illnesses in each establishment but a large number overall, due to a 
wide distribution of those hazards in a particular area, industry, or 
establishment type. Data made available under this final rule may also 
allow researchers to identify patterns of injuries or illnesses that 
are masked by the aggregation of injury/illness data in the SOII.
    The availability of establishment-specific injury and illness data 
will also be of great use to county, state and territorial Departments 
of Health and other public institutions charged with injury and illness 
surveillance. In particular, aggregation of establishment-specific 
injury and illness reports and rates from similar establishments will 
facilitate identification of newly-emerging hazards that would not 
easily be identified without linkage to specific industries or 
occupations. There are currently no comparable data sets available, and 
these public health surveillance programs must primarily rely on 
reporting of cases seen by medical practitioners, any one of whom would 
rarely see enough cases to identify an occupational etiology.
    Workplace safety and health professionals might use data published 
under this final rule to identify establishments whose injury/illness 
records suggest that the establishments would benefit from their 
services. In general, online access to this large database of injury 
and illness information will support the development of innovative 
ideas for improving workplace safety and health, and will allow 
everyone with a stake in workplace safety and health to participate in 
improving occupational safety and health.
    Furthermore, because the data will be publicly available, 
industries, trade associations, unions, and other groups representing 
employers and workers will be able to evaluate the effectiveness of 
privately-initiated injury and illness prevention initiatives that 
affect groups of establishments. In addition, linking these data with 
data residing in other administrative data sets will enable researchers 
to conduct rigorous studies that will increase our understanding of 
injury causation, prevention, and consequences. For example, by 
combining these data with data collected in the Annual Survey of 
Manufactures (conducted by the United States Census Bureau), it will be 
possible to examine the impact of a range of management practices on 
injury and illness rates, as well as the impact of injury and illness 
rates on the financial status of employers.
    Finally, public access to these data will enable developers of 
software and smartphone applications to develop tools that facilitate 
use of these data by employers, workers, researchers, consumers and 
others. Examples of this in other areas is the use of OSHA and Wage and 
Hour Division violation information in the ``Eat/Shop/Sleep'' 
smartphone application and, in public transit, the wide-scale private 
development of applications for real-time information on bus and subway 
arrivals using public information.
    This final rule will also improve the accuracy of the recorded 
data. Section 1904.32 already requires company executives subject to 
part 1904 requirements to certify that they have examined the annual 
summary (Form 300A) and that they reasonably believe, based on their 
knowledge of the process by which the information was recorded, that 
the annual summary is correct and complete. OSHA recognizes that most 
employers are diligent in complying with this requirement. However, a 
minority of employers is less diligent; in recent years, one-third or 
more of violations of Sec.  1904.32, and up to one-tenth of all 
recordkeeping (part 1904)

[[Page 29632]]

violations, have involved this certification requirement. It is OSHA's 
belief that, if this minority of employers knows that their data must 
be submitted to the Agency and may also be examined by members of the 
public, then they will pay more attention to the requirements of part 
1904, which could lead both to improvements in the quality and accuracy 
of the information and to better compliance with Sec.  1904.32.
    Finally, the National Advisory Committee on Occupational Safety and 
Health (NACOSH), composed of representatives of employers, workers, and 
the public, has expressed its support of the efforts of OSHA in 
consultation with NIOSH to modernize the system for collection of 
injury and illness data to assure that it is timely, complete, and 
accurate, as well as both accessible and useful to employers, 
employees, responsible government agencies, and members of the public.
e. Publication of Electronic Data
    As discussed above, OSHA intends to make the data it collects 
public. As discussed below, the publication of specific data elements 
will in part be restricted by applicable federal law, including 
provisions under the Freedom of Information Act (FOIA), as well as 
specific provisions within part 1904. OSHA will make the following data 
from the various forms available in a searchable online database:
    Form 300A (Annual Summary Form)--All collected data fields will be 
made available. In the past, OSHA has collected these data under the 
ODI and during OSHA workplace inspections and released them in response 
to FOIA requests. The annual summary form is also posted at workplaces 
under Sec.  1904.32(a)(4) and (b)(5). OSHA currently posts 
establishment-specific injury and illness rates calculated from the 
data collected through the ODI on OSHA's public Web site at https://www.osha.gov/pls/odi/establishment_search.html. The 300A annual summary 
does not contain any personally-identifiable information.
    Form 300 (the Log)--All collected data fields on the 300 Log will 
generally be made available on the Web site. Employee names will not be 
collected. OSHA occasionally collects these data during inspections as 
part of the enforcement case file. OSHA generally releases these data 
in response to FOIA requests. Also, Sec.  1904.29(b)(10) prohibits 
release of employees' names and personal identifiers contained in the 
forms to individuals other than the government, employees, former 
employees, and authorized representatives. OSHA does not currently 
conduct a systematic collection of the information on the 300 Log.
    Form 301 (Incident Report)--All collected data fields on the right-
hand side of the form (Fields 10 through 18) will generally be made 
available. The Agency currently occasionally collects the form for 
enforcement case files. OSHA generally releases these data in response 
to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits employers from 
releasing the information in Fields 1 through 9 (the left-hand side of 
the form) to individuals other than the employee or former employee who 
suffered the injury or illness and his or her personal representatives. 
Similarly, OSHA will not publish establishment-specific data from the 
left side of Form 301. OSHA does not release data from Fields 1 through 
9 in response to FOIA requests. The Agency does not currently conduct a 
systematic collection of the information on the Form 301. However, the 
Agency does review the entire Form 301 during some workplace 
inspections and occasionally collects the form for inclusion in the 
enforcement case file. Note that OSHA will not collect or publish Field 
1 (employee name), Field 2 (employee address), Field 6 (name of 
treating physician or health care provider), or Field 7 (name and 
address of non-workplace treating facility).
    While OSHA intends to make the information described above 
generally available, the Agency also wishes to emphasize that it does 
not intend to release personally identifiable information included on 
the forms. For example, in some cases, information entered in Column F 
(Describe injury or illness, parts of body affected, and object/
substance that directly injured or made person ill) of the 300 Log 
contains personally-identifiable information, such as an employee's 
name or Social Security Number. As a result, OSHA plans to review the 
information submitted by employers for personally-identifiable 
information. As part of this review, the Agency will use software that 
will search for and de-identify personally identifiable information 
before OSHA posts the data.
    It should also be noted that other federal agencies post 
establishment-specific health and safety data with personal 
identifiers, including names. For example, the Mine Safety and Health 
Administration (MSHA) publishes information gathered during the 
agency's investigations of fatal accidents. MSHA's Preliminary Report 
of Accident, Form 7000-13, provides information on fatal accidents 
including the employee's name, age, and a description of the accident. 
MSHA also publishes the written Accident Investigation Report, which 
details the nature and causes of the accident and includes the names of 
other employees involved in the fatal incident.
    The Federal Railroad Administration (FRA) posts Accident 
Investigation Reports filed by railroad carriers under 49 U.S.C. 20901 
or made by the Secretary of Transportation under 49 U.S.C. 20902; in 
the case of highway-rail grade crossing incidents, these reports 
include personally identifiable information (age and gender of the 
person(s) in the struck vehicle).
    Finally, the Federal Aviation Administration (FAA) posts National 
Transportation Safety Board (NTSB) reports about aviation accidents. 
These reports include personally identifiable information about 
employees, including job history and medical information.

B. The Proposed Rule

    The proposed rule would have amended OSHA's existing recordkeeping 
regulation at Sec.  1904.41 to add three new electronic reporting 
requirements. First, OSHA would have required establishments that are 
required to keep injury and illness records under part 1904, and had 
250 or more employees in the previous calendar year, to electronically 
submit information from these records to OSHA or OSHA's designee, on a 
quarterly basis (proposed Sec.  1904.41(a)(1)--Quarterly electronic 
submission of part 1904 records by establishments with 250 or more 
employees).
    Second, OSHA would have required establishments that are required 
to keep injury and illness records under part 1904, had 20 or more 
employees in the previous calendar year, and are in certain designated 
industries, to electronically submit the information from the OSHA 
annual summary form (Form 300A) to OSHA or OSHA's designee, on an 
annual basis (proposed Sec.  1904.41(a)(2)--Annual electronic 
submission of OSHA annual summary form (Form 300A) by establishments 
with 20 or more employees in designated industries). This second 
submission requirement would have replaced OSHA's annual illness and 
injury survey, authorized by the then-current version of 29 CFR 
1904.41.
    Third, OSHA would have required all employers who receive 
notification from OSHA to electronically submit specified information 
from their part 1904 injury and illness records to OSHA or OSHA's 
designee (proposed Sec.  1904.41(a)(3)--Electronic submission of part 
1904 records upon notification).
    As previously discussed, in addition to the new requirements for 
electronic

[[Page 29633]]

submission of part 1904 data, the preamble to the proposed rule stated 
that OSHA intended to make the collected data public in order to make 
the data useful to employers, employees, and the public in dealing with 
safety and health issues. OSHA also stated in the preamble to the 
proposed rule that the publication of specific data elements would have 
been restricted in part by provisions under the Freedom of Information 
Act (FOIA) and the Privacy Act, as well as specific provisions within 
part 1904. OSHA proposed to make the following data from the various 
forms available in a searchable online database:
    Form 300A--All fields could have been made available. Form 300A 
does not contain any personally identifiable information.
    Form 300 (the Log)--All fields could have been made available 
except for Column B (the employee's name).
    Form 301 (Incident Report)--All fields on the right-hand side of 
the form (Fields 10 through 18) could typically have been made 
available.

C. Comments on the Proposed Rule

    There were many comments supporting the proposed rule. Many 
commenters commented that the collection of recordkeeping data would 
allow OSHA to improve workplace safety and health and prevent injuries 
and illnesses. Other commenters commented that publication of 
information provided by the electronic submission of recordkeeping data 
from covered establishments would allow employers, employees, 
researchers, unions, safety and health professionals, and the public to 
improve workplace safety and health. There were also comments that the 
proposed rule was consistent with the actions of other federal and 
state agencies, which already require the submission of health and 
safety data.
    However, many commenters also raised potential concerns about the 
proposed rule. Some commenters expressed concerns about the 
implications of the publication of safety and health data for employee 
privacy. There were also comments about the implications of the 
proposed rule for employer privacy, especially with regard to 
confidential commercial information. Other commenters commented that 
OSHA underestimated the cost to businesses of implementing the proposed 
rule, especially the proposed requirement that would have required 
large establishments to submit data on a quarterly basis. In addition, 
some commenters commented that the data provided to OSHA and to the 
public as a result of this rule would not be beneficial.
    OSHA addresses all of the issues raised by commenters below.
Alternatives Included in the Proposed Rule
    In the preamble to the proposed rule, in addition to providing 
proposed regulatory text, OSHA stated that it was considering several 
alternatives. [78 FR 67263-65270]. OSHA requested comment on the 
following regulatory alternatives.
Alternative A--Monthly Submission Under Proposed Sec.  1904.41(a)(1)
    In Alternative A, OSHA considered requiring monthly submission 
instead of quarterly submission from establishments with 250 or more 
employees.
    However, almost all commenters opposed this alternative. Several 
commenters expressed concerns about the burdens of monthly submission 
on employers (Exs. 1211, 1112). Several commenters also expressed 
concerns about the effects of monthly submission on data quality (Exs. 
1211, 1385, 1397). Other commenters commented that monthly reporting 
would not provide much, if any, benefit over quarterly reporting (Exs. 
1384, 1391).
    Ashok Chandran provided the only comment in support of this 
alternative. He commented that ``[m]ore frequent reporting will 
actually prevent distortion, as fewer reports would increase the chance 
of a limited sample misrepresenting the conditions of an establishment. 
So long as OSHA does not use reports in isolation to trigger 
investigation, this risk is low'' (Ex. 1393).
    OSHA agrees with commenters who stated that monthly reporting would 
increase the burden on employers and could result in the submission of 
less accurate recordkeeping data. Given the potential extra burden 
without an added benefit, OSHA has decided not to adopt Alternative A 
from the proposed rule. As explained below, the final rule requires 
annual electronic submission of part 1904 records by establishments 
with 250 or more employees.
Alternative B--Annual Submission Under Proposed Sec.  1904.41(a)(1)
    In Alternative B, OSHA considered requiring annual submission for 
establishments with 250 or more employees instead of quarterly 
submission.
    Most commenters supported Alternative B, on grounds that annual 
reporting would provide better-quality, more useful data and would be 
less burdensome for both employers and OSHA.
    Commenters provided various reasons to support the idea that annual 
reporting would provide better-quality data. First, some commenters 
commented that one quarter is too short a period of time to generate 
meaningful data (Exs. 0258, 1338, 1385, 1399, 1413). For example, the 
American Meat Institute commented that ``breaking the data into 
quarterly `bites' will produce numbers with no comparative value . . . 
In fact, it is more likely to generate misleading, incorrect 
information because injury and illness incidents typically occur on a 
much more random basis than is reflected in what would amount to three-
month `snapshots' '' (Ex. 0258).
    Second, some commenters commented that quarterly reporting was more 
likely to lead to underreporting. The Allied Universal Corporation 
commented that ``[w]ith quarterly reporting, employers are unlikely to 
record close cases because, in many instances, striking them later may 
be impossible as the information has already been reported and posted 
publicly by OSHA. Rather than assume such an additional burden, 
employers will likely err on the side of not recording those incidents 
where in doubt'' (Ex. 1192). The American Chemistry Council, the 
Association of Energy Service Companies (AESC), and the International 
Association of Amusement Parks and Attractions (IAAPA) provided similar 
comments (Exs. 1092, 1323, 1427).
    Third, several commenters commented that quarterly reporting would 
not provide enough time for employers to complete cases and catch data 
mistakes (Exs. 0035, 0247, 1110, 1206, 1214, 1339, 1379, 1385, 1389, 
1399, 1405, 1406). For example, the Glass Packaging Institute commented 
that ``[t]he data is not static but will be a moving data set and 
consequently of little value for evaluation or decisions. Cases are 
added, deleted, change with time as information and cases and/or 
treatment improve or worsen'' (Ex. 1405).
    ORCHSE Strategies, LLC commented that ``[employers] also review the 
data at the end of the year to insure its accuracy before it is 
included in company reports or submitted to OSHA or to BLS. They check 
on outstanding cases; track day-counts for cases involving restricted 
work activity, job transfer, and days away from work; check on ongoing 
employee job limitations; prepare estimates of future days that will be 
lost or restricted (beyond the end of the year) etc.'' (Ex. 1339). In 
addition, the American Petroleum Institute

[[Page 29634]]

commented that ``29 CFR 1904.32 requires annual certification of the 
300 Forms and the quarterly submittals would not be certified; thus, 
[OSHA] would be relying on potentially inaccurate information'' (Ex. 
1214).
    As for the usefulness of data provided by quarterly reporting, many 
commenters stated that there is no evidence of benefits of quarterly 
reporting over annual reporting for worker safety and health (Exs. 
0156, 0258, 1110, 1126, 1206, 1210, 1221, 1225, 1322, 1339, 1406, 
1412). For example, the North American Insulation Manufacturers 
Association (NAIMA) commented that ``OSHA has failed to demonstrate 
that the increased frequency of reporting will improve worker safety, 
especially by imposing a four-fold burden increase on both employer and 
agency personnel for quarterly rather than annual reporting. Indeed, it 
cannot document such a result because there is no connection between 
quarterly reporting and improved worker safety'' (Ex. 1221). NAIMA also 
commented that ``the delay for OSHA to scrub the data [of PII before 
publication] will likely obviate any perceived `timeliness' benefit 
OSHA might make in attempting to justify quarterly rather than annual 
data submission'' (Ex. 1221). The Fertilizer Institute (TFI) and the 
Agricultural Retailers Association (ARA) provided similar comments (Ex. 
1412).
    OSHA also received comments that quarterly reporting would be 
overly burdensome for employers (Exs. 0247, 1112, 1126, 1206, 1210, 
1214, 1221, 1332, 1338, 1339, 1379, 1389, 1390, 1405). For example, 
ORCHSE Strategies, LLC commented that ``[v]erification is often an 
iterative process that involves back-and-forth between the corporate 
safety department and the site, with involvement of medical 
practitioners, the injured or ill employee, supervisors and others. 
Shifting from a single data submission to four data submissions per 
year would add substantially to the already significant cost and burden 
for these employers (at least by a factor of four). It would also 
complicate the process; employers would have to create estimated day 
counts for cases that are not closed at the time of each reporting and 
then correct them when the cases are finally resolved'' (Ex. 1339).
    The Association of Union Constructors (TAUC) commented that 
``[w]ith a proposed quarterly reporting frequency, often cases in the 
construction industry may not be resolved quickly and there is no 
method of recourse if the employer is found not at fault once the raw 
data is public . . . A lag in the period of time between updating and 
posting of injury/illness data could impose punitive consequences to 
the contractor if the public or customers are reviewing their data in 
real time'' (Ex. 1389). In addition, the Environmental, Health & Safety 
Communications Panel (EHSCP) commented that quarterly reporting would 
be a burden for safety and health professionals and ``strongly 
recommend[ed] that nothing more frequent than an annual submission be 
considered so as to minimize the time that safety and health 
professionals are required to devote to paperwork and data review 
rather than on proactive safety efforts'' (Ex. 1331).
    Commenters commented particularly about the resources needed for 
OSHA to remove PII from the collected data before publishing the data. 
For example, the North American Insulation Manufacturers Association 
(NAIMA) commented that ``OSHA will tax its own resources to process, 
review, and scrub the data four times per year. This data will contain 
sensitive personal information, and OSHA will need to edit the data 
before making it public. To do this on a quarterly basis will be time 
consuming and resource intensive'' (Ex. 1221). The Phylmar Regulatory 
Roundtable (PRR) questioned whether OSHA has the capacity to analyze 
quarterly data, commenting that ``annual data submissions from 580,000 
employers strike PRR as a large volume of data for OSHA to analyze. 
Multiplying that number by quarterly submissions has more potential for 
detriment than benefit'' (Ex. 1110).
    However, several commenters opposed Alternative B on grounds that 
quarterly data would be more useful and would not increase the burden 
on employers (Exs. 1211, 1381, 1384). The International Brotherhood of 
Teamsters commented that ``[q]uarterly submissions will help identify 
emerging trends or serious incidents within a much more rapid timeframe 
than annual reporting, and allow for rapid intervention to stop such 
trends or respond to such incidents before they continue'' (Ex. 1381). 
Similarly, the International Union (UAW) commented that ``annual 
reporting would make it impossible to track seasonal variations in the 
type or rate of injuries and illnesses'' (Ex. 1384).
    In response, OSHA agrees with commenters who stated that annual 
reporting would lessen the burden on employers. OSHA believes that 
companies' review of the data at the end of the year will help to 
improve the accuracy of the submitted data, because employers are 
already required to certify their records at the end of the calendar 
year under current part 1904. In addition, OSHA agrees that annual 
reporting will provide more meaningful data, as well as higher-quality 
data, because employers will have more time to update and revise the 
data before reporting to OSHA. Finally, OSHA agrees with the commenters 
who stated that annual reporting would lessen the burden on OSHA, by 
reducing both the total volume of data and the amount of personally 
identifiable information to remove before publication. Therefore, 
unlike the proposed rule, which would have required quarterly 
submission by establishments with 250 or more employees, Sec.  
1904.41(a)(1) of the final rule requires annual electronic submission 
of part 1904 records by establishments with 250 or more employees.
Alternative C--One Year Phase-in of Electronic Reporting Under Proposed 
Sec.  1904.41(a)(1)
    In Alternative C, OSHA considered a phase-in of the electronic 
reporting requirement, under which establishments with 250 or more 
employees would have had the option of submitting data on paper forms 
for the first year the rule would have been in effect.
    Several commenters opposed Alternative C on grounds that large 
companies affected by this rule should be able to electronically submit 
data in the first year, especially the Form 300 (Log) and 300A (annual 
summary). These commenters explained that submission of data in paper 
form would delay the processing and publication of the data (Exs. 1211, 
1345, 1350, 1381, 1384, 1387, 1424). The International Brotherhood of 
Teamsters commented that ``these companies are certainly large enough 
to handle the responsibility, and will receive the analytic benefits 
such a reporting system provides'' (Ex. 1381). Other commenters stated 
that there should not be a phase-in of the electronic submission 
requirement because OSHA does not have the resources to process 
thousands of submitted paper forms (Exs. 1395, 1211).
    However, other commenters supported Alternative C to provide time 
for employers and OSHA to come up with methods for protecting worker 
confidentiality. The International Union (UAW) commented that ``OSHA 
may find it useful to have a phase-in period for submission of 301 
reports by these employers to allow time for OSHA to come up with a 
method for scrubbing data to ensure worker confidentiality'' (Ex. 
1384). The United Food & Commercial Workers International

[[Page 29635]]

Union (UFCW) and the Services Employees International Union (SEIU) 
provided similar comments (Exs. 1345, 1387). FedEx Corporation 
commented that ``if employers are required to collect Form 301 data, 
then given that the reporting of detailed injury and illness data is a 
wholly novel recordkeeping requirement which will require an investment 
of significant time and resources for implementation, FedEx supports a 
phase-in period of at least one-year'' (Ex. 1338).
    In response, OSHA agrees with commenters who stated that larger 
companies (those with 250 or more employees) have the resources to 
electronically submit injury and illness data to OSHA in the first 
year. According to commenters, in many cases, larger companies already 
keep OSHA injury and illness records electronically, so a requirement 
to submit such records electronically is not unduly burdensome (Exs. 
1103, 1188, 1209, 1211, 1387, 1393, 1424) (see also Section VI Final 
Economic Analysis and Regulatory Flexibility Analysis).
    OSHA also agrees with commenters who stated that the Agency does 
not have the resources to handle the large volumes of non-electronic 
data that Alternative C would have produced. Based on OSHA's experience 
with paper submissions to the ODI, the Agency estimates that processing 
a paper submission might take 2 minutes for the data from Form 300A and 
1 minute for processing the actual paper form. In addition, based on 
BLS's experience with paper submissions to the SOII, the Agency 
estimates that processing each reported case in a paper submission 
might take 2 minutes. OSHA estimates that 33,000 establishments will be 
subject to final Sec.  1904.41(a)(1), accounting for 713,000 reported 
cases. In addition, roughly 30 percent of the establishments in the ODI 
submitted their data on paper. Based on these estimates (3 minutes per 
paper submission; 2 minutes per case; 30 percent of establishments 
submit on paper; 33,000 establishments; 713,000 cases), OSHA estimates 
that the one-year paper submission phase-in option in Alternative C 
would account for 495 hours for the Form 300A and 7,130 hours for the 
cases, for a total of 7,625 hours, or almost four full-time employees 
at 2,000 hours per full-time employee. Under a more optimistic scenario 
assuming 10 percent of establishments submitting on paper, the one-year 
paper submission phase-in option in Alternative C would account for 165 
hours for the Form 300A and 2,377 hours for the cases, for a total of 
2,542 hours, or more than one full-time employee. Under either 
scenario, OSHA would be unable to make timely use of the data.
    Additionally, with respect to commenters who stated that a phase-in 
would provide more time for employers and OSHA to develop methods to 
protect employee confidentiality, OSHA notes that a requirement that 
only provides for electronic submission of data will help the Agency 
search for and redact confidential information. As noted elsewhere in 
this preamble, OSHA will use existing software to remove personally 
identifiable information before posting data on the publicly-accessible 
Web site. Also as noted above, the proposed rule would have required 
establishments with 250 or more employees to electronically submit data 
on a quarterly basis, whereas Sec.  1904.41(a)(1) of the final rule 
requires annual submission. This change will provide large employers 
with additional time to prepare for the first electronic submission of 
recordkeeping data on March 2, 2017. Accordingly, the final rule 
requires electronic submission of part 1904 records by establishments 
with 250 or more employees, without a phase-in period for paper 
submission.
Alternative D--Three Year Phase-in of Electronic Reporting Under 
Proposed Sec.  1904.41(a)(2)
    In Alternative D, OSHA considered a phase-in of the electronic 
reporting requirement, under which establishments with 20 or more 
employees in designated industries would have had the option of 
submitting data on paper forms for the first three years this rule 
would have been in effect.
    All of the commenters who specifically commented on Alternative D 
supported a phased-in electronic submission requirement to allow 
smaller companies to adjust to electronic reporting. Different 
commenters supported a phase-in period of different lengths--one, two, 
or three years, or an unspecified ``reasonable'' period of time (Exs. 
1206, 1211, 1338, 1350, 1353, 1384, 1387, 1424).
    OSHA also received a comment from the American College of 
Environmental Medicine (ACEM) stating that OSHA should provide a phase-
in for ``employers who do not have access to the Internet pending full 
distribution of Internet services throughout the Nation'' (Ex. 1327). 
The Dow Chemical Company commented that ``a phase-in period should be 
provided for: At least one year after OSHA's web portal is created, 
debugged, tested and operational. However, a phase-in should consist of 
a period without a paper reporting requirement, so companies can deploy 
their resources toward developing the systems and information that will 
be necessary in order to report electronically'' (Ex. 1189). The 
National Ready Mixed Concrete Association (NRMCA), International 
Association of Industrial Accident Boards and Commissions (IAIBC), and 
Bray International made similar comments (Exs. 0210, 1104, 1401).
    OSHA agrees with the comments for Alternative C, above, that OSHA 
does not have the resources to handle the large volumes of non-
electronic data that Alternative D would produce. As above, based on 
OSHA's experience with paper submissions to the ODI, the Agency 
estimates that processing a paper submission might take 2 minutes for 
the data from Form 300A and 1 minute for processing the actual paper. 
OSHA estimates that 430,000 establishments will be subject to final 
Sec.  1904.41(a)(2). In addition, OSHA estimated that roughly 30 
percent of the establishments in the ODI submitted their data on paper. 
Based on these estimates (3 minutes per paper submission; 30 percent of 
establishments submit on paper; 430,000 establishments), OSHA estimates 
that the three-year paper submission phase-in option in Alternative D 
would account for 6,450 hours per year for three years, or 19,350 hours 
total. Under a more optimistic scenario assuming 10 percent of 
establishments submitting on paper, the three-year paper submission 
phase-in option in Alternative D would account for 2,150 hours per year 
for three years, or 6,450 hours total. Under either scenario, OSHA 
would be unable to make timely use of the data.
    As with Alternative C, immediate electronic reporting will make the 
data available to employers, the public, and OSHA in a timelier manner, 
because OSHA will not have to take the time to convert paper entries 
into electronic format. Also, an electronic format will make it much 
easier and faster for OSHA to prepare the data for publication. 
Therefore, the final rule requires annual electronic submission of the 
OSHA Form 300A by establishments with 20 or more employees, but fewer 
than 250 employees, in designated industries, without a phase-in period 
for paper submission.

[[Page 29636]]

    With respect to commenters' concern about Internet availability, 
OSHA believes that establishments with 20 or more employees are highly 
likely to have access to the Internet, and the burden of electronic 
reporting is low.
Alternative E--Widen the Scope of Establishments Required To Report 
Under Proposed Sec.  1904.41(a)(1)
    In Alternative E, OSHA considered widening the scope of 
establishments required to report under this proposed section of the 
rule from establishments with 250 or more employees to establishments 
with 100 or more employees.
    In support of Alternative E, commenters stated that increasing the 
number of establishments required to report would in turn increase 
public access to establishment-specific injury and illness data (Exs. 
1211, 1395). There were also comments that lowering the size criterion 
to 100 employees would pose little burden on medium-sized facilities, 
because establishments of that size often already have standardized 
recordkeeping (Exs. 1211, 1358).
    However, there were also comments opposing Alternative E due to 
employer burden and volume of data. For employer burden, the National 
Automobile Dealers Association (NADA) commented that ``[u]nder no 
circumstances should the proposed threshold for quarterly reporting be 
expanded to include establishments with 100 or more employees. As noted 
above, the proposed mandate is unjustified at the proposed 250-employee 
threshold. Any expansion would just exacerbate the burden for a much 
larger universe of employers with no commensurate benefit'' (Ex. 1392).
    For volume of data, several commenters commented that OSHA should 
assess the effect of lowering the size criterion to 200 employees and 
that 250 employees should be the maximum size criterion. For example, 
the AFL-CIO commented that ``the 250 employee cut-off should be the 
maximum cut-off for such reporting. We encourage the agency to examine 
the effect of lowering the establishment threshold to 200 employees to 
determine and assess the additional information that would be captured 
by such as change, particularly information from higher hazard 
industries that are of greater concern'' (Ex. 1350). The International 
Brotherhood of Teamsters and the International Union, United 
Automobile, Aerospace and Agriculture Implement Workers of America 
(UAW) provided similar comments (Ex. 1381, 1384). The Service Employees 
International Union (SEIU) commented that ``we believe 250 employees 
should be the maximum. We would support a phased in lowering of this 
number over several years to 100 employees as electronic reporting 
becomes even more routine and as the workforce continues to fragment 
into smaller units, as many expect'' (Ex. 1387).
    OSHA agrees with commenters who stated that reducing the size 
criterion to 100 would increase the burden on employers with 
diminishing benefit. The number of establishments that would be 
required to report under this proposed section under Alternative E 
would increase from 34,000 to 120,000. This alternative would also 
increase the number of injury and illness cases with incident report 
(OSHA Form 301) and Log (OSHA Form 300) data from 720,000 to 1,170,000. 
Therefore, like the proposed rule, the final rule requires electronic 
submission of all three recordkeeping forms by establishments with 250 
or more employees.
Alternative F--Narrow the Scope of Establishments Required To Report 
Under Proposed Sec.  1904.41(a)(1)
    In Alternative F, OSHA considered narrowing the scope of 
establishments required to report under this section of the rule from 
establishments with 250 or more employees to establishments with 500 or 
more employees.
    Several commenters supported Alternative F, on grounds that it 
would lower the burden of the rule. The National Council of Farmer 
Cooperatives (NCFC) commented that ``[w]e encourage OSHA to broaden the 
scope of establishments that fall under this section from 250 to 500 
employees, reducing the number of establishments burdened by quarterly 
reporting requirements'' (Ex. 1353). FedEx Corporation provided a 
similar comment (Ex. 1338), adding that raising the size criterion to 
500 employees would still provide OSHA with a ``statistically 
significant pool of injury and illness data'' (Ex. 1338).
    However, Logan Gowdey commented that raising the size criterion 
from 250 employees to 500 employees would reduce ``establishments 
covered from 38,000 to 13,800 and reports from 890,000 to 590,000. 
While the number of reports does not decrease that much, the number of 
establishments decreases dramatically, which will limit the importance 
of the data collected'' (Ex. 1211).
    OSHA agrees that Alternative F's great reduction in the number of 
establishments and employees covered by Sec.  1904.41(a)(1) would 
reduce the utility of the data. Under Alternative F, the number of 
establishments that would be required to report under Sec.  
1904.41(a)(1) would decrease from 34,000 to 12,000. This alternative 
would also decrease the number of injury and illness cases with 
incident report (OSHA Form 301) and Log (OSHA Form 300) data from 
720,000 to 495,000. Therefore, like the proposed rule, the final rule 
requires electronic submission of part 1904 records by establishments 
with 250 or more employees.
Alternative G--Three-Step Process of Implementing the Reporting 
Requirements Under Proposed Sec.  1904.41(a)(1) and (2)
    In Alternative G, OSHA considered a three-step process of 
implementing the reporting requirements under the proposed Sec.  
1904.41(a)(1) and (2).
    For this proposed alternative, high-hazard industry groups (four-
digit NAICS) would have been defined as having rates of injuries and 
illnesses involving days away from work, restricted work activity, or 
job transfer (DART) that are greater than 2.0. High-hazard industry 
sectors (two-digit NAICS) would have been defined as agriculture, 
forestry, fishing and hunting; utilities; construction; manufacturing; 
and wholesale trade.
    In the first step of this three-step implementation process, 
reporting would have been required only from the establishments in 
proposed Sec.  1904.41(a)(1) and (2) that are in high-hazard industry 
groups (four-digit NAICS with a DART rate greater than or equal to 
2.0).
    In the second step of the three-step implementation process, OSHA 
would have conducted an analysis, after a specified period of time, to 
assess the effectiveness, adequacy, and burden of the reporting 
requirements in the first step. The results of this analysis would then 
have guided OSHA's next actions.
    The third step of the three-step implementation process would 
therefore have depended on the results of OSHA's analysis.
    The only comment in support of Alternative G was from Southern 
Company, which commented that ``[a] smaller pilot group of employers in 
historically the highest incident rates will allow OSHA to determine if 
its system works as intended'' (Ex. 1413). Other commenters opposed 
Alternative G for various reasons, including scope, effectiveness, and 
implementation (Exs. 1211, 1350, 1381, 1384, 1387). For example, the 
International Brotherhood of Teamsters commented that ``[w]e support 
the proposed approach rather than this confusing 3-step alternative. 
The current approach is a better means for capturing higher hazard 
industries

[[Page 29637]]

and establishments. The rule already has different requirements for 
different size employers. OSHA should keep this rule as simple as 
possible. Changing criteria through phase in would only complicate the 
implementation of the rule'' (Ex. 1381).
    In response, OSHA agrees that Alternative G would reduce the 
effectiveness of the rule, increase uncertainty for employers, and make 
implementation more difficult. Therefore, like the proposed rule, the 
final rule requires electronic submission of part 1904 records by 
establishments with 250 or more employees, and annual electronic 
submission of the Form 300A annual summary by establishments with 20 to 
249 employees in designated industries, without the multi-step 
implementation process in this alternative.
Alternative H--Narrow the Scope of the Reporting Requirements Under 
Proposed Sec.  1904.41(a)(1) and (2)
    The proposed Sec.  1904.41(a)(1) would have applied to all 
establishments with 250 or more employees in all industries covered by 
the recordkeeping regulation. The proposed Sec.  1904.41(a)(2) would 
have applied to establishments with 20 or more employees in designated, 
i.e., high-hazard industry groups (classified at the four-digit level 
in NAICS) and/or high-hazard industry sectors (classified at the two-
digit level in NAICS). High-hazard industry groups (four-digit NAICS) 
would have been defined as industries with DART rates that are greater 
than or equal to 2.0. High-hazard industry sectors (two-digit NAICS) 
would have included agriculture, forestry, fishing and hunting; 
utilities; construction; manufacturing; and wholesale trade.
    In Alternative H, OSHA considered an alternative approach to 
defining the industry scope of these two sections of the proposed rule, 
by limiting the industry coverage to include only industry groups that 
meet a designated DART cut-off. This approach would not have included 
coverage of designated industry sectors as a criterion.
    Some commenters supported Alternative H as a way for OSHA to focus 
its efforts on high-hazard industry groups. For example, FedEx 
Corporation supported Alternative H with a DART cut-off rate of 3.0, 
commenting that ``this would focus OSHA's limited resources on high 
hazard industries and employers with high DART rates'' (Ex. 1338). The 
American Coatings Association (ACA) and the Reusable Industrial 
Packaging Association (RIPA) made similar comments (Exs. 1329, 1367).
    The National Retail Federation (NRF) commented, ``In NRF's view, 
both the 2.0 as well as the 3.0 DART rate are too low. NRF believes 
that, if OSHA is going to promulgate this standard at all, it should 
revise the proposed threshold DART rate to ensure that this rule is 
designed to focus attention on true high hazard industries . . . A DART 
cut-off of 3.6 derives from current data and is reasonably connected to 
the goal of the Proposed Regulation and any inspection plan that 
originates from the data collection'' (Ex. 1328).
    However, other commenters opposed Alternative H because it would 
greatly reduce the coverage of the rule (Exs. 1211, 1350, 1374 1381, 
1384, 1387). The International Brotherhood of Teamsters commented, ``We 
support the proposed approach rather than the alternative. The current 
approach is a better means for capturing higher hazard industries and 
establishments. Lowering [coverage] to industries with a DART rate of 
greater than/equal to 2.0 would reduce the number of smaller 
establishments covered by about 100,000 and the number of larger 
establishments covered by 16,000'' (Ex. 1381).
    The AFL-CIO commented that ``[T]hese thresholds are too restrictive 
and limited. Indeed, according to the preamble, employing a DART 
threshold of 3.0 would cover fewer establishments (152,000) than are 
covered under the current ODI (160,000). The current ODI has employed a 
combination of 2 digit and 4 digit thresholds similar to the proposed 
rule. There is no reason to change this approach'' (Ex. 1350).
    UNITE HERE also expressed concerns that Alternative H would leave 
vulnerable workers at risk, commenting that ``the alternative proposals 
to limit coverage to a DART threshold of 3.0 at the four digit level 
would result in excluding NAICS 7211--Traveler Accommodation. This 
industry sector is a growing sector with a growing workforce. Certain 
job titles are predominantly female, women of color and immigrant 
workers. We believe excluding 7211 would result in increased workplace 
injuries and illnesses and decreased prevention'' (Ex. 1374).
    OSHA believes that Alternative H would overly limit the scope of 
the rule and agrees with commenters who stated that there is no 
compelling reason to change the approach OSHA used in the ODI of using 
a combination of industrial classification levels to identify high-
hazard industry sectors and groups. In addition, using a DART cut-off 
of 3.0 would result in having less establishment-specific data for 
establishments with 20 or more employees available to OSHA and the 
public. As stated in the preamble to the proposed rule, the intention 
of this rulemaking is to increase the amount of establishment-specific 
data reported to OSHA. Therefore, like the proposed rule, the final 
rule requires electronic submission of part 1904 records by 
establishments with 250 or more employees, as well as annual electronic 
submission of the OSHA Form 300A by establishments with 20 to 249 
employees in designated high-hazard industries (four-digit NAICS) and 
industry sectors (two-digit NAICS).
Alternative I--Enterprise-Wide Submission
    In the preamble to the proposed rule, OSHA stated that it was 
considering adding a provision that would have required some 
enterprises with multiple establishments to collect and submit some 
part 1904 data for those establishments. Alternative I would have 
applied to enterprises with a minimum threshold number of 
establishments (such as five or more) that are required to keep records 
under part 1904. These enterprises would have been required to collect 
OSHA Form 300A (annual summary) data from each of their establishments 
that are required to keep injury/illness records under part 1904. The 
enterprise would then have electronically submitted the data from each 
establishment to OSHA. For example, if an enterprise had seven 
establishments required to keep injury/illness records under part 1904, 
the enterprise would have submitted seven sets of data, one for each 
establishment.
    OSHA also stated in the preamble to the proposed rule that 
Alternative I would have applied to enterprises with multiple levels 
within the organization. For example, if XYZ Chemical Inc. owns three 
establishments, but is itself owned by XYZ Inc., which has several 
wholly owned subsidiaries, then XYZ Inc. would have done the reporting 
for all establishments it controls. These requirements would have only 
applied to establishments within the jurisdiction of OSHA and subject 
to OSHA's recordkeeping regulation. Establishments within the corporate 
structure but located on foreign soil would not have been subject to 
the requirement in Alternative I.
    There were general comments supporting Alternative I, opposing 
Alternative I, and providing suggestions about the implementation of 
Alternative I. The proposed rule also asked 16 specific questions 
related to Alternative I, and OSHA received comments addressing those 
questions as well.

[[Page 29638]]

    Commenters who generally supported Alternative I did so for a 
variety of reasons, including more useful information, more corporate 
involvement in establishment-level prevention of workplace injuries and 
illnesses, and coordination with current OSHA enterprise-level efforts.
    For more useful information, NIOSH commented that a 2006 study by 
Mendeloff et al. found that ``firm size (or enterprise size) may be 
more important than establishment size in determining levels of risk . 
. . Theoretically, enterprise size may have a substantial impact on the 
ability to prevent injuries and illnesses. Business policies, 
practices, and strategies generally vary by size of employer, and large 
businesses may have more resources for protecting employee safety and 
health, and reducing workplace hazards and exposures compared with 
small businesses. Enterprise-level differences in occupational safety 
and health management systems may exist in specialization and 
expertise, development of training and reporting systems, amount of 
available data, and other factors'' (Ex. 0216).
    Several commenters commented that enterprise-level safety and 
health data would be extremely useful to OSHA as well as other groups 
(Exs. 0241, 1278, 1327, 1345, 1350, 1384, 1387). For example, Worksafe 
commented that this data would be ``extremely useful, not only to OSHA 
but also to advocates, employers, employees, unions, and 
representatives to ensure improved identification and resolution of 
workplace health and safety hazards'' (Ex. 1278). The National Safety 
Council (NSC) added that ``[t]he value of benchmarking would be 
substantially enhanced if the Enterprise Wide Alternative is adopted. 
This option would allow for the calculation of enterprise wide rates 
and allow for more meaningful benchmarking among enterprises'' (Ex. 
0241).
    There were also several comments about the scarcity of enterprise-
level data, especially for OSHA. NIOSH commented that ``few data are 
available at the enterprise level. This lack of data is a principal 
source of imprecision in defining small business. Greater clarity in 
measurement of both structure and size of employer would aid small 
business research and prevention efforts such as those conducted by the 
NIOSH Small Business Assistance and Outreach Program'' (Ex. 0216). The 
AFL-CIO and Change to Win provided similar comments (Exs. 1350, 1380).
    With respect to corporate involvement in establishment-level 
prevention of workplace injuries and illnesses, the American College of 
Occupational and Environmental Medicine commented that ``enterprise-
level reporting will increase the likelihood that the chief corporate 
officers are aware of potential variations in the safety of different 
business processes and establishment practices that put employees at 
risk. Greater corporate awareness may enhance corporate oversight and 
improve health and safety throughout all establishments'' (Ex. 1327). 
The AFL-CIO and the Service Employees International Union (SEIU) 
provided similar comments (Exs. 1350, 1387).
    For coordination with current OSHA enterprise-level efforts, the 
AFL-CIO commented that ``[t]he concept of corporate level 
responsibility under the OSH Act is well-established. While the 
majority of OSHA's enforcement efforts are focused at the establishment 
level, the OSH Act itself and its obligations, including the 
recordkeeping requirements, apply to employers. For decades, OSHA has 
utilized corporate-wide settlements as a means to bring about 
compliance on a corporate-wide basis, and recently OSHA has attempted 
to utilize this corporate-wide approach in its initial enforcement 
actions. Under the current Severe Violator Enforcement Program (SVEP), 
violations at one establishment trigger expansion of oversight to other 
establishments of the same employer'' (Ex. 1350). The Service Employees 
International Union (SEIU) provided a similar comment (Ex. 1387).
    Finally, the United Steelworkers (USW) commented that 
``[e]nterprise wide data must retain discernible facility 
identification information so that stakeholders can determine which 
facility each injury or illness entry occurred [in]. This will provide 
stakeholders with the ability to determine where specific hazards exist 
and engage in efforts to eliminate or reduce these hazards'' (Ex. 
1424).
    On the other hand, several commenters generally opposed 
implementation of Alternative I for various reasons, including the 
comparative ineffectiveness of enterprises versus establishments in 
promoting workplace health and safety, reduced data quality, employer 
burden, and legality (Exs. 1198, 1206, 1221, 1338).
    For the effectiveness of enterprises versus establishments in 
promoting workplace health and safety, the Food Marketing Institute 
commented that ``there are many corporate hierarchies in which there 
are `enterprises' above `establishments' that are not involved in or 
responsible for the safety controls in place at the establishments. 
Indeed, there are many instances in which a parent company may own 51% 
of the stock of a subsidiary but is in no way involved in that 
subsidiary's day-to-day activities'' (Ex. 1198). The North American 
Insulation Manufacturers Association (NAIMA) provided a similar comment 
(Ex. 1221).
    FedEx Corporation commented that ``the safety resources in place at 
each FedEx operating company . . . are in the closest proximity to the 
unique day-to-day operations of their establishments, and are therefore 
best equipped to enhance the workplace safety of their employees'' (Ex. 
1338). Similarly, the Interstate Natural Gas Association of America 
(INGAA) also commented that ``[i]t is well understood that separate 
establishments, even separate establishments that operate as part of a 
single larger enterprise, do not all operate the same: each 
establishment has different personnel, procedures, processes and 
protocols'' (Ex. 1206).
    There were also comments that enterprise-level data would not be 
useful for improving workplace safety and health (Exs. 1198, 1279, 
1338, 1408, 1412). For example, the National Association of Home 
Builders (NAHB) commented that ``OSHA claims that enterprise-wide 
submission of establishment data to the enterprise will improve 
communication and reporting between establishments and enterprises and 
this will lead to enterprise`s ability to solve establishment safety 
and health problems . . . Again, the agency has failed to establish any 
benefits for the proposed rulemaking . . . That is readily apparent 
here with OSHA`s proposed claims regarding the enterprise-wide 
alternative. OSHA fails to cite any example, research paper, case 
study, or journal article to support this claim'' (Ex. 1408).
    The National Association of Manufacturers (NAM) commented that 
``[t]here is no evidence suggesting that there is currently a lack of 
communication regarding safety and health between establishments and 
enterprises, nor is there any evidence that this alleged benefit will 
somehow reduce workplace injuries and illnesses'' (Ex. 1279).
    For data quality, the North American Insulation Manufacturers 
Association (NAIMA) commented that ``[w]ith certain umbrella 
corporations holding levels upon levels of subsidiaries, it could 
conceivably turn into a never-ending task . . . OSHA will undoubtedly 
get multiple reports on the same sites, omitted reports, and have a 
massive burden trying to audit all that information. At best, it is 
impractical and imprudent to pursue enterprise-wide reporting (Ex. 
1221). The

[[Page 29639]]

International Association of Drilling Contractors (IADC) commented that 
``[m]any member companies have establishments (rigs) operating in 
multiple zip codes. Grouping them together in one enterprise report 
would not allow for data separation into various states'' (Ex. 1199).
    Several commenters commented that enterprise-wide submission would 
create confusion when applying OSHA's recordkeeping requirements (Exs. 
1198, 1338, 1343, 1356, 1411). For example, the Food Marketing 
Institute commented that ``new definitions will have to be created for 
all the core terminology (e.g., `enterprise') and, as legal history has 
demonstrated repeatedly, regardless of the definition, much litigation 
will be generated before the true bounds of the terms are discovered. 
Further, the opportunities for wide-scale confusion and error are 
abundant'' (Ex. 1198). Other commenters expressed similar concerns 
about definitions (Exs. 1200, 1221).
    In response, OSHA has decided not to include a requirement in the 
final rule for enterprise-wide collection and submission of 
recordkeeping data. OSHA based this decision on two main reasons. 
First, OSHA agrees with commenters who stated that it would be 
difficult to administer an enterprise-wide collection and submission 
requirement. Specifically, because there are wide variations in 
corporate structure, OSHA believes that it would be difficult to 
establish a part 1904 definition of enterprise. This is particularly a 
concern when some corporate structures include establishments that are 
otherwise legally separate entities. Also, the question of enterprise 
ownership or control of specific establishments can be an extremely 
complex legal issue, especially when parent companies have multiple 
divisions or subsidiaries. OSHA also believes that in some cases it may 
be difficult for larger enterprises to identify all of the 
establishments under its ownership or control.
    Second, when the proposed rule for this rulemaking was issued in 
November 2013, OSHA's recordkeeping regulation included a list of 
partially-exempt industries based on the Standard Industrial 
Classification (SIC) system. On September 18, 2014, OSHA published a 
final rule in the Federal Register revising the list of partially-
exempt industries in appendix A to subpart B of part 1904. [79 FR 
56130]. As part of this revision, partial exemption to OSHA's 
recordkeeping regulation is now based on the North American Industry 
Classification System (NAICS).
    Compared to the SIC system, NAICS established several new industry 
categories, including specific categories for establishments conducting 
office or management activities. One of the industry classifications 
newly partially exempt from OSHA recordkeeping requirements is NAICS 
5511, Company Management and Enterprises. Because of this change, OSHA 
believes it cannot now include a requirement in this final rule for 
enterprise-wide collection and submission of part 1904 data.
    OSHA also wishes to point out that nothing in this final rule 
prevents enterprises or corporate offices from voluntarily collecting 
and submitting part 1904 data for their establishments. Based on the 
comments to Alternative I, as well as the Agency's own experience, OSHA 
believes that there are benefits for enterprise-wide collection and 
submission of recordkeeping data. As noted by commenters, large 
companies generally have more resources for protecting employee safety 
and health and reducing workplace hazards and exposures. Enterprise-
level collection and submission of part 1904 data increases the 
likelihood that corporate offices will be aware of variations in 
establishment processes and practices that place employees at risk. 
OSHA believes that greater corporate involvement and oversight enhance 
safety and health at all establishments. Accordingly, OSHA encourages 
enterprises and corporate offices to voluntarily collect and 
electronically submit part 1904 records for their establishments 
required to submit such records under the final rule.
Questions in the NPRM
    In addition to Alternatives A through I, the preamble to the 
proposed rule included several questions about specific issues in this 
rulemaking. Some of these issues are addressed elsewhere in this 
preamble. The remaining issues are addressed below.
Implications of Required Electronic Data Submission
    In the preamble to the proposed rule, OSHA asked, ``What are the 
implications of requiring all data to be submitted electronically? This 
proposed rule would be among the first in the federal government 
without a paper submission option.'' [78 FR 67271].
    Several commenters supported mandatory electronic submission. The 
Phylmar Regulatory Roundtable (PRR) commented that ``PRR company 
establishments currently collect and record injury and illness data 
manually and electronically. Members prefer submitting data 
electronically over paper submission'' (Ex. 1110). The United Food & 
Commercial Workers International Union (UFCW) commented that ``large 
employers (those greater than 250) can meet requirements for mandatory 
electronic reporting once OSHA provides the technical means to do so'' 
(Ex. 1345).
    The American Federation of Teachers (AFT) commented, ``Once the 
[electronic reporting] requirement is in place, OSHA will for the first 
time have the most comprehensive and timely data base on large and high 
hazard establishments. The agency will be able to do frequent and 
systematic comparisons between like establishments and better target 
consultation and enforcement. There will also be opportunities to track 
patterns of specific injuries and illnesses as we have never had 
before. This ability will be important for research as well as 
enforcement . . . Electronic reporting will assist us in not only 
identifying new hazards but also measuring their impact of in a timely 
manner (Ex. 1358). The AFL-CIO made a similar comment (Ex. 1350).
    However, many other commenters expressed concern that only allowing 
electronic submission would burden small establishments without 
Internet access, especially those in rural areas, and that OSHA should 
continue to allow a paper-based reporting option (Exs. 0179, 0211, 
0253, 0255, 1092, 1113, 1123, 1124, 1190, 1198, 1199, 1200, 1205, 1273, 
1322, 1327, 1332, 1342, 1343, 1359, 1366, 1370, 1386, 1401, 1408, 1410, 
1411, 1416, 1417). For example, the American Forest & Paper Association 
commented that ``OSHA must continue to allow a paper-based reporting 
option. Many businesses, particularly small firms located in rural 
areas, do not have ready access to the Internet or may find electronic 
reporting burdensome because they currently have a paper-based record 
system'' (Ex. 0179). The Texas Cotton Ginners Association (TCGA) made a 
similar comment (Ex. 0211). The Food Marketing Institute further 
commented that ``OSHA acknowledges that 30% of 2010 ODI establishments 
did not electronically submit injury and illness information and that 
``most agencies'' currently allow paper submission of information. Id. 
at 67273. This confirms that OSHA is aware that not all small 
businesses will have the access necessary for electronic submission'' 
(Ex. 1198).
    Several commenters expressed particular concern about the burden of 
mandatory electronic submission on farmers. The California Farm Bureau 
Federation (CFBF) commented that a

[[Page 29640]]

recent USDA survey showed that ``68 percent of farmers (both livestock/
poultry and crop producers) have a computer and only 67 percent have 
internet access . . . the same USDA report shows that only a mere 40 
percent of farmers actually use a computer to conduct their farming 
business. Should OSHA move forward with the rule, the agency must give 
consideration to allowing paper submissions. Because submission of 
these records will be mandatory, failing to do so will create a 
hardship on agricultural employers, and increase the cost burden of the 
rule for employers'' (Ex. 1366). The American Farm Bureau Federation 
(AFBF), Pennsylvania Farm Bureau (PFB), the New York Farm Bureau 
(NYFB), and the Louisiana Farm Bureau Federation (LFBF) provided 
similar comments (Exs. 1113, 1359, 1370, 1386).
    OSHA agrees with the commenters who supported electronic 
submission. Specifically, OSHA believes that electronic submission is 
necessary if a data system is to provide timely and useful 
establishment-specific information about occupational injuries and 
illnesses. In addition, as discussed in Section VI Final Economic 
Analysis and Regulatory Flexibility Analysis, OSHA believes that 
establishments with 20 or more employees are highly likely to have 
access to the Internet and that the burden of electronic reporting is 
low even for the few employers for whom it may be more difficult to 
access the Internet. Consequently, the final rule requires electronic 
submission of injury and illness records to OSHA.
    Commenters also expressed several technical concerns about the 
electronic submission requirement. The Associated General Contractors 
of New York, LLC (AGC NYS) expressed the concern that ``those that 
attempted to submit their information but failed due to a Web site that 
does not function properly may also be considered to be non-compliant 
with such regulations'' (Ex. 1364). Both the National Ready Mixed 
Concrete Association (NRMCA) and the American Subcontractors 
Association (ASA) suggested that OSHA should maintain a paper 
submission option for establishments experiencing temporary technical 
difficulties with electronic submission (Exs. 0210, 1322).
    In response, OSHA believes that there are more cost-effective ways 
to deal with Web site problems than maintaining a paper submission 
option. For example, OSHA plans to allocate resources to help employers 
who have difficulty submitting required information because of 
unforeseen circumstances. Specifically, OSHA intends to establish a 
help desk to support data collection and submission under the final 
rule. In addition, employers will be able to report the information 
from a different location, such as a public library. Further, for the 
data collection under the ODI, OSHA provided employers multiple chances 
after the due date to submit their data before issuing citations for 
non-response. OSHA expects to continue this practice when employers 
have technical issues and are unable to submit their information under 
this final rule.
    In addition, OSHA will phase in implementation of the data 
collection system. In the first year, all establishments required to 
routinely submit information under the final rule will be required to 
submit only the information from the Form 300A (by July 1, 2017). In 
the second year, all establishments required to routinely submit 
information under the final rule will be required to submit all of the 
required information (by July 1, 2018). This means that, in the second 
year, establishments with 250 or more employees that are required to 
routinely submit information under the final rule will be responsible 
for submitting information from the Forms 300, 301, and 300A. In the 
third year, all establishments required to routinely submit under this 
final rule will be required to submit all of the required information 
(by March 2, 2019). This means that beginning in the third year (2019), 
establishments with 250 or more employees will be responsible for 
submitting information from the Forms 300, 301, and 300A, and 
establishments with 20-249 employees in an industry listed in appendix 
A to subpart E of part 1904 will be responsible for submitting 
information from the Form 300A by March 2 each year. This will provide 
sufficient time to ensure comprehensive outreach and compliance 
assistance in advance of implementation.
    Finally, OSHA will use feedback from users of the data collection 
system from the first year of implementation to inform the development 
and improvement of the data collection system. OSHA will incorporate 
user experience and design improvements throughout the life of the data 
collection system, based on user feedback and emerging technology.
Coverage of Industries in Sec.  1904.41(a)(2)
    Section 1904.41(a)(2) of the proposed rule would have required 
establishments with 20 or more employees, but fewer than 250 employees, 
in designated industries, to electronically submit information from the 
300A annual summary to OSHA or OSHA's designee on an annual basis. The 
list of designated industries subject to the annual submission 
requirement in proposed Sec.  1904.41(a)(2) was included in proposed 
appendix A to subpart E. The designated industries in proposed Appendix 
A to Subpart E represented all industries covered by part 1904 with a 
2009 DART rate in the BLS SOII of 2.0 or greater, excluding four 
selected transit industries where local government is a major employer.
    In the preamble to the proposed rule, OSHA asked, ``More current 
BLS injury and illness data will be available at the time of the final 
rulemaking. Use of newer data may result in changes to the proposed 
industry coverage. Should OSHA use the most current data available in 
determining coverage for its final rule? Would this leave affected 
entities without proper notice and the opportunity to provide 
substantive comment?'' [78 FR 67271].
    OSHA received several comments related to this question. Two 
commenters supported using 2009 BLS injury and illness data for 
determining coverage for high-hazard industries under the final rule, 
on grounds that more current data would leave affected entities without 
proper notice and the opportunity to provide comment (Exs. 1206, 1329). 
One commenter, the California Department of Industrial Relations (DIR), 
Office of the Director, recommended ``ways of increasing the stability 
of the system, namely, not changing industries required to report, not 
using a phased in approach to reporting, and encouraging use of data 
through a successful data sharing Web site'' (Ex. 1395). The 
International Brotherhood of Teamsters supported using the most current 
data available for determining coverage in the final rule, commenting 
that ``[w]e recommend that OSHA use the latest BLS data. The results of 
the Survey of Occupational Injuries and Illnesses (SOII) are one year 
behind, but they may point to emerging or immediate hazards'' (Ex. 
1381). Another commenter supported OSHA's use of the most current BLS 
data available for determining coverage, and stated that OSHA should be 
able to use the new data without needing a new round of notice and 
comment because it discussed this possibility in the proposed rule. 
This commenter also commented that it would be counterproductive to 
limit OSHA to the BLS data available at the time of the proposed rule 
(Ex. 1211).
    OSHA also received a comment from the National Automobile Dealers 
Association (NADA) stating that ``OSHA should drop the proposal's use 
of a one

[[Page 29641]]

year (2009) DART rate. Focusing on a single year risks 
mischaracterizing the injury and illness rates for a given industry 
and/or capturing an uncharacteristic decline or spike. A more 
appropriate approach would be a rolling three year average similar to 
what OSHA has used to periodically set partial exemptions from its 
injury/illness recording mandates. Of course, any reporting mandate 
should reset annually for each industry sector based on a three-year 
average of its most current BLS SOII data'' (Ex. 1392).
    After carefully considering all of these comments, OSHA has decided 
to use a three-year average of BLS data from 2011, 2012, and 2013 to 
determine coverage for Sec.  1904.41(a)(2) of the final rule. This 
three-year range represents the most current BLS data available at the 
time of this final rule. OSHA agrees with the International Brotherhood 
of Teamsters that using the most current BLS data available at the time 
of the final rule, rather than outdated data, is the most effective way 
to identify emerging workplace hazards, as well as the most effective 
way to identify the list of high hazard industries for inclusion in 
appendix A to subpart E. A three-year average will reduce the effects 
of natural year-to-year variation in industry injury/illness rates, and 
it is consistent with OSHA's current approach in determining the 
partial exemption of industries under existing Sec.  1904.2. The 
alternative would have been to use a single year of BLS data from 2009 
for a final rule that will go into effect in 2017.
    OSHA also agrees with commenters who stated that the Agency 
provided sufficient notice and opportunity for comment in the NPRM by 
explicitly asking whether the Agency should use the most current data 
available when determining coverage for the final rule. The combination 
of OSHA's request for comment on the approach that it ultimately 
adopted in the final rule, and the comments and testimony received in 
response to the proposed rule, provided the regulated community with 
adequate notice regarding the outcome of the rulemaking. See, e.g., 
Nat'l Mining Ass'n v. Mine Safety & Health Admin., 512 F.3d 696, 699 
(D.C. Cir. 2008); Miami-Dade County v. U.S. E.P.A., 529 F.3d 1049, 1059 
(11th Cir. 2008); United Steelworkers of America, AFL-CIO-CLC v. 
Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (``a final rule may 
properly differ from a proposed rule and indeed must so differ when the 
record evidence warrants the change . . . . Where the change between 
proposed and final rule is important, the question for the court is 
whether the final rule is a `logical outgrowth' of the rulemaking 
proceeding''). The list of designated industries in Appendix A to 
Subpart E of the final rule is a logical outgrowth of the proposal, and 
the number of comments provides a clear indication that the affected 
members of the public are not only familiar with the issue of using the 
most current data, but also viewed the inclusion of such data as a 
potential outcome of this rulemaking. As a result, unlike the proposed 
rule, the final rule will use a three-year average (2011, 2012, 2013) 
DART rate of 2.0 or greater for determining the list of industries 
included in appendix A to subpart E.
    Also in the preamble to the proposed rule, OSHA asked whether the 
list of designated industries in appendix A to subpart E should remain 
the same each year, or whether the list should be adjusted each year to 
reflect the most current BLS injury and illness data. OSHA also asked 
how OSHA could best inform affected establishments about the 
adjustments, if the list were adjusted.
    One commenter supported adjusting the list of designated industries 
each year to reflect the most current BLS injury and illness data (Ex. 
1211). Other commenters supported adjusting the list in other ways. For 
example, the International Union (UAW) commented that ``annual updating 
is too frequent and would leave employers confused as to whether or not 
they need to report. Updating every three years would be more 
appropriate'' (Ex. 1384). The International Brotherhood of Teamsters 
and the Service Employees International Union (SEIU) provided similar 
comments (Exs. 1381, 1387). The American Federation of Teachers (AFT) 
commented that ``[t]he AFT recommends that new establishments that meet 
the requirement of a DART rate of 2.0 be added every year but that the 
original list of high hazard establishments be maintained regardless of 
changes to their DART that puts them below the threshold. Those 
original establishments should continue reporting for a minimum of ten 
years in order to ascertain if their DART rates are trending lower over 
the long term'' (Ex. 1358).
    On the other hand, the California Department of Industrial 
Relations (DIR), Office of the Director supported ``increasing the 
stability of the system, namely, [by] not changing industries required 
to report'' (Ex. 1395).
    Finally, Thoron Bennett supported requiring establishments with 20 
or more employees in all industries to report, rather than limiting the 
requirement to establishments with 20 or more employees on a list of 
designated high-hazard industries. He further commented that OSHA 
should ``[f]orget the tiered reporting based on employment numbers or 
designated industries. Simply require electronic data submission for 
all employers who have to fill out the OSHA 300/300A/301 logs'' (Ex. 
0035).
    OSHA agrees with the commenters who stated that the list of 
designated industries in appendix A to subpart E should not be updated 
each year. OSHA believes that moving industries in and out of appendix 
A to subpart E each year would be confusing. OSHA also believes that 
keeping the same industries in appendix A to subpart E each year will 
increase the stability of the system and reduce uncertainty for 
employers. Accordingly, OSHA will not, as part of this rulemaking, 
include a requirement to annually or periodically adjust the list of 
designated industries to reflect more recent BLS injury and illness 
data. Any such revision to the list of industries in appendix A to 
subpart E in the future would require additional notice and comment 
rulemaking.
    The designated industries, which will be published in appendix A to 
subpart E of the final rule, will be as follows:

------------------------------------------------------------------------
          NAICS                               Industry
------------------------------------------------------------------------
11.......................  Agriculture, forestry, fishing and hunting.
22.......................  Utilities.
23.......................  Construction.
31-33....................  Manufacturing.
42.......................  Wholesale trade.
4413.....................  Automotive parts, accessories, and tire
                            stores.
4421.....................  Furniture stores.
4422.....................  Home furnishings stores.
4441.....................  Building material and supplies dealers.

[[Page 29642]]

 
4442.....................  Lawn and garden equipment and supplies
                            stores.
4451.....................  Grocery stores.
4452.....................  Specialty food stores.
4521.....................  Department stores.
4529.....................  Other general merchandise stores.
4533.....................  Used merchandise stores.
4542.....................  Vending machine operators.
4543.....................  Direct selling establishments.
4811.....................  Scheduled air transportation.
4841.....................  General freight trucking.
4842.....................  Specialized freight trucking.
4851.....................  Urban transit systems.
4852.....................  Interurban and rural bus transportation.
4853.....................  Taxi and limousine service.
4854.....................  School and employee bus transportation.
4855.....................  Charter bus industry.
4859.....................  Other transit and ground passenger
                            transportation.
4871.....................  Scenic and sightseeing transportation, land.
4881.....................  Support activities for air transportation.
4882.....................  Support activities for rail transportation.
4883.....................  Support activities for water transportation.
4884.....................  Support activities for road transportation.
4889.....................  Other support activities for transportation.
4911.....................  Postal service.
4921.....................  Couriers and express delivery services.
4922.....................  Local messengers and local delivery.
4931.....................  Warehousing and storage.
5152.....................  Cable and other subscription programming.
5311.....................  Lessors of real estate.
5321.....................  Automotive equipment rental and leasing.
5322.....................  Consumer goods rental.
5323.....................  General rental centers.
5617.....................  Services to buildings and dwellings.
5621.....................  Waste collection.
5622.....................  Waste treatment and disposal.
5629.....................  Remediation and other waste management
                            services.
6219.....................  Other ambulatory health care services.
6221.....................  General medical and surgical hospitals.
6222.....................  Psychiatric and substance abuse hospitals.
6223.....................  Specialty (except psychiatric and substance
                            abuse) hospitals.
6231.....................  Nursing care facilities.
6232.....................  Residential mental retardation, mental health
                            and substance abuse facilities.
6233.....................  Community care facilities for the elderly.
6239.....................  Other residential care facilities.
6242.....................  Community food and housing, and emergency and
                            other relief services.
6243.....................  Vocational rehabilitation services.
7111.....................  Performing arts companies.
7112.....................  Spectator sports.
7121.....................  Museums, historical sites, and similar
                            institutions.
7131.....................  Amusement parks and arcades.
7132.....................  Gambling industries.
7211.....................  Traveler accommodation.
7212.....................  RV (recreational vehicle) parks and
                            recreational camps.
7213.....................  Rooming and boarding houses.
7223.....................  Special food services.
8113.....................  Commercial and industrial machinery and
                            equipment (except automotive and electronic)
                            repair and maintenance.
8123.....................  Dry-cleaning and laundry services.
------------------------------------------------------------------------

    OSHA notes that 15 industries in appendix A to subpart E in the 
final rule were not included in proposed appendix A to subpart E. These 
industries are Specialty Food Stores (NAICS 4452), Vending Machine 
Operators (NAICS 4542), Urban Transit Systems (NAICS 4851), Interurban 
and Rural Bus Transportation (NAICS 4852), Taxi and Limousine Service 
(NAICS 4853), School and Employee Bus Transportation (NAICS 4854), 
Other Transit and Ground Passenger Transportation (NAICS 4859), Postal 
Service (NAICS 4911), Other Ambulatory Health Care Services (NAICS 
6219), Community Food and Housing, and Emergency and Other Relief 
Services (NAICS 6242), Performing Arts Companies (NAICS 7111), Museums, 
Historical Sites, and Similar Institutions (NAICS 7121), RV 
(Recreational Vehicle) Parks and Recreational Camps (NAICS 7212), 
Rooming and Boarding Houses (NAICS 7213), and Special Food Services 
(NAICS 7223). Conversely, three industries that were included in 
proposed appendix A to subpart E are not included in the final Appendix 
A to Subpart E. These industries are Inland Water Transportation (NAICS 
4832), Scenic and Sightseeing Transportation, Water (NAICS 4872), and 
Home Health Care Services (NAICS 6216).

[[Page 29643]]

    The following table summarizes the changes in affected industries 
by using the three-year average of BLS data (2011, 2012, 2013) compared 
to using 2009 BLS data and provides the expected number of affected 
establishments in each industry based on the most recent 2012 County 
Business Patterns data:

----------------------------------------------------------------------------------------------------------------
                                                                                      Expected No. of affected
             NAICS                                   Industry                              establishments
----------------------------------------------------------------------------------------------------------------
 In appendix A to subpart E of the final rule (using three-year average of 2011, 20012, 2013 BLS data), but NOT
                      in appendix A to subpart E of the proposed rule (using 2009 BLS data)
----------------------------------------------------------------------------------------------------------------
4452..........................  Specialty food stores............................  1221
4542..........................  Vending machine operators........................  493
4851..........................  Urban transit systems............................  374
4852..........................  Interurban and rural bus transportation..........  184
4853..........................  Taxi and limousine service.......................  740
4854..........................  School and employee bus transportation...........  2025
4859..........................  Other transit and ground passenger transportation  918
4911..........................  Postal service...................................  *
6219..........................  Other ambulatory health care services............  3282
6242..........................  Community food and housing, and emergency and      2481
                                 other relief services.
7111..........................  Performing arts companies........................  1079
7121..........................  Museums, historical sites, and similar             1161
                                 institutions.
7212..........................  RV (recreational vehicle) parks and recreational   392
                                 camps.
7213..........................  Rooming and boarding houses......................  67
7223..........................  Special food services............................  7812
----------------------------------------------------------------------------------------------------------------
In Appendix A to Subpart E of the proposed rule (using 2009 BLS data), but NOT in Appendix A to Subpart E of the
                       final rule (using three-year average of 2011, 2012, 2013 BLS data)
----------------------------------------------------------------------------------------------------------------
4832..........................  Inland water transportation......................  123
4872..........................  Scenic and sightseeing transportation, water.....  131
6216..........................  Home health care services........................  12801
----------------------------------------------------------------------------------------------------------------
* Insufficient data.

Design of the Electronic Submission System
    In the preamble to the proposed rule, OSHA asked, ``How should the 
electronic data submission system be designed? How can OSHA create a 
system that is easy to use and compatible with other electronic systems 
that track and report establishment-specific injury and illness data?'' 
[78 FR 67271].
    There were many comments with suggestions about the overall design 
of OSHA's electronic submission system. Several commenters commented 
that OSHA's electronic data submission system should be compatible with 
existing systems. The United Steelworkers (USW) commented that ``[i]t 
is important that OSHA ensure that electronic systems put in place for 
this initiative are compatible with existing systems in common use. We 
also encourage OSHA to update their system as necessary to keep up with 
advances in technology and facilitate the transfer of employer data'' 
(Ex. 1424). Rachel Armont; the California Department of Industrial 
Relations (DIR), Office of the Director; and Shawn Lewis provided 
similar comments (Exs. 0198, 1320, 1395).
    The International Union (UAW) commented that ``such a system should 
allow for employers [to] upload existing files'' (Ex. 1384). Harvey 
Staple commented that ``the states and OSHA [could] work together to 
develop a system whereby one entry into an electronic log could be used 
for multiple information reporting (i.e., state and federal). It would 
further enhance all parties involved if the system could be tied into 
the workers compensation system to maximize the data already captured 
without adding another paperwork burden'' (Ex. 0154).
    In response, OSHA notes that, because there are many commercial 
software products on the market for recording and managing information 
on workplace injuries/illnesses to support compliance with OSHA 
recordkeeping requirements, OSHA plans to coordinate with trade 
associations and health and safety consultants to identify the products 
in widest use. OSHA would then review available information about these 
products to help inform relevant considerations during development of 
the OSHA system for ensuring ease-of-use and compatibility with 
commercial products in common use.
    When OSHA develops the data collection system, the Agency will 
consider commercial systems used by establishments to maintain their 
injury/illness records. This means that the Agency's system may provide 
a mechanism and protocol for employers to transmit their data 
electronically instead of completing online forms. For example, the 
system could allow employers to securely transfer encrypted data over 
the Web in an acceptable data file format (e.g., MS Excel, XML, or csv) 
for validation and import into the electronic reporting system. OSHA 
will provide users with easy-to-follow guidance that addresses required 
data elements (a data dictionary), format and other technical 
considerations, and steps involved in validation, transfer, and 
confirmation. Routines will be programmed to automate as much of the 
process as possible, with prompts for manual review as needed.
    Quick Incidents suggested the use of an Application Programming 
Interface (API), commenting that ``Application Programming Interfaces 
(APIs) have gained widespread usage in the corporate world . . . Having 
this type of machine to machine communication ensures that data is 
transferred securely, accurately and quickly without any human 
intervention . . . An API would allow companies to connect their 
incident recording software directly to the OSHA reporting system. 
Incident reports would be transmitted seamlessly without any 
redundancy. For companies with an existing incident recording system 
this proposed API would allow

[[Page 29644]]

OSHA submission without any additional burden'' (Ex. 1220).
    OSHA will explore this suggestion during development of the data 
collection system, in addition to the file transfer concept described 
above.
    The Risk and Insurance Management Society suggested another 
approach, commenting that ``[m]any employers have in place systems to 
report their injury and illness data through the Electronic Data 
Interchange . . . If OSHA decides to move forward with the proposed 
rule, then an effort should be made to accept data submitted through 
the current Electronic Data Interchange system'' (Ex. 1222).
    The International Association of Industrial Accident Boards and 
Commissions (IAIABC) suggested that OSHA should ``consider the benefits 
of using the IAIABC's established First and Subsequent Reports of 
Injury Standard (IAIABC EDI Claims Standard). Implementation of an 
existing electronic standard would be much faster and easier than 
developing a brand new electronic reporting protocol . . . All of the 
IAIABC's EDI standards have been developed by workers' compensation 
business and technical experts and are widely used and actively 
supported. To date, 40 jurisdictions have implemented at least one of 
the IAIABC's EDI standards'' (Ex. 1104).
    In response, OSHA notes that IAIABC's EDI claim standards are used 
by many states for standardizing the submission of workers' 
compensation claims information. When OSHA develops the data collection 
system, the Agency will assess whether some variation of the standard 
or its basic logic might be appropriate for ensuring consistency in the 
submission and processing of data to OSHA.
    However, the Dow Chemical Company commented that ``[i]t is probably 
literally impossible for OSHA to design its web portal to be compatible 
with every electronic system that some employer may be using. Dow is 
not aware of any web portal that is compatible with SAP-based systems, 
Excel spreadsheets, Adobe Acrobat, Lotus Notes, Oracle, and the 
multitude of other options for keeping electronic records'' (Ex. 1189).
    Several commenters also expressed specific concerns about the 
electronic data submission system's compatibility with 301-equivalent 
forms. The U.S. Poultry & Egg Association commented that ``OSHA does 
not appear to realize that many employers do not actually use the OSHA 
301 Form. Instead, they use an equivalent form, often for workers 
compensation purposes. Presumably, OSHA would require employers to 
translate the information into the `301 Form' on the internet. This may 
not be as straightforward as OSHA makes it seem and certainly it may be 
more costly than OSHA anticipates. It also not only increases the risks 
of errors occurring in the translation but eliminates the usefulness of 
equivalent forms'' (Ex. 1109). The National Association of 
Manufacturers and Littler Mendelson, P. C. provided similar comments 
(Exs. 1279, 1385).
    OSHA's response is that, in developing the data collection system, 
OSHA may consider aspects of the IAIABC EDI standards that might inform 
and streamline data submission to the OSHA system, rather than 
designing the system to accept the workers' compensation forms or 
equivalent forms themselves. That is, because workers' compensation 
forms are for a specific purpose and can vary by state, the workers' 
compensation form data elements may not fit OSHA's reporting 
requirements.
    The Association of Occupational Health Professionals in Healthcare 
(AOHP) commented about the importance of compatibility between existing 
systems and OSHA's electronic data submission system because ``[t]he 
need to double enter the data is a significant concern. Double data 
entry was a significant concern when NIOSH was proposing the 
Occupational Safety Health Network (OHSN). NIOSH considered this 
concern and was able to create an interface to eliminate double data 
entry into this national database. Double data entry is costly in terms 
of time and the use of scarce human resources to manage these record 
keeping requirements (Ex. 0246). The Risk and Insurance Management 
Society provided a similar comment (Ex. 1222).
    Several other commenters provided comments about making the 
electronic data submission system user-friendly. The Association of 
Occupational Health Professionals in Healthcare (AOHP) commented that 
``[c]onsideration should be given to a pilot to test the functioning of 
the Web site and the ease with which the data can be entered and 
submitted'' (Ex. 0246). The California Department of Industrial 
Relations (DIR), Office of the Director commented that ``[c]urrent OSHA 
guidelines for its forms are simple, easy-to-use, and are low-literacy 
friendly . . . Any electronic reporting system must balance the needs 
for uniform, easy to process data with the simplicity that paper 
records provided'' (Ex. 1395).
    The Phylmar Regulatory Roundtable (PRR) commented that ``[t]he 
Proposed Rule calls for two methods of submitting data--use of online 
forms or batch submission of Excel or XML files. PRR supports this 
approach, as it appears to accommodate both establishment size (smaller 
establishments would likely use the online form) and the diverse 
software programs companies currently used to electronically manage 
injury and illness data'' (Ex. 1210). The International Brotherhood of 
Teamsters provided a similar comment (Ex. 1381).
    The Dow Chemical Company suggested that it is ``vitally important 
for employers to receive immediate feedback as to whether their data 
entry was successful or unsuccessful. OSHA's web portal should respond 
to each and every attempt at data entry, by providing a confirmation of 
receipt or a confirmation of failure. The confirmation notice should 
describe what was received (or not received) with sufficient detail to 
be useful in resolving disputes in an enforcement context'' (Ex. 1189).
    The Allied Universal Corporation commented about potential 
technical issues, suggesting that ``OSHA must also consider the heavy 
traffic flow as the submission deadline approaches, and ensure the Web 
site to submit electronically does not crash or cause further reporting 
problems'' (Ex. 1192). Thoron Bennett noted another potential issue, 
commenting that ``many companies have security measures that cause 
electronic reporting problems, particularly defense and research 
companies that safeguard their electronic information'' (Ex. 0035).
    Several commenters suggested that OSHA should consult on this issue 
with other governmental agencies that collect establishment-specific 
injury and illness data. Senator Tom Harkin commented that ``OSHA's 
sister agency the Mine Safety and Health Administration (MSHA), along 
with other agencies like the Federal Railroad Administration (FRA) and 
Federal Aviation Administration (FAA), currently publish establishment-
specific accident and injury and illness data. We believe that OSHA 
should consult with these agencies to learn about design problems and 
potential best practices to adopt before creating its database'' (Ex. 
1371). The International Brotherhood of Teamsters provided a similar 
comment (Ex. 1381).
    In response, OSHA intends to use submitter registration, which 
would enable OSHA to issue a unique ID for reporting establishments. 
With user self-registration via an online submission form, the employer 
would have to complete an online registration form (available from a 
link on the electronic reporting system's home/login page) to obtain 
login information before gaining

[[Page 29645]]

access to the new electronic reporting system for data submission. 
After the user submitted the online registration form, the user would 
receive a system-generated email confirming registration and providing 
login information. Registration for submission would be needed because, 
unlike under the ODI, employers required to submit data each year under 
this final rule will not receive notification. Alternate account 
registration and authentication provisions may be provided for 
electronic transmission of data. In contrast, special OSHA data 
collections under Sec.  1904.41(a)(3) of this final rule will involve 
OSHA notifications to affected employers.
Updates for the Electronic Data Submission System
    In the preamble to the proposed rule, OSHA asked, ``Should the 
electronic data submission system be designed to include updates? 
Section 1904.33(b) requires employers to update OSHA Logs to include 
newly-discovered recordable injuries or illnesses and to show any 
changes that have occurred in the classification of previously-recorded 
injuries and illnesses.'' [78 FR 67271].
    There were many comments about the benefits of allowing updates in 
the electronic data submission system. Several commenters noted that 
the data would be inaccurate without updates, because more information 
about cases often becomes available over time, after investigation 
(Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 1358, 1360, 1378, 
1389, 1396, 1399, 1408). For example, the Pacific Maritime Association 
commented that ``[i]t is common for an employer to record an employee's 
complaint at the time it is reported, prior to performing an evaluation 
of whether an injury has actually occurred or whether it is indeed 
workplace related. However, following an examination by a physician or 
consideration of the recordkeeping factors in Section 1904, recorded 
injuries regularly have to be removed or edited. The information 
submitted to OSHA and included on its database will be no different. 
Additionally, it is particularly troublesome that OSHA will base its 
enforcement and targeting efforts on this information, while at the 
same time conceding that there may be no way to update or amend 
information to ensure that it is accurate. Accordingly, if OSHA 
proceeds with this rule, PMA believes that it is imperative that this 
system be designed to allow for amendments'' (Ex. 1326).
    The U.S. Chamber of Commerce further commented that ``OSHA 
acknowledges in its Notice for this Proposed Rule that the present 
recordkeeping rules require that employers update their OSHA Form 300 
for five years. See 78 FR at 67271. Those updates will affect the forms 
described above which in turn would affect the accuracy of database 
entries. Thus, it is not a question of whether employers will need to 
update this information, but rather a question of how they will do so'' 
(Ex. 1396).
    Several other commenters commented that companies will look bad 
unfairly if an injury or illness is later found to be non-work-related 
and updates are not allowed. The National Marine Manufacturers 
Association commented that ``it seems clear that companies will be held 
accountable for recordable incidents where either the actual cause was 
not under the employer's control or part of an employee's work or it is 
later discovered the injury was due to other causes. Based on the 
proposal, once these incidents are recorded and submitted to OSHA, NMMA 
understands that the reports cannot be amended. Both OSHA and the 
public would therefore have an inaccurate depiction of a company's 
safety record'' (Ex. 1217). The National Electrical Contractors 
Association (NECA), Innovative Holdings of Iowa, Inc., and the 
Association of Union Constructors provided similar comments (Exs. 1125, 
1275, 1389).
    Other commenters commented that not allowing updates could lead to 
underreporting of marginally work-related cases. United Parcel Service, 
Inc. (UPS) commented that ``[without updates] an employer would not 
want to err on the side of placing questionable entries onto the log. 
There would be no mechanism for striking through this data once it is 
publicly posted on OSHA's Web site. Rather than the rule promoting more 
revelations of injury and illness data, it would likely result in less 
data in circumstances where questions remained regarding recording of a 
case'' (Ex. 1391). The International Warehouse Logistics Association 
(IWLA) provided a similar comment (Ex. 1360).
    There were also commenters who opposed allowing updates. Several 
commenters believed that updates would be burdensome to employers. The 
Phylmar Regulatory Roundtable (PRR) commented that ``updating quarterly 
submissions would be a major burden to employers. Consider the time 
involved for a record keeper at one establishment to communicate 
changes in status regarding particular injury cases on a regular basis 
to someone in an enterprise-level role who must then either access the 
online log or records to modify them or modify the enterprise database 
and resubmit it to the Web site'' (Ex. 1110). The AFL-CIO, the 
International Warehouse Logistics Association (IWLA), the International 
Brotherhood of Teamsters, and the International Union (UAW) all 
provided similar comments (Exs. 1350, 1360, 1381, 1384). The Puget 
Sound Shipbuilders Association provided a comment that updates would be 
especially burdensome for certain establishments, such as those located 
on sea vessels (Ex. 1379).
    The Dow Chemical Company commented that ``[t]he system should not 
be designed to accept updates. This is because allowing updates is only 
half a step from requiring updates, and requiring updates would greatly 
increase the burden of the rule . . . . if the Agency ever wishes to 
see whether an employer has made any updates, OSHA already has the 
authority to pose that question to the employer--without imposing a 
universal obligation'' (Ex. 1189).
    The U.S. Chamber of Commerce commented that updates would also be 
burdensome for OSHA, stating that ``any suggestion that OSHA will be 
able to keep up with this insurmountable task of maintaining an 
immediately accessible, accurate database is not credible'' (Ex. 1396). 
The Pacific Maritime Association made a similar comment (Ex. 1326).
    Finally, the Phylmar Regulatory Roundtable (PRR) suggested that the 
benefits of updates might be insignificant overall, since ``[f]or 
large, established, legacy employers, many years of experience has 
shown that while updates are required by law, they are usually of minor 
consequence and/or correction and rarely, if ever, reflect a major and 
significant change in the safety performance of a company'' (Ex. 1110).
    Several commenters provided OSHA with suggestions about how to 
proceed with the question of whether or not the electronic data 
submission system should include updates. The American College of 
Occupational and Environmental Medicine (ACOEM) suggested that the 
system should allow but not require updates. They commented that ``the 
accuracy of reported data could be optimized by permitting, though not 
requiring, employers to update their data after submission as new 
information becomes available about specific injuries, exposures, and 
diseases'' (Ex. 1327). The International Brotherhood of Teamsters and 
Thoron Bennett provided similar comments (Exs. 0035, 1381).

[[Page 29646]]

    Finally, the U.S. Chamber of Commerce commented that ``if OSHA 
insists on pressing forward with a rule of this type, it must start 
over and reintroduce a proposed rule with an adequate system for 
updating submitted data that stakeholders may meaningfully consider and 
comment on'' (Ex. 1396).
    In response, OSHA agrees with the commenters who stated that 
allowing updates but not requiring updates would improve the accuracy 
of the data while limiting the burden on employers. Accurate data will 
help OSHA, researchers, employers, employees, and the public in their 
efforts to improve workplace safety and health. In addition, because 
the final rule requires annual submission of records for establishments 
with 250 or more employees, rather than quarterly submission as 
proposed in the NPRM, employers will be able to update information 
throughout the year before they certify the 300A. Annual reporting also 
reduces the likelihood that employers will need to update information 
after reporting to OSHA. Therefore, OSHA plans to design a reporting 
system that will allow but not require updates.
Accuracy of the Collected and Published Data
    In the preamble to the proposed rule, OSHA asked, ``How can OSHA 
use the electronic submission requirement to improve the accuracy of 
injury and illness records by encouraging careful reporting and 
recording of work-related injuries and illnesses?'' [78 FR 67271].
    Several commenters provided technical comments on ways for OSHA to 
improve the accuracy of injury and illness records collected through 
electronic submission. As mentioned in the previous section, many 
commenters commented that allowing updates could improve the accuracy 
of collected data (Exs. 1205, 1217, 1219, 1275, 1326, 1327, 1331, 1355, 
1358, 1360, 1378, 1389, 1396, 1399, 1408). Rachel Armont further 
commented that ``[o]n the data management side of things, perhaps 
[OSHA] could open up the site as a way to keep a real-time log of work-
related injuries so it's not a one-time submission process'' (Ex. 
0198).
    The Council of State and Territorial Epidemiologists (CSTE) 
commented that ``[t]he proposed electronic collection of data, in the 
longer run, offers the opportunity to provide employers with electronic 
tools (prompts, definitions, consistency edits, and industry specific 
drop down lists) that have the potential to improve the quality of the 
data reported'' (Ex. 1106). The American Federation of State, County, 
and Municipal Employees (AFSCME) provided a similar comment (Ex. 1103).
    ORCHSE Strategies, LLC commented that OSHA should develop ``a 
useful set of decision-making software to assist users in making 
accurate recordkeeping decisions. The current OSHA software does little 
more than summarize the text in the regulations. What is needed is 
software that employers can use to correctly answer their ``what if'' 
questions'' (Ex. 1339).
    The American College of Occupational and Environmental Medicine 
(ACOEM) commented that OSHA could provide ``an electronic tool for 
employers to self-check their submitted information for recordkeeping 
errors and for deviance from industry averages (Ex. 1327). The American 
Federation of Teachers (AFT) provided a similar comment (Ex. 1358).
    The American Federation of Teachers (AFT) also commented that 
``[t]he agency could provide training through consultation to employers 
on the importance and value of accurate record-keeping. Training could 
also be provided to trade associations, labor unions and other advocacy 
groups on the importance and value of encouraging employees to report 
their injuries and illnesses. As well, the agency might consider a 
special emphasis program of targeted inspections for record-keeping. 
The agency could target those establishments with the highest rates as 
well as the lowest rates to ascertain accuracy'' (Ex. 1358).
    Finally, the Phylmar Regulatory Roundtable (PRR) commented that 
``if OSHA seeks to encourage careful, accurate reporting and recording 
of injuries and illnesses, promulgating an annual submission 
requirement (versus quarterly) makes the most sense. Companies will 
have the time to review the quality of records, correct errors, and 
obtain the approval of a senior company official before providing data 
to OSHA. Requiring quarterly submission and updating is overly 
burdensome for employers and likely to result in more errors in the 
database, leaving OSHA with information that is less accurate'' (Ex. 
1110).
    As mentioned in the previous section, OSHA agrees with the 
commenters who stated that allowing updates but not requiring updates 
would improve the accuracy of the data. Also as discussed above, 
although the proposed rule would have required quarterly reporting from 
companies with 250 or more employees, the final rule requires annual 
reporting. In addition, when OSHA develops the data collection system, 
the Agency will also incorporate a range of edit checks. Specifically, 
OSHA will leverage and expand on form validation routines and 
validation checks that were developed and refined over the years for 
the ODI online submission version of OSHA Form 300A (Form 196B). Edit 
checks can promote submission accuracy, for instance by alerting the 
submitter when input to a particular data field is outside the expected 
range or in conflict with other established parameters. The Agency also 
plans to program the data collection system so that, when the user logs 
in, the system will recognize the user and display appropriate user-
specific information. For instance, for a first-time user, the system 
may present links for appropriate submission options (e.g., annual 
summary data, special collections). For a return user, the system may 
display a dashboard page that shows recent submission history in a 
tabular format, including links to complete and draft (or in-process) 
submissions. From the dashboard, the user would be able to view a 
completed, executed form or continue with an in-progress submission. In 
this way, the user will be able to prepare a submission over multiple 
user sessions during the year before finalizing its submission to the 
Agency.
    Finally, OSHA notes that, as discussed above, Sec.  1904.32 already 
requires company executives subject to part 1904 requirements to 
certify that they have examined the annual summary (Form 300A) and 
reasonably believe, based on their knowledge of the process by which 
the information was recorded, that the annual summary is correct and 
complete. OSHA recognizes that most employers are diligent in complying 
with this requirement. However, a minority of employers is less 
diligent; in recent years, one third or more of violations of Sec.  
1904.32, and up to one tenth of all recordkeeping (part 1904) 
violations, have involved this certification requirement. It is OSHA's 
hope that, if this minority of employers knows that their data must be 
submitted to the Agency and may also be examined by members of the 
public, they may pay more attention to the requirements of part 1904, 
which could lead both to improvements in the quality and accuracy of 
the information and to better compliance with Sec.  1904.32.
    In the preamble to the proposed rule, OSHA also asked, ``How should 
OSHA design an effective quality assurance program for the electronic 
submission of injury and illness records?'' [78 FR 67271].
    Several commenters commented on how OSHA could design an effective 
quality assurance program for the

[[Page 29647]]

electronic submission of injury and illness records. The Southern 
Poverty Law Center (SPLC) commented that OSHA could improve data 
quality by ``cross-checking [the data] with records kept in employers' 
own medical staff's offices, with workers' compensation records, and 
with any other available records'' (Ex. 1388).
    The International Union (UAW) commented that ``[j]oint union-
management methods of validating data through computerized systems have 
proven effective and can serve as a model for OSHA's modernization'' 
(Ex. 1384). The American College of Occupational and Environmental 
Medicine (ACOEM) commented that OSHA should ``increase medical record 
audits to assure accurate recordkeeping and reporting'' and ``increase 
the number of targeted inspections of companies deviating (positively 
or negatively) from the industry--norm incident and DART rates'' (Ex. 
1327). The American Federation of Teachers (AFT) provided similar 
comments (Ex. 1358).
    The International Brotherhood of Teamsters commented that ``OSHA 
may discuss [a quality assurance and audit program] with other 
government agencies that may have such programs. They would include 
FMCSA (SMS), MSHA and FRA, but could include other government agencies 
that receive electronic records as well'' (Ex. 1381). Finally, the 
Coalition for Workplace Safety (CWS) commented that OSHA should 
implement ``error screening and follow-back procedures to correct and/
or verify questionable data reported'' (Ex. 1411).
    In response, OSHA plans to look at examples from other federal 
agencies. Two examples from the U.S. EPA are the Toxics Release 
Inventory (TRI) Program and the Greenhouse Gas Reporting Program. The 
TRI Program, which collects data from a wide range of facilities 
nationwide, takes steps to promote data quality, including analyzing 
data for potential errors, contacting TRI facilities concerning 
potentially inaccurate submissions, providing guidance on reporting 
requirements and, as necessary, taking enforcement actions against 
facilities that fail to comply with TRI requirements. For the 
Greenhouse Gas Reporting Program, quality assurance checks include 
evaluating submitted data against an extensive array of electronic 
checks that ``flag'' potential errors. For example, statistical checks 
are used to evaluate data from similar facilities and identify data 
that might be outliers. Also, algorithm checks consider the 
relationships between different pieces of entered information and 
compare the information to an expected value. These flags are then 
manually reviewed to assess the cause of the flag; if EPA finds a 
potential error, EPA follows up with the reporter. The GHGRP has given 
some consideration to conducting on-site audits of reporting 
facilities.
    In addition, actions OSHA has taken in the past as part of data 
collection for the ODI included running programmed routines that 
checked establishment submissions and then, based on results, assigned 
a submission status code indicating whether the data submitted passed 
the edits and was considered usable or not usable. These routines were 
informed by routines the BLS used for the Survey of Occupational 
Injuries and Illnesses.
    OSHA will form a working group with BLS to assess data quality, 
timeliness, accuracy, and public use of the collected data, as well as 
to align the collection with the BLS SOII.
Categories of Information That Are Useful To Publish
    In the preamble to the proposed rule, OSHA asked, ``Which 
categories of information, from which OSHA-required form, would it be 
useful to publish?'' [78 FR 67271].
    OSHA received many comments about the benefits that would result 
from publishing all of the information that OSHA collects, except for 
PII, including improved research and analysis of injury and illness 
trends, improved motivation for employers to provide safe workplaces, 
more information for employees and potential employees, more 
information for customers and the public, injury and illness 
prevention, and various other benefits.
    For improved research and analysis of injury and illness trends, 
there were many comments that publication of this information would 
allow employers, workers, researchers, unions, and the public to 
improve workplace safety by providing the data for better research and 
analysis of injury and illness trends (Exs. 0245, 0254, 1110, 1203, 
1207, 1208, 1219, 1278, 1345, 1350, 1354, 1371, 1380, 1381, 1387, 1388, 
1393, 1395, 1424). For example, the United Food & Commercial Workers 
International Union (UFCW) commented that publication of data would 
``enable the public, unions, employees, and other employers to search 
and analyze the data. Further, by making the data available 
electronically from OSHA, interested parties can much more easily 
analyze trends, assess effective health and safety programs and track 
ongoing hazards by establishment, enterprise and industry'' (Ex. 1345). 
Andrew Sutton provided a similar comment (Ex. 0245).
    There were also comments that publication of this data would 
improve the occupational safety and health surveillance capacity of the 
United States. The Council of State and Territorial Epidemiologists 
(CSTE) commented that ``OSHA's proposal to electronically collect and 
make available the data employers already record on work-related 
injuries and illnesses would substantially enhance occupational health 
surveillance capacity in the United States'' (Ex. 1106). The California 
Department of Industrial Relations (DIR), Office of the Director 
provided a similar comment (Ex. 1395).
    Several commenters also commented that publication of the data 
would particularly help with identifying emerging hazards (Exs. 1106, 
1211, 1327, 1330, 1347, 1371, 1382). For example, the Council of State 
and Territorial Epidemiologists (CSTE) commented that publication of 
establishment-level data ``has the potential to facilitate timely 
identification of emerging hazards. These include both new and newly 
recognized hazards. A relatively recent case example is illustrative. 
In 2010, the Michigan Fatality Assessment and Control Evaluation 
program identified three deaths associated with bath tub refinishing, 
raising new concern about hazards of chemical strippers used in this 
process . . . These findings led to the development of educational 
information about the hazards associated with tub refinishing and 
approaches to reducing risks that was disseminated nationwide to 
companies and workers in the industry'' (Ex. 1106).
    For increased motivation for employers to provide safer workplaces, 
there were several comments that publication of the data would allow 
companies to benchmark their safety and health performance against 
similar companies (Exs. 0241, 0245, 1106, 1126, 1278, 1327, 1341, 1358, 
1371, 1381, 1387, 1393). For example, the American Industrial Hygiene 
Association (AIHA) commented that data publication ``should also enable 
employers to benchmark against others in their industry. The sharing of 
statistics could also identify solid performers who might help others 
upgrade their processes and outcomes'' (Ex. 1126). Senator Tom Harkin 
made a similar comment (Ex. 1371).
    Michael Houlihan further commented that ``the disclosure 
requirement may improve the performance of managers

[[Page 29648]]

by drawing public attention to the illness and injury rates at their 
facilities'' (Ex. 1219). Peter Strauss, Richard R, Sarah Wilensky, and 
Ashok Chandran provided similar comments (Exs. 0187, 1209, 1382, 1393).
    For more information for employees and potential employees, there 
were multiple comments that publication of the data would allow 
employees to use the data to make better decisions about where to work 
(Exs. 0145, 1219, 1278, 1327, 1341, 1350, 1371, 1395). For example, 
Worksafe commented that ``electronic posting by OSHA of information 
related to fatality and injury and illness incidents would allow 
individuals who may be considering employment to assess the types, 
severity, and frequency of injuries and illnesses of a particular firm 
or workplace'' (Ex. 1278). Professor Sherry Brandt-Rauf of the School 
of Public Health at the University of Illinois at Chicago provided a 
similar comment (Ex. 1341).
    Many commenters stated that data publication would be especially 
helpful because employees would be able to get safety and health data 
from their workplace anonymously and without fear of retaliation (Exs. 
1188, 1211, 1278, 1345, 1381, 1387, 1388, 1393, 1424). For example, the 
Southern Poverty Law Center commented that ``[e]ven an employee's 
simple request to view an OSHA 300 log might be met by an employer in a 
dangerous, low-wage industry such as poultry or meat processing with 
suspicion, threats, or even termination. Given these realities in many 
American workplaces, any steps the Department takes to increase 
workers' access to records about health and safety in their own 
workplaces will provide workers with better tools with which to protect 
their bodies and their lives'' (Ex. 1388).
    For more information for customers and the public, there were 
comments that publication of the data could help customers and the 
public decide whom to do business with (Exs. 0248, 1114, 1278, 1327, 
1341, 1371, 1395). For example, Worksafe commented that ``there are 
potential benefits for current or potential suppliers, contractors for, 
and purchasers of a firm's goods or services. These parties would have 
the opportunity to consider the information in their business 
decisions, such as how a supplier's injury and illness experience would 
reflect on their own business'' (Ex. 1278). Senator Tom Harkin also 
commented that data publication ``may be of use not just to the public, 
but also by contracting officers at federal agencies when assessing 
prospective contractors' safety performance'' (Ex. 1371).
    For prevention of workplace injuries and illnesses, NIOSH commented 
that ``electronically-collected and stored injury and illness data can 
be an asset to establishments/employers for planning prevention 
intervention activities'' (Ex. 0216). The AFL-CIO made a similar 
comment (Ex. 1350).
    The New York States Nurses Association commented that ``having this 
data and information would greatly improve the ability to research 
trends which may contribute to preventing and mitigating workplace 
violence injuries'' (Ex. 0254). The AFL-CIO provided a similar comment 
(Ex. 1350). The United Food & Commercial Workers International Union 
(UFCW) emphasized the role that labor unions could play in such 
research, commenting that ``[a]nalysis of the information can identify 
trends among and between companies, and at specific sites within one 
company . . . Plant management in one location may be using effective 
strategies that result in a decrease in injuries and illnesses; these 
effective strategies can be passed on to sister plants in the same 
company. By examining other establishments' OSHA injury and illness 
data for those without declining injury rates, the [UFCW] has been able 
to target areas for improved prevention strategies'' (Ex. 1345). The 
Service Employees International Union (SEIU) provided a similar comment 
(Ex. 1387).
    The California Department of Industrial Relations (DIR), Office of 
the Director commented that the proposed rule ``would specifically help 
identify and abate workplace hazards by improving the surveillance of 
occupational injury and illness. Complete and accurate surveillance of 
occupational injury and illness is essential for informed policy 
decisions and for effective intervention and prevention programs'' (Ex. 
1395). The Council of State and Territorial Epidemiologists (CSTE) 
provided a similar comment (Ex. 1106).
    There were also comments about various other benefits of data 
publication. Lancaster Safety Consulting, Inc. commented that 
``[o]nline access to the injury and illness data will provide a means 
for occupational safety and health (OSH) professionals to reach out to 
companies that are in apparent need of assistance with their OSH 
programs'' (Ex. 0022). The Council of State and Territorial 
Epidemiologists (CSTE) and the International Brotherhood of Teamsters 
provided similar comments (Exs. 1106, 1381).
    Several commenters commented that data publication would make it 
easier for labor unions to access safety and health data when 
representing workers (Exs. 0245, 1209, 1350, 1381, 1387, 1424). For 
example, the AFL-CIO commented that ``[i]t will assist unions in their 
efforts to collect injury and illness information from employers to 
assess conditions in individual workplaces and across employers and 
industries where they represent workers. Many unions already collect 
this information under their rights of access under the recordkeeping 
rule. But currently, this information must be requested and collected 
establishment by establishment, making the collection and analysis of 
this data difficult and time consuming and hindering prevention 
efforts'' (Ex. 1350). The Council of State and Territorial 
Epidemiologists (CSTE) commented about the benefits for community 
health planning, stating that ``[t]he availability of establishment 
specific information also offers a potential opportunity to incorporate 
occupational health concerns in community health planning, which is 
increasingly providing the basis for setting community health and 
prevention priorities'' (Ex. 1106). Finally, the International 
Brotherhood of Teamsters commented that ``[g]iven the difficulties that 
both union and non-union workers face, and OSHA's inability to fully 
enforce the 1904 rules, the public release of the data is actually 
necessitated since it would allow workers to have a subsidiary role in 
``enforcing'' those requirements'' (Ex. 1381).
    On the other hand, the Interstate Natural Gas Association of 
America commented the ``[i]njury and illness data contained in 300-A 
Summaries is the only information that may be useful, but this 
information is limited'' (Ex. 1206).
    In response, OSHA agrees with the commenters above who commented 
that the benefits that would result from publishing all of the 
information that OSHA collects, except for PII, include improved 
research and analysis of injury and illness trends, improved motivation 
for employers to provide safe workplaces, more information for 
employees and potential employees, more information for customers and 
the public, and injury and illness prevention.
    There were also many comments that publishing the data would not be 
beneficial for various reasons, including the misleading nature of the 
published data and a focus on lagging instead of leading indicators.

[[Page 29649]]

    For the misleading nature of the published data, many commenters 
commented that the published data will be misleading because the data 
do not tell the whole story and do not provide any context (Exs. 0138, 
0162, 0163, 0171, 0174, 0179, 0181, 0188, 0189, 0194, 0218, 0224, 0234, 
0242, 0255, 0256, 0258, 1084, 1090, 1091, 1092, 1093, 1109, 1111, 1112, 
1113, 1116, 1123, 1187, 1190, 1192, 1193, 1194, 1195, 1196, 1198, 1199, 
1200, 1201, 1204, 1205, 1206, 1210, 1214, 1215, 1217, 1218, 1222, 1225, 
1272, 1273, 1275, 1276, 1279, 1318, 1321, 1322, 1323, 1324, 1326, 1327, 
1328, 1329, 1332, 1333, 1334, 1336, 1338, 1340, 1342, 1343, 1349, 1355, 
1356, 1359, 1360, 1363, 1364, 1365, 1368, 1370, 1373, 1376, 1378, 1379, 
1385, 1386, 1389, 1390, 1391, 1392, 1394, 1396, 1397, 1399, 1400, 1402, 
1406, 1408, 1409, 1410, 1411, 1416, 1426).
    For example, the Coalition for Workplace Safety (CWS) commented 
that ``[t]he data that OSHA will collect and make publicly available is 
not a reliable measure of an employer's safety record or its efforts to 
promote a safe work environment. Many factors outside of an employer's 
control contribute to workplace accidents, and many injuries that have 
no bearing on an employer's safety program must be recorded. Data about 
a specific incident is meaningless without information about the 
employer's injuries and illness rates over time as compared to 
similarly sized companies in the same industry facing the same 
challenges (even similar companies in the same industry may face 
substantially different challenges with respect to workplace safety 
based on climate, topography, population density, workforce 
demographics, criminal activity in the region, proximity and quality of 
medical care, etc.)'' (Ex. 1411). The National Association of 
Manufacturers (NAM) provided a similar comment (Ex. 1279).
    Many commenters also commented on a related concern that OSHA 
should not publish the data since the public will misinterpret the data 
(Exs. 0027, 0143, 0152, 0159, 0160, 0189, 0197, 0210, 0211, 0218, 0224, 
0239, 0240, 0242, 0251, 0253, 0255, 0256, 0258, 1084, 1090, 1091, 1092, 
1093, 1109, 1111, 1112, 1113, 1123, 1124, 1125, 1191, 1192, 1194, 1197, 
1199, 1200, 1205, 1210, 1214, 1215, 1217, 1218, 1224, 1225, 1272, 1273, 
1275, 1276, 1279, 1322, 1326, 1327, 1329, 1332, 1333, 1334, 1336, 1338, 
1340, 1343, 1344, 1359, 1368, 1370, 1372, 1379, 1389, 1391, 1396, 1397, 
1399, 1400, 1408, 1410, 1413, 1415, 1416). For example, the American 
Foundry Society commented that ``[t]he public . . . could take the 
injury and illness data out of context, as they would not be privy to 
the details behind the injuries, the safety measures employers adopt, 
or any other relevant information related to the circumstances of the 
injury or illness'' (Ex. 1397). The Puget Sound Shipbuilders 
Association also commented that ``[w]e are concerned about the level of 
knowledge and understanding the general public has about OSHA 
recordable cases and believe it is very limited'' (Ex. 1379).
    Finally, there were comments that recordkeeping data collected 
under the proposed rule would not improve workplace safety and health 
since they are lagging indicators (Exs. 0163, 0250, 1194, 1279, 1342, 
1363, 1389, 1408, 1410) and that leading indicators are necessary to 
improve future workplace safety and health outcomes (Exs. 0027, 0053, 
0162, 0163, 0197, 1204, 1279, 1331, 1339, 1342, 1363, 1389, 1406, 1408, 
1410, 1416, 1417).
    For example, the Mechanical Contractors Association of America 
(MCAA) commented that ``that lagging indicators, such as OSHA Incidence 
Rates, are poor indicators of safety performance. Many occupational 
safety and health professionals share this belief. For example, The 
American National Standards Institute's (ANSI) A10 Construction and 
Demolition Operations Committee is currently working on a technical 
report to help educate government agencies, construction owners, and 
construction employers about the relative ineffectiveness of lagging 
indicators'' (Ex. 1363). The National Association of Manufacturers made 
a similar comment (Ex. 1279).
    The National Association of Home Builders (NAHB) commented that 
``[l]eading indicators measure what`s happening right now and may be a 
better gauge of safety performance. The leading indicators attempt [to] 
measure safety performance by utilizing tools such as tracking safe or 
unsafe behaviors or workers, investigating near-miss incidents, 
performing workplace audits and inspections, and conducting safety 
training'' (Ex. 1408).
    The American Society of Safety Engineers (ASSE) commented that 
``ASSE and other leading safety and health organizations have put 
considerable work into developing resources and encouraging companies 
to move away from `trailing' and towards `leading' indicators for 
evaluating workplace safety. As OSHA itself knows, `trailing' 
indicators focus an organization on safety after the fact of an injury 
or fatality. `Leading' indicators better focus an organization on the 
best practices that prevent injuries and fatalities'' (Ex. 1204). 
However, the Environmental, Health & Safety Communications Panel 
(EHSCP) commented that OSHA should promote ``a balance of leading and 
lagging measures'' to measure safety performance (Ex. 1331). The 
National Rural Electric Cooperative Association (NRECA) provided a 
similar comment (Ex. 1417).
    Several commenters also commented that the proposed rule could harm 
workplace safety and health by shifting employers' focus from leading 
indicators to lagging indicators (Exs. 0027, 0157, 0163, 1109, 1124, 
1194, 1204, 1372, 1389, 1406, 1408, 1410, 1416). For example, the 
American Society of Safety Engineers (ASSE) commented that ``[p]ublic 
release of numbers and rates of injuries by establishment will cause 
many employers to use their resources to address `trailing,' not 
`leading' indicators . . . ASSE is concerned that this proposal, and 
the additional attention that a national database of injury rates and 
numbers will attract, works against the professions' [sic] years of 
effort in moving workplace safety towards `leading' indicators'' (Ex. 
1204). The American Feed Industry Association made a similar comment 
(Ex. 1372).
    In response, OSHA does not agree that the publishing of 
recordkeeping data under this final rule will be misleading or that the 
public will misinterpret the data. The recordkeeping data represent 
real injuries and illnesses (injuries and illnesses that required more 
than first aid) that occurred at the workplace and were recordable 
under part 1904. While they do not, by themselves, provide a complete 
picture of workplace safety and health at that workplace, employers are 
free to post their own materials to provide context and explain their 
workplace safety and health programs. In addition, when OSHA publishes 
the data, the Agency will provide links to resources, such as industry 
rates from BLS, to help the public put the information in context. OSHA 
will also include language explaining the definitions and limitations 
of the data, as OSHA has done since the Agency began publishing 
establishment-specific injury and illness data from the OSHA Data 
Initiative on its public Web site in 2009. For the published ODI data, 
OSHA has included the following explanatory note on data quality: 
``While OSHA takes multiple steps to ensure the data collected is 
accurate, problems and errors invariably exist for a small percentage 
of establishments. OSHA does not believe the data for the

[[Page 29650]]

establishments with the highest rates on this file are accurate in 
absolute terms. Efforts were made during the collection cycle to 
correct submission errors, however some remain unresolved. It would be 
a mistake to say establishments with the highest rates on this file are 
the ``most dangerous'' or ``worst'' establishments in the Nation.''
    Similarly, OSHA does not agree that the part 1904 recordkeeping 
data will not improve workplace safety and health due to being lagging 
indicators instead of leading indicators. As stated above, the 
recordkeeping data represent real injuries and illnesses that occurred 
at the workplace and were recordable. In addition, as stated above, 
employers are free to post their own materials--including leading 
indicators--to provide context and explain their workplace safety and 
health programs. However, perhaps in a future rulemaking related to 
recordkeeping, OSHA might request information about leading indicators, 
including which leading indicators (if any) it would be most useful to 
add to the injury and illness records employers are required to keep 
under part 1904.
    As discussed above, OSHA intends to make the data it collects 
public. The publication of specific data elements will in part be 
restricted by applicable federal law, including provisions under the 
Freedom of Information Act (FOIA), as well as specific provisions 
within part 1904. OSHA will make the following data from the various 
forms available in a searchable online database:
     Form 300A (Annual Summary Form)--All collected data fields 
will be made available. In the past, OSHA has collected these data 
under the ODI and during OSHA workplace inspections and released them 
in response to FOIA requests. The annual summary form is also posted at 
workplaces under Sec.  1904.32(a)(4) and (b)(5). OSHA currently 
publishes establishment-specific injury and illness rates calculated 
from the data collected through the ODI on OSHA's public Web site at 
https://www.osha.gov/pls/odi/establishment_search.html. The 300A annual 
summary does not contain any personally-identifiable information.
     Form 300 (the Log)--All collected data fields on the 300 
Log will generally be made available on the Web site. Employee names 
will not be collected. OSHA occasionally collects these data during 
inspections as part of the enforcement case file. OSHA generally 
releases these data in response to FOIA requests. Also, Sec.  
1904.29(b)(10) prohibits release of employees' names and personal 
identifiers contained in the forms to individuals other than the 
government, employees, former employees, and authorized 
representatives. OSHA does not currently conduct a systematic 
collection of the information on the 300 Log.
     Form 301 (Incident Report)--All collected data fields on 
the right-hand side of the form (Fields 10 through 18) will generally 
be made available. The Agency currently occasionally collects the form 
for enforcement case files. OSHA generally releases these data in 
response to FOIA requests. Section 1904.35(b)(2)(v)(B) prohibits 
employers from releasing the information in Fields 1 through 9 (the 
left-hand side of the form) to individuals other than the employee or 
former employee who suffered the injury or illness and his or her 
personal representatives. Similarly, OSHA will not publish 
establishment-specific data from the left side of Form 301. OSHA does 
not release data from Fields 1 through 9 in response to FOIA requests. 
The Agency does not currently conduct a systematic collection of the 
information on the Form 301. However, the Agency does review the entire 
Form 301 during some workplace inspections and occasionally collects 
the form for inclusion in the enforcement case file. Note that OSHA 
will not collect or publish Field 1 (employee name), Field 2 (employee 
address), Field 6 (name of treating physician or health care provider), 
or Field 7 (name and address of non-workplace treating facility).
Helping Employers, Employees, and Potential Employees Use the Collected 
Data
    In the preamble to the proposed rule, OSHA asked, ``What analytical 
tools could be developed and provided to employers to increase their 
ability to effectively use the injury and illness data they submit 
electronically?'' [78 FR 67271].
    There were several comments about analytical tools that could be 
developed and provided to employers to increase their ability to 
effectively use the injury and illness data they submit electronically. 
NIOSH commented about their current pilot project that provides 
employers with a tool to analyze their safety and health data, stating, 
``NIOSH developed a web-portal and information system that accepts 
traumatic injury data electronically, including the fields/
characteristics recorded on OSHA Form 300 . . . Participating 
establishments send all data voluntarily. The system does not accept 
personal data. Establishments are not identified and comparison data 
are in aggregate form. After receipt, the data undergo quality checks 
and are uploaded to an analyzable database that is available to the 
establishment via the web-portal in seven to 10 days. The establishment 
can use the online system to examine its injury patterns over time and 
to compare its rates with other establishments by size, region, type, 
and other variables. In addition, the system provides users with 
information on best practices for the industry, injury-reduction 
interventions, and other up-to-date health and safety information'' 
(Ex. 0216). The American College of Occupational and Environmental 
Medicine (ACOEM) also commented about the desirability of a tool 
similar to the one that NIOSH is piloting (Ex. 1327).
    The International Brotherhood of Teamsters commented that ``two of 
our employers use injury/illness tracking systems to collect and record 
all OSHA-recordable occupational injuries/illnesses. We would encourage 
OSHA to provide tools that would bolster and enhance employer efforts 
aimed at preventing injuries and illnesses. These tools could be useful 
to our membership as well, especially at establishments that have joint 
labor- management health and safety committees'' (Ex. 1381).
    The International Association of Industrial Accident Boards and 
Commissions (IAIABC) commented that if OSHA ``adopts an electronic 
reporting requirement, the IAIABC urges OSHA to consider the benefits 
of using the IAIABC's established First and Subsequent Reports of 
Injury Standard (IAIABC EDI Claims Standard). Implementation of an 
existing electronic standard would be much faster and easier than 
developing a brand new electronic reporting protocol. The IAIABC EDI 
Claims Standard fully supports differing types of transactions 
including new reports, updates/corrections to previous submissions, and 
even has the capacity to limit what data can be modified after it has 
been submitted. Furthermore, the IAIABC EDI Claims Standard includes an 
`upon request' type of report which OSHA has indicated a potential need 
to support'' (Ex. 1104).
    In response, OSHA notes that, in 2011, IAIABC and NIOSH signed a 
memorandum of understanding that outlined opportunities for 
collaboration, including utilizing workers' compensation data to 
identify emerging issues and trends in occupational safety and health. 
In addition, EPA's Toxics Release Inventory (TRI) Program provides a 
range of analytical tools that include the TRI Pollution Prevention 
(P2) Tool (users can explore and compare facility and parent company

[[Page 29651]]

information on the management of toxic chemical waste, including 
facilities' waste management practices and trends); TRI.NET (with this 
desktop application, users can build customized TRI data queries, then 
map results and overlay other data layers); and Envirofacts (an online 
tool that provides access to all publicly available TRI data in a 
searchable, downloadable format). Related analytical tools that make 
use of TRI data include the DMR Pollutant Loading Tool (users can 
determine what pollutants are being discharged into waterways and by 
which companies, and can compare DMR data search results against TRI 
data search results) and Enviromapper (users can generate maps that 
contain environmental information, including TRI information). 
Similarly, EPA's GHGRP provides a number of online tools for mapping, 
charting, comparing, and otherwise analyzing facility reported data.
    OSHA is considering including reporting capabilities in future 
versions of the data collection system, so that employers can view 
useful outputs from their submitted data (e.g., data visualizations of 
trends, data table displays, reports with summary counts and 
statistics). The intention, in part, will be to encourage employers to 
consider injury/illness trends at or across their establishment(s), so 
they can abate hazards without prompting by an OSHA intervention.
    In the preamble to the proposed rule, OSHA also asked, ``How can 
OSHA help employees and potential employees use the data collected 
under this proposed rule?'' [78 FR 67271].
    There were various comments about how OSHA could help employees and 
potential employees use the data collected under this rule. Many 
commenters supported provision of the data in a way that allows for 
easy analysis of the information. For example, the California 
Department of Industrial Relations (DIR), Office of the Director 
commented that ``data sharing needs to be timely, user-friendly, user-
accessible, and searchable by common fields including geography 
(ideally to county level or smaller), employer, and industry. Industry 
codes should be uniform and up-to-date. Posted data should ensure 
entity resolution and easy searching by establishment name. Multiple 
establishments that are the same company should be identifiable as a 
single company. Employees, employers, researchers, and community 
members all have different uses for the data, and each should be taken 
into account. The underlying data (once cleaned of personally 
identifiable information) should be downloadable (similar to American 
Fact Finder) for manipulation and statistical calculations'' (Ex. 
1395). The AFL-CIO, Senator Tom Harkin, Change to Win, the Service 
Employees International Union (SEIU), and the United Steelworkers 
provided similar comments (Exs. 1350, 1371, 1380, 1387, 1424).
    Senator Harkin also commented that OSHA's ``sister agency the Mine 
Safety and Health Administration (MSHA), along with other agencies like 
the Federal Railroad Administration (FRA) and Federal Aviation 
Administration (FAA), currently publish establishment-specific accident 
and injury and illness data. We believe that OSHA should consult with 
these agencies to learn about design problems and potential best 
practices to adopt before creating its database'' (Ex. 1371). The 
Service Employees International Union (SEIU) provided a similar comment 
(Ex. 1387).
    Other commenters had other ideas. For example, the Council of State 
and Territorial Epidemiologists (CSTE) commented that ``[s]tandardized 
feedback to establishments and potential reports of establishment 
specific data could be programmed that would promote use of the data by 
employers and workers to set health and safety priorities and monitor 
progress in reducing workplace risks'' (Ex. 1106).
    The Building and Construction Trades Department, AFL-CIO commented 
that ``the data should be organized and made available in different 
formats for different data users. For example, an individual employee 
may be interested in the establishment for which he/she works, while a 
researcher is more likely to get statistics in general. Therefore, the 
new data collection should include multiple levels of data access to 
meet different needs'' (Ex. 1346).
    In response, when OSHA develops the publicly-accessible Web site, 
the Agency will make the raw data available in multiple formats (after 
it has been scrubbed of PII) for use by employers, employees, 
researchers, and the public in evaluating opportunities to address 
workplace safety and health. The Agency may also provide reporting and 
analytics tools for employers to view useful outputs from their 
submitted data (e.g., data visualizations of trends, data table 
displays, reports with summary counts and statistics). The intention, 
in part, will be to encourage employers to consider injury/illness 
trends at or across their establishment(s), so they can abate hazards 
without prompting by an OSHA intervention. The Agency plans to provide 
similar tools on the public Web site so that the data will be more 
useful and accessible to members of the public who may not need or want 
to download data and perform their own analysis.
Helping Small-Business Employers Comply With Electronic Data Submission 
Requirements
    In the preamble to the proposed rule, OSHA asked, ``How can OSHA 
help employers, especially small-business employers, to comply with the 
requirements of electronic data submission of their injury and illness 
records? Would training help, and if so, what kind?'' [78 FR 67271].
    There were five major issues addressed by commenters about how to 
help small employers comply with electronic data submission 
requirements: General characteristics of a system that would help 
small-business employers comply with electronic data submission 
requirements; capability for immediate feedback; connecting the 
recordkeeping system with the reporting system; training and outreach; 
and third-party capability.
    For general characteristics, several commenters commented that 
careful overall design of its Web site and other technical support 
could help employers, especially small-business employers, comply with 
the requirements of electronic data submission. The Phylmar Regulatory 
Roundtable (PRR) commented that ``the `user friendliness' of the Web 
site will be the key to success for this electronic data submission 
program. It should have an extensive and strong help menu, as well as a 
go-to phone number (as is currently provided in the BLS data request) 
for help with the system. A universal data language must be provided 
(e.g., XML) so that regardless of the platform used for recordkeeping, 
the information may easily be uploaded to OSHA's Web site. OSHA's 
system must have sufficient capacity and be robust enough to handle the 
massive quantities of data that 580,000 employers will be submitting 
within roughly the same time frame'' (Ex. 1110). The American 
Subcontractors Association provided a similar comment (Ex. 1322).
    For immediate feedback after data submission, the Dow Chemical 
Company commented that ``OSHA is proposing to require electronic 
reporting by strict deadlines. It is therefore vitally important for 
employers to receive immediate feedback as to whether their data entry 
was successful or unsuccessful. OSHA's web portal should respond to 
each and every attempt at data entry, by providing a confirmation of 
receipt or a confirmation of failure. The confirmation notice should 
describe

[[Page 29652]]

what was received (or not received) with sufficient detail to be useful 
in resolving disputes in an enforcement context'' (Ex. 1189). The 
Phylmar Regulatory Roundtable (PRR) provided a similar comment (Ex. 
1110).
    For connecting the recordkeeping and reporting systems, the AFL-CIO 
commented that ``[t]o assist smaller employers in reporting workplace 
injury and illness data electronically, it would helpful for OSHA to 
provide basic software for workplace injury and illness recordkeeping 
from which the data can be easily uploaded/reported to OSHA through a 
secure Web site as OSHA envisions'' (Ex. 1350). Ashok Chandran provided 
a similar comment, suggesting that OSHA provide ``a mobile application 
that employers could use to submit their records'' and ``a web portal 
that allows employers to enter data directly'' (Ex. 1393).
    For outreach and training, the Allied Universal Corporation 
commented that ``OSHA should also develop a training program [about the 
requirements of electronic data submission], hosting webinars or 
similar events across the United States and reach out to many trade 
associations'' (Ex. 1192). The International Association of Industrial 
Accident Boards and Commissions (IAIABC) and the American 
Subcontractors Association (ASA) provided similar comments (Exs. 1104, 
1322).
    Other commenters commented that training on current OSHA 
requirements would also be helpful. The California Department of 
Industrial Relations (DIR), Office of the Director commented that 
``many employers could benefit from outreach and education on how and 
what to report, including reference to 29 CFR 1904.31, employees 
covered by the OSHA recordkeeping standard'' (Ex. 1395). The Associated 
General Contractors of America (AGC) provided a similar comment (Ex. 
1416).
    For third-party capability, Veriforce also commented that third-
party electronic submission capabilities could be helpful for 
employers. They commented that pipeline industry contractors could be 
helped if ``3rd party companies with contractor permission [could] 
electronically upload [the contractor's] data into the new OSHA 
Injuries and Illnesses reporting Web site[.] It will become more 
difficult for contractors to have to continue to report electronically 
to 3rd party companies and then now have to enter the same information 
into this new OSHA system when the 3rd party companies which have a 
contract with the contractor can just electronically forward the 
information to the this new OSHA Web site'' (Ex. 0243).
    In addition to the comments related to the five major issues, some 
commenters commented with other ideas about how OSHA could help small-
business employers comply with the new requirements. The United Food & 
Commercial Workers International Union (UFCW) commented that they 
support ``making the new reporting requirements as simple as possible . 
. . In the UFCW's experience, keeping the requests as simple as 
possible for all of our employers (including those who fall into the 
smaller business category), results in greater data acquisition'' (Ex. 
1345). In addition, some commenters included comments about a phase-in 
period being helpful to employers, which were addressed above in 
comments to Alternatives C and D (Exs. 0210, 1104, 1322, 1401).
    In response to these comments, when OSHA develops the data 
collection system, the Agency will make every effort to ensure ease of 
use with small-business employers in mind. To the extent possible, 
features will be incorporated to minimize the number of keystrokes and 
mouse-clicks required to complete a form (e.g., pick-lists and 
widgets). Also, forms will be programmed to prefill establishment 
information where appropriate (e.g., establishment name and address 
from registration or prior submissions) as well as to auto-calculate 
and/or carry totals over from associated forms (e.g., Form 300 column 
totals will auto-calculate and be programmed to pre-populate Form 
300A). Additional functionality will be provided to help avoid some 
types of entry errors, (e.g., if column G [death] is selected, then 
disable controls for columns K [away from work] and L [on job transfer/
restriction]).
    In addition, OSHA plans to incorporate as many helper features as 
possible (e.g. help text, instruction sheets, etc.) to guide users 
through the data submission process. This information will be readily 
accessible from the collection system. Further, OSHA plans to implement 
an email/phone help line for providing quick-response user support.
    For third-party capability, if a small business, for instance, 
enlists a third-party (e.g., a consultant) to act as its representative 
in submitting its injury/illness information to OSHA's data collection 
system, the third-party would also provide their own contact 
information on the submission system as a representative of the 
business.
    Finally, OSHA will phase in implementation of the data collection 
system. In the first year, all establishments required to routinely 
submit information under the final rule will be required to submit only 
the information from the Form 300A (by July 1, 2017). In the second 
year, all establishments required to routinely submit under the final 
rule will be required to submit all of the required information (by 
July 1, 2018). This means that, in the second year, establishments with 
250 or more employees that are required to routinely submit information 
under the final rule will be responsible for submitting information 
from the Forms 300, 301, and 300A. In the third year, all 
establishments required to routinely submit under this final rule will 
be required to submit all of the required information (by March 2, 
2019). This means that beginning in the third year (2019), 
establishments with 250 or more employees will be responsible for 
submitting information from the Forms 300, 301, and 300A, and 
establishments with 20-249 employees in an industry listed in appendix 
A to subpart E of part 1904 will be responsible for submitting 
information from the Form 300A by March 2 each year. This will provide 
sufficient time to ensure comprehensive outreach and compliance 
assistance in advance of implementation.
Scope of Data Collection
    In the preamble to the proposed rule, OSHA asked, ``Should this 
data collection be limited to the records required under Part 1904? Are 
there other required OSHA records that could be collected and made 
available to the public in order to improve workplace safety and 
health?'' [78 FR 67271].
    Some commenters commented that OSHA should limit this rule to the 
collection of part 1904 data while making the rule flexible enough to 
allow for the collection of other information in the future. For 
example, the International Brotherhood of Teamsters commented that 
``[t]his rule should be limited to the 1904 data. However, OSHA should 
consider making this rule flexible enough to allow it to require 
reporting the other kinds of information in the future, particularly 
specific records (such as employee exposure data) that are already 
required by various OSHA standards. This would provide a better 
measure/indication of health risks faced by workers. In addition, OSHA 
may also wish to require employers to report other records currently 
mandated under other existing OSHA standards, such as employer reports 
of incidents investigated under the Process Safety Management (PSM) 
standard. The

[[Page 29653]]

system should be designed to accommodate such expansions in the 
future'' (Ex. 1381). Change to Win and the International Union (UAW) 
provided similar comments (Exs. 1380, 1384).
    The American College of Occupational and Environmental Medicine 
(ACOEM) also commented about the collection of more data in the future, 
stating that ``[OSHA should] collaborate with the Bureau of Labor 
Statistics and The Council for State and Territorial Epidemiologists to 
publicize a broader suite of occupational health indicators, which, 
taken together, would provide a better picture of the true burden of 
occupational safety and health in the United States'' (Ex. 1327).
    However, the Phylmar Regulatory Roundtable (PRR) commented that 
``data collection should be limited to the records required under Part 
1904'' (Ex. 1110).
    OSHA agrees that the scope of the final rule should be the same as 
the scope of the proposed rule and include only the records required 
under part 1904. While OSHA notes some advantages for the collection of 
other data, the Agency believes that it did not receive enough 
information on this issue during this rulemaking to include such a 
requirement in the final rule. However, OSHA is open to considering 
additional data collection ideas for future rulemakings.
OSHA's Statutory Authority To Promulgate This Final Rule
    Several commenters stated that OSHA lacks the statutory authority 
under the OSH Act to make raw injury and illness data available to the 
general public (Exs. 0218, 0224, 0240, 1084, 1093, 1123, 1198, 1218, 
1225, 1272, 1279, 1332, 1336, 1342, 1344, 1356, 1359, 1360, 1372, 1385, 
1393, 1394, 1396, 1404, 1408, 1411, 1412). These commenters 
acknowledged that Sections 8 and 24 of the OSH Act provide the 
Secretary of Labor with authority to issue regulations requiring 
employers to maintain accurate records of work-related injuries and 
illnesses. However, according to these commenters, nothing in the OSH 
Act authorizes OSHA to publish establishment-specific injury and 
illness records outside the employer's own workplace.
    The U.S. Chamber of Commerce commented:

    A fundamental axiom of the regulatory process is that an agency 
must have statutory authority for any rule which it wishes to 
promulgate. See, Am Library Ass'n v. FCC, 406 F.3d 689, 708 (D.C. 
Cir. 2005) . . . OSHA has stated that it has authority for this 
Proposed Rule under sections 8 (c)(1), (c)(2), (g)(2) and 24 of the 
. . . OSH Act . . . None of these sections, however, provide OSHA 
with the statutory authority required to promulgate this Proposed 
Rule.
    Each of these sections upon which OSHA relies states that the 
information that OSHA is empowered to collect is for the use of the 
Secretary of Labor and the Secretary of Health and Human Services . 
. . Conspicuously absent from these provisions is any mention, let 
alone express or implied authority, that OSHA may create an online 
database meant for the public dissemination of an employer's injury 
and illness records containing confidential and proprietary 
information. Had Congress envisioned or intended that the Secretary 
of Labor would have the authority to publish this information it 
surely would have so provided. But of course, it did not and has 
not. (Ex. 1396)

    The National Association of Manufacturers commented that Section 
8(g)(1) of the OSH Act specifically and uniquely limits the information 
OSHA may publish to information that is ```compiled and analyzed.' This 
does not mean that OSHA can publish raw data from employer injury and 
illness records, but rather that it can compile information, analyze 
it, and then publish its analysis of the information in either summary 
or detailed form'' (Ex. 1279).
    NAM also commented that while the OSH Act does explicitly give OSHA 
the authority to release some information, the Act does not expressly 
permit the public release of recordkeeping data:

    Section 8(c)(2) merely grants the Secretary the authority to 
promulgate regulations requiring employers to maintain injury and 
illness records. Nothing in this section expressly grants authority 
for the public dissemination of such information. 29 U.S.C. 657(c).
    Moreover, had Congress intended to make such information 
available to the public they know how to do so. In various other 
sections of the OSH Act Congress explicitly granted authority 
requiring that other types of records be made available to the 
public. For example, section 12(g) requires the U.S. Occupational 
Safety and Health Review Commission records to be made publicly 
available. 29 U.S.C. 661(g). U.S. v. Doig, 950 F.2d 411, 414-15 
(1991) (``Where Congress includes particular language in one section 
of a statute but omits it in another section of the same Act, it is 
generally presumed that Congress acts intentionally and purposely in 
the disparate inclusion or exclusion'') (internal citation omitted). 
(Ex. 1279).

    In contrast, several commenters stated that the OSH Act does 
provide OSHA with authority to issue this final rule (Exs. 1208, 1209, 
1211, 1219, 1371, 1382, 1424). Specifically, OSHA received comments 
from four members of Congress on this issue. A letter signed by Senator 
Tom Harkin, Senator Robert Casey, Representative George Miller, and 
Representative Joe Courtney stated:

    When Congress passed the OSH Act, it expressly stated that the 
purpose of the law was `to assure so far as possible every working 
man and woman in the Nation safe and healthful working conditions.' 
29 U.S.C. 651(b). In order to effectuate this purpose, the Secretary 
of Labor was given the authority to issue regulations `requiring 
employers to maintain accurate records of, and to make periodic 
reports on, work-related deaths, injuries and illnesses.' 29 U.S.C. 
657(c)(2). Additionally, the Secretary `shall develop and maintain 
an effective program of collection, compilation, and analysis of 
occupational safety and health statistics.' 29 U.S.C. 673(a).
    It is clear from the plain language of the OSH Act that Congress 
intended for OSHA to acquire and maintain accurate records from 
employers regarding workplace injuries and illnesses for the purpose 
of protecting workers' safety and health. This proposed rule not 
only improves upon the current system of reporting and tracking 
injuries and illnesses, it further strengthens the ability of OSHA 
to live up to its statutory mandate to ensure that workers have 
healthy and safe workplaces . . .
    We agree with OSHA's proposal to post reported injury and 
illness data online so that employees, employers, researchers, 
consumers, government agencies, and other interested parties have 
easy access to that important information. This increased access to 
injury and illness data will allow employers to measure themselves 
against other employers' safety records so they know when they need 
to make improvements. Employees will similarly have greater 
knowledge about the hazards in their workplace and their employer's 
previous health and safety history . . . (Ex. 1371).

    Additionally, Ashok Chandran commented, ``The proposed regulation 
in no way expands the substantive information employers must provide to 
OSHA. 29 CFR 1904 already requires employers to report injuries 
resulting in death, loss of consciousness, days away from work, 
restriction of work, transfer to another job, medical treatment other 
than first aid, or diagnosis of a significant injury or illness by a 
physician or other licensed health care professional. For over 40 years 
now, OSHA has been collecting injury reports without incident. Thus any 
challenges to the legality of this data collection must fail'' (Ex. 
1393).
    OSHA believes that the OSH Act provides statutory authority for 
OSHA to issue this final rule. As explained in the Legal Authority 
section of this preamble, the following provisions of the OSH Act give 
the Secretary of Labor broad authority to issue regulations that 
address the recording and reporting of occupational injuries and 
illnesses.
    Section 2(b)(12) of the Act states that one of the purposes of the 
OSH Act is

[[Page 29654]]

to ``assure so far as possible . . . safe and healthful working 
conditions . . . by providing for appropriate reporting procedures . . 
. which will help achieve the objective of th[e] Act and accurately 
describe the nature of the occupational safety and health problem.'' 29 
U.S.C. 651(b)(12).
    Section 8(c)(1) requires each employer to ``make, keep and 
preserve, and make available to the Secretary . . . such records . . . 
prescribe[d] by regulation as necessary or appropriate for the 
enforcement of th[e] Act or for developing information regarding the 
causes and prevention of occupational accidents and illnesses.'' 29 
U.S.C. 657(c)(1). The authorization to the Secretary to prescribe such 
recordkeeping regulations as he considers ``necessary or appropriate'' 
emphasizes the breadth of the Secretary's discretion in implementing 
the OSH Act. Section 8(c)(2) further provides that the ``Secretary . . 
. shall prescribe regulations requiring employers to maintain accurate 
records of, and to make periodic reports on, work-related deaths, 
injuries and illnesses.'' 29 U.S.C. 657(c)(2).
    Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and 
publish, whether in summary or detailed form, all reports or 
information obtained under this section.'' Section 8(g)(2) of the Act 
generally empowers the Secretary ``to prescribe such rules and 
regulations as he may deem necessary to carry out his responsibilities 
under th[e] Act.'' 29 U.S.C. 657(g)(2).
    Section 24 contains a similar grant of regulatory authority. 
Section 24(a) states that ``the Secretary . . . shall develop and 
maintain an effective program of collection, compilation and analysis 
of occupational safety and health statistics . . . [and] shall compile 
accurate statistics on work injuries and illnesses.'' 29 U.S.C. 673(a). 
Section 24(e) provides that ``[o]n the basis of the records made and 
kept pursuant to section 8(c) of th[e] Act, employers shall file such 
reports with the Secretary as he shall prescribe by regulation, as 
necessary to carry out his functions under th[e] Act.'' 29 U.S.C. 
673(e).
    OSHA has made the determination that the provisions in this final 
rule requiring electronic submission and publication of injury and 
illness recordkeeping data are ``necessary and appropriate'' for the 
enforcement of the OSH Act and for gathering information regarding the 
causes or prevention of occupational accidents or illnesses. Where an 
agency is authorized to prescribe regulations ``necessary'' to 
implement a statutory provision or purpose, a regulation promulgated 
under such authority is valid ``so long it is reasonably related to the 
enabling legislation.'' Morning v. Family Publication Service, Inc., 
441 U.S. 356, 359 (1973).
    The Supreme Court recognizes a ``familiar canon of statutory 
construction that remedial legislation should be construed broadly to 
effectuate its purposes.'' Tcherepnin v. Knight, 389 U.S. 332, 336 
(1967). And reading the statute in light of its protective purposes 
further supports the Secretary's interpretation that the Act calls for 
electronic submission and publication of injury and illness 
recordkeeping data. See, e.g., United States v. Advance Mach. Co., 547 
F.Supp. 1085 (D.Minn. 1982) (requirement in Consumer Product Safety Act 
to ``immediately inform'' the government of product defects is read as 
creating a continuing obligation to report because any other reading 
would frustrate the statute's goal of protecting the public from 
hazards). In addition, injury and illness records ``are a cornerstone 
of the Act and play a crucial role in providing the information 
necessary to make workplaces safer and healthier.'' Sec'y of Labor v. 
Gen. Motors Corp., 8 BNA OSHC 2036, 2041 (Rev. Comm'n 1980).
    OSHA notes that not only are such recordkeeping regulations 
expressly called for by the language of Sections 8 and 24, but they are 
also consistent with Congressional intent and the purpose of the OSH 
Act. The legislative history of the OSH Act reflects Congress' concern 
about harm resulting to employees in workplaces with incomplete records 
of occupational injuries and illnesses. Most notably, a report of the 
Senate Committee on Labor and Public Welfare stated that ``[F]ull and 
accurate information is a precondition for meaningful administration of 
an occupational safety and health program.'' S. Rep. No. 91-1282, at 16 
(1970), reprinted in Subcomm. on Labor of the Comm. on Labor and Public 
Welfare, Legislative History of the Occupational Safety and Health Act 
of 1970, at 156 (1971). Additionally, a report from the House of 
Representatives shows that Congress recognized ``comprehensive [injury 
and illness] reporting'' as playing a key role in ``effective safety 
programs.'' H.R. Rep. No. 91-1291, at 15 (1970), reprinted in Subcomm. 
on Labor of the Comm. on Labor and Public Welfare, Legislative History 
of the Occupational Safety and Health Act of 1970, at 845 (1971). As 
explained elsewhere in this preamble, the electronic submission and 
publication requirements of the final rule will lead to more accurate 
and complete occupational injury and illness records.
    OSHA further notes that, contrary to comments made by some 
commenters, and as explained elsewhere in this preamble, the final rule 
will not result in the publication of raw injury and illness 
recordkeeping data or the release of records containing personally 
identifiable information or confidential commercial and/or proprietary 
information. The release or publication of submitted injury and illness 
recordkeeping data will be conducted in accordance with applicable 
federal law. (See discussion below).
Constitutional Issues
The First Amendment
    Some commenters stated that the proposed rule would violate the 
First Amendment of the U.S. Constitution because it would force 
employers to submit their confidential and proprietary information for 
publication on a publicly available government online database (Exs. 
1360, 1396). These commenters noted that the First Amendment protects 
both the right to speak and the right to refrain from speaking.
    The U.S. Chamber of Commerce commented:

    While OSHA's stated goal of using the information it collects 
from employers ``to improve workplace safety and health,'' 78 FR at 
67,254, is unobjectionable, ``significant encroachments on First 
Amendment rights of the sort that compelled disclosure imposes 
cannot be justified by a mere showing of some legitimate 
governmental interest.'' Buckley v. Valeo, 424 U.S. 1, 64 (1976) 
(per curiam). Instead, where the government seeks to require 
companies to engage in the type of speech proposed here, the 
regulation must meet the higher standard of strict scrutiny: Meaning 
that it must be narrowly tailored to promote a compelling 
governmental interest. See United States v. Playboy Entm't Grp., 
Inc., 529 U.S. 803, 819 (2000).
    Once subjected to strict scrutiny, the publication provision of 
this Proposed Rule must fail because it is not narrowly tailored 
towards accomplishing a compelling government interest. See Playboy, 
529 U.S. at 819. Under the narrow tailoring prong of this analysis, 
the regulation must be necessary towards accomplishing the 
government's interest. See, e.g., Republican Party of Minn. v. 
White, 536 U.S. 765, 775 (2002) (``[T]o show that the [requirement] 
is narrowly tailored, [the government] must demonstrate that it does 
not `unnecessarily circumscrib[e] protected expression.''' (fourth 
alteration in original) (quoting Brown v. Hartlage, 456 U.S. 45, 54 
(1982))).

    On the other hand, Logan Gowdey commented that recordkeeping data 
has been collected by OSHA in the past through the OSHA Data Initiative 
(ODI).

[[Page 29655]]

He adds, ``Furthermore, if there were a realistic claim to be made of 
First Amendment grounds, it surely would have been made against the EPA 
in relation to the Toxic Release Inventory (TRI) program, where toxic 
releases are published and include business names, far more `speech' 
than will be required under this rule.'' (Ex. 1211).
    In response, OSHA disagrees with the Chamber's comment that this 
rulemaking violates the First Amendment. OSHA notes that, contrary to 
the Chamber's comment, the decision in Buckley v. Valeo only applies to 
campaign contribution disclosures, and does not hold that other types 
of disclosure rules are subject to the strict scrutiny standard. See, 
42 U.S. 1, 64 (reasoning that campaign contribution disclosures ``can 
seriously infringe on privacy of association and belief guaranteed by 
the First Amendment''). Later cases also clarify that disclosure 
requirements only trigger strict scrutiny ``in the electoral context.'' 
See, John Doe No. 1 v. Reed, 561 U.S. 186, 196 (2010).
    In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 653 
(1985), the Supreme Court upheld Ohio state rules requiring disclosures 
in attorney advertising relating to client liability for court costs. 
The Court declined to apply the more rigorous strict scrutiny standard, 
because the government was not attempting to ``prescribe what shall be 
orthodox in politics, nationalism, religion, or other matters of 
opinion or force citizens to confess by word or act their faith 
therein.'' 471 U.S. 626, 651. Because it concluded the disclosure at 
issue would convey ``purely factual and uncontroversial information,'' 
the rule only needed to be ``reasonably related to the State's interest 
in preventing deception of consumers.'' Id. Recently, in American Meat 
Institute v. U.S. Dept. of Agriculture, the U.S. Court of Appeals for 
the DC Circuit held that the Zauderer case's ``reasonably related'' 
test is not limited to rules aimed at preventing consumer deception, 
and applies to other disclosure rules dealing with ``purely factual and 
uncontroversial information.'' 760 F.3d 18, 22 (D.C. Cir. 2014) 
(finding that the speakers' interest in non-disclosure of such 
information is ``minimal''); see also NY State Restaurant Ass'n v. NYC 
Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009) (accord), 
Pharmaceutical Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 310 (1st Cir. 
2005) (accord).
    This final rule only requires disclosure of purely factual and 
uncontroversial workplace injury and illness records that are already 
kept by employers. The rule does not violate the First Amendment 
because disclosure of workplace injury and illness records is 
reasonably related to the government's interest in assuring ``so far as 
possible every working man and woman in the Nation safe and healthful 
working conditions.'' 29 U.S.C. 651(b). The remainder of the Chamber's 
comment deals with ``essential rights'' that do not encompass an 
employer's minimal interest in non-disclosure of purely factual and 
uncontroversial information.
The Fourth Amendment
    The U.S. Chamber of Commerce commented that, while OSHA addressed 
some issues related to the Fourth Amendment to the U.S. Constitution in 
the preamble to the proposed rule, the Agency neglected to consider 
other issues. Specifically, the Chamber stated that:

    The Notice for this Proposed Rule cites several cases that OSHA 
asserts confirm that the requirement to report injury and illness 
records comports with the Fourth Amendment's prohibition against 
unreasonable searches and seizures. 78 FR at 67,255-56. In making 
this preemptive defense, however, OSHA has neglected to address the 
more pressing Fourth Amendment problem with this Proposed Rule: That 
OSHA's use of the information collected for enforcement purposes 
will fail to constitute a ``neutral administrative scheme'' and will 
thus violate the Supreme Court's holding in Marshall v. Barlow's 
Inc., 436 U.S. 307 (1978).

    Additionally, the Chamber stated that the raw data to be collected 
under the proposed rule would fail to provide any defensible neutral 
predicate for enforcement decisions: ``Under this Proposed Rule, OSHA 
will be able to target any employer that submits a reportable injury or 
illness for any reason the agency chooses, or for no reason at all, 
under this unlimited discretion it has sought to grant itself to 
`identify workplaces where workers are at great risk' '' See, 78 FR 
67,256.'' (Ex. 1396).
    In response, OSHA notes that Barlow's concerned the question of 
whether OSHA must have a warrant to inspect a worksite if the employer 
does not give consent. Section 1904.41 of this final rule involves 
electronic submission of injury and illness recordkeeping data; no 
entry of premises or compliance officer decision-making is involved. 
Thus, the Barlow's decision provides very little support for the 
commenter's sweeping Fourth Amendment objections. See, Donovan v. Lone 
Steer, Inc., 464 U.S. 408, 414 (1984) (reasonableness of a subpoena is 
not to be determined on the basis of physical entry law, because 
subpoena requests for information involve no entry into nonpublic 
areas).
    Moreover, the final rule is limited in scope and leaves OSHA with 
limited discretion. The recordkeeping information required to be 
submitted is highly relevant to accomplishing OSHA's mission. The 
submission of recordkeeping data is accomplished through remote 
electronic transmittal, without any intrusion of the employer's 
premises by OSHA, and is not unduly burdensome. Also, all of the injury 
and illness information required to be submitted is taken from records 
employers are already required to create, maintain, post, and provide 
to employees, employee representatives, and government officials upon 
request, which means the employer has a reduced expectation of privacy 
in the information.
    With respect to the issue of enforcement, OSHA disagrees with the 
Chamber's Fourth Amendment objection that the Agency will target 
employers ``for any reason'' simply because they submit injury and 
illness data. Instead, OSHA plans to continue the practice of using a 
neutral-based scheme for identifying industries for closer inspection. 
More specifically, the Agency will use the data submitted by employers 
under this final rule in the same manner OSHA has used data from the 
ODI over the last 15 years. In the past, OSHA's Site-Specific Targeting 
(SST) program and Nursing Home and Recordkeeping National Emphasis 
Programs (NEPs) all used establishment-specific injury and illness 
rates as selection criteria for inspection. In the future, OSHA plans 
to analyze the recordkeeping data submitted by employers to identify 
injury and illness trends and make appropriate decisions regarding 
enforcement efforts.
    OSHA also notes that the Agency currently uses establishment-
specific fatality, injury, and illness reports submitted by employers 
under Section 1904.39 to target enforcement and compliance assistance 
resources. As with the SST and NEP programs, a neutral-based scheme is 
used to identify which establishments are inspected and which fall 
under a compliance assistance program. Accordingly, OSHA's targeting of 
employers for inspection will not be arbitrary or unconstitutional 
under the Fourth Amendment.
Due Process
    Two commenters raised concerns about the proposed rule potentially 
violating an employer's due process protection under the Fifth 
Amendment of the U.S. Constitution. (Exs. 0245, 1360). Andrew Sutton 
commented ``There is the possibility of a substantial

[[Page 29656]]

due process claim lurking here. It is long settled law that ``where a 
person's good name, reputation, honor, or integrity is at stake because 
of what the government is doing to him, notice and an opportunity to be 
heard are essential. Wisconsin v. Constantineau, 400 U.S. 433, 437 
(1971). But whether the same due process protections are warranted when 
government action threatens a business' goodwill is less clear'' (Ex. 
0245).
    The International Warehouse Logistics Association commented that 
the proposed rule would deny their members the right to due process:

    Citations will no doubt be issued under this standard for 
failures to report arguably work related injuries and illnesses 
accurately. Since the data reported will be published by OSHA, there 
will be a presumption of guilt attached to those injury reports. The 
proposed rulemaking acknowledges that this reporting may result in 
prospective employees and customers shunning businesses who report 
injuries and illnesses, so clearly the Department contemplates that 
the reported injuries create a presumption of guilt. Therefore, in 
every case where the employer is faced with an injury or illness 
that is not clearly recordable--and that is often the case--OSHA 
will violate an employer's right to due process under the Fifth 
Amendment of the United States Constitution. This violation of 
employer due process rights will result from the mandatory recording 
of injuries and illnesses within six days of their occurrence and 
their subsequent mandatory electronic reporting. The employer will 
be subjected to citation for failing to report questionable alleged 
injuries and illnesses, on the one hand, and will face the prospect 
of losing customers by reporting, on the other. Given the prospect 
of the reported injury and illness data being published by OSHA, the 
proposed rule does not provide a reasonable time frame for the 
employer to conduct an adequate evaluation of its legal obligations 
and exposures with respect to each case. And, in each such case, it 
will be faced with the catch-22 of either losing customers or 
employees or facing civil penalties. This evaluation and decision 
will have to be made four times per year and will be particularly 
onerous in the case of injuries and illnesses that occur in the 
third month of each quarter (Ex. 1360).

    In response, OSHA disagrees with commenters who suggested that this 
rulemaking will violate an employer's right to due process under the 
Fifth Amendment. The due process clause of the Fifth Amendment provides 
that no person shall be ``deprived of life, liberty, or property, 
without due process of law.'' The case cited above by the commenter, 
Wisconsin v. Constantineau, involved the posting of notices in liquor 
stores forbidding the sale of liquor to designated individuals for one 
year. A state statute provided for the posting, without notice or 
hearing, of the names of individuals who had exhibited specified 
traits, such as becoming ``dangerous to the peace of the community,'' 
after consuming excessive amounts of alcohol. The Supreme Court held 
that because the posting of such information would result in harm to an 
individual's reputation, procedural due process requires notice and an 
opportunity to be heard. 400 U.S. 433 at 436-437.
    In this circumstance, however, OSHA disagrees that the mere posting 
of injury and illness recordkeeping data on a publicly available Web 
site will adversely impact an employer's reputation. As the Note to 
Sec.  1904.0 of OSHA's recordkeeping regulation makes clear, the 
recording or reporting of a work-related injury, illness, or fatality 
does not mean that an employer or employee was at fault, that an OSHA 
rule has been violated, or that the employee is eligible for workers' 
compensation or other benefits. OSHA currently publishes establishment-
specific information on its Web site about reported work-related 
fatalities and hospitalizations. [https://www.osha.gov/dep/fatcat/dep_fatcat.html]; establishment-specific injury and illness rates 
calculated from the ODI [https://www.osha.gov/pls/odi/establishment_search.html]; and OSHA routinely publishes information 
about citations issued to employers for violations of OSHA standards 
and regulations. [https://www.osha.gov/oshstats/]. Also, other 
agencies post establishment-specific health and safety data. For 
example, the Mine Safety and Health Administration (MSHA) publishes 
coded information about each accident, injury or illness reported to 
MSHA. The Federal Railroad Administration (FRA) posts headquarters-
level Accident Investigation Reports filed by railroad carriers. OSHA 
also notes that employers have been given notice and an opportunity to 
comment through this rulemaking process.
    With respect to the issue of whether employers have adequate time 
to record and report injuries and illnesses, Sec.  1904.29(b)(3) of 
OSHA's recordkeeping regulation provides that employers must enter each 
recordable injury or illness on the OSHA 300 Log and 301 Incident 
Report within seven (7) calendar days of receiving information that a 
recordable injury or illness has occurred. In the vast majority of 
cases, employers know immediately or within a short time that a 
recordable case has occurred. In a few cases, however, it may be 
several days before the employer is informed that an employee's injury 
or illness meets one or more of the recording criteria. This regulation 
also allows employers to revise an entry simply by lining it out or 
amending it if further information justifying the revision becomes 
available. Accordingly, OSHA believes that the existing seven-calendar-
day requirement provides employers with sufficient time to receive 
information and record a case. OSHA has resources, including 
information on its Web site at www.osha.gov/recordkeeping designed to 
assist employers in the accurate recording of injuries and illnesses.
    Additionally, as explained elsewhere in this document, unlike the 
proposed rule, the final rule does not require employers to submit 
their injury and illness data to OSHA on a quarterly basis. The final 
rule's requirement for the electronic submission of recordkeeping data 
on an annual basis should reduce the burden on all employers when they 
make decisions on whether to record certain cases.
Administrative Issues
Public Meeting
    A few commenters disagreed with OSHA's decision to hold an informal 
public meeting for this rulemaking. (Exs. 1332, 1396). Instead, these 
commenters recommended that, considering both the burden on employers 
and the far-reaching implications of publishing confidential 
information, OSHA should have held a formal public hearing pursuant to 
the Administrative Procedure Act (APA).
    OSHA disagrees with these comments. The recordkeeping requirements 
promulgated under the OSH Act are regulations, not standards. 
Therefore, this rulemaking is governed by the notice and comment 
requirements in the APA (5 U.S.C. 553) rather than Section 6 of the OSH 
Act (29 U.S.C. 655) and 29 CFR part 1911. Section 6(b)(3) of the OSH 
Act (29 U.S.C. 655(b)(3)) and 29 CFR 1911.11, both of which state the 
requirement for OSHA to hold a public hearing on proposed rules, only 
apply to promulgating, modifying or revoking occupational safety and 
health ``standards.''
    Section 553 of the APA, which governs this rulemaking, does not 
require a public hearing; instead, it states that the agency must 
``give interested persons an opportunity to participate in the 
rulemaking through submission of written data, views, or arguments with 
or without opportunity for oral presentation'' (5 U.S.C. 553(c)). As 
discussed elsewhere in this document, OSHA held a public meeting

[[Page 29657]]

for this rulemaking on January 9 and 10, 2014. OSHA believes that 
interested parties had a full and fair opportunity to participate in 
the rulemaking and comment on the proposed rule. OSHA also believes 
that the written comments submitted during this rulemaking, as well as 
the information obtained during the public meeting, greatly assisted 
the Agency in developing the final rule.
Advisory Committee on Construction Safety and Health (ACCSH)
    The National Association of Home Builders commented that OSHA must 
seek input from the Advisory Committee on Construction Safety and 
Health (ACCSH) during this rulemaking: ``NAHB strongly urges OSHA to 
seek input from ACCSH to better understand the impacts and consequences 
of its proposal'' (Ex. 1408).
    In response, and as pointed out by NAHB in their comments, ACCSH is 
a continuing advisory body established under Section 3704, paragraph 
(d), of the Contract Work Hours and Safety Standards Act (40 U.S.C. 
3701 et seq., commonly known as the Construction Safety Act), to advise 
the Secretary of Labor and Assistant Secretary for Occupational Safety 
and Health in the formulation of construction safety and health 
standards, and policy matters affecting federally financed or assisted 
construction. In addition, OSHA's regulation at 29 CFR 1912.3 provides 
that OSHA must consult with ACCSH regarding the setting of new 
construction standards under the OSH Act.
    OSHA notes that both the Construction Safety Act and 29 CFR 1912.3 
only require OSHA to consult with ACCSH regarding the setting of new 
construction ``standards.'' As discussed above, the requirements in 29 
CFR part 1904 are regulations, not standards. In addition, and as 
discussed elsewhere in this preamble, OSHA did consult and received 
advice from NACOSH prior to issuing the proposed rule. NACOSH has 
indicated its support for OSHA's efforts in consultation with NIOSH to 
modernize the system for collection of injury and illness data to 
assure that the data are timely, complete, and accurate, as well as 
accessible and useful to employees, employers, responsible government 
agencies and members of the public.
Open Government Initiative
    In the preamble to the proposed rule, OSHA stated that OSHA plans 
to post the injury and illness data online, as encouraged by President 
Obama's Open Government Initiative. See, 78 FR 67258. The Initiative 
includes executive orders, action plans, memoranda, etc., which 
espouses enhanced principles of open government, transparency and 
greater access to information.
    Two commenters stated that the Open Government Initiative does not 
support publication of private establishment records (Exs. 1328, 1411). 
The National Retail Federation (NRF) commented, ``OSHA has 
inappropriately relied on President Obama's `Open Government' 
initiative to support public disclosure of injury and illness records. 
The Administration's intention and purpose in issuing the Open 
Government initiative is to foster transparency in government actions. 
The Obama `Open Government' initiative relates in no way to industry 
data collected by an agency. Accordingly, the NRF is disappointed that 
OSHA is attempting to rely on this initiative as justification for its 
proposal to make private employer information generally available to 
the public'' (Ex. 1328). The Coalition for Workplace Safety (CWS) 
provided a similar comment (Ex. 1411).
    In response, OSHA notes that in the Memorandum on Transparency and 
Open Government, issued on January 21, 2009, President Obama instructed 
the Director of OMB to issue an Open Government Directive. On December 
8, 2009, OMB issued a Memorandum for the Heads of Executive Departments 
and Agencies, Open Government Directive, which requires federal 
agencies to take steps to ``expand access to information by making it 
available online in open formats.'' The Directive also states that the 
``presumption shall be in favor of openness (to the extent permitted by 
law and subject to valid privacy, confidentiality, security, or other 
restrictions).'' In addition, the Directive states that ``agencies 
should proactively use modern technology to disseminate useful 
information, rather than waiting for specific requests under FOIA.''
    As noted elsewhere in this document, publication of recordkeeping 
data, subject to applicable privacy and confidentiality laws, will help 
disseminate information about occupational injuries and illnesses. 
Access to the data will help employers, employees, employee 
representatives, and researchers better identify and abate workplace 
hazards. Accordingly, OSHA believes that publication of injury and 
illness data on OSHA's Web site is consistent with President Obama's 
Open Government Initiative.
Privacy and Safeguarding Information
Freedom of Information Act
    OSHA received several comments regarding the Freedom of Information 
Act (FOIA) 5 U.S.C. 552. (Exs. 1207, 1214, 1279, 1382, 1396). Some of 
these commenters claimed that the proposed rule was ``arbitrary'' and 
``capricious'' under the Administrative Procedures Act (APA), 5 U.S.C. 
706(2)(A), because OSHA has taken a different position during FOIA 
litigation. The U.S. Chamber of Commerce commented, ``On numerous 
occasions, OSHA has asserted that the very information that it now 
seeks to publish on the internet should not be made public because it 
includes confidential and proprietary business information. See, e.g., 
New York Times Co. v. U.S. Dep't of Labor, 340 F. Supp. 2d 394 
(S.D.N.Y. 2004); OSHA Data/CIH, Inc. v. U.S. Dep't of Labor, 220 F.3d 
153 (3d Cir. 2000). Indeed, as recently as 2004, Miriam McD. Miller, 
OSHA's Co-Counsel for Administrative Law, stated in a sworn declaration 
that the information contained in what now constitutes OSHA's Forms 
300, 300A, and 301 ``is potentially confidential commercial information 
because it corresponds with business productivity.''Decl. of Miriam 
McD. Miller ] 5, New York Times Co. v. U.S. Dep't of Labor, 340 F. 
Supp. 2d 394 (S.D.N.Y. 2004) (No. 03 Civ. 8334), ECF No. 16 (attached 
as Exhibit A).''
    The Chamber went on to comment, ``OSHA and the Chamber's position 
are, or at least were, the same: Total hours worked at individual 
establishments is confidential and proprietary information. See New 
York Times Co., 340 F. Supp. 2d at 402. Indeed, in the New York Times 
Co. case, OSHA asserted that this number was not only confidential 
information, but had the capacity to ``cause substantial competitive 
injury.'' Id. (citing Dep't of Labor Mem. of Law, Ex. B at 17). This is 
because, as OSHA itself argued, the total hours worked by a company's 
employees ``corresponds with business productivity,'' Dep't of Labor 
Mem. of Law, Ex. B at 4, and could be used ``to calculate a 
business['s] costs and profit margins,'' id. at 17 (citing Westinghouse 
Elec. Corp. v. Schlesinger, 392 F. Supp. 1264, 1249 (E.D. Va. 1976), 
aff'd, 542 F.2d 1190 (4th Cir. 1976)). The confidentiality problems 
relating to hours worked are only exacerbated in this Proposed Rule by 
OSHA's insistence on collecting and publishing this information on an 
establishment-by-establishment basis, including the number of employees 
at each establishment. Armed with total hours worked plus an 
establishment's employee count, a business' overall capacity and 
productivity can easily be determined'' (Ex. 1396).
    NAM commented, ``Under the Freedom of Information Act (FOIA),

[[Page 29658]]

certain documents are exempt from public disclosure. 5 U.S.C. 552. 
Exemption 4 protects `a trade secret or privileged or confidential 
commercial or financial information obtained from a person.' 5 U.S.C. 
552(b)(4). The NAM and its members believe employee hours worked on the 
OSHA Form 300A is confidential business information, because that 
information gives insight into the state of a business at any given 
time and creates a competitive harm. As such, this information is 
entitled to protection from disclosure to the public under FOIA, which 
would be consistent with how OSHA has historically treated employee 
hours worked'' (Ex. 1279). The American Petroleum Institute (API) made 
a comment similar to NAM (Ex. 1214).
    In response, OSHA notes that, as discussed in the preamble to the 
proposed rule, the information required to be submitted by employers 
under this final rule is not of a kind that would include confidential 
commercial information. The Secretary carefully considered the issues 
addressed in the New York Times case, and concluded that the 
information on the OSHA recordkeeping forms, including the number of 
employees and hours worked at an establishment, is not confidential 
commercial information. See, 78 FR 67263. The decision in New York 
Times, along with the decision in OSHA Data, was based on the 
requirements in OSHA's previous recordkeeping regulation. Prior to 
2001, employers were not required to record the total number of hours 
worked by all employees on the OSHA forms.
    Many employers already routinely disclose information about the 
number of employees at an establishment. Since 2001, OSHA's 
recordkeeping regulation has required employers to record information 
about the average annual number of employees and total number of hours 
worked by all employees on the OSHA Form 300A. Section 1904.35 also 
requires employers to disclose to employees, former employees, and 
employee representatives non-redacted copies of the OSHA Form 300A. In 
addition, Sec.  1904.32(a)(4) requires employers to publicly disclose 
information about the number of employees and total number of hours 
worked through the annual posting of the 300A in the workplace for 
three months from February 1 to April 30.
    In the New York Times decision, the court concluded that basic 
injury and illness recordkeeping data regarding the average number of 
employees and total number of hours worked does not involve 
confidential commercial information. See, 350 F. Supp. 2d 394 at 403. 
The court held that competitive harm would not result from OSHA's 
release of lost workday injury and illness rates of individual 
establishments, from which the number of employee hours worked could 
theoretically be derived. Id. at 402-403. Additionally, the court 
explained that most employers do not view injury and illness data as 
confidential. Id. at 403.
    As noted by commenters, during the New York Times litigation, the 
Secretary argued that the injury and illness rates requested in the 
FOIA suit could constitute commercial information under Exemption 4 of 
FOIA, 5 U.S.C. 552(b)(4). However, in the years since this decision, 
the Secretary has reconsidered his position. Since 2004, in response to 
FOIA requests, it has been OSHA's policy to release information from 
the Form 300A on the annual average number of employees and the total 
hours worked by all employees during the past year at an establishment. 
Thus, there was a statement in the preamble to the proposed rule 
explaining that the Secretary no longer believes the injury and illness 
information entered on the OSHA recordkeeping forms constitutes 
confidential commercial information. Accordingly, since the New York 
Times decision in 2004, OSHA has had a consistent policy concerning the 
release of information on the OSHA Form 300A.
    Sarah Wilensky commented that OSHA is required under FOIA to 
disclose much of the data it accesses from an inspection or visit to a 
covered establishment, and that this obligation would not change if 
OSHA receives information as part of this rulemaking. (Ex. 1382). This 
commenter also suggested that, similar to other information in OSHA's 
possession, employers' commercially valuable information submitted as 
part of this rulemaking should be subject to exemption for trade 
secrets under FOIA (Ex. 1382). Another commenter, MIT Laboratories, 
commented that FOIA is not of much use as a standard to protect privacy 
in this rule (Ex. 1207).
    OSHA agrees with the commenters who suggested that recordkeeping 
information collected as part of this final rule should be posted on 
the Web site in accordance with FOIA. As discussed in the preamble to 
the proposed rule, the publication of specific data elements will in 
part be restricted by the provisions of FOIA. [78 FR 67259]. Currently, 
when OSHA receives a FOIA request for employer recordkeeping forms, the 
Agency releases all data fields on the OSHA 300A annual summary, 
including the annual average number of employees and total hours worked 
by employees during the year. With respect to the OSHA 300 Log, because 
OSHA currently obtains part 1904 records during onsite inspections, the 
Agency applies Exemption 7(c) of FOIA to withhold from disclosure 
information in Column B (the employee's name). (Note that OSHA will not 
collect or publish Column B under this final rule.) FOIA Exemption 7(c) 
provides protection for personal information in law enforcement 
records. [5 U.S.C. 552(b)(7)(c)]. OSHA currently uses Exemption 7(c) to 
withhold personal information included in Column B as well as other 
columns of the 300 Log. For example, OSHA would not disclose the 
information in Column C (Job Title), if such information could be used 
to identify the injured or ill employee.
    Similarly, OSHA uses FOIA exemptions to withhold from disclosure 
Fields 1 through 9 on the OSHA 301 Incident Report. Fields 1 through 9 
(the left side of the 301) includes personal information about the 
injured or ill employee as well as the physician or other health care 
professional. (Note that under this final rule, OSHA will not collect 
or publish Field 1 (employee name), Field 2 (employee address), Field 6 
(name of treating physician or health care provider), or Field 7 (name 
and address of non-workplace treating facility). All fields on the 
right side of the 301 (Fields 10 through 18) are generally released by 
OSHA in response to a FOIA request.
    OSHA generally uses FOIA Exemption 7(c) to withhold from disclosure 
any personally identifiable information included anywhere on the three 
OSHA recordkeeping forms. For example, although information in Field 15 
of the 301 incident report (Tell us how the injury occurred) is 
generally released in response to a FOIA request, if that data field 
includes any personally-identifiable information, such as a name or 
Social Security number, OSHA will apply Exemption 6 or 7(c) and not 
release that information. FOIA Exemption 6 protects information about 
individuals in ``personnel and medical and similar files'' when the 
disclosure of such information ``would constitute a clearly unwarranted 
invasion of personal privacy.'' [5 U.S.C. 552(b)(6)].
    Additionally, OSHA currently uses FOIA Exemption 4 to withhold from 
disclosure information on the three recordkeeping forms regarding trade 
secrets or privileged or confidential commercial or financial 
information. [5 U.S.C. 552(b)(4)]. However, it is OSHA's experience 
that the inclusion of trade

[[Page 29659]]

secret information on recordkeeping forms is extremely rare. OSHA's 
recordkeeping regulation does not require employers to record 
information about, or provide detailed descriptions of, specific brands 
or processes that could be considered confidential commercial 
information. In any event, employers will have an opportunity to inform 
OSHA that submitted data may contain PII or confidential commercial 
information.
    Again, OSHA wishes to emphasize that it will post injury and 
illness recordkeeping information collected by this final rule 
consistent with FOIA.
Privacy Act
    Several commenters raised concerns about a possible conflict 
between the proposed rule and the Privacy Act of 1974, 5 U.S.C. 552a. 
(Exs. 1113, 1342, 1359, 1370, 1393). The American Farm Bureau 
Federation (AFBF) commented, ``OSHA must consider the privacy interests 
of farmers' names and home contact information and is obligated under 
federal law to do a review under the Privacy Act'' (Ex. 1113). The 
Society of the Plastics Industry, Inc. (SPI) commented, ``[G]iven the 
nature of the information that may be filed in the Section 1904 forms, 
OSHA's obligation to redact any personally identifiable medical 
information from those forms, and the fact that it will be infeasible 
to OSHA to meet that obligation, OSHA is precluded by the Federal 
Privacy Act from issuing the rule'' (Ex. 1342). Ashok Chandran made a 
similar comment (Ex. 1393).
    In response, OSHA notes that the Privacy Act regulates the 
collection, maintenance, use, and dissemination of personal 
identifiable information by federal agencies. Section 552a(e)(4) of the 
Privacy Act requires that all federal agencies publish in the Federal 
Register a notice of the existence and character of their systems of 
records. The Privacy Act permits the disclosure of information about 
individuals without their consent pursuant to a published routine use 
where the information will be used for a purpose that is comparable to 
the purpose for which the information was originally collected.
    The Privacy Act only applies to records that are located in a 
``system of records.'' As defined in the Privacy Act, a system of 
records is ``a group of any records under the control of any agency 
from which information is retrieved by the name of the individual or by 
some identifying number, symbol, or other identifying particular 
assigned to the individual.'' See, 5 U.S.C. 552a(a)(5). Because OSHA 
injury and illness records are retrieved neither by the name of an 
individual, nor by some other personal identifier, the Privacy Act does 
not apply to OSHA injury and illness recordkeeping records. As a 
result, the Privacy Act does not prevent OSHA from posting 
recordkeeping data on a publicly-accessible Web site. However, OSHA 
again wishes to emphasize that, consistent with FOIA, the Agency does 
not intend to post personally identifiable information on the Web site.
Trade Secrets Act
    The Coalition for Workplace Safety (CWS) commented that publication 
of information contained in the 300, 300A, and 301 forms would be a 
violation of 18 U.S.C. 1905--Disclosure of confidential information 
generally, which makes it a criminal act for government officials to 
disclose information concerning or relating to the trade secrets, 
processes, operations, style of work, or apparatus, or to the identity, 
confidential statistical data, amount or source of any income, profits, 
loses, or expenditures of any person, firm, partnership, corporation, 
or association (Ex. 1411).
    OSHA notes that the Trade Secrets Act, 18 U.S.C. 1905, states: 
``Whoever, being an officer or employee of the United States, . . . 
publishes, divulges, discloses, or makes known in any manner or to any 
extent not authorized by law any information coming to him in the 
course of his employment or official duties . . . or record made to or 
filed with, such department or agency or officer or employee thereof, 
which information concerns or relates to the trade secrets, processes, 
operations, style of work, or apparatus, or to the identity, 
confidential status, amount or source of any income, profits, losses, 
or expenditures of any person, firm, partnership, corporation, or 
association; . . . shall be fined under this title, or imprisoned not 
more than one year, or both; and shall be removed from office or 
employment.''
    As discussed elsewhere in this document, the information required 
to be submitted under the final rule is not of a kind that would 
include confidential commercial information. The information is limited 
to the number and nature of recordable injuries or illnesses 
experienced by employees at particular establishments, and the data 
necessary to calculate injury/illness rates, i.e., the number of 
employees and the hours worked at an establishment. Details about a 
company's products or production processes are generally not included 
on the OSHA recordkeeping forms, nor do the forms request financial 
information. The basic employee safety and health data required to be 
recorded do not involve trade secrets, and public availability of such 
information would not enable a competitor to obtain a competitive 
advantage. Accordingly, the posting of injury and illness recordkeeping 
data online by OSHA is not a release of confidential commercial 
information, and therefore is not a violation of the Trade Secrets Act. 
In some limited circumstances, the information recorded in compliance 
with part 1904 may contain commercial or financial information. OSHA 
considers such information to be potentially confidential, and, as 
appropriate, follows the procedures set forth in 29 CFR 70.26, which 
require OSHA to contact the employer which submitted the information 
prior to any potential release under FOIA Exemption 4, 5 U.S.C. 
552(b)(4). Additionally, Section 15 of the OSH Act protects the 
confidentiality of trade secrets. 29 U.S.C. 664. Under this final rule, 
it will be OSHA policy not to post confidential commercial or financial 
information on the publicly available Web site. The case description 
information solicited in questions 14 through 17 on OSHA's Form 301 is 
broad in nature and does not call for detailed descriptions that 
include personal or commercially confidential information. The examples 
provided on the form for fields 14 and 15 include ``spraying chlorine 
from hand sprayer'' and ``worker was sprayed with chlorine when gasket 
broke during replacement''. OSHA will add additional guidance to these 
instructions to inform employers not to include personally identifiable 
information (PII) or confidential business information (CBI) within 
these fields.
Confidential Commercial Information
    Multiple commenters stated that the proposed rule would require 
employers to submit proprietary and confidential business data to OSHA 
(Exs. 0057, 0160, 0171, 0179, 0205, 0218, 0224, 0240, 0251, 0252, 0257, 
0258, 1084, 1090, 1091, 1092, 1093, 1111, 1112, 1113, 1116, 1123, 1192, 
1193, 1195, 1196, 1197, 1198, 1199, 1205, 1209, 1214, 1216, 1217, 1218, 
1219, 1225, 1272, 1275, 1276, 1279, 1318, 1323, 1326, 1328, 1332, 1333, 
1334, 1336, 1338, 1343, 1349, 1356, 1359, 1366, 1367, 1370, 1372, 1386, 
1392, 1394, 1396, 1397, 1399, 1408, 1411, 1415, 1426, 1427, 1430). In 
addition to the comments addressed above regarding the average number 
of employees and total hours worked by employees, commenters expressed 
concern about the confidentiality of other data on the

[[Page 29660]]

OSHA recordkeeping forms. IPC-Association Connecting Electronics 
Industries made a specific comment that ``the requirement in column F 
[OSHA 300 Log] to disclose the ``object/substance that directly injured 
or made person ill'' creates a mechanism that could lead to disclosure 
of intellectual property to competitors, both foreign and domestic, 
especially in research and development facilities'' (Ex. 1334). Darren 
Snikrep commented, ``The plan to provide public access to the data 
means a loss of privacy for employers and may adversely affect an 
employer's ability to obtain work'' (Ex. 0057). Similarly, the 
Louisiana Farm Bureau commented, ``The proposed rule states that the 
company's executive's signature, title, telephone number, the 
establishment's name and street address, industry description, SIC or 
NAICS code and employment information including annual average number 
of employees, total hours worked by all employees will all be non-
protected information that is readily available to the public via the 
OSHA data portal and downloadable to anyone. This invites targeting of 
employers that may have no basis on actual workplace safety. We 
strongly feel that an employer's information identified with OSHA 
reporting should be kept private, the same as the privacy afforded 
workers under the proposed OSHA rule.'' (Ex. 1386).
    On the other hand, the Associated General Contractors of Michigan 
commented that recordkeeping data are not proprietary and confidential 
business information: ``Companies with over 20 employees during the 
reporting year must electronically report annually using the OSHA 300A 
Summary Form. This type of reporting would not be a burden on employers 
and would avoid `privacy issues', but would provide enough information 
for a more effective enforcement effort'' (Ex. 0250). J. Wilson made a 
similar comment (Ex. 0238).
    In response, OSHA again wishes to emphasize that it is not the 
Agency's intention to post proprietary or confidential commercial 
information on the publicly-accessible Web site. The purpose for the 
publication of recordkeeping data under this final rule is to 
disseminate information about occupational injuries and illnesses. OSHA 
agrees with commenters who stated that recordkeeping data generally do 
not include proprietary or commercial business information. 
Specifically, information on the 300A annual summary, such as the 
establishment's name, business address, and NAICS code, are already 
publicly available.
    As discussed above, OSHA is prohibited from releasing proprietary 
or confidential commercial information under FOIA Exemption 4. The term 
``confidential commercial information'' means ``records provided to the 
government by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 
552(b)(4), because its disclosure could reasonably be expected to cause 
substantial competitive harm.'' See, Executive Order 12600, 
Predisclosure notification procedures for confidential commercial 
information. [June 23, 1987]. Additionally, because recordkeeping data 
will be posted on a publicly-accessible Web site, when recording 
injuries and illnesses at their establishment, OSHA encourages 
employers not to enter confidential commercial information on the 
recordkeeping forms.
Submission of Personally Identifiable Information and Employee Privacy
    OSHA received several comments in support of electronic submission 
of part 1904 data with personally identifiable information (PII) (Exs. 
0208, 1106, 1211, 1350, 1354, 1381, 1382, 1387, 1395). Many commenters 
commented that federal and state agencies require electronic submission 
of health and safety data without the misuse of personal identifiers 
(Exs. 0208, 1106, 1211, 1350, 1354, 1381, 1382, 1387, 1395). For 
example, the Department of Workplace Standards, Kentucky Labor Cabinet 
commented that they do ``not foresee misuse of the information; other 
agencies require electronic submission of similar data and have 
accomplished the requirement without misuse of personal identifiers'' 
(Ex. 0208). Sarah Wilensky, the Service Employees International Union 
(SEIU) and the California Department of Industrial Relations (DIR), 
Office of the Director provided similar comments (Exs. 1382, 1387, 
1395).
    The American Public Health Association (APHA) commented that OSHA's 
sister agency, the Mine Safety and Health Administration (MSHA), ``has 
collected and posted on its Web site far more detailed and 
comprehensive information on work-place injuries than is being proposed 
by OSHA'' (Ex. 1354). The AFL-CIO and the International Brotherhood of 
Teamsters provided similar comments (Exs. 1350, 1381).
    However, there were also many comments opposing employer submission 
of certain data from the OSHA Form 300 and 301. Thoron Bennett 
commented that OSHA should not ``collect [employee] names from OSHA 300 
or 301 logs'' (Ex. 0035). The International Association of Drilling 
Contractors (IADC) provided a similar comment (Ex. 1199).
    The Phylmar Regulatory Roundtable commented that employers should 
``not be required to submit information including names, dates of 
birth, addresses, Social Security Number, etc. . . . Requiring 
electronic submissions containing PII to OSHA unnecessarily creates an 
opportunity for private information to accidentally become public'' 
(Ex. 1110). The U.S. Poultry & Egg Association, Huntington Ingalls 
Industries--Newport News Shipbuilding, and Melinda Ward provided 
similar comments (Exs. 1109, 1196, 1223). Huntington Ingalls 
Industries--Newport News Shipbuilding also commented that employees 
could ``have the ability to opt out of having their personally 
identifiable information provided to OSHA'' (Ex. 1196).
    MIT Laboratories commented that ``OSHA should consider developing a 
toolkit or educational materials to help employers identify information 
that poses a re-identification risk in their workplace records, 
especially if OSHA expect [sic] that its recordkeeping forms will 
continue to elicit textual descriptions of injuries and illnesses in 
the future. Such materials could help mitigate the risk that employers 
will include identifying information in the form'' (Ex. 1207).
    OSHA partially agrees with commenters who stated that employers 
should submit their data to OSHA with PII about employees included on 
the 300 and 301 forms. In many cases, PII entered on the OSHA 
recordkeeping forms includes important information that the Agency uses 
for activities designed to increase workplace safety and health and 
prevent occupational injuries and illnesses, including outreach, 
compliance assistance, enforcement, and research. As discussed 
elsewhere in this preamble, other government agencies are able to 
handle vary large amounts of PII, and OSHA will follow accepted 
procedures and protocols to prevent the release of such information.
    However, for some data fields, OSHA does not consider the data from 
these fields necessary to meet the various stated goals of the data 
collection. These fields primarily exist to help people doing incident 
investigations at the establishment. Collecting data from these fields 
would not add to OSHA's or any other user's ability to identify 
establishments with specific hazards or elevated injury and illness 
rates.

[[Page 29661]]

Therefore, OSHA has decided in this final rule to exclude from the 
submittal requirements several fields on the OSHA Forms 300 and 301 to 
minimize any potential release or unauthorized access to these data. 
The data elements are:
     Log of Work-Related Injuries and Illnesses (OSHA Form 
300): Employee name (column B).
     Injury and Illness Incident Report (OSHA Form 301): 
Employee name (field 1), employee address (field 2), name of physician 
or other health care professional (field 6), facility name and address 
if treatment was given away from the worksite (field 7).
    Additionally, several commenters expressed concern about the 
potential public release of personal information about employees from 
the OSHA recordkeeping forms. (Exs. 0171, 0189, 0209, 0210, 0215, 0250, 
0253, 1091, 1113, 1199, 1201, 1206, 1207, 1276, 1329, 1359, 1370, 1386, 
1408, 1410). These commenters stated that the OSHA recordkeeping forms 
contain private and highly confidential employee information, including 
medical information. Some commenters also raised concerns about 
previous OSHA rulemakings. For example, the National Association of 
Home Builders (NAHB) commented, ``OSHA has made specific findings 
related to privacy interest of employees and the utility of making 
certain recordkeeping forms public. Having done so, OSHA must explain 
why it is deviating from its past practice and positions . . . OSHA is 
required to comply with the Administrative Procedure Act and provide a 
reasoned explanation for this change of policy, starting by recognizing 
past policy and a justification for the change. OSHA has not done so 
here and failure to do so here makes this change arbitrary and 
capricious'' (Ex. 1408).
    A few commenters suggested that OSHA should balance the public 
interest of disclosure with the employee's right to privacy (Exs. 1279, 
1408, 1411). NAM commented:

    In the Federal Register publishing the final rule to the Part 
1904 revisions, OSHA acknowledged the existence of a U.S. 
Constitutional right of privacy in personal information. In doing 
so, OSHA cited to various U.S. Supreme Court and federal circuit 
court decisions that have suggested that such a right exists. 66 FR 
at 6054. See, e.g., Whalen v. Roe, 429 U.S. 588 (1977), Nixon v. 
Adm'r of General Services, 433 U.S. 425 (1977), Paul v. Verniero, 
170 F.3d 396, 402 (3d Cir. 1999), Norman-Bloodsay v. Lawrence 
Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998).
    Further, OSHA recognized that ``information about the state of a 
person's health, including his or her medical treatment, 
prescription drug use, HIV status and related matters is entitled to 
privacy protection'' and that ``there are few matters that are quite 
so personal as the status of one's health, and few matters the 
dissemination of which one would prefer to maintain greater control 
over.'' 66 FR at 6054. OSHA went on to acknowledge that ``[t]he 
right to privacy is not limited to medical records. Other types of 
records containing medical information are also covered.'' Id. at 
6055. (citations omitted).
    After recognizing that a right of privacy exists and is entitled 
to protection, OSHA applied a balancing test--weighing the 
individual's interest in confidentiality against the public interest 
in disclosure to employees and representatives. Id. After lengthy 
analysis, OSHA concluded that allowing employees access to 
information contained on the Form 301 served a legitimate public 
interest--that is helping employees to protect themselves from 
future injuries or illness.
    The proposed regulation discussed in these comments, ignores 
this right of privacy and abandons any type of balancing test. OSHA 
does not allege any reasons that making such information available 
to the public outweighs the privacy interests of the individual 
employees. Merely redacting an employee's name does not provide 
sufficient protection from the release, even inadvertently, of other 
personally identifiable information or medical information that 
employees maintain a privacy interest in (Ex. 1279).

    Other commenters raised a specific concern about the release of 
personal information in the agricultural industry, where many families 
live on farms where they work (Exs. 1113, 1359, 1370, 1386). Commenters 
stated that, under the proposed rule, a publicly-searchable database 
will include information about farmers' names, their home address, as 
well as other home contact information. These commenters also 
emphasized that the proposed rule would lead to serious security and 
privacy concerns that OSHA has not addressed.
    Additionally, the American Health Care Association/National Center 
for Assisted Living (AHCA/NCAL) asked whether the proposed rule would 
compromise the privacy of patients in the health care industry. This 
commenter stated that they assist and care for people and that this 
involves day-to-day interactions with patients, residents, and their 
families--``who expect that their privacy will be protected and that 
personal information about them or their conditions will not be 
broadcast on OSHA's Web page'' (Ex. 1194).
    In response, OSHA disagrees with commenters who suggested that the 
Agency is deviating from its past practice regarding recordkeeping 
information and the privacy interest of employees. In the preamble to 
the 2001 final rule revising the part 1904 recordkeeping regulation, 
OSHA explained that it has historically recognized that the OSHA 300 
Log and 301 Incident Report may contain information that an individual 
would wish to remain confidential. [66 FR 6055]. OSHA also acknowledged 
that although the entries on the 300 Log are typically brief, they may 
contain medical information, including diagnosis of specific illnesses. 
Id. However, OSHA concluded that disclosure of the Log and Incident 
Report to employees, former employees, and their representatives 
benefits these employees generally by increasing their awareness and 
understanding of the safety and health hazards in the workplace. Thus, 
current Sec.  1904.35, Access to records, permits employees, former 
employees, and employee representatives access to information on the 
OSHA recordkeeping forms. As the 2001 preamble makes clear, OSHA 
authorized this right of access after balancing the privacy rights of 
individuals with the public interest for disclosure. In addition, the 
2001 preamble states that OSHA does not have the statutory authority to 
prevent the disclosure of private information once the records are in 
the possession of employees, former employees and their 
representatives. [66 FR 5056].
    OSHA acknowledges commenters' concerns about the potential posting 
of private employee information on a publicly-accessible Web site. 
However, the posting or disclosure of private or confidential 
information has never been the intent of this rulemaking. OSHA believes 
it has effective safeguards in place to prevent the disclosure of 
personal or confidential information contained in the recordkeeping 
forms and submitted to OSHA. Specifically, as discussed above, OSHA 
will neither collect nor publish the following information:
     Log of Work-Related Injuries and Illnesses (OSHA Form 
300): Employee name (column B).
     Injury and Illness Incident Report (OSHA Form 301): 
Employee name (field 1), employee address (field 2), name of physician 
or other health care professional (field 6), facility name and address 
if treatment was given away from the worksite (field 7).
    Also, OSHA's recordkeeping regulation at Sec.  1904.29(b)(10) 
prohibits the release of employees' names and personal identifiers 
related to ``privacy concern cases.'' OSHA will also withhold from 
publication all of the information on the left-hand side of the OSHA 
301 Incident Report that is submitted to OSHA (employee date of birth 
(Field 3), employee date hired

[[Page 29662]]

(Field 4), and employee gender (Field 5)). All of the information on 
the right hand side (Fields 10 through 18) will generally be posted on 
the Web site (after it is scrubbed for PII). Finally, because the OSHA 
300A Annual Summary does not contain any personally-identifiable 
information, all of the fields on the OSHA 300A Annual Summary will be 
posted.
    OSHA also acknowledges that certain data fields on the OSHA 300 and 
301 may contain personally-identifiable information. It has been OSHA's 
experience that information entered in Column F of the 300 Log may 
contain personally-identifiable information. For example, when 
describing an injury or illness, employers sometimes include names of 
employees. As a result, OSHA plans to review the information submitted 
by employers for personally-identifiable information. As part of this 
review, the Agency will use software that will search for, and de-
identify, personally identifiable information before the submitted data 
are posted.
    In response to commenters who expressed concern about the posting 
of personal information from family farms, OSHA notes that it is 
extremely unlikely that personal information from family farms will be 
collected or posted under this final rule. Section 1904.41(a)(1) of the 
final rule requires only establishments with 250 or more employees to 
submit information from the three OSHA recordkeeping forms. In 
addition, Sec.  1904.41(a)(2) of the final rule makes clear that only 
establishments in designated industries with 20 more employees, but 
fewer than 250 employees, must submit information from the OSHA 300A 
annual summary. As a result, in most cases, family farms will not be 
required to submit injury and illness recordkeeping data to OSHA under 
this final rule.
    As discussed elsewhere in this preamble, under Sec.  1904.41(a)(3) 
of the final rule, some employers with 19 or fewer employees (including 
small farms) may be required to submit their injury and illness 
recordkeeping data to OSHA. Farm address and contact information is 
already commercially available, and the information can be purchased 
from such companies as D&B and Experian. Also, address and contact 
information for small farms that have been inspected by OSHA is already 
on the Agency's public Web site.
    A number of commenters suggested that, even though OSHA intended to 
delete employee names and other identifying information, enough 
information would remain in the published data for the public to 
identify the injured or ill employee (Exs. 0189, 0211, 0218, 0224, 
0240, 0241, 0242, 0252, 0253, 0258, 1084, 1090, 1092, 1093, 1109, 1113, 
1122, 1123, 1190, 1192, 1194, 1197, 1198, 1199, 1200, 1205, 1206, 1207, 
1209, 1214, 1217, 1218, 1219, 1223, 1272, 1273, 1275, 1276, 1279, 1318, 
1321, 1322, 1323, 1326, 1327, 1331, 1333, 1334, 1336, 1338, 1342, 1343, 
1348, 1349, 1353, 1355, 1356, 1359, 1360, 1370, 1372, 1376, 1378, 1386, 
1389, 1392, 1394, 1396, 1397, 1399, 1402, 1408, 1410, 1411, 1412, 1415, 
1417, 1427, 1430). Some of these commenters were specifically concerned 
about the anonymity of injured or ill employees working at small 
establishments located in small communities. For example, commenters 
noted that information such as type of injury or illness, date and 
location of injury or illness, type of body part injured, treatment, 
and job title, could be used to identify the employee.
    In response, OSHA notes that the final rule requires only 
establishments with 250 or more employees to submit information from 
all three OSHA recordkeeping forms. The Agency believes it is less 
likely that employees in such large establishments will be identified 
based on the posted recordkeeping data. By contrast, establishments 
with 20 to 249 employees that are required to submit recordkeeping data 
under this final rule are only required to submit their OSHA 300A 
annual summary. As discussed above, the OSHA Form 300A includes only 
aggregate injury and illness data from a specific establishment.
Safeguarding Collected Information
    OSHA received multiple comments on the issue of safeguarding the 
information collected under this final rule. Several commenters 
commented that OSHA should use and specify procedures for cybersecurity 
measures to protect confidential information (Exs. 1210, 1333, 1334, 
1364, 1409). For example, IPC--Association Connecting Electronics 
Industries commented that ``IPC is concerned about the security of the 
injury and illness data reported to OSHA. IPC asks OSHA to specify the 
security measures that will be used to protect sensitive information'' 
(Ex. 1334).
    MIT Laboratories commented more generally about the misuse of 
collected data. They stated that there is a lack of ``mechanisms that 
would provide accountability for harm arising from misuse of disclosed 
data . . . Accountability mechanisms should enable individuals to find 
out where data describing them has been distributed and used, set forth 
penalties for misuse, and provide harmed individuals with a right of 
action'' (Ex. 1207). The American Road and Transportation Builders 
Association (ARTBA) provided a similar comment (Ex. 1409).
    In response, when OSHA develops the data collection system, the 
Agency plans to maintain two data repositories in the system: One as 
OSHA's data mart (or warehouse) for prescribed data behind a secure 
firewall, and a separate but similarly secured repository of data that 
has been verified as scrubbed and available for public access. Both 
systems will have multi-tiered access controls, and the internal system 
will specifically be designed to limit access to PII to as few users as 
possible. In addition, OSHA will consider the possible need to encrypt 
sensitive data in the data mart repository as a safeguard, so that data 
would be scrubbed (and rendered unreadable and useless) in the case of 
unauthorized access. Also, as discussed above, OSHA will not collect 
data from certain fields that primarily exist to help people doing 
incident investigations at the establishment and that would not add to 
OSHA's or any other user's ability to identify establishments with 
specific hazards or elevated injury and illness rates.
    Additionally, NAM commented that, in the preamble to the 2001 final 
rule, OSHA acknowledged the inability to protect personal information 
in part 1904: ``In 2001, OSHA acknowledged that the agency had no means 
of protecting against unwarranted disclosure of private information 
contained in an employer's injury and illness records or that there 
were sufficient safeguards in place to protect against misuse of 
private information. But more importantly, OSHA acknowledged that 
``[t]he right to collect and use [private] data for public purposes is 
typically accompanied by a concomitant statutory or regulatory duty to 
avoid unwarranted disclosures.'' 66 FR at 6056.'' (Ex. 1279). Other 
commenters commented that there is no assurance that OSHA will be able 
to protect the privacy of the employee once the recordkeeping data is 
submitted (Exs. 0187, 1217, 1275).
    In response, OSHA disagrees with commenters who suggested the 
Agency will not be able to protect employee information. As discussed 
above, two ways OSHA can protect the privacy of employee information 
are by not collecting certain information and by not releasing 
personally identifiable information on the publicly-accessible Web 
site. With respect to safeguarding the information submitted by 
employers, OSHA is strongly committed

[[Page 29663]]

to maintaining the confidentiality of the information it collects, as 
well as the security of its computer system. All federal agencies are 
required to establish appropriate administrative and technical 
safeguards to ensure that the security of all media containing 
confidential information is protected against unauthorized disclosures 
and anticipated threats or hazards to their security or integrity. 
Regardless of the category of information, all Department of Labor 
agencies must comply with the Privacy and Security Statement posted on 
DOL's Web site. As part of its efforts to ensure and maintain the 
integrity of the information disseminated to the public, DOL's IT 
security policy and planning framework is designed to protect 
information from unauthorized access or revision and to ensure that the 
information is not compromised through corruption or falsification.
    Posting of the annual summary in the workplace is not public 
disclosure.
    The International Association of Amusement Parks (IAAP) commented 
that OSHA only addressed the privacy concern by stating in the preamble 
to the proposed rule that an employer already has the obligation to 
publish recordkeeping data when they post the OSHA 300A. IAAP 
commented, however, that ``[t]his posting of the annual summary data by 
an employer is not comparable to posting injury and illness data on a 
searchable, publicly accessible database. Employers can post the annual 
summary data on employee bulletin boards which are typically not 
located in places where the public has access'' (Ex. 1427). The 
American Fuel & Petroleum Association (AFPA) also noted that ``[w]ith 
respect to posting annual summary data, the information stays within 
the place of employment. Even if an employee decides to distribute the 
information, the reach would probably be limited to the immediate, 
surrounding area'' (Ex. 1336).
    In response, OSHA notes that one of the objectives of this 
rulemaking is to produce a wider public dissemination of information 
about recordable occupational injuries and illnesses. The Annual 
Summary does not include personally-identifiable information, and the 
posting of the information on the Web site should not involve privacy 
or confidentiality concerns. With respect to the posting on the Web 
site of information from the 300 Log and 301 Incident Report for 
establishments with 250 or more employees, such posting will not 
include personally-identifiable information. Again, the goal of the 
final rule is to disseminate injury and illness data, not to 
disseminate personal information about employers or employees.
Privacy Concern Cases
    Some commenters raised concerns about the proposed rule and the 
protection of personally identifiable employee information included in 
``privacy concern cases'' (Exs. 0150, 1207, 1279, 1335, 1339). Under 
OSHA's existing recordkeeping regulation, Sec.  1904.29(b)(6)) requires 
employers to withhold the injured or ill employee's name from the 300 
Log for injuries and illnesses defined as ``privacy concern cases.'' 
Section 1904.29(b)(7) defines privacy concern cases as those involving 
(i) an injury or illness to an intimate body part or the reproductive 
system; (ii) an injury or illness resulting from a sexual assault; 
(iii) a mental illness; (iv) a work-related HIV infection, hepatitis 
case, or tuberculosis case; (v) needlestick injuries and cuts from 
sharp objects that are contaminated with another person's blood or 
other potentially infectious material, or (vi) any other illness, if 
the employee independently and voluntarily requests that his or her 
name not be entered on the log. Additionally, Sec.  1904.29(b)(10) 
includes provisions addressing employee privacy if the employer decides 
voluntarily to disclose the OSHA 300 and 301 forms to persons other 
than those who have a mandatory right of access under Sec.  1904.35. 
The paragraph requires employers to remove or hide employees' names or 
other personally identifiable information before disclosing the forms 
to persons other than government representatives, former employees, or 
authorized representatives, as required by Sec. Sec.  1904.40 and 
1904.35, except in three cases. The employer may disclose the forms, 
complete with personally-identifiable information, only to: (i) An 
auditor or consultant hired by the employer to evaluate the safety and 
health program; (ii) the extent necessary for processing a claim for 
workers' compensation or other insurance benefits; or (iii) a public 
health authority or law enforcement agency for uses and disclosures for 
which consent, an authorization, or opportunity to agree or disagree or 
object is not required under 45 CFR 164.512 (Privacy Rule).
    In its comments, NAM stated that OSHA failed to address how Sec.  
1904.29(b)(6)-(10) would be affected by the proposed rule. NAM 
commented that there may be differences between employers and OSHA as 
to what is considered personally identifiable information.

    Assume that an employer voluntarily provides its OSHA Forms 300 
and 301 to an outside safety and health organization. In choosing to 
do so, the employer is required to redact the employees' names and 
``other personally identifying information.'' Depending on a variety 
of factors, the employer chooses to redact certain information, 
including job titles and dates of injuries. Yet, months later when 
OSHA receives this employer's injury and illness records it decides 
to only redact the employees' names. The safety and health 
organization could put both sets of data together--something OSHA 
seems to want to encourage--and the safety and health organization 
could conceivably identify various individuals. Using this 
information, the safety and health organization contacts the 
employee. In many instances, the employee may not want to be 
contacted or have their information used and disseminated any 
further, constituting an unwarranted and ongoing invasion of the 
employee's privacy (Ex. 1279).

    Additionally, Portland Cement commented: ``The Agency has not shown 
the regulated community in this proposal what a revised Form 300, if 
developed, would show, and explicit wording in the proposed 1904.41 
would require the employee's name to be shown in the electronic 
submission to OSHA. Because the Agency has clearly defined ``privacy 
concern cases'' in part 1904.29(b)(6) for when employers may keep 
confidential the identity of the injured or ill employee, there are 
concerns about why OSHA did not more clearly and explicitly address 
naming the employee in the proposed electronic submission requirement 
found in proposed 1904.41, and why the Agency did not provide a revised 
OSHA Form 300 for review in the proposed regulation'' (Ex. 1335).
    In response, OSHA agrees with commenters who stated that the 
confidentiality of privacy concern cases is extremely important. The 
requirements in existing Sec.  1904.29(b)(6) through (10) were issued 
by OSHA in 2001 as a result of the Agency's strong commitment to 
protect the identity of employees involved in privacy concern cases. As 
discussed above, the final rule requires employers at establishments 
with 250 or more employees to submit information about the employee and 
the employee's injury/illness recorded on the 300 and 301 forms, except 
employee name and address, treating physician name, and treating 
facility name and address. This includes the information related to 
privacy concern cases. Since OSHA will have the relevant information 
from the forms, employers are not required to submit the confidential 
list of privacy concern cases.

[[Page 29664]]

    Also as discussed above, OSHA will not collect or post information 
from Column B (the employee's name) from the 300 Log or from Fields 1, 
2, 6, or 7 from the 301 Incident Report. In addition, OSHA will not 
post information from Fields 3 through 5 of the 301 Incident Report. 
Information in items 14 through 17 will be scrubbed for PII before 
being released publicly. This will ensure that information about an 
employee's name, address, date of birth, date hired, and gender is not 
disclosed. OSHA also does not intend to post any other information on 
the Web site that could be used to identify an individual. 
Additionally, OSHA will conduct a special review of submitted privacy 
concern case information to ensure that the identity of the employee is 
protected.
    With respect to NAM's comment regarding the definition of 
``personally-identifiable information,'' OSHA uses the definition 
provided in the May 22, 2007, OMB Memorandum for the Heads of Executive 
Departments and Agencies, ``Safeguarding Against and Responding to the 
Breach of Personally Identifiable Information.'' The term ``personally-
identifiable information'' refers to information which can be used to 
distinguish or trace an individual's identify, such as their name, 
Social Security number, biometric records, etc. alone, or when combined 
with other personal or identifying information which is linked or 
linkable to a specific individual, such as date and place of birth, 
mother's maiden name, etc. Based on this definition, certain 
information included on the OSHA recordkeeping forms is personally 
identifiable information. For example, an employee's name, address, 
date of birth, date hired, and gender would be personally identifiable 
information and not subject to posting on the publicly-accessible Web 
site as establishment-specific data. (However, note that OSHA will not 
collect information about the employee's name or address under this 
final rule.)
    Other information included on the OSHA forms may also be personally 
identifiable information. As mentioned by a commenter, depending on the 
circumstances at a specific establishment, the information in Column C 
(Job Title) from the 300 Log could be used to identify an employee who 
was involved in a privacy concern case. In fact, OSHA's current 
recordkeeping Frequently Asked Question (FAQ) 29-3 permits an employer 
to delete information (such as Job Title) if they believe it will 
identify the employee. However, OSHA also believes that because only 
establishments with 250 or more employers will be required to submit 
the OSHA 300 Log and 301 Incident Report, it is less likely that 
information related to Job Title can be used to identify an employee.
    OSHA further notes that comments that suggested additional 
categories for privacy concern cases are not within the scope of this 
rulemaking. Any revision to existing Sec.  1904.29(b)(6) through (10) 
would require separate notice and comment rulemaking.
Confidential Information Protection and Statistical Efficiency Act
    Several commenters stated that the online posting of covered 
employers injury and illness recordkeeping data violates the 
Confidential Information Protection and Statistical Efficiency Act of 
2002 (CIPSEA) (Pub. L. 107-347, December 17, 2002) (Exs. 1225, 1392, 
1399). These commenters noted that CIPSEA prohibits BLS from releasing 
establishment-specific injury and illness data to the general public or 
to OSHA, and that OSHA has not adequately addressed how the release of 
part 1904 information under this rulemaking is consistent with the 
Congressional mandate expressed in the law.
    Two commenters also stated that publishing data from the OSHA 
recordkeeping forms would circumvent Congress's intent from 2002 (Exs. 
1193, 1430). These commenters noted that data on the 300 and 301 forms 
are already reported to BLS, and when Congress passed CIPSEA, it made 
the determination that such information should be confidential and 
prohibited BLS from releasing establishment-specific data to the 
general public or to OSHA.
    In response, OSHA notes that CIPSEA provides strong confidentiality 
protections for statistical information collections that are conducted 
or sponsored by federal agencies. The law prevents the disclosure of 
data or information in identifiable form if the information is acquired 
by an agency under a pledge of confidentiality for exclusively 
statistical purposes. See, section 512(b)(1). BLS, whose mission is to 
collect, process, analyze, and disseminate statistical information, 
uses a pledge of confidentiality when requesting occupational injury 
and illness information from respondents under the BLS Survey.
    The provisions of CIPSEA apply when a federal agency both pledges 
to protect the confidentiality of the information it acquires and uses 
the information only for statistical purposes. Conversely, the 
provisions of CIPSEA do not apply if information is collected or used 
by a federal agency for any non-statistical purpose. As noted elsewhere 
in this document, the information collected and published by OSHA in 
the final rule will be used for several purposes, including for the 
targeting of OSHA enforcement activities. Therefore, the CIPSEA 
confidentiality provisions are not applicable to the final rule.
Data Quality Act
    Peter Strauss commented that OSHA is entitled to collect the 
workplace injury and illness records as prescribed by the proposed 
rule, but the Data Quality Act assures against the mishandling of such 
data (Ex. 0187). Another commenter, Society of Plastics Industry, Inc., 
commented: ``Let us assume, solely for purposes of further analysis, 
and contrary to its stated purpose, that the publication of this 
information was designed solely to inform affected employers and 
employees of workplace incidents, and implicitly workplace conditions, 
so they could take remedial and/or preventive measures to prevent 
incidents from happening again. OSHA would be publishing information 
that has not been investigated or otherwise verified through 
appropriate quality controls, that would be misleading (in that it 
would be published without any meaningful context and in a manner 
designed to convey employer responsibility notwithstanding any 
accompanying disclaimers), and that may very well contain personal 
identifiers or personally identifiable information that could 
effectively result in the unlawful disclosure of personal medical 
information. This type of publication would conflict with the goals of 
the OSH Act, the requirements of the Data Quality Act, and the 
requirements of the applicable privacy laws'' (Ex. 1342).
    In response, OSHA notes that the Data Quality Act, or Information 
Quality Act, was passed by Congress in Section 115 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658). The Act directs the Office of Management and 
Budget (OMB) to issue government-wide guidelines that ``provide policy 
and procedural guidance to federal agencies for ensuring and maximizing 
the quality, objectivity, utility, and integrity of information 
(including statistical information) disseminated by federal agencies.'' 
The Act also requires other federal agencies to publish their own 
implementation guidelines that include ``administrative mechanisms 
allowing affected persons to seek and obtain correction of information 
maintained

[[Page 29665]]

and disseminated by the agency'' that does not comply with the 
guidelines issued by OMB. The Department of Labor issued its 
implementing guidelines on October 1, 2002. [https://www.dol.gov/informationquality.htm]. The purpose of these guidelines is to 
establish Departmental guidelines for implementing an information 
quality program at DOL and to enhance the quality of information 
disseminated by DOL.
    The DOL Guidelines state that ``dissemination'' includes agency 
initiated or sponsored distribution of information to the public.'' It 
does not include ``agency citations to or discussion of information 
that was prepared by others and considered by the agency in the 
performance of its responsibilities, unless an agency disseminates it 
in a manner that reasonably suggests that the agency agrees with the 
information.'' OSHA notes that it will make no determination as to 
whether the Agency agrees with the recordkeeping information 
electronically submitted under the final rule. In addition, with the 
exception of redacting personally identifiable information, OSHA will 
not amend the raw recordkeeping data submitted by employers. As a 
result, the provisions of the Information Quality Act, as well as the 
DOL information quality guidelines, do not apply to the recordkeeping 
information posted on the public Web site.
    Although the provisions of the Information Quality Act do not 
apply, OSHA still wishes to emphasize that, as part of its efforts to 
ensure accuracy, the Agency encourages affected employers, employees, 
and other individuals to seek and obtain, where appropriate, correction 
of recordkeeping data posted on the public Web site. OSHA believes that 
in most cases, informal contacts with the Agency will be appropriate. 
However, OSHA will also make available on its Web site a list of 
officials to whom requests for corrections should be sent and where and 
how such officials may be contacted. The purpose of this correction 
process is to address inaccuracies in the posted information, not to 
resolve underlying substantive policy or legal issues.
Health Insurance Portability and Accountability Act
    Several commenters raised concerns about whether the proposed rule 
would hinder individual privacy rights under the Health Insurance 
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191. 
Some of these commenters stated that the HIPAA privacy regulation at 45 
CFR parts 160 and 164 (Privacy Rule), prohibits OSHA from public 
disclosure of personally-identifiable health information. Other 
commenters expressed the concern that employers would be in violation 
of the Privacy Rule if this rulemaking requires them to submit 
protected health information to OSHA (Exs. 0218, 0224, 0240, 0252, 
1084, 1093, 1109, 1111, 1123, 1197, 1200, 1205, 1206, 1210, 1214, 1217, 
1218, 1223, 1272, 1275, 1279, 1331, 1338, 1342, 1362, 1370, 1386, 1402, 
1408).
    In response, OSHA notes that on December 28, 2000, the U.S. 
Department of Health and Human Services (HHS) issued a final rule, 
Standard for Privacy of Individually-Identifiable Health Information 
(65 FR 82462). The rule was modified on August 14, 2002 (67 FR 53182), 
which is codified at 45 CFR parts 160 and 164. Collectively known as 
the ``Privacy Rule,'' these standards protect the privacy of 
individually identifiable health information (``protected health 
information'' or ``PHI''), but is balanced to ensure that appropriate 
uses and disclosures of PHI still may be made when necessary to treat a 
patient, to protect the nation's public health, and for other critical 
purposes. A covered entity may not use or disclose protected health 
information unless permitted by the Privacy Rule. See, 45 CFR 164.502.
    As required by HIPAA, the provisions of the Privacy Rule only apply 
to ``covered entities.'' The term ``covered entity'' includes health 
plans, health care clearinghouses, and health care providers who 
conduct certain financial and administrative transactions 
electronically. See, 45 CFR 160.103. OSHA notes that the Agency does 
not fall within the definition of a covered entity for purposes of the 
Privacy Rule. Therefore, the use and disclosure requirements of the 
Privacy Rule do not apply to OSHA, and do not prevent the Agency from 
publishing injury and illness recordkeeping information under this 
final rule.
    Additionally, OSHA agrees with commenters who suggested that the 
Agency consider applying the principles set forth in the Privacy Rule 
for the de-identification of health information. OSHA believes that 
health information is individually identifiable if it does, or 
potentially could, identify the individual. As explained by commenters, 
once protected health information is de-identified, there may no longer 
be privacy concerns under HIPAA. Again, it is OSHA's policy under the 
final rule not to release any individually-identifiable information. As 
discussed elsewhere in this document, procedures are in place to ensure 
that individually-identifiable information, including health 
information, will not be publicly posted on the OSHA Web site.
    With respect to the issue of whether HIPAA prevents covered 
entities from disclosing PHI to employers, and/or directly to OSHA, the 
Agency notes that the Privacy Rule specifically includes several 
exemptions for disclosures of health information without individual 
authorization. Of particular significance, is 45 CFR 164.512--Uses and 
disclosures for which authorization or opportunity to agree or object 
is not required. These standards, in themselves, do not compel a 
covered entity to disclose PHI. Instead, they merely permit the covered 
entity to make the requested disclosure without obtaining authorization 
from affected individuals. Section 164.512(a) of the Privacy Rule 
permits covered entities to use and disclose PHI, without 
authorization, when they are required to do so by another law. HHS has 
made clear that this disclosure encompasses the full array of binding 
legal authorities, including statutes, agency orders, regulations, or 
other federal, state or local governmental actions having the effect of 
law. See, 65 FR 82668. As a result, the Privacy Rule does not allow a 
covered entity to restrict or refuse to disclose PHI required by an 
OSHA standard or regulation.
    A covered entity may also disclose PHI without individual 
authorization to ``public health authorities'' and to ``health 
oversight agencies.'' See, 45 CFR 164.512(b) and (d). The preamble to 
the Privacy Rule specifically mentions OSHA as an example of both. See, 
65 FR 82492, 82526.
    The Privacy Rule also permits a covered entity who is a member of 
the employer's workforce, or provides health care at the request of an 
employer, to disclose to employers protected health information 
concerning work-related injuries or illnesses or work-related medical 
surveillance in situations where the employer has a duty under the OSH 
Act, the Mine Act, or under a similar state law to keep records on or 
act on such information. Section 164.512(b)(1)(v)(C) specifically 
permits a covered entity to use or disclose protected health 
information if the employer needs such information in order to comply 
with obligations under 29 CFR parts 1904 through 1928.
Americans With Disabilities Act
    The New York Farm Bureau (NYFB) commented that the Americans with 
Disabilities Act of 1990 (ADA), 42

[[Page 29666]]

U.S.C. 12101 et seq. prohibits the release of health and disability-
related information (Ex. 1370). NYFB specifically requested that OSHA 
explain how compliance with the electronic reporting requirement can be 
accomplished while meeting the requirements of the ADA.
    In response, OSHA notes that Section 12112(d)(3)(B) of the ADA 
permits an employer to require a job applicant to submit to a medical 
examination after an offer of employment has been made but before 
commencement of employment duties, provided that medical information 
obtained from the examination is kept in a confidential medical file 
and not disclosed except as necessary to inform supervisors, first aid 
and safety personnel, and government officials investigating compliance 
with the ADA. Section 12112(d)(4)(C) requires that the same 
confidentiality protection be accorded health information obtained from 
a voluntary medical examination that is part of an employee health 
program.
    By its terms, the ADA requires confidentiality for information 
obtained from medical examinations given to prospective employees, and 
from medical examinations given as part of a voluntary employee health 
program. The OSHA injury and illness records are not derived from pre-
employment or voluntary health programs. The information in the OSHA 
injury and illness records is similar to that found in workers' 
compensation forms, and may be obtained by employers by the same 
process used to record needed information for workers' compensation and 
insurance purposes. The Equal Employment Opportunity Commission (EEOC), 
the agency responsible for administering the ADA, recognizes a partial 
exception to the ADA's strict confidentiality requirements for medical 
information regarding an employee's occupational injury or workers' 
compensation claim. See EEOC Enforcement Guidance: Workers' 
Compensation and the ADA, 5 (September 3, 1996). Therefore, it is not 
clear that the ADA applies to the OSHA injury and illness records.
    Even assuming that the OSHA injury and illness records fall within 
the literal scope of the ADA's confidentiality provisions, it does not 
follow that a conflict arises. The ADA states that ``nothing in this 
Act shall be construed to invalidate or limit the remedies, rights, and 
procedures of any federal law.'' See, 29 U.S.C. 12201(b). In enacting 
the ADA, Congress was aware that other federal standards imposed 
requirements for testing an employee's health, and for disseminating 
information about an employee's medical condition or history, 
determined to be necessary to preserve the health and safety of 
employees and the public. See, H.R. Rep. No. 101-485 pt. 2, 101st 
Cong., 2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N. 356, 357 
(noting, e.g. medical surveillance requirements of standards 
promulgated under OSH Act and federal Mine Safety and Health Act, and 
stating ``[t]he Committee does not intend for [the ADA] to override any 
medical standard or requirement established by federal . . . law . . . 
that is job-related and consistent with business necessity''). See 
also, 29 CFR part 1630 App. p. 356. The ADA recognizes the primacy of 
federal safety and health regulations; therefore such regulations, 
including mandatory OSHA recordkeeping requirements, pose no conflict 
with the ADA. Cf. Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999) 
(``When Congress enacted the ADA, it recognized that federal safety and 
health rules would limit application of the ADA as a matter of law.'').
    The EEOC has also recognized both in the implementing regulations 
at 29 CFR part 1630, as well as in interpretive guidelines, that the 
ADA yields to the requirements of other federal safety and health 
standards and regulations. The implementing regulation codified at 29 
CFR 1630.15(e) explicitly states that an employer's compliance with 
another federal law or regulation may be a defense to a charge of 
violating the ADA.
    Additionally, the EEOC Technical Assistance Manual on the ADA 
states that the ``ADA does not override health and safety requirements 
established under other Federal laws . . . For example, . . . Employers 
also must conform to health and safety requirements of the U.S. 
Occupational Safety and Health Administration (OSHA).'' For these 
reasons, OSHA does not believe that the mandatory submission and 
publication requirements in Sec.  1904.41 of this final rule conflict 
with the confidentiality provisions of the ADA.
Other Issues
Alternate Forms
    Some commenters commented that the requirement for electronic 
submission of part 1904 injury and illness data will lead to the 
elimination of alternate or equivalent recordkeeping forms by employers 
(Exs. 1385, 1399). Littler Mendelson, P.C. commented: ``Many employers 
utilize equivalent forms--particularly insurance and accident 
investigation forms in place of the Form 301. In establishing a 
requirement for electronic reporting in a particular software format 
OSHA will be mandating the use of a specific form and eliminating the 
widespread use of equivalent forms by employers. This change has not 
been identified or evaluated (benefits, or lack thereof) under the 
Paperwork Reduction Act provisions applicable to this rulemaking. 
Littler believes that the incremental benefit (if any) proposed in this 
rulemaking is significantly outweighed by the increased paperwork 
duplication which would be created by the use of mandatory forms and 
elimination of equivalent forms'' (Ex. 1385).
    In response, OSHA notes that existing Sec.  1904.29(a) provides 
that employers must use the OSHA 300 Log, 301 Incident Report, and 300A 
Annual Summary, or equivalent forms, when recording injuries and 
illnesses under part 1904. Section 1904.29(b)(4) states that an 
equivalent form is one that has the same information, is as readable 
and understandable, and is completed using the same instructions as the 
OSHA form it replaces. OSHA is aware that many employers use an 
insurance form instead of the 301 Incident Report, or supplement an 
insurance form by adding any additional information required by OSHA.
    As discussed above, under the final rule, employers have two 
options for submitting recordkeeping data to OSHA's secure Web site. 
First, employers can directly enter data in a web form. Second, 
employers will be provided with a means of electronically transmitting 
the information, including information from equivalent forms, to OSHA. 
This is similar to how BLS collects data from establishments under the 
SOII. Accordingly, the final rule does not change the option for 
employers to use alternate or equivalent forms when recording OSHA 
injuries and illnesses.
No Fault Recordkeeping Policy
    There were many comments that the proposed rule would reverse 
OSHA's long-standing ``no fault'' recordkeeping policy (Exs. 0160, 
0174, 0179, 0192, 0218, 0224, 0240, 0251, 0255, 1084, 1091, 1092, 1093, 
1109, 1113, 1123, 1191, 1192, 1194, 1197, 1199, 1200, 1214, 1218, 1272, 
1273, 1276, 1279, 1323, 1324, 1328, 1329, 1334, 1336, 1338, 1342, 1343, 
1349, 1359, 1370, 1386, 1391, 1394, 1397, 1399, 1401, 1411, 1427). For 
example, the Coalition for Workplace Safety commented that ``[i]n 2001, 
OSHA revised the recordkeeping requirements and the foundation of those 
revisions in what

[[Page 29667]]

OSHA deemed a ``no-fault'' system . . . For a variety of reasons OSHA 
concluded that a ``geographic'' presumption was the most comprehensive 
way to achieve Congress's objective for determining work-related 
injuries and illness. However, at the same time, OSHA recognized that 
the ``geographic'' presumption did not necessarily correlate to an 
employer's behavior and therefore injuries and illness that were beyond 
an employer's control would be recorded . . . [n]ow, OSHA intends to 
use this no-fault system to target employers for enforcement efforts, 
to shame employers into compliance, to allow members of the public to 
make decisions about with which companies to do business, and to allow 
current employees to compare their workplaces to the ``best'' 
workplaces for safety and health. This proposed regulation 
fundamentally upends the no-fault system that OSHA originally adopted 
in 2001'' (Ex. 1411). The International Association of Drilling 
Contractors (IADC) also commented that ``the presumption under the NPRM 
is that all injuries or illnesses are preventable, suggesting all 
incidents are the fault of the employer. The proposal essentially turns 
the ``no fault'' reporting system into one where employers will be 
blamed for idiosyncratic events arising as a result of forces beyond 
their control or actions by workers in direct contravention of 
workplace rules. This is a clear abandonment of the ``no-fault'' system 
in favor of OSHA's controversial and counterproductive ``regulation by 
shaming'' enforcement doctrine. Surprisingly, OSHA fails to even 
acknowledge its reversal, or provide any justification or an analysis 
for this significant change'' (Ex. 1199).
    In response, OSHA disagrees with commenters who commented that the 
Agency has reversed its ``no fault'' recordkeeping policy. The Note to 
Sec.  1904.0 of OSHA's existing recordkeeping regulation continues to 
provide that the recording or reporting of a work-related injury, 
illness, or fatality does not mean that an employer or employee was at 
fault, that an OSHA rule has been violated, or that the employee is 
eligible for workers' compensation or other benefits. As noted 
elsewhere in this preamble, the purpose of this rulemaking is to 
improve workplace safety and health through the collection of useful, 
accessible, establishment-specific injury and illness data to which 
OSHA currently does not have direct, timely, and systematic access. The 
information acquired through this final rule will assist employers, 
employees, employee representatives, researchers, and the government to 
better identify and correct workplace hazards.
    OSHA also disagrees with commenters who suggested that the Agency 
will use the ``no fault'' recordkeeping system to target employers for 
enforcement efforts. As discussed elsewhere in this preamble, and 
consistent with the Agency's longstanding practice, OSHA will use a 
neutral administrative plan when targeting employers for onsite 
inspection, similar to how the Agency has administered enforcement 
activities under the Site-Specific Targeting program.
Section 1904.41(a)(3) Seems To Give OSHA Unlimited Power
    Andrew Sutton commented that the language in proposed Sec.  
1904.41(a)(3) appears to give OSHA ``unfettered discretion.'' This 
section would have provided that upon notification, you must 
electronically send to OSHA or OSHA's designee the requested 
information, at the specified time interval, from the records that you 
keep under part 1904. According to the commenter, this section might be 
seen to give too much power to OSHA for ad hoc data collection: ``In 
fact, the authority contained in this section could be said to make the 
whole rest of 1904.41 redundant; OSHA could enact the whole rest of the 
proposed regulation via the power granted here.'' (Ex. 0245).
    In response, OSHA notes that, like the proposed rule, Sec.  
1904.41(a)(3) of the rule requires that, upon request, employers must 
electronically submit their OSHA part 1904 records to OSHA or OSHA's 
designee. This section replaces OSHA's existing regulation at Sec.  
1904.41, Annual OSHA injury and illness survey of ten or more 
employers. In recent years, OSHA has used the authority in Sec.  
1904.41 to conduct surveys through the OSHA Data Initiative (ODI).
    It has never been OSHA's intention to exercise unfettered 
discretion when collecting injury and illness records. Like the 
existing regulation, Sec.  1904.41(a)(3) of the final rule provides 
OSHA with authority to conduct surveys of employers regarding their 
occupational injuries and illnesses. Historically, the information 
collected through these surveys has assisted OSHA in identifying trends 
in workplace hazards, evaluating the effectiveness of OSHA enforcement 
activities, and gathering information for the promulgation of new 
occupational safety and health standards and regulations.
    OSHA further notes that data collection under final Sec.  
1904.41(a)(3) would be subject to the Paperwork Reduction Act, which 
provides that federal agencies generally cannot conduct or sponsor a 
collection of information, and the public is not required to respond to 
an information collection, unless it is approved by OMB and displays a 
valid OMB Control Number. Also, pursuant to the PRA, notice of 
information collections must be published in the Federal Register. As a 
result, employers will be able to determine which employers are within 
a survey group and which information will be collected each year before 
the survey begins. Once a survey has been given an OMB control number 
under the PRA, any substantive or material modification would require a 
new PRA clearance.
    In addition, final Sec.  1904.41(b)(7) provides that employers who 
are partially exempt from keeping injury and illness records under 
existing Sec. Sec.  1904.1 and/or 1904.2 are required to submit 
recordkeeping data only if OSHA notifies them they will be required to 
participate in a particular information collection under Sec.  
1904.41(a)(3). OSHA will notify these employers in writing in advance 
of the year for which injury and illness records will be required.

D. The Final Rule

    The final rule is similar to the proposed rule in requiring 
employers to electronically submit part 1904 records to OSHA. However, 
there are also several differences from the proposed rule. The major 
differences between the final rule and the proposed rule include the 
following:
    1. In the final rule, establishments with 250 or more employees 
that are required to keep part 1904 records must electronically submit 
some of the information from the three recordkeeping forms that they 
keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries 
and Illnesses, OSHA Form 300 Log of Work-Related Injuries and 
Illnesses, and OSHA Form 301 Injury and Illness Incident Report) to 
OSHA or OSHA's designee once a year. In the proposed rule, these 
establishments would have been required to electronically submit all of 
the information from the OSHA Form 300 and OSHA Form 301 quarterly, and 
electronically submit all of the information from the OSHA Form 300A 
annually.
    2. In the final rule, for establishments with 20 to 249 employees, 
the list of designated industries who must report in appendix A to 
subpart E of part 1904

[[Page 29668]]

is based on a three-year average of BLS data from 2011, 2012, and 2013. 
In the proposed rule, the list of designated industries in appendix A 
to subpart E of part 1904 would have been based on one year of BLS data 
from 2009.
    Under the final rule, employers have the following requirements:
    1. Sec.  1904.41(a)(1)--Establishments with 250 or more employees 
that are required to keep part 1904 records must electronically submit 
the required information from the three recordkeeping forms that they 
keep under part 1904 (OSHA Form 300A Summary of Work-Related Injuries 
and Illnesses, OSHA Form 300 Log of Work-Related Injuries and 
Illnesses, and OSHA Form 301 Injury and Illness Incident Report) to 
OSHA or OSHA's designee annually. This information must be submitted no 
later than March 2 of the year after the calendar year covered by the 
form. The establishments are not required to submit the following 
information:
    a. Log of Work-Related Injuries and Illnesses (OSHA Form 300): 
Employee name (column B).
    b. Injury and Illness Incident Report (OSHA Form 301): Employee 
name (field 1), employee address (field 2), name of physician or other 
health care professional (field 6), facility name and address if 
treatment was given away from the worksite (field 7).
    2. Sec.  1904.41(a)(2)--Establishments with 20-249 employees that 
are classified in a designated industry listed in appendix A to subpart 
E of part 1904 must electronically submit the required information from 
the OSHA Form 300A annually to OSHA or OSHA's designee. This 
information must be submitted no later than March 2 of the year after 
the calendar year covered by the form.
    3. Sec.  1904.41(a)(3)--Establishments must electronically submit 
the requested information from their part 1904 records to OSHA or 
OSHA's designee after notification from OSHA.
    Overall, the final rule's provisions requiring regular electronic 
submission of injury and illness data will allow OSHA to obtain a much 
larger database of timely, establishment-specific information about 
injuries and illnesses in the workplace. This information will help 
OSHA use its resources more effectively by enabling OSHA to identify 
the workplaces where workers are at greatest risk. This information 
will also help OSHA establish a comprehensive database that the Agency, 
researchers, and the public can use to identify hazards related to 
reportable events and to identify industries and processes where these 
hazards are prevalent. The change from quarterly to annual reporting of 
information from OSHA Form 300 and OSHA Form 301 by establishments with 
250 or more employees will also lessen the burden of data collection on 
both employers and OSHA.
    Note that OSHA will phase in implementation of the data collection 
system. In the first year, all establishments required to routinely 
submit information under the final rule will be required to submit only 
the information from the Form 300A (by July 1, 2017). In the second 
year, all establishments required to routinely submit information under 
the final rule will be required to submit all of the required 
information (by July 1, 2018). This means that, in the second year, 
establishments with 250 or more employees that are required to 
routinely submit information under the final rule will be responsible 
for submitting information from the Forms 300, 301, and 300A. In the 
third year, all establishments required to routinely submit under this 
final rule will be required to submit all of the required information 
(by March 2, 2019). This means that beginning in the third year (2019), 
establishments with 250 or more employees will be responsible for 
submitting information from the Forms 300, 301, and 300A, and 
establishments with 20-249 employees in an industry listed in appendix 
A to subpart E of part 1904 will be responsible for submitting 
information from the Form 300A by March 2 each year. This will provide 
sufficient time to ensure comprehensive outreach and compliance 
assistance in advance of implementation.
    In addition, consistent with E.O. 13563, OSHA plans to conduct a 
retrospective review, once the Agency has collected three full years of 
data. OSHA will use the findings of the retrospective review to assess 
the electronic submission requirements in the final rule and modify 
them as appropriate and feasible.

IV. Section 1902.7--Injury and Illness Recording and Reporting 
Requirements

    In 1997, OSHA issued a final rule at Sec.  1904.17, OSHA Surveys of 
10 or More Employers that required employers to submit occupational 
injury and illness data to OSHA when sent a survey form. The Sec.  
1904.17 rule enabled the Agency to conduct a mandatory survey of the 
1904 data, which was named the OSHA Data Initiative (ODI). When OSHA 
issued the 1997 rule, the Agency determined that the States were not 
required to adopt a rule comparable to the federal Sec.  1904.17 rule 
(62 FR 6441).
    In 2001, Sec.  1952.4(d) (now Sec.  1902.7(d)) was added to the 
final rule to continue to provide the States with the flexibility to 
participate in the OSHA Data Initiative under the federal requirements 
or the State's own regulation (66 FR 5916-6135). At its outset, Federal 
OSHA conducted the OSHA data collection in all of the states, including 
those which administered approved State Plans. However, Federal OSHA 
then began to collect data only in the State-Plan States that wished to 
participate. The current Sec.  1902.7(d) allowed the individual States 
to decide, on an annual basis, whether or not they would participate in 
the OSHA data collection. If the State elected to participate, the 
State could either adopt and enforce the requirements of current Sec.  
1904.41 as an identical or more stringent State regulation, or could 
defer to the federal regulation and federal enforcement with regard to 
the mandatory nature of the survey. If the State deferred to the 
current federal Sec.  1904.41 regulation, OSHA's authority to implement 
the ODI was not affected either by operational agreement with a State-
Plan State or by the granting of final State-Plan approval under 
section 18(e).
    In this rulemaking, the proposed rule would have required State-
Plan States to adopt requirements identical to those in 29 CFR 1904.41 
in their recordkeeping and reporting regulations as enforceable State 
requirements, as provided in section 18(c)(7) of the OSH Act. The data 
collected by OSHA as authorized by Sec.  1904.41 would have been made 
available to the State-Plan States. Nothing in any State Plan would 
have affected the duties of employers to comply with Sec.  1904.41.
    Three State-Plan States submitted comments on the proposed rule--
Kentucky (Ex. 208), North Carolina (Ex. 1195), and California (Ex. 
1395). However, they did not comment specifically on this part of the 
proposed rule. OSHA also did not receive any other comments on this 
part of the proposed rule.
    The final rule is the same as the proposed rule. State-Plan States 
must adopt requirements identical to those in 29 CFR 1904.41 in their 
recordkeeping and reporting regulations as enforceable State 
requirements, as provided in section 18(c)(7) of the OSH Act. OSHA will 
make the data collected by OSHA under this final rule available to the 
State Plan States. Nothing in any State plan will affect the duties of 
employers to comply with Sec.  1904.41.

V. Section 1904.35 and Section 1904.36

A. Background

    One of the goals of the final rule is to ensure the completeness 
and accuracy

[[Page 29669]]

of injury and illness data collected by employers and reported to OSHA. 
Therefore, Sec.  1904.35 of the final rule contains three new 
provisions that promote complete and accurate reporting of work-related 
injuries and illnesses by requiring employers to provide certain 
information on injury and illness reporting to employees, clarifying 
that employer reporting procedures must be reasonable, and prohibiting 
employers from retaliating against employees for reporting work-related 
injuries and illnesses, consistent with the existing prohibition in 
section 11(c) of the OSH Act.
    In the initial comment period and at the public meeting, many 
commenters expressed concern that the public availability of OSHA data 
would motivate some employers to under-record injuries and illnesses, 
in part by attempting to reduce the number of recordable injuries and 
illness their employees report to them. See, e.g., Exs. 0114, 1327, 
1647, 1648, 1651, 1675, 1695. Exs. 0165, 01-09-2014 Tr. at 54-55; 01-
10-2014 Tr. at 52-55. In addition, commenters in both comment periods 
pointed to numerous studies finding that under-recording is already a 
serious issue. See, e.g., Exs. 1675, 1679, 1685, 1695. OSHA concludes 
that the rulemaking record supports these concerns. Therefore, this 
final rule includes provisions intended to promote accurate recording 
of work-related injuries and illnesses by preventing the under-
recording that arises when workers are discouraged from reporting these 
occurrences. The rule also establishes an additional mechanism for OSHA 
to enforce the existing statutory prohibition on employer retaliation 
against employees.
    Specifically, the rule makes three changes to Sec. Sec.  1904.35 
and 1904.36 consistent with the proposed changes set forth in the 
August 14, 2014 Supplemental Notice of Proposed Rulemaking. The final 
rule (1) requires employers to inform employees of their right to 
report work-related injuries and illnesses free from retaliation; (2) 
clarifies the existing implicit requirement that an employer's 
procedure for reporting work-related injuries and illnesses must be 
reasonable and not deter or discourage employees from reporting; and 
(3) prohibits employers from retaliating against employees for 
reporting work-related injuries or illnesses, consistent with the 
existing prohibition in section 11(c) of the OSH Act.
    The final rule also makes a technical edit to Sec.  1904.35(a)(3) 
to clarify that the rights of employees and their representatives to 
access injury and illness records are governed by Sec.  1904.35(b)(2). 
Section 1904.35(a)(3) does not alter any of the substantive rights or 
limitations contained in Sec.  1904.35(b)(2).

B. The Proposed Rule

    On January 9 and 10, 2014, OSHA held a public meeting to discuss 
the November 8, 2013 Notice of Proposed Rulemaking. Many meeting 
participants expressed concern that the proposal to publish 
establishment-specific injury and illness data on OSHA's publicly 
available Web site might cause an increase in the number of employers 
that adopt policies or practices that have the effect of discouraging 
or deterring employees from reporting, including policies that result 
in retaliation against employees who report work-related injuries and 
illnesses. See, e.g., Exs. 0165, 01-09-2014 Tr. at 33-40. Such policies 
and practices, when successful in deterring employee reporting, would 
undermine the benefits of the rule by compromising the accuracy of 
records and result in injustice for employees who do report their work-
related injuries and illnesses and then suffer retaliation for doing 
so. OSHA seeks to ensure that employers, employees, and the public have 
access to the most accurate data possible about injuries and illnesses 
in workplaces so that they can take the most appropriate steps to 
protect worker safety and health.
    Therefore, on August 14, 2014, OSHA issued a Supplemental Notice of 
Proposed Rulemaking to address this issue. OSHA requested comment on 
``whether to amend the proposed rule to (1) require that employers 
inform their employees of their right to report injuries and illnesses; 
(2) require that any injury and illness reporting requirements 
established by the employer be reasonable and not unduly burdensome; 
and (3) prohibit employers from taking adverse action against employees 
for reporting injuries and illnesses.''
    Some commenters took issue with procedural aspects of the 
supplemental notice to the propose rule. A few commenters asserted that 
the supplemental notice to the proposed rule denied the public the 
opportunity to meaningfully comment because it did not include proposed 
regulatory text and was not specific enough about what conduct was to 
be prohibited. Exs. 1566, 1650. However, under the Administrative 
Procedure Act, proposed regulatory text is not required; agencies must 
only include ``either the terms or substance of the proposed rule or a 
description of the subjects and issues involved.'' 5 U.S.C. 553(b)(3). 
Here, the proposal explained the substance of the proposed rule and the 
subjects and issues involved. In addition, the specificity and detail 
of the comments OSHA received indicate that commenters understood the 
issues under discussion. Furthermore, as discussed below, the final 
regulatory text closely tracks the concepts and language used in the 
proposal, meaning the proposal provided sufficient notice to the public 
of the conduct to be prohibited. See Chocolate Mfrs. Ass'n v. Block, 
755 F.2d 1098, 1105 (4th Cir. 1985) (notice is sufficient as long as 
the final rule is a ``logical outgrowth'' from the notice). Therefore, 
the supplemental notice to the proposed rule provided adequate notice 
for commenters.
    Other commenters, including the American Coatings Association, 
stated that the amendments suggested by the supplemental proposal were 
outside the scope of the original November 8, 2013 proposal (Ex. 1548). 
OSHA agrees that these changes to Sec. Sec.  1904.35 and 1904.36 were 
outside the scope of the original proposal. That is why OSHA published 
a supplemental proposal and extended the public comment period. The 
final amendments to Sec. Sec.  1904.35 and 1904.36 are within the scope 
of the supplemental proposal, and are therefore permissible under the 
Administrative Procedure Act.

C. The Final Rule

    The final rule includes three new provisions in Sec.  1904.35. 
These provisions follow directly and logically from the August 14, 2014 
Supplemental Notice of Proposed Rulemaking. First, the final rule 
amends paragraphs (a)(2) and (b)(1)(iii) to require employers to inform 
employees of their right to report work-related injuries and illnesses 
free from retaliation. Second, paragraph (b)(1)(i) of the final rule 
clarifies that the reporting method already implicitly required by this 
section must be reasonable and not deter or discourage employees from 
reporting. And third, paragraph (b)(1)(iv) of the final rule prohibits 
employers from retaliating against employees for reporting work-related 
injuries or illnesses under section 1904.35 consistent with the 
existing prohibition contained in section 11(c) of the OSH Act.
Section 1904.35, Paragraphs (a)(2) and (b)(1)(iii): Employee 
Information on Reporting
    The final rule strengthens paragraph (a) of Sec.  1904.35 by 
expanding the previous requirement for employers to inform employees 
how to report work-related injuries and illnesses so that the rule now 
includes a mandate to inform

[[Page 29670]]

employees that they have a right to report work-related injuries and 
illnesses free from retaliation by their employer as described in 
paragraph (b)(1)(iii) of the final rule. OSHA has determined that this 
enhanced information-provision requirement will improve employee and 
employer understanding of their rights and responsibilities related to 
injury and illness reporting and thereby promote more accurate 
reporting.
    The rulemaking record supports OSHA's determination that requiring 
employers to inform employees of their reporting rights will improve 
the quality of employers' injury and illness records. Commenters 
provided numerous examples and studies showing that many employees 
avoid reporting injuries and illnesses because they are afraid that 
doing so will result in retaliation. For example, Lipscomb et al. 
(2012) found that many carpenters' apprentices avoided reporting 
injuries and filing workers compensation claims because they feared 
discipline, termination, or other adverse action. Exs. 1648, 1675, 
1695. Other researchers discovered similar fears among a variety of 
worker populations. See, e.g., Moore et al. (2013) (construction), 
Southern Poverty Law Center and Alabama Appleseed (2013) (poultry 
processing), Nebraska Appleseed (2009) (meatpacking), Lashuay and 
Harrison (2006) (California low-wage workers), Scherzer et al. (2005) 
(hotel room cleaners), Pransky et al. (1999) (manufacturing) (Exs. 
1648, 1675, 1685, 1695). See also below regarding actual retaliation 
against workers for reporting work-related injuries and illnesses. A 
2009 survey by the U.S. Government Accountability Office (GAO) found 
that two thirds of occupational health practitioners observed worker 
fear of disciplinary action for reporting workplace injuries and 
illnesses (Exs. 1675, 1695). Although some commenters questioned 
whether underreporting is a real problem, the examples and studies 
cited above have convinced OSHA that employee fear of retaliation is a 
real barrier to reporting of work-related injuries and illnesses and 
that the information-provision requirements in the final rule will 
allay workers' fear of retaliation and lead to more accurate reporting.
Section 1904.35(b)(1)(i): Reasonable Reporting Procedures
    The final rule amends paragraph (b)(1)(i) of Sec.  1904.35 to state 
explicitly that employer procedures for employee reporting of work-
related illnesses and injuries must be reasonable. The previous version 
of Sec.  1904.35(b)(1)(i) already required employers to set up a way 
for employees to report work-related injuries and illnesses promptly. 
The final rule adds new text to clarify that reporting procedures must 
be reasonable, and that a procedure that would deter or discourage 
reporting is not reasonable, as explained in a 2012 OSHA enforcement 
memorandum. See OSHA Memorandum re: Employer Safety Incentive and 
Disincentive Policies and Practices (Mar. 12, 2012). Although the 
substantive obligations of employers will not change, the final rule 
will have an important enforcement effect for the minority of employers 
who do not currently have reasonable reporting procedures.
    The rulemaking record supports OSHA's decision to include these 
clarifying revisions to paragraph (b)(1)(i) in the final rule. 
Commenters cited studies suggesting that employees are deterred from 
reporting injuries and illnesses where the procedure for doing so is 
too difficult. For example, Scherzer et al. (2005) found that many 
hotel room cleaners failed to report work-related pain to management 
because it took too many steps to do so (Ex. 1695). The revisions to 
paragraph (b)(1) clarify that such unduly burdensome reporting 
procedures would violate the final rule.
    Commenters also raised concerns about rigid prompt-reporting 
requirements in place at some workplaces that have resulted in employee 
discipline for late reporting even though employees could not 
reasonably have reported their injuries or illnesses earlier. See, 
e.g., Exs. 1675, 1679, 1695, 1696. Several of these commenters 
highlighted issues related to musculoskeletal disorders because such 
disorders develop over time and therefore cannot be reported 
immediately after an individual incident. The comment by the AFL-CIO 
(Ex. 1695) typifies the views of these commenters:

    Many employers have policies that require the immediate 
reporting of a work-related injury by the worker, and for some 
employers failure to follow this requirement will result in 
discipline, regardless of the circumstances. In some cases workers 
may be unaware that they have suffered an injury, since the pain or 
symptoms do not manifest until later . . . This is particularly true 
for musculoskeletal injuries. The worker reports the injury when 
they recognize it has occurred, but are disciplined because the 
reporting did not occur until after the event that caused the injury 
occurred.

    OSHA shares these concerns. Employer reporting requirements must 
account for injuries and illnesses that build up over time, have 
latency periods, or do not initially appear serious enough to be 
recordable. The United Food and Commercial Workers International Union 
provides several examples of food processing workers receiving 
discipline for ``late'' reporting where it was not reasonable to have 
expected the injured employee to report earlier. In one such case, a 
worker reported shoulder and neck pain that had developed gradually due 
to work-related repetitive motions beginning one week earlier. Although 
there was no single incident that precipitated the injury, the worker 
received a ``final warning'' for failure to ``timely report an injury'' 
(Ex. 1679). This policy was not reasonable because it did not allow for 
reporting within a reasonable time after the employee realized that he 
or she had suffered a work-related injury.
    OSHA disagrees with comments that express support for employers who 
require immediate reporting of injuries and illnesses on the grounds 
that such requirements are necessary for accurate recordkeeping, to 
prevent fraud, and to address injuries before they get worse (Exs. 
1449, 1658, 1663). OSHA recognizes that employers have a legitimate 
interest in maintaining accurate records and ensuring that employees 
are reporting genuine work-related injuries and illnesses in a 
reasonably prompt manner. These interests, however, must be balanced 
with fairness to employees who cannot reasonably discover their 
injuries or illnesses within a rigid reporting period and with the 
overriding objective of part 1904 to ensure that all recordable work-
related injuries and illnesses are recorded. Accordingly, for a 
reporting procedure to be reasonable and not unduly burdensome, it must 
allow for reporting of work-related injuries and illnesses within a 
reasonable timeframe after the employee has realized that he or she has 
suffered a work-related injury or illness.
    A few commenters questioned whether reporting of work-related 
injuries and illnesses is properly characterized as an employee right, 
as opposed to an employee obligation. The Act provides that employees 
and employers ``have separate but dependent responsibilities and rights 
with respect to achieving safe and healthful working conditions.'' 29 
U.S.C. 651(b)(2). Part 1904 imposes the obligation to record and report 
work-related injuries and illnesses on the employer. See 29 CFR 1904.4. 
In turn, employers may require employees to report work-related 
injuries and illnesses, as long as the procedures for doing so are 
reasonable and the employer does not retaliate against employees when 
they report.

[[Page 29671]]

    Some commenters expressed concern that the requirement described in 
the proposed rule--that reporting procedures ``be reasonable and not 
unduly burdensome''--was ambiguous and vague. See, e.g., Exs. 1532, 
1566. The final rule provides that employers must establish a 
``reasonable'' procedure for employees to report work-related injuries 
and illnesses and clarifies that a reporting procedure is not 
reasonable if it would deter or discourage a reasonable employee from 
reporting. OSHA did not include the phrase ``unduly burdensome'' in the 
final rule. The ``reasonable person'' standard is an objective standard 
that is well-established and applied in many areas of the law, and 
which can be applied by laypeople without the use of experts. See 
Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009). OSHA believes 
the final rule's requirement that employers establish a reporting 
procedure that would not deter or discourage a reasonable employee from 
reporting work-related injuries and illnesses is sufficiently clear to 
notify employers of their obligations under the rule while giving 
employers flexibility to design policies that make sense for their 
workplaces. Like the previous version of the rule, the final rule 
imposes a performance requirement rather than prescribing specific 
procedures employers must establish, and therefore gives employers 
flexibility to tailor their programs to the needs of their workplaces. 
See 66 FR 6052 (Jan. 19, 2001).
Section 1904.35(b)(1)(iv): Prohibition of Discrimination Against 
Employees for Reporting a Work-Related Injury or Illness
    The final rule adds paragraph (b)(1)(iv) to Sec.  1904.35 to 
incorporate explicitly into part 1904 the existing prohibition on 
retaliating against employees for reporting work-related injuries or 
illnesses that is already imposed on employers under section 11(c) of 
the OSH Act. As discussed in the Legal Authority section of this 
preamble, paragraph (b)(1)(iv) of the final rule does not change the 
substantive obligations of employers. Rather, paragraph (b)(1)(iv) 
provides OSHA an enhanced enforcement tool for ensuring the accuracy of 
employer injury and illness logs. Section 1904.36 of the final rule 
further clarifies that section 11(c) also prohibits retaliating against 
employees for reporting work-related injuries or illnesses, as 
explained in the 2012 OSHA enforcement memorandum. See OSHA Memorandum 
re: Employer Safety Incentive and Disincentive Policies and Practices 
(Mar. 12, 2012). OSHA believes only a minority of employers engages in 
prohibited retaliation, and the final rule will enable more effective 
enforcement against those employers.
    A number of commenters stated that there is no need to amend Sec.  
1904.35 to prohibit retaliating against employees for reporting 
injuries and illnesses because Section 11(c) of the Act already 
prohibits such retaliation. See, e.g., Exs. 1473, 1549, 1655, 1662. 
OSHA disagrees. Although the substantive obligations of employers will 
not change under the new rule, the rule will have an important 
enforcement effect. Section 11(c) only authorizes the Secretary to take 
action against an employer for retaliating against an employee for 
reporting a work-related illness or injury if the employee files a 
complaint with OSHA within 30 days of the retaliation. 29 U.S.C. 
660(c). The final rule provides OSHA with an additional enforcement 
tool for ensuring the accuracy of work-related injury and illness 
records that is not dependent on employees filing complaints on their 
own behalf. Some employees may not have the time or knowledge necessary 
to file a section 11(c) complaint or may fear additional retaliation 
from their employer if they file a complaint. The final rule allows 
OSHA to issue citations to employers for retaliating against employees 
for reporting work-related injuries and illnesses and require abatement 
even if no employee has filed a section 11(c) complaint.
    Additionally, as noted by one commenter, adding a prohibition on 
retaliation to part 1904 provides clear notice to employers of what 
actions are prohibited, which will help to prevent retaliatory acts 
from occurring in the first place (Ex. 1561). In other words, the final 
rule serves a preventive purpose as well as a remedial one. The new 
rule also differs from section 11(c) because it is specifically 
designed to promote accurate recordkeeping. For comparison, under the 
medical removal protection (MRP) provision of the lead standard, if an 
employer denies MRP benefits in retaliation for an employee's exercise 
of a right under the Act, OSHA can cite the employer and seek the 
benefits as abatement, because payment of the benefits is important to 
vindicate the health interests underlying MRP; section 11(c) is not an 
exclusive remedy. United Steelworkers, AFL-CIO v. St. Joe Resources, 
916 F.2d 294, 298 (5th Cir. 1990). Likewise, here OSHA can cite 
employers under the final rule in order to advance the rule's purpose 
of promoting accurate recordkeeping, which is grounded in OSHA's 
authority under Section 8(c)(2) of the OSH Act (29 U.S.C. 657(c)(2)) to 
require employers to maintain accurate records of work-related injuries 
and illnesses.
    OSHA anticipates that feasible abatement methods for violations of 
paragraph (b)(1)(iv) will mirror some of the types of remedies 
available under section 11(c); the goal of abatement would be to 
eliminate the source of the retaliation and make whole any employees 
treated adversely as a result of the retaliation. For example, if an 
employer terminated an employee for reporting a work-related injury or 
illness, a feasible means of abatement would be to reinstate the 
employee with back pay. See McKennon v. Nashville Banner Pub. Co., 513 
U.S. 352, 362 (1995) (citing Franks v. Bowman Transp. Co., 424 U.S. 
747, 764 (1976)) (``[T]he object of compensation is to restore the 
employee to the position he or she would have been in absent the 
discrimination.''); St. Joe Resources, 916 F.2d at 299 (Occupational 
Safety and Health Review Commission may order employers to pay back pay 
as abatement for violations of the MRP requirements). If an employer 
retaliates against an employee for reporting a work-related illness or 
injury by denying a bonus to a group of employees, feasible means of 
abatement could include revising the bonus policy to correct its 
retaliatory effect and providing the bonus retroactively to all of the 
employees who would have received it absent the retaliation.
    Some commenters acknowledged that the proposed rule gives OSHA 
additional enforcement tools but argued that doing so impermissibly 
interferes with section 11(c) by infringing on an employee's right to 
bring a section 11(c) claim and by eliminating section 11(c)'s 30-day 
window for employees to bring complaints. The final rule does not 
abrogate or interfere with the rights or restrictions contained in 
section 11(c). An employee who wishes to file a complaint under section 
11(c) may do so within the statutory 30-day period regardless of 
whether OSHA has issued, or will issue, a citation to the employer for 
violating the final rule. OSHA believes that many employees will 
continue to file 11(c) complaints because of the broader range of 
equitable relief and punitive damages available under that provision. 
Finally, one commenter suggested that retaliation cases are too complex 
and fact-based to be suitable subjects of enforcement citations. Ex. 
1645. OSHA disagrees. OSHA regularly issues citations based on complex 
factual scenarios and will provide its staff with appropriate training 
about enforcing the final rule.

[[Page 29672]]

    Discrimination citable under paragraph (b)(1)(iv) could include 
termination, reduction in pay, reassignment to a less desirable 
position, or any other adverse action that ``could well dissuade'' a 
reasonable employee from reporting a work-related injury or illness. 
See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 
57 (2006) (holding that the test for determining whether a particular 
action is materially adverse is whether it would deter a reasonable 
person from engaging in protected activity under Title VII). The 
Burlington Northern case considered whether a particular action would 
deter a reasonable person from filing a claim of sex discrimination. In 
the context of the final rule, the test would be whether the action 
would deter a reasonable employee from reporting a work-related injury 
or illness. Commenters placed substantial emphasis on three specific 
types of policies, discussed in more detail below: Disciplinary 
policies, post-accident drug testing policies, and employee incentive 
programs.
    Commenters cited numerous examples of employers disciplining 
employees who report injuries regardless of whether the employee 
violated company safety policy. See, e.g., Exs. 1675, 1679, 1681, 1691, 
1695, 1696. Although it is an employer's duty to enforce safety rules, 
disciplining an employee simply for reporting an injury or illness 
deters employees from reporting injuries and illnesses without 
improving safety. Numerous commenters identified cases in which 
employers suspended, reassigned, or even terminated employees simply 
for being injured. See, e.g., Ex. 1695, attachment 16 (employee 
suspended, placed on work restrictions, and threatened with termination 
for having too many OSHA-recordable injuries), Ex. 1675 (employees 
suspended for having been injured), Ex. 1681 (employees harassed and 
terminated for reporting injuries or filing for workers compensation), 
Ex. 1679 (employees terminated for being injured). Some commenters 
pointed out progressive disciplinary policies involving increasingly 
serious sanctions for additional reports. See, e.g., Exs. 1675, 1695. 
Others pointed to employer policies that make employees who report 
injuries ineligible for promotions (Ex. 1675) or automatically give 
poor performance evaluations to employees who report OSHA-recordable 
injuries (Ex. 1696). A report by the U.S. House of Representatives 
Committee on Education and Labor made a similar finding that many forms 
of ``direct intimidation'' are used by employers to discourage 
reporting. See Hidden Tragedy: Underreporting of Workplace Injuries and 
Illnesses, Majority Staff Report by the Committee on Education and 
Labor, U.S. House of Representatives (June 2008); Exs. 1675, 1679, 
1695. Under paragraph (b)(1)(iv) of the final rule, OSHA can issue 
citations to employers who discipline workers for reporting injuries 
and illnesses when no legitimate workplace safety rule has been 
violated.
    In addition, the United Steel, Paper and Forestry, Manufacturing, 
Energy, Allied Industrial and Service Workers International Union (USW) 
identified a number of cases where employers engaged in pretextual 
disciplinary actions--asserting that an employee was being disciplined 
for violating a safety rule where the real reason was the employee's 
injury or illness report (Ex. 1675). This includes situations when 
reporting employees are disciplined more severely than other employees 
who worked in the same way, or when reporting employees are selectively 
disciplined for violation of vague work rules such as ``work 
carefully'' or ``maintain situational awareness.'' Vague work rules are 
particularly subject to abuse by the employer and would not be 
considered legitimate workplace safety rules when they are used 
disproportionately to discipline workers who have reported an injury or 
illness. In contrast, a legitimate workplace safety rule should require 
or prohibit specific conduct related to employee safety or health so it 
can be applied fairly and not used as a pretext for retaliation. The 
AFL-CIO identified a series of cases in which a Michigan administrative 
law judge upheld findings of the Michigan Occupational Safety and 
Health Administration that AT&T used these types of vague safety 
policies as pretext for retaliating against employees who reported 
workplace injuries. See Ex. 1695 (citing AT&T Servs. v. Aggeler, No. D-
11-242-1 (Mich. Admin. Hearing Sys., Jan. 13, 2013); AT&T Servs. v. 
Wright, No. D-11-101-1 (Mich. Admin. Hearing Sys., Apr. 8, 2013); AT&T 
Servs. v. Swift, No. D-11-200-1 (Mich. Admin. Hearing Sys., Mar. 6, 
2013); AT&T Servs. v. West, No. D-11-311-1 (Mich. Admin. Hearing Sys., 
Apr. 23, 2013)). And even a legitimate work rule may not be applied 
selectively to discipline workers who report work-related illnesses or 
injuries but not employees who violate the same rule without reporting 
a work-related injury or illness. Paragraph (b)(1)(iv) of the final 
rule authorizes OSHA to issue citations to employers who engage in such 
pretextual disciplinary actions.
    OSHA believes that the majority of employers do not discipline 
employees unless they have actually broken a legitimate workplace 
safety or health rule and do not selectively discipline employees who 
violate legitimate work rules only when they also report a work-related 
injury or illness. But in the minority of workplaces where employers 
may sanction employees for reporting, it is no surprise that workers 
are deterred from reporting because they fear the consequences of doing 
so. See above regarding worker fear of reporting work-related injuries 
and illnesses. Data collected during OSHA's National Emphasis Program 
on Injury and Illness Recordkeeping (Recordkeeping NEP) show that among 
the surveyed workplaces where such disciplinary policies exist, 
approximately 50 percent of workers reported that the policy deterred 
reporting. See Analysis of OSHA's National Emphasis Program on Injury 
and Illness Recordkeeping, Prepared for the Office of Statistical 
Analysis, Occupational Safety and Health Administration, by ERG (Nov. 
1, 2013); Ex. 1835. Therefore, OSHA expects that enforcement of the 
provisions in the final rule will improve the rate and accuracy of 
injury and illness reporting.
    OSHA received a number of comments expressing concern that this 
section of the final rule will have a chilling effect on employers 
disciplining employees who violate safety rules, thereby contributing 
to a less safe work environment. It is important to note that the final 
rule prohibits employers only from taking adverse action against an 
employee because the employee reported an injury or illness. Nothing in 
the final rule prohibits employers from disciplining employees for 
violating legitimate safety rules, even if the same employee who 
violated a safety rule also was injured as a result of that violation 
and reported that injury or illness (provided that employees who 
violate the same work rule are treated similarly without regard to 
whether they also reported a work-related illness or injury). What the 
final rule prohibits is retaliatory adverse action taken against an 
employee simply because he or she reported a work-related injury or 
illness.
    Commenters also pointed to policies mandating automatic post-injury 
drug testing as a form of adverse action that can discourage reporting. 
See, e.g., Exs. 1675, 1695. Although drug testing of employees may be a 
reasonable workplace policy in some situations, it is often perceived 
as an invasion of privacy, so if an injury or illness is very

[[Page 29673]]

unlikely to have been caused by employee drug use, or if the method of 
drug testing does not identify impairment but only use at some time in 
the recent past, requiring the employee to be drug tested may 
inappropriately deter reporting. The U.S. House of Representatives 
Committee on Education and Labor has recognized that ``to intimidate 
workers, employers may require that workers are tested for drugs or 
alcohol [after every incident or injury], irrespective of any potential 
role of drug intoxication in the incident'' (Exs. 1675, 1679, 1695). 
The Committee also pointed to Scherzer et al. (2005), which found that 
32 percent of surveyed Las Vegas hotel workers who reported work-
related pain were forced to take drug tests, even though studies like 
Krause et al. (2005) show that such injuries are often caused by 
physical workload, work intensification, and ergonomic problems--not by 
workplace mistakes that could have been caused by drugs. Id. The 
American National Standards Institute (ANSI) has similarly recognized 
the need for drug testing programs to be ``carefully designed and 
implemented to ensure employees are not discouraged from effective 
participation in [injury and illness reporting programs]'' (Ex. 1695).
    OSHA believes the evidence in the rulemaking record shows that 
blanket post-injury drug testing policies deter proper reporting. 
Morantz and Mas (2008) conducted a study on a large retail chain and 
found that post-accident drug testing caused a substantial reduction in 
injury claims. The authors found suggestive evidence that at least part 
of that reduction was due to the reduced willingness of employees to 
report accidents (Ex. 1675). Crant and Bateman (1989) describe privacy 
concerns and other individual factors that can affect employee 
willingness to participate in drug testing programs and report 
accidents. Id. OSHA's Recordkeeping NEP data also supports that 
hypothesis because many workers reported that such post-injury drug 
testing programs deterred reporting (Ex. 1695).
    Some commenters stated their belief that drug testing of employees 
is important for a safe workplace; some expressed concern that OSHA 
planned a wholesale ban on drug testing (Exs. 1667, 1674). To the 
contrary, this final rule does not ban drug testing of employees. 
However, the final rule does prohibit employers from using drug testing 
(or the threat of drug testing) as a form of adverse action against 
employees who report injuries or illnesses. To strike the appropriate 
balance here, drug testing policies should limit post-incident testing 
to situations in which employee drug use is likely to have contributed 
to the incident, and for which the drug test can accurately identify 
impairment caused by drug use. For example, it would likely not be 
reasonable to drug-test an employee who reports a bee sting, a 
repetitive strain injury, or an injury caused by a lack of machine 
guarding or a machine or tool malfunction. Such a policy is likely only 
to deter reporting without contributing to the employer's understanding 
of why the injury occurred, or in any other way contributing to 
workplace safety. Employers need not specifically suspect drug use 
before testing, but there should be a reasonable possibility that drug 
use by the reporting employee was a contributing factor to the reported 
injury or illness in order for an employer to require drug testing. In 
addition, drug testing that is designed in a way that may be perceived 
as punitive or embarrassing to the employee is likely to deter injury 
reporting.
    A few commenters also raised the concern that the final rule will 
conflict with drug testing requirements contained in workers' 
compensation laws. This concern is unwarranted. If an employer conducts 
drug testing to comply with the requirements of a state or federal law 
or regulation, the employer's motive would not be retaliatory and the 
final rule would not prohibit such testing. This is doubly true because 
Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting 
workers' compensation laws. 29 U.S.C. 653(b)(4).
    Finally, many commenters expressed concern with the retaliatory 
nature of the employee incentive programs at some workplaces, providing 
myriad examples. See, e.g., Exs. 1661, 1675, 1679, 1695. Employee 
incentive programs take many forms. An employer might enter all 
employees who have not been injured in the previous year in a drawing 
to win a prize, or a team of employees might be awarded a bonus if no 
one from the team is injured over some period of time. Such programs 
might be well-intentioned efforts by employers to encourage their 
workers to use safe practices. However, if the programs are not 
structured carefully, they have the potential to discourage reporting 
of work-related injuries and illnesses without improving workplace 
safety. The USW provided many examples of employer incentive policies 
that could discourage reporting of work-related injuries and illnesses. 
Ex. 1675. One employer had a policy that involved periodic prize 
drawings for items such as a large-screen television; workers who 
reported an OSHA-recordable injury were excluded from the drawing. Id. 
The American College of Occupational and Environmental Medicine noted 
that many of its member physicians reported knowledge of situations 
where employers discouraged injury and illness reporting through 
incentive programs predicated on workers remaining ``injury free,'' 
leading to peer pressure on employees not to report (Ex. 1661).
    In addition, in recent years, a number of government reports have 
raised concerns about the effect of incentive programs on injury and 
illness reporting. A 2012 GAO study found that rate-based incentive 
programs, which reward workers for achieving low rates of reported 
injury and illnesses, may discourage reporting. Ex. 1695. Other, more 
positive incentive programs, which reward workers for activities like 
recommending safety improvements, did not have the same effect. A 
previous GAO study had also highlighted incentive programs as a cause 
of underreporting of work-related injuries and illnesses (Exs. 1675, 
1695). The 2008 House Report listed examples of problematic incentive 
programs and found that ``depending on how an incentive program is 
structured, reluctance to lose the bonus or peer pressure from other 
crew members whose prizes are also threatened reduces the reporting of 
injuries and illnesses in the job, rather than reducing the actual 
number of workplace injuries and illnesses'' (Exs. 1675, 1679, 1695). 
In 2006, a report by the California State Auditor found that an 
employee incentive program had likely caused the significant 
underreporting of injuries by the company working on reconstruction of 
a portion of the San Francisco Bay Bridge (Ex. 1695). The company 
offered employees monetary incentives up to $1,500 only if zero 
recordable injuries were reported. This kind of incentive program is 
especially likely to discourage reporting because not only will the 
injured employee not receive the prize after reporting an injury, but 
the employee is even less likely to report out of fear of angering or 
disappointing the coworkers who will also be denied the prize, or 
because the coworkers actively pressure the worker not to report.
    OSHA has previously recognized that incentive programs that 
discourage employees from reporting injuries and illnesses by denying a 
benefit to employees who report an injury or illness may be prohibited 
by section 11(c). See OSHA Memorandum re:

[[Page 29674]]

Employer Safety Incentive and Disincentive Policies and Practices (Mar. 
12, 2012); see also ANSI/AIHA Z10-2012, Ex. 1695, attachment 5 
(``incentive programs . . . should be carefully designed and 
implemented to ensure employees are not discouraged from effective 
participation in [injury and illness reporting programs''). The same 
memorandum pointed out that, to the extent incentive programs cause 
under-reporting, they can result in under-recording of injuries and 
illnesses, which may lead to employer liability for inaccurate 
recordkeeping. The latter concern is what is being addressed by this 
final rule's prohibition on employers using incentive programs in a way 
that impairs accurate recordkeeping.
    Some commenters expressed satisfaction with existing safety 
incentive programs that provide monetary incentives to employees who 
maintain low blood lead levels, and requested that OSHA not undermine 
such programs (Exs. 1488, 1654, 1683). OSHA does not intend the final 
rule to categorically ban all incentive programs. However, programs 
must be structured in such a way as to encourage safety in the 
workplace without discouraging the reporting of injuries and illnesses.
    The specific rules and details of implementation of any given 
incentive program must be considered to determine whether it could give 
rise to a violation of paragraph (b)(1)(iv) of the final rule. It is a 
violation of paragraph (b)(1)(iv) for an employer to take adverse 
action against an employee for reporting a work-related injury or 
illness, whether or not such adverse action was part of an incentive 
program. Therefore, it is a violation for an employer to use an 
incentive program to take adverse action, including denying a benefit, 
because an employee reports a work-related injury or illness, such as 
disqualifying the employee for a monetary bonus or any other action 
that would discourage or deter a reasonable employee from reporting the 
work-related injury or illness. In contrast, if an incentive program 
makes a reward contingent upon, for example, whether employees 
correctly follow legitimate safety rules rather than whether they 
reported any injuries or illnesses, the program would not violate this 
provision. OSHA encourages incentive programs that promote worker 
participation in safety-related activities, such as identifying hazards 
or participating in investigations of injuries, incidents, or ``near 
misses.'' OSHA's Voluntary Protection Program (VPP) guidance materials 
refer to a number of positive incentives, including providing t-shirts 
to workers serving on safety and health committees; offering modest 
rewards for suggesting ways to strengthen safety and health; or 
throwing a recognition party at the successful completion of company-
wide safety and health training. See Revised VPP Policy Memo #5: 
Further Improvements to the Voluntary Protection Programs (August 14, 
2014).

VI. Final Economic Analysis and Regulatory Flexibility Certification

A. Introduction

    Executive Orders 12866 and 13563 require that OSHA estimate the 
benefits, costs, and net benefits of proposed and final regulations. 
Executive Orders 12866 and 13563, the Regulatory Flexibility Act, and 
the Unfunded Mandates Reform Act also require OSHA to estimate the 
costs, assess the benefits, and analyze the impacts of certain rules 
that the Agency promulgates. Executive Orders 12866 and 13563 direct 
agencies to assess all costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility.
    In the proposal, OSHA estimated that this rule would have economic 
costs of $11.9 million per year, including $10.7 million per year to 
the private sector, with costs of $183 per year for affected 
establishments with 250 or more employees and $9 per year for affected 
establishments with 20 or more employees in designated industries. The 
Agency believed that the annual benefits, while unquantified, 
significantly exceed the annual costs.
    In this final rule, OSHA estimates that the rule will have economic 
costs of $15.0 million per year, including $14 million per year to the 
private sector with costs of $214 per year to affected establishments 
with 250 or more employees and $11.13 per year for affected 
establishments with 20 to 249 employees in designated industries. The 
Agency continues to believe that the annual benefits, while 
unquantified, significantly exceed the annual costs.
    The final rule is not an ``economically significant regulatory 
action'' under Executive Order 12866 or the Unfunded Mandates Reform 
Act (UMRA) (2 U.S.C. 1532(a)), and it is not a ``major rule'' under the 
Congressional Review Act (5 U.S.C. 801 et seq.). The Agency estimates 
that the rulemaking imposes far less than $100 million in annual 
economic costs. In addition, it does not meet any of the other criteria 
specified by UMRA or the Congressional Review Act for a significant 
regulatory action or major rule. This Final Economic Analysis (FEA) 
addresses the costs, benefits, and economic impacts of the final rule.
    The final rule will make four changes to the existing recording and 
reporting requirements in part 1904. These changes in existing 
requirements differ somewhat from those in the proposed rule.
    First, OSHA will require establishments that are required to keep 
injury and illness records under part 1904, and that had 250 or more 
employees in the previous year, to electronically submit the required 
information from all three OSHA recordkeeping forms to OSHA or OSHA's 
designee, on an annual basis.
    Second, OSHA will require establishments that are required to keep 
injury and illness records under part 1904, had 20 to 249 employees in 
the previous year, and are in certain designated industries, to 
electronically submit the required information from the OSHA annual 
summary form (Form 300A) to OSHA or OSHA's designee, on an annual 
basis.
    Third, OSHA will require all employers who receive notification 
from OSHA to electronically submit the requested information from their 
injury and illness records to OSHA or OSHA's designee. Any such 
notification will be subject to the approval process established by the 
Paperwork Reduction Act.
    Fourth, OSHA will require employers to inform employees of their 
right to report injuries and illness and prohibit discrimination 
against employees who report injuries and illnesses.
    The final rule does not add to or change any employer's obligation 
to complete, retain, and certify injury and illness records. The final 
rule also does not add to or change the recording criteria or 
definitions for these records. The only changes are that, under certain 
circumstances, employers will be obligated to submit information from 
these records to OSHA in an electronic format and to assure that 
employees have, and understand they have, a right to report injuries 
and illnesses without fear of discrimination. OSHA requested comments 
and received many helpful comments throughout this process. For 
example, one commenter suggested that OSHA should run a pilot program 
of electronic reporting (Ex. 1109). In many

[[Page 29675]]

ways, OSHA's previous collection of these data through the OSHA Data 
Initiative (the ODI) was a lengthy pilot program, and a successful one 
which lasted for almost 20 years. This final rule is an extension of 
that effort, by expanding the collection to involve more establishments 
and to collect a larger set of injury and illness data. For many of the 
establishments affected by this final rule, the data submitted will be 
identical to the data that was collected by the ODI.
    As OSHA explained in the preamble to the proposed rule, the 
electronic submission of information to OSHA would be a relatively 
simple and quick matter. In most cases, submitting information to OSHA 
would require several basic steps: (1) Logging on to OSHA's web-based 
submission system; (2) entering basic establishment information into 
the system (the first time only); (3) copying the required injury and 
illness information from the establishment's records into the 
electronic submission forms; and (4) hitting a button to submit the 
information to OSHA. In many cases, especially for large 
establishments, OSHA data are already kept electronically, so step 3 
would be less time-intensive relative to cases in which records are 
kept on paper. The submission system, as anticipated, would also save 
an establishment's information from one submission to the next, so step 
2 might be eliminated for most establishments after the first 
submission.
    Many commenters questioned whether the process would be this 
simple. OSHA will first examine the costs of the activities outlined 
above, and then address a wide variety of comments on other costs in 
addition to those for the activities outlined above.

B. Costs

1. Sec.  1904.41(a)(1)--Annual Electronic Submission of Part 1904 
Records by Establishments With 250 or More Employees
    In the Preliminary Economic Analysis (PEA), OSHA obtained the 
estimated cost of electronic data submission per establishment by 
multiplying the compensation per hour (in dollars) of the person 
expected to perform the task of electronic submission by the time 
required for the electronic data submission. OSHA then multiplied this 
cost per establishment by the estimated number of establishments that 
would be required to submit data, to obtain the total estimated costs 
of this part of the proposed rule. This methodology was retained in the 
FEA.
    To estimate the compensation of the person expected to perform the 
task of electronic data submission in the PEA, OSHA suggested that 
recordkeeping tasks are most commonly performed by a Human Resource, 
Training, and Labor Relations Specialist, Not Elsewhere Classified 
(Human Resources Specialist). In the PEA, OSHA estimated compensation 
using May 2008 data from the BLS Occupational Employment Survey (OES), 
reporting a mean hourly wage of $28 for Human Resources Specialists, 
and June 2009 data from the BLS National Compensation Survey, reporting 
a mean fringe benefit factor of 1.43 for civilian workers in general. 
OSHA multiplied the mean hourly wage ($28) by the mean fringe benefit 
factor (1.43) to obtain an estimated total compensation (wages and 
benefits) for Human Resources Specialists of $40.04 per hour ([$28 per 
hour] x 1.43).
    OSHA requested comments as to whether the Human Resources 
Specialist was a reasonable wage rate, and received only a few comments 
(Exs. 0211, 1110, 0194, 1198). Many comments on the subject of 
occupation performing the collection and submission stated that the use 
of a Human Resource Specialists was not reflective of their experience. 
For example, the Food Market Institute (FMI) commented, ``For instance, 
while OSHA asserts the new responsibilities will be shouldered by human 
resources personnel, it is far more likely that each establishment's 
safety professionals will be burdened with the task.'' (Ex. 1198) One 
comment from the American Subcontractors Association stated, ``Instead, 
among small and mid-sized ASA member firms, tasks like these are 
performed by high level management personnel. In larger construction 
firms, such tasks are likely to be performed by safety and health 
professionals'' (Ex. 1322). Other commenters suggested that a more 
senior person would be needed to go over the data. Aimee Brooks of 
Western Agricultural Processors Association (WAPA) stated, ``It is 
highly likely that upper level management would be inputting this 
information, as giving this information sensitive task to office staff 
at the workplace would be a liability to the business. If such 
responsibility is given to office staff, it would need to be 
accompanied with training regarding protecting sensitive information 
and privacy'' (Ex. 1273).
    OSHA believes that throughout the economy, relatively low-wage 
employees handle sensitive information, including PII such as employee 
Social Security numbers, payroll information, and customers' credit 
card information. OSHA further believes that specialized training is 
not required before handling PII. For example, many restaurants do not 
train wait staff specifically in the handling of credit card 
information.
    OSHA does agree with commenters who argued that the average 
compensation for recordkeepers might be greater than for a human 
resources specialist. For this Final Economic Analysis (FEA), OSHA 
updated those compensation numbers using the same sources, but a 
different occupational classification. This change was made so that 
this regulation will be consistent with OSHA's 2014 recordkeeping 
paperwork package and OSHA's September 2014 recordkeeping regulation. 
For the FEA, OSHA estimated compensation using May 2014 data from the 
BLS Occupational Employment Survey (OES), reporting a mean hourly wage 
of $33.88 for Industrial Health and Safety Specialists, and December 
2014 data from the BLS National Compensation Survey, reporting a mean 
fringe benefit factor of 1.44 for civilian workers in general. OSHA 
multiplied the mean hourly wage ($33.88) by the mean fringe benefit 
factor (1.44) to obtain an estimated total compensation (wages and 
benefits) for Industrial Health and Safety Specialists of $48.78 per 
hour ([$33.88 per hour] x 1.44). This represents an increase in the 
wage rate of 22 percent over the wage used in the PEA.
    OSHA recognizes that not all firms assign the responsibility for 
recordkeeping to an Industrial Health and Safety Specialist. For 
example, a smaller firm may use a bookkeeper or a plant manager, while 
a larger firm may use a higher level specialist. However, OSHA believes 
that the calculated cost of $48.78 per hour is a reasonable estimate of 
the hourly compensation of a typical recordkeeper. In the case of a 
very small firm, this wage rate may exceed the owner or proprietor's 
wage. BLS data from the Quarterly Census of Employment and Wages (2014) 
show that the average weekly wage for a worker in a firm with 20 to 49 
employees is $848 per week, while the average wage for a worker in a 
firm with 1,000 or more employees is $1,699 per week--nearly twice as 
high as the smaller firm.
    For time required for the data submission in the PEA, OSHA used the 
estimated unit time requirements reported by BLS in their paperwork 
burden analysis for the Survey of Occupational Injuries and Illnesses 
(SOII) (OMB Control Number 1220-

[[Page 29676]]

0045, expires October 31, 2013).\1\ BLS estimated 10 minutes per 
recordable injury/illness case for electronic submission of the 
information on Form 301 (Injury and Illness Incident Report) and Form 
300 (Log of Work-Related Injuries and Illnesses). BLS also estimated 10 
minutes per establishment, total, for electronic submission of the 
information on Form 300A (Summary of Work-Related Injuries and 
Illnesses). For the FEA, OSHA used, where appropriate, the values 
reported in the latest BLS SOII paperwork package (OMB Control Number 
1220-0045, expires September 30, 2016).
---------------------------------------------------------------------------

    \1\ The ODI paperwork analysis (1218-0209) estimates an average 
time of 10 minutes per response for submitting Form 300A data. The 
ODI does not require submission of Form 301 data. The 10 minute 
estimate form the ODI is equal to the 10 minute estimate from the 
BLS SOII for submission of the same data.
---------------------------------------------------------------------------

    Many of the comments on the 10 minutes originally estimated by OSHA 
for submitting the requested data were general in nature and often 
conflated the time to submit the data with the time to audit the data 
(Exs. 1113, 1092, 1192, 1421, 1366). A typical statement was, ``OSHA 
estimates the electronic submission process would take each 
establishment only 10 minutes for each OSHA 301 submission and 10 
minutes for the submission of both the OSHA 300 and 300A. This fails to 
accurately account for the time it would take employees to familiarize 
themselves with the process and review reports to ensure compliance 
with all regulations'' (Ex. 1421).
    Some comments directly addressed the issue of the relevance of the 
BLS estimates to OSHA's requirements (Exs. 1328, 1411). Eric Conn, 
representing the National Retail Federation (NRF), commented on the use 
of BLS's time estimate for submitting data, stating, ``The data 
submitted for the BLS survey, however, is more limited in terms of 
information requested. BLS requests only certain data for up to 15 
cases, but the Proposed Regulation would require all relevant Form 300 
and/or 300A information from the entire injury and illness record. Thus 
the time burden would actually be much greater than OSHA predicts'' 
(Ex. 1328).
    OSHA agrees that the final rule requires information on all 
individual cases and not just on 15 or fewer lost workday injuries and 
illnesses, as required by BLS. The requirement for information on all 
cases from Form 301 was addressed in the PEA by estimating ten minutes 
per form entered and multiplying this by the number of forms OSHA would 
require to be submitted, rather than the number BLS requires to be 
submitted. Such differences are trivial, with the possible exception of 
the individual injury/illness entries on Form 300. In the FEA, OSHA has 
added two minutes per injury or illness listed on the OSHA 300 Log to 
account for this difference. Along with the 10 minutes per 300A 
Summary, OSHA is estimating more time than the BLS paperwork burden. 
For example, in the simplest case, OSHA estimates that an establishment 
with more than 250 employees and a single injury will take (on average) 
10 minutes to electronically submit the OSHA Summary (Form 300A), 10 
minutes to submit the single injury report (Form 301) and 2 minutes to 
submit the one line that would be on the 300 Log for each recorded 
injury, for a total of 22 minutes. BLS estimates 20 minutes as the 
average time across all employers for any number of injuries.
    In the PEA, using the information on estimated hourly compensation 
of recordkeepers and estimated time required for data submission, OSHA 
calculated that the estimated cost per establishment with 250 or more 
workers for quarterly data submission of the information on Forms 300 
and 300A would be $26.69 per year ([10 minutes per data submission] x 
[1 hour per 60 minutes] x [$40.04 per hour] x [4 data submissions per 
year]). Because the final rule now requires data to be submitted once a 
year, rather than four times a year, the equation in the FEA for 
submitting the Form 300A data is: $8.13 per year ([10 minutes per data 
submission] x [1 hour per 60 minutes] x [$48.78 per hour] x [1 data 
submission per year]). Note that $8.13 per year is nearly 75 percent 
less than the annual cost in the PEA because OSHA will not require 
quarterly submission. In addition, the estimated cost per recordable 
injury/illness case in the final rule is $9.74 ([10 minutes per case 
for form 301 entries plus 2 minutes per case for entry of form 300 log 
entries] x [1 hour per 60 minutes] x [$48.78 per hour]).
    To calculate the total estimated costs of this part of the rule in 
the PEA, OSHA used establishment and employment counts from the U.S. 
Census County Business Patterns (CBP), data from the U.S. Census 
Enterprise Statistics (ES), and injury and illness counts from the BLS 
Survey of Occupational Injuries and Illnesses (SOII).\2\ In the PEA, 
CBP data showed that there were 38,094 establishments with 250 or more 
employees in the industries covered by this section. The CBP data also 
indicated that these large establishments employed 35.8 percent of all 
employees in the covered industries. In the FEA, using newer CBP data, 
OSHA finds that there are 33,674 establishments with 250 or more 
employees, a decrease of 11 percent.
---------------------------------------------------------------------------

    \2\ For the CBP see: https://www.census.gov/econ/cbp/. For the ES 
see: https://www.census.gov/econ/esp/. For the SOII see: https://www.bls.gov/iif/oshsum.htm.
---------------------------------------------------------------------------

    For the PEA, the BLS data showed a total of 2,486,500 injuries and 
illnesses that occurred in the covered industries. For the FEA, more 
recent BLS data were aggregated, and a total of 1,992,458 injuries and 
illnesses were found in the covered industries.
    In both the PEA and the FEA, to calculate the number of injuries 
and illnesses that will be reported by covered establishments with 250 
or more employees, OSHA assumed that total recordable cases in 
establishments with 250 or more employees would be proportional to 
their share of employment within the industry. Thus in the PEA, OSHA 
estimated that 890,288 injury and illness cases would be reported per 
year by establishments with 250 or more employees that were covered by 
this section. In the FEA, using the same methodology and more recent 
data, OSHA estimates that 713,397 injury and illness cases will be 
reported per year by establishments with 250 or more employees covered 
by this section.
    In the PEA, OSHA calculated an estimated total cost of quarterly 
data submission of non-case information of $1,016,729 ([38,094 
establishments required to submit data quarterly] x [$26.69 for 
electronic data submission per year]). In addition, OSHA calculated an 
estimated total cost of quarterly data submission of case information 
of $5,938,221 ([890,288 injury/illness cases per year at affected 
establishments] x [$6.67 per injury/illness case]). Summing these two 
costs yielded a total cost of $6,954,950 per year for the proposed rule 
($1,016,729 + $5,938,221), for an average cost per affected 
establishment of $183 per year.
    In the FEA, OSHA used the same equations above, using newer data 
plus an additional two minutes per injury and illness case to enter 
Form 300 data, to estimate the total cost of annual data submission 
under this section of the final rule. OSHA estimates a total cost of 
annual data submission of non-case information of $273,770 ([33,674 
establishments required to submit data annually] x [$8.13 for 
electronic data submission per year]). In addition, OSHA calculates an 
estimated total cost of annual data submission of case information of 
$6,948,487 ([713,397 injury/illness cases per year at affected 
establishments] x [$9.74 per injury/

[[Page 29677]]

illness case]). Summing these two costs yields a total cost of 
$7,222,257 per year for the final rule ($273,770 + $6,948,487), for an 
average cost per affected establishment of $214 per year.
    OSHA requested comments on all aspects of the PEA, including 
examples of establishments with 250 or more employees that cannot 
report electronically with existing facilities and equipment or data 
sources showing that such establishments exist. Aimee Brooks commented 
on behalf of Western Agricultural Processors Association (WAPA): ``. . 
. in some areas of California, tree nut hullers and processors do not 
have a computer or internet access'' (Ex. 1273). Aimee Brooks also 
stated on behalf of California Cotton Ginners and Growers Association 
(CCGGA): ``Cotton growers and ginners are usually remotely located and 
access to internet or a computer is not only limited, but both hardware 
and software are generally out of date, unreliable, and slow, meaning 
the online reporting process will take much longer than the OSHA 
estimate of 10 minutes per establishment'' (Ex.1274).
    As will be discussed below, many commenters were concerned that 
requiring electronic submission might be a problem for some small 
firms; however, no clear examples were provided of an establishment 
with over 250 employees that did not have computers and Internet 
access. Based on the comments to the proposed rule, and OSHA's own 
experience, the Agency continues to believe that large establishments 
with 250 or more employees have access to computers and the 
Internet.\3\
---------------------------------------------------------------------------

    \3\ Note that the establishments subject to the requirements in 
this section of the final rule include establishments that 
previously submitted data under the OSHA Data Initiative (ODI). 
However, OSHA has decided not to subtract the existing costs of 
submitting data for the ODI from the total costs estimated for this 
section of the final rule.
---------------------------------------------------------------------------

2. Sec.  1904.41(a)(2)--Annual Electronic Submission of OSHA Annual 
Summary Form (Form 300A) by Establishments With 20 or More Employees 
but Fewer Than 250 Employees in Designated Industries
    OSHA's methodology for estimating the costs of this section of the 
proposed rule in the PEA was similar to the methodology for estimating 
the costs of the previous section. OSHA first obtained the estimated 
cost of electronic data submission per establishment by multiplying the 
compensation per hour (in dollars) for the person expected to perform 
the task of electronic data submission by the time required for the 
electronic data submission. OSHA then multiplied this cost by the 
estimated number of establishments that would be required to submit 
data, to obtain the total estimated costs of this part of the proposed 
rule.
    In the PEA, for compensation per hour, OSHA used the calculated 
cost of $40.04 per hour as a reasonable estimate of the hourly 
compensation of a representative recordkeeper. In the FEA, as discussed 
above, OSHA has increased this per-hour wage to $48.78.
    In the PEA, OSHA used the BLS estimate of 10 minutes per 
establishment for electronic submission of the information on Forms 300 
and 300A (Summary of Work-Related Injuries and Illnesses) to estimate 
the time required for this submission. The estimated cost per 
establishment for electronic submittal under this part of the proposed 
rule was $6.67 per year ([$40.04 per hour] x [10 minutes per data 
submission] x [1 hour per 60 minutes] x [one data submission per 
year]).
    For the FEA, the estimated cost per establishment for electronic 
submittal under this part of the proposed rule is $8.13 per year 
([$48.78 per hour] x [10 minutes per data submission] x [1 hour per 60 
minutes] x [one data submission per year]).
    In the PEA, OSHA estimated that the number of establishments 
subject to this part of the proposed rule would be 440,863. OSHA noted 
in the PEA that many of these establishments were already submitting 
these data to OSHA through the ODI. 47,700 establishments of the 68,600 
establishments in the 2010 ODI (70 percent) submitted their data 
electronically.
    As a result, OSHA estimated that the direct labor cost of this part 
of the proposed rule would have been $2,622,397 ([$6.67 per 
establishment per year] x ([440,863 establishments affected under the 
proposed rule]-[47,700 establishments already submitting electronically 
to the ODI])).
    This estimate is based on the assumption that all of the affected 
establishments have on-site access to a computer and an adequate 
Internet connection. However, as noted above, 30 percent of 
establishments in the 2010 ODI did not submit data electronically. One 
possible reason for this choice is that, for some of those 
establishments, it was difficult to submit data electronically. Most 
agencies currently allow non-electronic filing of information, and some 
businesses continue to use this option, despite strong encouragement by 
agencies to file electronically.
    OSHA searched for but was unable to find information on the 
proportion of all businesses without access to a computer and the 
Internet. However, OSHA did find a survey, conducted by a contractor 
for the Office of Advocacy of the Small Business Administration (SBA) 
in the spring of 2010, on the use of Internet connectivity by small 
businesses, called ``The Impact of Broadband Speed and Price on Small 
Business'' (https://www.sba.gov/sites/default/files/rs373tot_0.pdf). 
This survey suggests that at least 90 percent of small businesses 
surveyed use the Internet at their business. Further, the survey noted 
that 75 percent of all small businesses not using the Internet were 
small businesses with five or fewer employees. Given the survey's 
estimates that 50 percent of small businesses have fewer than 5 
employees, this means that 95 percent of all small businesses with five 
or more employees have Internet connections. OSHA believes that even 
this 95 percent is an underestimate for two reasons. First, the survey 
is five years old, and during the past seven years the cost of both 
computer equipment and Internet access has fallen (for example, since 
May 2008 the BLS Personal Computer Index has fallen by nearly 20 
percent; https://data.bls.gov/timeseries/CUSR0000SEEE01?output_view=pct_3mths). Second, the survey is of small 
entities, not establishments. OSHA can show that a significant 
proportion of small establishments are a part of non-small entities, 
and those larger entities are even more likely to have computers and 
Internet connections.
    It also needs to be noted that the minimum establishment size 
affected by this proposed rule is 20 employees. It is reasonable to 
assume that an even smaller percentage of firms with 20 or more 
employees lack a computer with an Internet connection.
    OSHA was able to find only two current Federal Government data 
collection programs that require data to be submitted electronically.
     Effective January 1, 2010, the Department of Labor's 
Employee Benefits Security Administration requires the electronic 
filing of all Form 5500 Annual Returns/Reports of Employee Benefit Plan 
and all Form 5500-SF Short Form Annual Returns/Reports of Small 
Employee Benefit Plan for 2009 and 2010 plan years, as well as any 
required schedules and attachments, using EFAST2-approved third-party 
software or iFile. EFAST2 is an all-electronic system designed by the 
Department of Labor, Internal Revenue Service, and Pension Benefit 
Guaranty Corporation to simplify and expedite the submission, receipt, 
and processing of the Form 5500 and Form 5500-SF.

[[Page 29678]]

These forms must be electronically filed each year by employee benefit 
plans to satisfy annual reporting requirements under the Employee 
Retirement Income Security Act (ERISA) and the Internal Revenue Code. 
Under EFAST2, filers choose between using EFAST2-approved vendor 
software or a free limited-function web application (IFILE) to prepare 
and submit the Form 5500 or Form 5500-SF. Completed forms are submitted 
via the Internet to EFAST2 for processing.
     Under the mandatory electronic filing provisions (11 CFR 
104.18) of the Federal Election Commission (FEC), effective January 1, 
2001, any political committee or other person that is required to file 
reports with the FEC and that receives contributions or makes 
expenditures in excess of $50,000 in the current calendar year, or has 
reason to expect to do so, must submit its reports electronically.
    All other data collection programs identified by OSHA provide a 
non-electronic option for data submission, including the OSHA Data 
Initiative (ODI); various databases at the Environmental Protection 
Agency (EPA), including the Toxics Release Inventory Program (TRI); and 
programs administered by the Internal Revenue Service (IRS), the Bureau 
of Labor Statistics (BLS), and the U.S. Census Bureau (including 
business data).
    As noted above, even a dated survey from 2010 found that 95 percent 
of small businesses with 5 or more employees had a computer with an 
Internet connection. The Department of Commerce estimated in 2009 that 
69 percent and 64 percent of U.S. households, respectively, had some 
kind of Internet access and broad-band Internet access specifically 
(National Telecommunications and Information Administration, U.S. 
Department of Commerce, ``Table 2 Households using the Internet in and 
outside the home, by selected characteristics: Total, Urban, Rural, 
Principal City, 2009 (Numbers in Thousands)'', https://www.ntia.doc.gov/legacy/data/CPS2009_Tables.html). By 2013, high-speed broadband and 
Internet use had risen to 73 and 74 percent, respectively (Source: 
https://www.census.gov/content/dam/Census/library/publications/2014/acs/acs-28.pdf). In addition, households with higher incomes and levels of 
education were more likely to have Internet access at home, and home 
Internet access among employed householders was 78 percent, compared to 
65 percent among unemployed householders and 52 percent among 
householders not in the labor force.
    It seems reasonable to assume that business owners, as a group, 
have higher incomes and labor force participation rates than the U.S. 
population as a whole. And data from the 2007 Survey on Small Business 
Owners, conducted by the U.S. Census Bureau, show that business owners 
have higher levels of education; 74 percent of the business owners had 
at least some post-high school education and 45 percent had at least a 
bachelor's degree, compared to 55 percent and 30 percent among the 
general U.S. population aged 25 and older in 2010 (U.S. Census, ``Table 
1. Educational Attainment of the Population 18 Years and Over, by Age, 
Sex, Race, and Hispanic Origin: 2010'', https://www.census.gov/hhes/socdemo/education/data/cps/2010/Table1-01.xls, accessed June 15, 2011). 
Further, a small-business owner without an office or home computer may 
own a smart phone, which could easily be used for transmitting the data 
for the 300A summary because it is a very simple form.
    In the PEA, to account for the lack of direct data on computers and 
Internet access among small businesses and the presumed increase in 
Internet usage since the indirect data were obtained, OSHA estimated 
that 95 percent of the 440,863 establishments subject to this part of 
the proposed rule (i.e., 418,820 establishments) had access to a 
computer with an Internet connection, either at home or at work. OSHA 
believed that the actual percentage of establishments with Internet 
access was larger than this estimated value. OSHA welcomed comment on 
this issue. The remaining 22,043 establishments would have to either 
buy additional equipment and/or services or use off-site facilities, 
such as public libraries. OSHA estimated in the PEA that finding and 
using such off-site facilities would add an hour (including 
transportation and waiting time), on average, to the time required by 
the recordkeeper to submit the data electronically. For some 
establishments, they might need to travel next door to find a computer 
or Internet access, while others might need to drive for an hour or 
more. In the proposal this led to additional costs of $882,607 per year 
([440,863 establishments] x [5% of these establishments] x [1 hour for 
finding and using off-site facilities] x [$40.04 per hour]).
    OSHA requested comments on all aspects of this preliminary estimate 
and received many comments. Some commenters requested that OSHA still 
provide a paper reporting option (Exs. 0179, 0211, 0253, 0255, 1092, 
1112, 1123, 1190, 1192, 1199, 1205, 1322). The American Forest and 
Paper Association (AFPA) commented, ``Many businesses, particularly 
small firms located in rural areas, do not have ready access to the 
Internet or may find electronic reporting burdensome because they 
currently have a paper-based record system and should not be burdened 
with the cost of converting to an electronic format'' (Ex. 0179). Many 
commenters incorrectly asserted that OSHA had assumed everyone had a 
computer and kept records electronically (Exs. 1092, 1123, 1190, 1199, 
1200, 1343, 1359, 1370, 1410, 1421). As discussed above, this 
assumption was inaccurate. Perhaps because of this inaccurate 
assumption, almost no commenters addressed OSHA's estimate of the 
number of establishments without computer access or OSHA's estimates of 
the costs for such establishments.
    However, one commenter, the American Farm Bureau Federation (AFBF), 
provided information on computer use on farms: ``. . . only 68 percent 
of farmers (both livestock/poultry and crop producers) have a computer 
and only 67 percent have internet access . . .'' (Ex. 1113). Note that 
the figure of 67 percent of farms with Internet access is only a bit 
below the national average for households of 74 percent with Internet 
access. OSHA does not expect that many farms will be subject to 
reporting under this final rule, because few farms have 20 or more 
workers. Of the 2.2 million US farms, only about 550,000 have any hired 
help (about 25 percent). The 2012 Agricultural Census reports that 
there are just 40,661 farms with 10 or more workers in the U.S. OSHA 
believes that there are 20,623 farms with more than 20 hired workers 
that would be subject to this final rule. OSHA believes that farms with 
many workers are extremely large operations, heavily capitalized, and 
likely to have computers or smartphones and Internet access.
    In the PEA, OSHA estimated the total costs of this part of the 
proposed rule as the direct labor cost of electronic submittal 
($2,622,397) for the 393,163 establishments subject to the rule and not 
already electronically submitting the data to OSHA through the ODI, 
plus the additional cost for 5 percent of the affected 440,863 
establishments of going off-site to submit the data electronically 
($882,607). A last cost of $189,935 in the PEA, for those 
establishments that do not currently certify their records, is 
discussed below. Thus, the total cost of the proposed rule was 
$3,695,939 per year, or an approximate estimated average of $9.40 per 
affected establishment ([$3,695,939 per year]/

[[Page 29679]]

([440,863 establishments affected under the proposed rule] - [47,700 
establishments already submitting electronically to the ODI])).
    In the FEA, the estimate of affected establishments is smaller: 
410,673 affected establishments versus 440,863 affected establishments 
with 20 or more employees in the PEA, or 6.8 percent less. Note that, 
since the ODI was not in effect in 2015, OSHA will not take an offset 
for establishments submitting data for the ODI.
    The total costs of this part of the final rule are the direct labor 
cost of electronic submittal ($3,338,771) for the 410,673 non-farm 
establishments subject to the rule, plus the additional cost for 5 
percent of the affected 410,673 establishments of going off-site to 
submit the data electronically ($1,001,631). A last cost of $231,192, 
for those establishments that do not currently certify their records, 
is discussed below. Thus, the total cost is $4,571,594 per year, or an 
approximate estimated average of $11.13 per affected establishment 
([$4,571,594 per year]/([410,673 establishments affected under the 
proposed rule]).
    In the PEA, OSHA recognized that a small percentage of 
establishments currently subject to part 1904 do not fully comply with 
the requirement in Sec.  1904.32(a)(3) to certify the accuracy of each 
year's records. OSHA inspection data showed that in 2010, about 1.6 
percent of establishments undergoing an inspection had a violation of 
the recordkeeping certification requirement. OSHA had previously 
estimated costs and a paperwork burden for the time these employers 
would spend reviewing their data for certification purposes (see, for 
example, OSHA's September 2014 recordkeeping paperwork package). 
Because the data collection under this section of the proposed rule 
would have made it obvious to these employers that the records had not 
been certified, OSHA included the full costs of certification for those 
not in compliance with Sec.  1904.32(a)(3) as a cost of this rule. In 
the PEA, the number of not-in-compliance establishments was estimated 
by multiplying 1.6 percent times 360,863 establishments subject to the 
rule but not currently in the ODI (440,863 total establishments minus 
80,000 in ODI). The resulting figure was only 5,774 establishments not 
in compliance with Sec.  1904.32(a)(3). The cost for these non-
compliers to comply with Sec.  1904.32(a)(3) by completing 
certification was $189,935. This was calculated by multiplying [(30 
minutes) x (5,774 establishments) x ($65.79 per hour) x (1 hour per 60 
minutes)], where $65.79 was the adjusted hourly wage for a certifying 
official. This wage reflected the hourly wage plus benefits of an 
Industrial Production Manager (OES 11-3051), the same occupation used 
for certification of records in other OSHA recordkeeping regulations. 
OSHA invited comments on whether 1.6 percent is the actual 
certification non-compliance rate for firms subject to part 1904, and 
on whether the adjusted wage of $65.79 was, on average, the correct 
wage rate for individuals certifying annual recordkeeping logs. OSHA 
did not receive any comments disputing these figures. As a result, OSHA 
has retained the estimate of 1.6 percent of establishments not 
certifying their annual records.
    In the FEA, OSHA updated the wage rate of the certifying official, 
using 2014 data. Thus the wage rate for the certifying official, based 
on the wage of an Industrial Production Manager (OES 11-3051), is 
$70.37, based on a mean hourly wage of $48.87 and a fringe benefit 
factor of 1.44 ($48.87 x 1.44 = $70.37). The estimated number of non-
compliant establishments is 6,571 (1.6 percent of 410,673 non-farm 
establishments). The cost of certification for non-certifying 
establishments is $231,200 [(30 minutes) x (6,571 establishments) x 
($70.37 per hour) x (1 hour per 60 minutes)].
    OSHA believes, and current ICRs support, that 30 minutes is the 
appropriate amount of time required, on average, for certification. 
However, a range of time requirements is possible. For example, if the 
certifying officials are especially productive at certification, 
perhaps because the injury and illness records are well-maintained or 
because the officials are able to work off existing finalized summary 
reports sent to Workers' Compensation insurance agencies, then it may 
only take 15 minutes, on average, to complete the certification. In 
that case, the total cost would be just $115,596. On the other hand, 
perhaps the certifying officials have become less productive since the 
previous ICRs. If it now takes a certifying official one hour instead 
of 30 minutes to certify, then the total cost for non-complying 
establishments would be $462,384.
    OSHA also notes that in the PEA, farms with 20 or more employees 
were not counted for cost purposes, though they were included in the 
scope of the regulation. A separate analysis follows for the FEA.
    OSHA was not able to obtain a count of farms (crop and animal) with 
20 or more employees. OSHA took the estimate of farms with 10 or more 
employees (41,246 farms), provided by the Census of Agriculture, and 
took 50 percent of that total (20,623 farms) as the best estimate of 
the number of farms with 20 or more employees. This is still possibly 
an over-estimate of the number of farms with 20 or more employees, 
because the inverse relationship between the number of farms and the 
number of farm employees rises geometrically. Other information, for 
example farm revenue data, also help to show that there are very few 
farms with revenues high enough to support 20 employees.
    Following the methodology used elsewhere in the FEA, those 20,623 
farms will on average take 10 minutes to submit their summary 
electronically to OSHA. OSHA has made two adjustments to this 
methodology for farms. First, OSHA estimates that five percent of farms 
subject to this section of the final rule (1,031 farms) will not have 
access to a computer, a smart phone, or the Internet. Second, OSHA 
estimates a travel time of one hour for data submitters at these 
establishments to travel off-site to an Internet connection.
    OSHA estimates that 330 farms (1.6% x 20,623 farms) do not 
currently certify their injury/illness records, leading to an 
additional cost of $11,611 [(30 minutes) x (330 establishments) x 
($70.37 per hour) x (1 hour per 60 minutes)]. The total cost for farms 
included in electronic reporting is $229,568, which is derived by 
multiplying [(20,623 farms) x ($48.78 per hour) x (10 minutes) x (1 
hour per 60 minutes)] and adding [(1,031 farms without Internet) x 
($48.78 per hour) x (1 hour)] and then adding [(330 farms that do not 
currently certify) x ($70.37 per hour) x (30 minutes) x (1 hour per 60 
minutes)].
    OSHA believes that the same computer ownership factor used in the 
PEA and FEA for general establishments also applies to farms. While 
there were comments, based on a USDA survey, that farms did not have as 
many computers or as much Internet access as the rest of the private 
sector, that survey was heavily weighted toward typical American farms, 
i.e., farms operated by a single farmer or farm family, and many times 
smaller than an operation with 20 or more employees. OSHA again 
emphasizes that a smart phone with data access will be sufficient to 
submit summary data from the Form 300A to the OSHA Web site.
    Several commenters expressed concern that OSHA was not allowing 
enough time for initial startup or familiarization for establishments 
that will be newly required to report their data electronically 
(Exs.1338, 1276, 1351, 0160, 1112, 1205, 1394, 1190,

[[Page 29680]]

1342, 1281, 1397, 1343, 1402, 1199, 1113, 1092, 1192, 1421, 1372, 1401, 
1356, 1332, 1198, 1279, 1366). In response to these comments, OSHA has 
added ten minutes to the time estimate, in the first year the 
regulation is in effect, to account for the time establishments take to 
create their login accounts with OSHA and enter their basic information 
from the OSHA 300A form, such as establishment name and address. These 
ten minutes are not included in current paperwork packages, so the 
costs will apply to every establishment subject to reporting 
electronically to OSHA--a total of 431,296 establishments (including 
the 20,623 farms). Note that number of establishments includes both 
establishments with 20 to 249 employees, subject to the requirements in 
this section of the final rule, as well as establishments with 250 or 
more employees, subject to the requirements in the previous section of 
the final rule. The total first-year cost for familiarization is 
$3,506,436 [(431,296 establishments) x ($48.78 per hour) x (10 minutes) 
x (1 hour per 60 minutes). This one-time, first year cost can be 
amortized over 10 years at a 7 percent interest rate to yield $499,237 
per year. At a 3 percent interest rate, it would yield $411,061 per 
year.
3. Sec. Sec.  1904.35 and 1904.36
    The last cost element is from the non-discrimination provisions of 
this final rule. In the economic analysis for the supplemental notice 
to the proposed rule, OSHA stated that ``these provisions do not 
require employers to provide any new or additional records not already 
required in existing standards. (When the existing standards were 
promulgated, OSHA estimated the costs to employers of the records that 
would be required.) These provisions add no new rights to employees, 
but are instead designed to assure that employers recognize the 
existing right of employees to report work-related injuries and 
illnesses.''
    After examining the rulemaking record and adjusting the final 
regulatory text, OSHA now anticipates that the implementation of the 
non-discrimination provisions will have one cost component, namely an 
informational component that employers can meet by posting the new OSHA 
poster (https://www.osha.gov/Publications/osha3165-8514.pdf). The final 
rule requires employers to specifically inform employees that they have 
the right to report injuries and illness, and that employers are not to 
discourage or retaliate against an employee who reports an injury or 
illness. Posting this new poster will allow employers to meet this 
requirement, because it informs workers that they have the right to 
report injuries or illness, without being retaliated against, and 
informs employers that it is illegal to retaliate against an employee 
for reporting an injury or illness. (Note that the old poster mentioned 
that employees had the right to make safety/health complaints without 
retaliation in general, but made no specific reference to the reporting 
of injuries and illnesses.) Note also that this is not the only way an 
employer can meet this requirement; an employer may inform the 
employees in any way that the employer sees fit. However, OSHA believes 
that the use of a professionally-designed poster that is easily 
downloadable from many Web sites, including OSHA's, is the most 
inexpensive way for most employers to meet this requirement.
    This section of the FEA accounts for the costs, discusses the 
benefits, and in addition addresses comments provided by the public on 
the subject of this part of the final rule.
    For the costs--although employers are required to post the OSHA 
poster, OSHA is not requiring employers to replace the existing poster 
with the new poster. Putting up the OSHA poster is therefore a new cost 
for this final rule. To calculate the cost of posting the new OSHA 
poster, OSHA used the following judgments. First, it will take an 
employer five minutes to obtain and post the poster. Second, this task 
will be undertaken by an industrial manager with an hourly wage of 
$70.37, as above. Third, there are 1,364,503 establishments subject to 
this requirement in the final rule (including farms with 10 or more 
employees). The estimated one-time cost for posting the new OSHA poster 
is thus $8,001,673 [(1,364,503 establishments) x $70.37 per hour) x (5 
minutes) x (1 hour per 60 minutes)]. Annualized over 10 years at 3 
percent interest, this is a total cost of $938,040 per year. OSHA 
believes this cost estimate is a significant over-estimate because many 
establishments routinely download and post newer versions of OSHA's 
poster even without regulatory guidance. In addition, although OSHA is 
using an estimate of five minutes in the FEA, OSHA wrote in the 
supplemental notice to the proposed rule that posting the sign could 
take as few as three minutes.
    OSHA received a few comments relating to the costs of the non-
discrimination provisions of the proposed rule. Some commenters noted 
that OSHA already requires employers to post an OSHA sign that informs 
workers of their right to not be discriminated against for reporting 
(Exs. 1547, 1600, 1603). For example, the Association Connecting 
Electronics Industries commented, ``Employees must already be made 
aware that they are protected under the Act 'against discharge or 
discrimination for the exercise of their rights under Federal and State 
law.' Specifically, OSHA requires that employers post OSHA 3165, Job 
Safety and Health--It's the law! This posting clearly states that 
employees can file a complaint with OSHA within 30 days of retaliation 
or discrimination by an employer for making a safety or health 
complaint and employers must comply with the occupational safety and 
health standards under the OSH Act'' (Ex. 1668). OSHA agrees that 
workplaces must post an OSHA poster, but there is no requirement that 
establishments download the latest OSHA poster, which is the one that 
contains the specific information on the right to report injuries and 
illnesses, as required by the final rule.
    OSHA did not quantify the benefits of the non-discrimination 
requirement in the supplemental notice to the proposed rule, because 
OSHA believed that since there would be no additional costs, there 
would be no additional benefits. In the supplemental notice to the 
proposed rule, OSHA stated, ``OSHA also expects that, because these 
three potential provisions will only clarify existing requirements, 
there are also no new economic benefits. The provisions will at most 
serve to counter the additional motivations for employers to 
discriminate against employees attempting to report injuries and 
illnesses.'' [79 FR 47605-47610]
    However, OSHA believes that posting the newest OSHA poster will 
encourage both employees and employers to accurately report and record 
workplace injuries and illnesses. Many commenters commented that 
informing workers of their right to report injuries and illnesses 
without fear of discrimination was beneficial (Exs. 1489, 1529, 1603, 
1640, 1647, 1679, 1682, 1688, 1695, 1696). The Communications Workers 
of America (CWA) stated, ``Employer notification to employees of their 
right to report occupational injuries and illnesses without fear of 
employer retaliation, employer development and implementation of 
reasonable injury and illness requirements, and the prohibition of 
employer's adverse action against the workers who report injuries and 
illnesses is extremely important towards improving and maintaining safe

[[Page 29681]]

and healthful working conditions and worker well-being'' (Ex. 1489).
4. Sec.  1904.41(a)(3)--Electronic Submission of Part 1904 Records Upon 
Notification
    This part of the final rule has no immediate costs or economic 
impacts. Under this part of the rule, an establishment will be required 
to submit data electronically if OSHA notifies the establishment to do 
so as part of a specified data collection. Each specified data 
collection would be associated with its own particular costs, benefits, 
and economic impacts, which OSHA would estimate as part of obtaining 
OMB approval for the specified data collection under the Paperwork 
Reduction Act of 1995.
5. Budget Costs to the Government for the Creation of the Reporting 
System, Helpdesk Assistance, and Administration of the Electronic 
Submission Program
    While OSHA has not typically included the cost of administering a 
new regulation in the preliminary economic analysis, the Agency did 
include such costs in the PEA, because they represented a significant 
fraction of the total costs of the regulation. The program lifecycle 
costs can be categorized into IT hardware and software costs, helpdesk 
costs, and OSHA program management personnel costs. OSHA received 
estimates for the lifecycle costs from three sources: an OSHA 
contractor, the BLS, and the OSHA web-services office.
    According to OSHA's Office of Web Services, the creation of the 
reporting system hardware and software infrastructure would have had an 
initial cost of $1,545,162. Annualized over 10 years at 3 percent 
interest, this is $181,140 per year.
    BLS provided a unit cost estimate of 28 cents per transaction. This 
would have amounted to $372,000 per year for about 1.3 million 
transactions. Adding annual help desk costs of $200,000 would have made 
the total $572,000.
    The contractor and OSHA's Office of Web Services provided higher 
budget estimates. The contractor suggested that annual costs could have 
been as high as $953,000, while the OSHA Office of Web Services 
suggested a cost of $626,000 per year.
    Under the proposed rule, OSHA would have also continued to require 
three full-time-equivalent workers (FTEs) to administer the new 
electronic recordkeeping system. OSHA believed these FTEs would have 
cost the government $150,000 each, including salary and benefits, for a 
total of $450,000 per year. Added to the BLS cost of $572,000 and the 
annualized start-up cost of $220,000, this would have amounted to 
$1,242,000, or just over $1.2 million. Adding the FTE costs to the 
contractor and OSHA Office of Web Services estimates, along with the 
annualized start-up cost, would have yielded a range of between $1.2 
million and $1.6 million per year. For its best estimate in the PEA, 
OSHA used the BLS estimated costs per transaction, because this 
estimate is based on actual experience with implementing a similar 
program.
    For the FEA, OSHA used the estimate for costs to the government as 
published in the PEA and then adjusted the estimate by using the rate 
of inflation determined by the GDP deflator (source: St. Louis Federal 
Reserve Bank GDP deflator time series from January 2012 to January 
2015: 3.0 percent) to adjust the estimated cost to the government. Thus 
the cost to the government for this final rule is $1,279,260.
    Several commenters commented on the cost to the government. Several 
commenters expressed concerns that this data collection effort would 
strain the resources of OSHA by costing too much or requiring too many 
Federal employees to work on this project (Exs. 1187, 1193, 1199, 1204, 
1219, 1336, 1339, 1382, 1389, 1399, 1430, 1461). A typical comment 
highlighting the possible additional costs to the government was 
submitted by the MYR Group: ``Although not technically required for 
notice and comment rulemaking under the OSH Act, MYR Group believes 
that OSHA should evaluate the cost of its own resources which would be 
required to be dedicated to this rule instead of other compliance 
assistance or enforcement activities. OSHA would have to establish and 
continuously maintain a special government Web site for these data 
collections. This involves not only hardware and software expenses, but 
also ongoing salaries. To utilize the data for injury and illness 
prevention, or for enforcement, OSHA would have to establish positions 
for analysis to review and interpret the data. MYR Group believes that 
shifting resources from prevention activities to data management would 
be detrimental to making the workplaces safer and certainly not worth 
the minor potential for an incremental benefit in the collection of 
statistically insignificant data'' (Ex. 1399).
    In response, OSHA believes that the number of OSHA employees who 
will be assigned to collecting and analyzing the improved data will be 
the same number as those who worked on the ODI program. Based on 
examples of Web sites submitted by OSHA's contractor, OSHA believes 
that the data collection Web site will be a turn-key operation that 
will not require much human monitoring, just like the ODI data 
collection Web site. Further, OSHA believes that this data collection, 
even if it requires additional resources, will result in saving of 
other resources through better targeting of resources and better 
understanding of safety and health.
6. Discussion of Other Potential Costs of the Rule
    Some commenters suggested that there were other possible costs 
associated with the rule, including costs for computers and computer 
systems, for training, and for review of submissions. Others commented 
that there might be indirect costs, for example through loss of 
reputation to a firm (or, presumably, an establishment), loss of 
confidential business data, higher OSHA fines, additional union 
organizing, additional training, and opportunity costs, as well as 
perhaps higher labor costs as the labor supply gets better information 
on the safety and health of a workplace. Commenters also suggested that 
liability costs might rise, or that the security of dangerous materials 
or processes might be compromised. Finally, commenters suggested that 
an untrained public might naively misinterpret the data. Each of these 
groups of comments will be addressed briefly in this section.
a. Computers and Computer Systems
    Some commenters argued that OSHA was requiring the use of 
computerized record keeping. Troy Miller, a private citizen, commented, 
``The literature included with the proposed rule suggests that OSHA 
assumes a majority of employers already keep their injury and illness 
records electronically, so submission to OSHA should be doable without 
much extra time or expense'' (Ex. 0160). A related set of comments 
suggested that many establishments or firms would need to buy new 
computer systems (Exs. 0035, 1205, 1225, 0179, 0210, 1092, 1123, 1189, 
1190, 1192, 1199, 1275, 1281, 1092, 1113, 1279).
    OSHA notes that nothing in this final rule, or in the existing part 
1904 regulation, requires employers to create or maintain records 
electronically. Anyone who prefers to keep paper records for whatever 
reason may continue to do so. Employers who keep paper records will 
only have to enter the information from their paper records onto the 
forms on OSHA's Web site. OSHA estimates that this data entry will

[[Page 29682]]

require 10 minutes per form and two minutes per line entry on Form 300. 
It is possible that an employer who already keeps records 
electronically could take fewer than ten minutes per form and two 
minutes per line entry on Form 300 by electronically transferring the 
appropriate data to the OSHA Web site.
b. Training
    Several commenters suggested that they would face additional 
training costs to train employees who already administer or keep OSHA 
300-series forms to upload either summary or Log data to the OSHA Web 
site (Exs. 0160, 0179, 0194, 0196, 0210, 0215, 1091, 1092, 1326, 1339, 
1340, 1372, 1393, 1394, 1396, 1401, 1408). A typical comment on 
training was submitted by the Pacific Maritime Association (PMA), which 
commented, ``OSHA has failed to take into account the costs associated 
with having to train employees to record injuries in a manner suitable 
for publication . . .'' (Ex. 1326).
    OSHA continues to believe that additional training should not be 
necessary either to fill in a web form or to transmit records from an 
existing electronic system with which the employee is already familiar. 
This will be no more difficult than filling in order forms on private 
sites or other government forms online. It should be noted that more 
than 70 percent of respondents to the OSHA ODI and the BLS SOII 
collections choose to respond electronically. OSHA has already 
accounted for training for recordkeepers to understand the OSHA 
recordkeeping system and for the costs of familiarizing first-time 
recordkeepers with the Web site. No additional training will be 
necessary to transfer data from already-filled-in forms to a computer 
form. Note that OSHA's estimate of an hourly wage of $48.78 for the 
person entering the data assumes that the person is a technically-
proficient employee; the hourly wage for an employee who is not 
technically proficient would typically be less.
c. Review
    Several commenters suggested that some establishments might 
undertake an extra level of review, or an extra review effort, before 
sending the information to OSHA (Exs. 0258, 1110, 1123, 1205, 1336, 
1356, 1399, 1401, 1413, 1427). For example, the Phylmar Regulatory 
Roundtable (PRR) commented, ``Online submission to OSHA will likely 
include the labor not just of record keepers, but of more senior health 
and safety staff to quality control the data before submission. Most 
members believe strongly that senior management would seek to review 
and approve all submissions (not just the 300A reports); again this 
would involve additional cost to comply'' (Ex. 1110).
    As discussed above, comments on this issue were often conflated 
with other issues, for example the confidentiality of employees' 
records. The Texas Cotton Ginners' Association (TCGA), represents very 
small establishments that ``will have up to 20 or 30 employees during 
peak periods'' (Ex. 0211). The TCGA suggested that, because of the 
possibility of revealing confidential employee information, a manager 
might instead subject the data to further review and upload it 
themselves: ``The concern of management will be that this type of 
system will inherently set up situations where workers may feel their 
privacy is violated, and the worker is likely to blame their employer 
when this occurs. To minimize their liability, it is unlikely that a 
company will simply hand all the forms to a clerk and tell them to key 
the data into the public domain'' (Ex. 0211).
    In response, OSHA notes that OSHA's estimate of an hourly wage for 
the recordkeeper submitting the data is based on the assumption of a 
safety and health specialist familiar with the establishment's safety 
and health records, and that this hourly wage may be larger than the 
hourly wage for managers of small firms. Second, OSHA notes that a firm 
with 20-30 employees is required to submit only the information from 
Form 300A (the annual summary), which contains no employee-specific 
information.
    OSHA believes that existing regulations already provide an entirely 
adequate incentive to employers to thoroughly review their records and 
that publication of establishment-specific data through the final rule 
will require little further review. After all, OSHA records can already 
be accessed by OSHA at the time of inspection, as well as by employees 
and their representatives (including unions and employee attorneys). In 
addition, employers are already required to certify records under 
possible penalties of perjury.
    Some commenters were concerned about confidential business 
information or personal information (Exs. 0038, 0150, 0159, 0210, 0215, 
0252, 1090, 1091, 1110). As discussed above, there is no need for 
confidential business information in OSHA records, and OSHA already 
urges employers to avoid including confidential business information in 
OSHA records because OSHA allows employees and their representatives 
access to these records and places no limitations on the use of these 
records. There is no need for such confidential business information in 
OSHA records, and confidential business information should already be 
excluded, as the records can be made public at any time. Employers 
concerned with the time required to expunge personal information should 
also consider that the information in question could already be made 
public and that recordkeeping should exclude as much personal 
information as possible, consistent with the use of the records. In 
addition, OSHA intends to exclude the names and other PII of 
individuals from the records before publishing the data.
d. Harm to Reputation
    Some commenters suggested that published injury and illness data 
will tarnish the reputations of some establishments, or enterprises, or 
perhaps their entire industry. The Pacific Maritime Association 
commented, ``. . . an employee who has worked for one employer over a 
long period of time, and complains about a cumulative injury on his 
first day of work with a second employer will trigger an injury report 
that will be attributed to that second employer. Publication of this 
report is obviously unfair and inaccurate. Further, owing to 
contractual obligations and developing regional working rules, the 
standards and conditions at different ports change with a degree of 
frequency. Accordingly, without the proper context--something that OSHA 
has not proposed to provide as part of this database--it will be 
impossible for the public to even compare the injury rates of a single 
port'' (Ex. 1326). OSHA agrees that it is important for users of the 
data to understand the rules under which the data was gathered, as 
shown by the ``Explanatory Notes'' OSHA includes with its currently-
published ODI data. OSHA intends to include similar notes and 
explanations with the data collected under this rulemaking to minimize 
misunderstanding and misrepresentation of the data.
    Many commenters wrote that they feared that publication of 
establishment-specific summaries of annual injuries and illnesses would 
harm the establishments' reputations, and therefore, their businesses 
(Exs. 0157, 0160, 0162, 0181, 0189, 0205, 0218, 0224, 0235, 0240, 0242, 
0245, 0249, 0251, 0255, 1084, 1089, 1090, 1091, 1092, 1093, 1095, 1096, 
1106, 1112, 1113, 1115, 1117, 1123, 1192, 1197, 1198, 1199, 1200, 1205, 
1209, 1214, 1216, 1217, 1218, 1224, 1225, 1272, 1276, 1277, 1279, 1281, 
1282, 1283, 1284, 1321, 1326, 1327, 1328, 1332,

[[Page 29683]]

1333, 1336, 1337, 1341, 1342, 1343, 1348, 1349, 1351, 1355, 1356, 1357, 
1359, 1361, 1370, 1380, 1388, 1389, 1393, 1396, 1397, 1399, 1400, 1401, 
1402, 1405, 1408, 1412, 1421). A typical comment was submitted by Grede 
Holdings, LLC (GH), which stated that ``[p]roviding raw data in a 
public forum to be viewed by individuals or groups that may not know 
how to interpret the data could result in incorrect conclusions or 
assumptions about the employer. This misunderstanding of the data could 
further result in unwarranted damage to a company's reputation, related 
loss of business and jobs, and unwarranted government inspections 
consuming the limited agency and company resources that could be used 
more effectively elsewhere'' (Ex. 1402). The National Association of 
Home Builders (NAHB) commented that ``OSHA also does not consider the 
adverse impacts on safety and health that could occur through the 
implementation of this rule. These impacts have been discussed above 
and include employers shifting resources away from safety and health 
initiatives toward lagging indicators, employers including fewer 
details of injuries and illnesses on recordkeeping forms, and employers 
with sound injury and illness prevention programs being subjected to 
reputation damage from employers, employees, and others making 
incorrect assessments of their safety and health efforts from extremely 
limited facts'' (Ex. 1408).
    Regarding the first comment, OSHA is not aware of damage to the 
reputations of establishments or firms from other, similar data 
collection efforts. For example, MSHA has been collecting and 
publishing individual mine injury data on the Web for 15 years. OSHA 
itself has, for many years, published establishment-specific results of 
its inspections and, more recently, establishment-specific data 
collected through the ODI. There are other types of web-published data, 
which include public safety information (for example police or fire 
responses to a business's location), health inspector reports, court 
records, and information about a firm's financial condition. All of 
these sorts of information are subject to misinterpretation by members 
of the public.
    Regarding the second comment, OSHA strongly disagrees with the 
commenter that a strong illness and injury prevention program can be 
based on hiding basic information on injury and illness rates from 
either employees or the public. Illness and injury prevention programs 
work best when data on injuries and illnesses is collected and analyzed 
frequently and used as a tool to improve safety and health. As 
discussed above, this data collection effort will allow scholars and 
public health experts to analyze establishment data, discover patterns 
in injuries and illnesses, and recommend solutions.
e. Opportunity Costs of the Regulation
    Another comment about the proposed rule had to do with what one 
commenter explicitly identified as ``opportunity costs'', that is, the 
value of effort forgone due to the compliance costs for this final 
rule. The Food Marketing Institute (FMI) commented, ``Thus, time spent 
addressing the proposed rule's many requirements is time that the 
safety personnel cannot spend providing safety training, completing 
safety audits, or handling other matters critical to the ongoing safety 
of the workplace. The opportunity costs created by the proposed rule 
are potentially significant and must be accounted for in the proposal's 
overall cost to employers'' (Ex. 1198).
    In response, the comment above is true for any government rule or 
regulation, or for that matter, any internal firm regulation or 
operating procedure. Time spent on compliance with any regulation is, 
by definition, time that cannot be spent on something else. That is one 
reason why OSHA has kept the requirements for this final rule as simple 
and as economical as possible. OSHA does not believe that an extra ten 
minutes, or even an extra hour, every year will significantly affect 
the ability of an establishment to have a safety program or generate 
profits. In fact, OSHA believes that when an establishment has access 
to the injury and illness information for other firms that will be 
generated by this final rule, it should make an establishment's safety 
and health program more efficient. Further, in principal, the labor 
costs of affected workers reflect the opportunity costs of that labor. 
If the opportunity cost is significantly higher than the labor costs, 
the firm should consider hiring more of the kind of labor in question.
f. Data Taken Out of Context
    Last, many commenters stated that OSHA injury and illness data 
might be taken out of context or misinterpreted by the public. One 
commenter, the National Grain and Feed Association (NGFA), commented, 
``Providing raw data to those who do not know how to interpret it or 
without putting such data in context invites improper and false 
conclusions or assumptions to be drawn about the employer, which could 
lead to unnecessary damage to a company's reputation, related loss of 
business and jobs, and misallocation of resources by the public, 
government and industry'' (Ex. 1351). OSHA strongly disagrees with 
comments criticizing the value of raw and un-interpreted injury and 
illness data. Standard economic principles show that information is 
valuable, even if it is difficult to interpret. As economists as early 
as Adam Smith, and including Friedrich Hayek and Milton Friedman, have 
shown, economic actors who have only a narrow view of the information 
available in the economy work together to efficiently allocate 
resources. Hayek wrote in ``The Use of Knowledge in Society'' (1945) 
that ``The whole acts as one market, not because any of its members 
survey the whole field, but because their limited individual fields of 
vision sufficiently overlap so that through many intermediaries the 
relevant information is communicated to all. The mere fact that there 
is one price for any commodity--or rather that local prices are 
connected in a manner determined by the cost of transport, etc.--brings 
about the solution which (it is just conceptually possible) might have 
been arrived at by one single mind possessing all the information which 
is in fact dispersed among all the people involved in the process.''
    In addition, OSHA believes that the best solution to the ``problem 
of information'' is more information. Establishments, corporations, and 
industry groups will now have access to competitors' information on 
injuries and illnesses, and they will be able to distinguish themselves 
from others in their industry.
7. Total Costs of the Rule
    As shown in the Table VI-1 below, the total costs of the final rule 
would be an estimated $15.0 million per year. These costs are shown in 
the middle column of Table VI-1. Also note that the last column, 
``First Year Costs'', is broken out separately, but is also included in 
the Final Rule Annual Costs column, having been amortized over 10 years 
at 3 percent interest. It would be double-counting to add the total of 
the second and third columns together.

[[Page 29684]]



                             Table VI-1--Total Costs of the Final and Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                                         Proposed rule        Final rule          Final rule
                                                     -----------------------------------------------------------
                    Cost element                                                               First year costs
                                                         Annual costs      Annualized costs   (if different from
                                                                                               annualized costs)
----------------------------------------------------------------------------------------------------------------
Electronic submission of part 1904 records by                 $6,954,950      \4\ $7,222,257  ..................
 establishments with 250 or more employees..........
Electronic submission of OSHA annual summary form              3,695,939           4,571,594  ..................
 (Form 300A) by establishments with 20 to 249
 employees in designated industries.................
This includes:
    Cost for establishments without a computer
     ($1,001,631)...................................
    Cost for establishments with non-certified
     records ($231,192).............................
Cost for Agricultural Establishments not in PEA.....  ..................             229,568  ..................
Familiarization.....................................  ..................             411,061           3,506,436
Cost for check by unregulated establishments........  ..................             370,283           3,158,593
Cost of non-discrimination provision................  ..................             938,040           8,001,673
Electronic submission of part 1904 records upon                      * 0                 * 0  ..................
 notification.......................................
                                                     -----------------------------------------------------------
    Total Private Sector Costs......................          10,650,889          13,742,804  ..................
    Total Government Costs..........................           1,242,000           1,279,260           1,545,162
                                                     -----------------------------------------------------------
        Total.......................................          11,892,889          15,022,064  ..................
----------------------------------------------------------------------------------------------------------------
* This part of the proposed rule has no immediate costs or economic impacts. Under this part of the rule, an
  establishment would be required to submit data electronically if OSHA notified the establishment to do so as
  part of a specified data collection. Each specified data collection would be associated with its own
  particular costs, benefits, and economic impacts, which OSHA would estimate as part of obtaining OMB approval
  for the specified data collection under the Paperwork Reduction Act of 1995.

    First, as noted elsewhere in this document, the final rule does not 
add to or change any employer's obligation to complete, retain, and 
certify injury and illness records. The final rule also does not add to 
or change the recording criteria or definitions for these records. The 
only change is that, under certain circumstances, employers will be 
obligated to submit information from these records to OSHA in an 
electronic format. Many employers have already done this through the 
OSHA Data Initiative and BLS SOII survey; these employers have not 
commented, either on the proposed rule or on the paperwork analyses, 
that they incurred additional costs beyond those that OSHA estimated 
(see for example the ODI ICR 200912-1218-012 and the SOII ICR 201209-
1220-001).
---------------------------------------------------------------------------

    \4\ This is the cost for every year of the rule except the first 
year. Because of the phase-in, in the first year establishments with 
250 or more employees only have to submit their summary data, at a 
cost of $239,197. All other costs are unaffected by the phase-in.
---------------------------------------------------------------------------

    Second, employers are already required to examine and certify the 
information they collect. Employers who are already sufficiently 
satisfied with the accuracy of their records to accept the risk of a 
criminal penalty are unlikely to do more simply because they must 
electronically submit the records to OSHA. Therefore, the prospect of 
submitting their data to OSHA would not provide any additional 
incentive to carefully record injuries and illnesses.
    Third, injury and illness records kept under part 1904 are already 
available to OSHA and the public in a variety of ways. The annual 
summary data must be posted where employees can see it. Employees or 
their representatives can also obtain and make public most of the 
information from these records at any time, if they wish. These are the 
people who are most likely to recognize if the records are inaccurate. 
Finally, OSHA Compliance Officers routinely review these records when 
they perform workplace inspections. While OSHA inspections are a rare 
event for the typical business, they are much more common for firms 
with over twenty employees in the kinds of higher-hazard industries 
subject to this rule.
    OSHA requested comments on the issue of whether employers newly 
required to submit records to OSHA may spend additional time assuring 
the accuracy of their records, beyond what they spend now. If all 
431,296 establishments were to spend an extra half hour for an 
industrial health and safety specialist to double-check the data prior 
to submission, then the costs of this final rule would increase by 
$10.5 million. While this would be a substantial addition to the costs 
of the rule, such an addition would not alter OSHA's conclusion that 
this is neither an economically-significant rule nor a rule that would 
impose significant costs on a substantial number of small businesses.
    OSHA received two comments that provided alternative estimates of 
the total costs. OSHA will review these estimates here.
    Miles Free at Precision Machined Products Association (PMPA) 
provided a detailed breakdown of estimated costs, itemizing the tasks 
firms would have to undertake due to the proposed regulation change 
(Ex. 194). The costs totaled $592 per firm. Most of these tasks were 
not included in OSHA's cost estimate. The total of $592 includes the 
use of a higher managerial wage ($30) and costs associated with reading 
the rule, reviewing, training, and development of IT resources; he 
notes ``many of these costs are initial setup''. OSHA believes that 
many of these costs seem inflated. For example, the second largest 
single cost element is for ``reading the rule'' which will require 4 
hours. Given that the rule itself takes up less than one page of text, 
and can be readily explained in less than another page of text, it is 
difficult to imagine how someone could spend 4 hours reading the rule. 
In addition, as noted above, review of records is already required; no 
additional IT resources are required to submit a form electronically; 
and it is difficult to see how technically-qualified personnel will 
need training in order to submit already-gathered data on an Internet 
form.
    For the Final Economic Analysis, OSHA added 5 minutes of time for 
establishments that are required to keep records, but are not newly 
required to submit annual records summaries to OSHA under this rule. 
OSHA believes those establishments might need 5 minutes to check OSHA's 
Web site, or various other Web sites or sources of

[[Page 29685]]

information to determine if they are covered under this recordkeeping 
change. There are 889,327 establishments that are required to keep 
records but are not required to report under this new rule. If each 
establishment takes 5 minutes to check, using an Industrial Health and 
Safety Specialist with a loaded wage of $42.62, then the unit cost will 
be $3.55 [5/60 * $42.62] and the total cost, which occurs entirely in 
the first year and can be annualized over 10 years at 3 percent 
interest, is $370,283 [$3,158,593 in the first year, discounted at a 3 
percent interest rate over 10 years].
    The Chamber of Commerce asserts that ``OSHA's cost-benefit analysis 
is deeply flawed'' for multiple reasons and derives its own total costs 
of the regulation at over $1.1 billion (Ex. 1396). In the submitted 
comment, the Chamber states one of the sources of the higher cost would 
``result from companies more closely scrutinizing whether an injury or 
illness is recordable and hence reportable.'' The discussion of this 
topic focused on the legal case of Caterpillar Logistics Inc. vs Solis, 
to ``illustrate the time and resources that employers will be forced to 
expend in making these recordability decisions.'' In their submitted 
comments, they describe the difficulty of diagnosing the source of 
musculoskeletal disorders (ergonomic injuries) which they cite as ``34% 
of all purported nonfatal workplace injuries and illnesses'' based on 
BLS statistics. The Chamber stated that ``OSHA's estimated costs barely 
scratch the surface of the resources that this proposed rule will 
require.'' Given that the costs to Caterpillar are associated entirely 
with OSHA's current part 1904 regulation, OSHA believes that this issue 
is not relevant to this rulemaking.
    In their discussion of costs, the Chamber provides its own 
estimates for three specific elements: reviewing the rule, re-
programming information systems, and training. They state, ``if each 
firm on average spent just one hour to review the rule's compliance 
requirements, the initial year cost would be over $342 million.'' The 
Chamber based its cost estimate on the BLS 2013 average compensation 
for private sector managers and administrators, and a total count of 
7.4 million separate establishments. It should be noted that the 
overwhelming majority of these establishments are very small firms with 
fewer than 11 employees and firms in low-hazard industries that are 
partially exempt from OSHA's recordkeeping requirements. These firms 
already know that this rulemaking does not apply to them, because they 
are not required to routinely keep OSHA injury and illness records 
under part 1904.
    Using reports by companies surveyed about HR information systems 
that would need to be modified, the Chamber estimates an initial-year 
cost of over $440 million to re-program information systems and 
software. The Chamber's comments describe multiple challenges 
associated with the costs for electronic submissions, including the 
integration of software or databases, and up to 16 hours of 
professional labor to retool information systems and software. The 
Chamber states, ``The majority of employers will find it necessary to 
change existing records systems and procedures in order to compile and 
submit information according to the format and periodicity of this 
proposed rule's reporting requirement.'' The Chamber estimates startup 
software modification costs of over $5,000 for large firms and $1,000 
for small firms. These estimates seem high. The typical large firm has 
to track an average of 21 one-page records. It is difficult to imagine 
how it would be possible to spend $5,000 on a system designed to track 
21 one-page records. In any case, however, firms must already track 
these records, although they need not do so electronically, so there is 
no need for a new system of any kind as a result of the final rule. In 
the case of small firms, the Chamber estimated that there would be 
$1,000 in software costs associated with submitting data on a one-page 
form that the employer already is required to fill out. OSHA believes 
that it is extremely unlikely that a small firm would spend $1,000 for 
this purpose.
    Lastly in the submitted cost comments, the Chamber estimates 
training costs at nearly $150 million, ``based on just one hour of 
training plus the average cost for commercial occupational safety 
training materials.'' The Chamber's estimated training cost would be 
for corporate managers who ``will need to be trained to comply with the 
reporting formats, schedules and procedures.'' As discussed above, OSHA 
believes that such training is unnecessary for a person competent in 
computer use (or smart phone use) to fill in an on-line form.

 C. Benefits

    As OSHA explained in the preamble to the proposed rule, OSHA 
anticipates that establishments' electronic submission of 
establishment-specific injury/illness data will improve OSHA's ability 
to identify, target, and remove safety and health hazards, thereby 
preventing workplace injuries, illnesses, and deaths. In addition, OSHA 
believes that the data submission requirements of the final rule will 
improve the quality of the information and lead employers to increase 
workplace safety and health.
    The Agency plans to make the injury and illness data public, as 
encouraged by President Obama's Open Government Initiative. Online 
access to these data will allow the public, including employees and 
potential employees, researchers, employers, unions, and workplace 
safety and health consultants, to use and benefit from the data. It 
will support the development of innovative ideas and allow everybody 
with a stake in workplace safety and health to participate in improving 
occupational safety and health.
    The data collected by BLS is mostly used in the aggregate. While 
BLS makes micro data available in a restricted way to researchers, OSHA 
will make micro data, including case data, available to researchers and 
the public with far fewer restrictions.
    The BLS SOII is used as a basis for much of the research on 
workplace safety and health in the US. Typical examples include 
Economic Burden of Occupational Injury and Illness in the United 
States, by J. Paul Leigh (2011); Analyzing the Equity and Efficiency of 
OSHA Enforcement, by Wayne B. Gray and John T. Scholz (1991); 
Establishment Size and Risk of Occupational Injury, by Dr. Arthur 
Oleinick MD, JD, MPH, Jeremy V. Gluck Ph.D., MPH, and Kenneth E. Guire 
(1995); and Occupational Injury Rates in the U.S Hotel Industry, by 
Susan Buchanan et al. in the American Journal of Industrial Medicine 
(2010). Some of these studies, such as Gray and Sholtz, use 
establishment-specific data previously only available on site at BLS.
    The database resulting from this final rule will provide for the 
use of establishment-specific data without having to work under the 
restrictions imposed by BLS for the use of confidential data. It would 
also provide data on injury and illness classifications that are not 
currently available from any source, including the BLS SOII. 
Specifically, under this collection, there would be case-specific data 
for injuries and illnesses that do not involve days away from work. The 
BLS case and demographic data is limited to cases involving days away 
from work and a small subset of cases involving restricted work 
activity.
    In order to determine possible monetary benefits to this rule, OSHA 
calculated the value of statistical life (VSL) using Viscusi & Aldy's 
(2003) meta-analysis of studies in the economics literature that use a 
willingness-to-pay methodology to

[[Page 29686]]

estimate the imputed value of life-saving programs. The authors found 
that each fatality avoided was valued at approximately $7 million in 
2000 dollars. Using the GDP Deflator (Source: https://research.stlouisfed.org/fred2/series/GDPDEF/#), OSHA estimated that 
this $7 million base number in 2000 dollars yields an estimate of $9 
million in 2012 dollars for each fatality avoided.
    Many injuries, illnesses, and fatalities can be prevented at 
minimal cost. For example, the costs of greater use of already-
purchased personal protective equipment are minimal, yet many 
fatalities described in OSHA's inspection data systems could have been 
prevented through the use of available personal protective equipment. 
This includes fatalities related to falls when a person was wearing 
fall protection but did not have the lanyard attached and to electric 
shocks where arc protection was available but unused or left in the 
truck. For such minimal-cost preventative measures, assuming they have 
costs of prevention of less than $1 million per fatality prevented and 
using the VSL of $9 million and other parameters typically used in OSHA 
benefits, if the final rule leads to either 1.5 fewer fatalities or 
0.025 percent fewer injuries per year, the rule's benefits will be 
equal to or greater than the costs. Many accident-prevention measures 
will have some costs, but even if these costs are 75 percent of the 
benefits, the final rule will have benefits exceeding costs if it 
prevented 4.8 fatalities or 0.8 percent fewer injuries per year. OSHA 
expects the rule's beneficial effects to exceed these values.
    OSHA received many comments concerning the possible benefits, or 
lack of benefits, for the final rule. Some of the benefit suggestions 
were innovative. One commenter suggested that having establishment-
level injury and illness data on-line will be valuable for local 
medical care practitioners who can check to see whether their patient's 
illness or injury is because of their job (Ex. 1106). The Council of 
State and Territorial Epidemiologists (CSTE) commented, ``Availability 
of on line data on work-related injuries and illnesses will allow 
health care practitioners to assess the occurrence of particular 
injuries and illnesses at the establishments where their patients 
work'' (Ex. 1106).
    CSTE provided an example of a similar regulation in Massachusetts 
which did reduce workplace injuries (Ex. 1106). The study by Laramie et 
al. (2011) showed that after implementing a needlestick injury 
reporting program in Massachusetts, the hospitals required to submit 
annual injury summaries had a 22 percent decrease in needle stick 
injuries over 5 years. While OSHA does not claim that this data 
collection initiative will result in a 5 percent annual decrease in 
injuries and illnesses, even two-hundredths of a percent decrease in 
injuries and illnesses would be an overall benefit of 400 fewer 
workplace injuries and illnesses in the United States per year.
    Many commenters suggested that the benefits of this information 
collection and dissemination would be dissipated because of the poor 
quality of the information collected (Exs. 1219, 1333, 1391, 1199, 
1343, 1342, 1110, 1110, 1402, 0258, 1359).
    In response, OSHA notes that information is a unique good, which 
has special properties including non-exclusion and non-rivalness, and 
that the absence of information can create a market failure. The 
presence of some information can help to correct a market failure, even 
if the information is not perfect. The information can still provide a 
signal to the economic actors (firms, establishments, workers, etc.) 
even if the information stream is noisy.
    The labor market may suffer from information asymmetries. If 
employers know the actual risk of performing a job and job applicants 
believe the job is safer than it actually is, then employees may accept 
a lower wage, in other words, a less efficient wage. The classic 
economics article on market information asymmetries is Akerlof's ``The 
Market for Lemons'', which describes a theoretical model for the market 
for used cars. For employers, there is an incentive to misrepresent the 
safety of their workplace because it would allow them to hire labor for 
less than the market clearing wage.
    As discussed above, a common complaint of commenters was that 
injury and illness summaries are lagging, rather than leading, 
indicators of safety problems (Exs. 0027, 0163, 0210, 0250, 0258, 1109, 
1124, 1193, 1194, 1198, 1204, 1206, 1217, 1219, 1222, 1275, 1279, 1321, 
1326, 1331, 1333, 1334, 1336, 1339, 1341, 1342, 1343, 1355,, 1360, 
1363, 1373, 1376, 1380, 1389, 1390, 1391, 1392, 1393, 1396, 1399, 1400, 
1402, 1406, 1408, 1409, 1410, 1411, 1413, 1416, 1417, 1430, 1467, 
1489). One commenter, the American Health Care Association (AHCA) 
commented, ``Despite OSHA's alleged position regarding the value of 
leading indicators as opposed to lagging indicators, OSHA continues to 
push employers into focusing resources and energy in the wrong 
direction'' (Ex. 1194). Another commenter, the Mechanical, Electrical, 
Sheet Metal Alliance (MCAA), stated: ``. . . OSHA Incidence Rates are 
poor indicators of safety performance'' (Ex. 1363). MCAA writes further 
that ``Construction owners often determine whether contractors are 
eligible to bid on their projects based on the owner's perception of 
the contractors' safety performance. Owner's evaluation of a company's 
lagging indicators on the OSHA's [sic] Web site would be misleading 
with regard to that company's safety culture and safety performance'' 
(Ex. 1363). OSHA disagrees, instead believing that OSHA's Web site 
information is better than no information and that it won't be 
misleading in the context of hundreds or thousands of other similar 
establishments reporting their injury and illness rates, which will be 
available for comparison.
    The nomenclature of leading versus lagging indicators is 
unfortunate. OSHA is not requiring an annual data collection to attempt 
to judge the safety performance of any particular establishment, but 
rather to collect annual injury and illness data to use in ways similar 
to how the data collected from the ODI was used already. OSHA does not 
have a strong opinion on the question of injury and illness data as a 
lagging indicator, but the Agency knows that on average, current-year 
injury/illness rates are related to past-year as well as future-year 
injury and illness rates. OSHA wants to collect this information; 
further, the Agency has been requiring many establishments to record 
this information for decades. As discussed elsewhere, this data 
collection effort is not an exercise in judging safety and health 
reputations.
    Other commenters who commented that the collection and electronic 
publication of these records would be helpful included many labor 
unions. A representative comment is from the International Brotherhood 
of Teamsters (IBT), which wrote that they currently have great 
difficulty obtaining these records for their membership from unionized 
workplaces. The IBT wrote, ``The cases are provided as an illustration 
of the fact that employers frequently deny union representatives access 
to this information, forcing the union to pursue charges with the 
NLRB'' (Ex. 1381).

D. Economic Feasibility

    OSHA concludes that the final rule will be economically feasible. 
For the annual reporting requirement, affecting establishments with 250 
or more employees, the average cost per affected establishment will be 
$215 per year. For the annual reporting requirement,

[[Page 29687]]

affecting establishments with 20 to 249 employees in designated high-
hazard industries, the average cost per affected establishment will be 
$11.13 per year. In addition, the non-discrimination provision, which 
has a cost of $5.86, on average, in the first year for each of the 1.3 
million establishments subject to the rule, should also be economically 
feasible. These costs will not affect the economic viability of these 
establishments.

E. Regulatory Flexibility Certification

    The part of the final rule requiring annual reporting for 
establishments with 250 or more employees will affect some small firms, 
according to the definition of small firm used by the Small Business 
Administration (SBA). In some sectors, such as construction, where 
SBA's definition only allows relatively smaller firms, there are 
unlikely to be any firms with 250 or more employees that meet SBA 
small-business definitions. In other sectors, such as manufacturing, a 
small minority of SBA-defined small businesses will be subject to this 
rule. Thus, this part of the final rule will affect only a small 
percentage of all small firms. However, because some small firms will 
be affected, especially in manufacturing, OSHA has examined the impacts 
on small businesses of the costs of this rule. OSHA's procedures for 
assessing the significance of final rules on small businesses suggest 
that costs greater than 1 percent of revenues or 5 percent of profits 
may result in a significant impact on a substantial number of small 
businesses. To meet this level of significance at an estimated annual 
average cost of $215 per affected establishment per year, annual 
revenues for an establishment with 250 or more employees would have to 
be less than $21,500, and annual profits would have to be less than 
$4,300. These are extremely unlikely combinations of revenue and 
profits for firms of this size and would only occur for a very small 
number of firms in severe financial distress.
    The part of the final rule requiring annual electronic submission 
of data from establishments with 20 to 249 employees in designated 
industries will also affect some small firms. As stated above, costs 
greater than 1 percent of revenues or 5 percent of profits may result 
in a significant economic impact on a substantial number of small 
businesses. To meet this level of significance at an estimated annual 
average cost of $11.13 per affected establishment per year, annual 
revenues for an establishment with 20 to 249 employees would have to be 
less than $1,113, and annual profits would have to be less than $226. 
These are extremely unlikely combinations of revenue and profits for 
establishments of this size.
    As a result of these considerations, per section 605 of the 
Regulatory Flexibility Act, OSHA proposes to certify that this final 
rule will not have a significant economic impact on a substantial 
number of small entities. Thus, OSHA did not prepare an initial 
regulatory flexibility analysis or conduct a SBREFA Panel. OSHA 
requested comments on this certification. Many commenters stated that 
OSHA should have held a SBREFA Panel (Exs. 0179, 0205, 0250, 0255, 
1092, 1103, 1113, 1123, 1190, 1199, 1200, 1205, 1208, 1209, 1211, 1216, 
1217, 1275, 1278, 1343, 1356, 1359, 1370, 1387, 1395, 1396, 1408, 1410, 
1411, 1421). Other commenters stated that specific aspects of the 
proposed regulation brought it to the level that should require a 
SBREFA Panel review. The American Public Power Association (APPA) 
commented, ``While OSHA representatives have asserted that the new 
elements of the proposed rule are only extensions of existing 
requirements, APPA is of the opinion that the proposed rule includes 
profound changes to the scope of the existing framework. As such, OSHA 
should have convened a Small Business Advocacy Review panel per the 
Small Business Regulatory Enforcement Fairness Act (``SBREFA'') to 
analyze the potential impact on the small business community'' (Ex. 
1410).
    In response, OSHA continues to assert that this regulation is 
similar to the ODI, though with a larger number of participating 
establishments. That data collection initiative ran successfully for 
nearly 20 years.
    In another example, the International Association of Drilling 
Contractors wrote, ``While OSHA acknowledges a small portion of 
businesses do not have immediate access to computers or the Internet, 
the agency has not put the rule before a small business review panel as 
required under the Small Business Regulatory Enforcement Fairness Act 
of 1996 . . .'' (Ex. 1199). OSHA's response to the issue of computer 
and Internet access is discussed above.
    Despite the comments, OSHA continues to believe that even if the 
costs per small establishment were ten or twenty times higher than the 
tiny per establishment costs of about $10 per average small business, 
those costs would be nowhere near one percent of revenues or five 
percent of profits. OSHA does note that during its past two SBREFA 
Panel exercises, in 2012 (on Injury and Illness Prevention Programs) 
and again in 2014 (on Infectious Diseases), all small-business panel 
participants had access to computers, the Internet, and email.

VII. Unfunded Mandates

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1501 et seq.), as well as Executive Order 12875, this final rule does 
not include any federal mandate that may result in increased 
expenditures by state, local, and tribal governments, or increased 
expenditures by the private sector of more than $100 million.
    Section 3 of the Occupational Safety and Health Act makes clear 
that OSHA cannot enforce compliance with its regulations or standards 
on the U.S. government ``or any State or political subdivision of a 
State.'' Under voluntary agreement with OSHA, some States enforce 
compliance with their State standards on public sector entities, and 
these agreements specify that these State standards must be equivalent 
to OSHA standards. Thus, although OSHA may include compliance costs for 
affected public sector entities in its analysis of the expected impacts 
associated with the final rule, the rule does not involve any unfunded 
mandates being imposed on any State or local government entity.
    Based on the evidence presented in this economic analysis, OSHA 
concludes that the final rule would not impose a Federal mandate on the 
private sector in excess of $100 million in expenditures in any one 
year. Accordingly, OSHA is not required to issue a written statement 
containing a qualitative and quantitative assessment of the anticipated 
costs and benefits of the Federal mandate, as required under Section 
202(a) of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532(a)).

VIII. Federalism

    The final rule has been reviewed in accordance with Executive Order 
13132 (64 FR 43255 (Aug. 10, 1999)), regarding Federalism. The final 
rule is a ``regulation'' issued under Sections 8 and 24 of the OSH Act 
(29 U.S.C. 657, 673) and not an ``occupational safety and health 
standard'' issued under Section 6 of the OSH Act (29 U.S.C. 655). 
Therefore, pursuant to section 667(a) of the OSH Act, the final rule 
does not preempt State law (29 U.S.C. 667(a)). The effect of the final 
rule on states is discussed in section IX. State Plan States.

IX. State Plan States

    For the purposes of section 18 of the OSH Act (29 U.S.C. 667) and 
the requirements of 29 CFR 1904.37 and

[[Page 29688]]

1902.7, within 6 months after publication of the final OSHA rule, 
state-plan states must promulgate occupational injury and illness 
recording and reporting requirements that are substantially identical 
to those in 29 CFR part 1904 ``Recording and Reporting Occupational 
Injuries and Illnesses.'' All other injury and illness recording and 
reporting requirements (for example, industry exemptions, reporting of 
fatalities and hospitalizations, record retention, or employee 
involvement) that are promulgated by state-plan states may be more 
stringent than, or supplemental to, the federal requirements, but, 
because of the unique nature of the national recordkeeping program, 
states must consult with OSHA and obtain approval of such additional or 
more stringent reporting and recording requirements to ensure that they 
will not interfere with uniform reporting objectives (29 CFR 
1904.37(b)(2), 29 CFR 1902.7(a)).
    There are 27 state plan states and territories. The states and 
territories that cover private sector employers are Alaska, Arizona, 
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, 
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, 
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and 
Wyoming. Connecticut, Illinois, New Jersey, New York, and the Virgin 
Islands have OSHA-approved state plans that apply to state and local 
government employees only.

X. Environmental Impact Assessment

    OSHA has reviewed the provisions of this final rule in accordance 
with the requirements of the National Environmental Policy Act (NEPA) 
of 1969 (42 U.S.C. 4321 et seq.), the Council on Environmental Quality 
(CEQ) NEPA regulations (40 CFR parts 1500-1508), and the Department of 
Labor's NEPA Procedures (29 CFR part 11). As a result of this review, 
OSHA has determined that the final rule will have no significant 
adverse effect on air, water, or soil quality, plant or animal life, 
use of land, or other aspects of the environment.

XI. Office of Management and Budget Review Under the Paperwork 
Reduction Act of 1995

    The final rule contains collection of information (paperwork) 
requirements that are subject to review by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 
3501 et seq.) and OMB regulations (5 CFR part 1320). The PRA requires 
that agencies obtain approval from OMB before conducting any collection 
of information (44 U.S.C. 3507). The PRA defines a ``collection of 
information'' as ``the obtaining, causing to be obtained, soliciting, 
or requiring the disclosure to third parties or the public of facts or 
opinions by or for an agency regardless of form or format'' (44 U.S.C. 
3502(3)(A)).
    OSHA's existing recordkeeping forms consist of the OSHA 300 Log, 
the 300A Summary, and the 301 Incident Report. These forms are 
contained in the Information Collection Request (ICR) (paperwork 
package) titled 29 CFR part 1904 Recording and Reporting Occupational 
Injuries and Illnesses, which OMB approved under OMB Control Number 
1218-0176 (expiration date 01/31/2018).
    The final rule affects the ICR estimates in two programmatic ways: 
(1) Establishments that are subject to the part 1904 requirements and 
have 250 or more employees must electronically submit to OSHA on an 
annual basis the required information recorded on their OSHA Forms 300, 
301, and 300A; and (2) Establishments in certain designated industries 
that have 20 to 249 employees must electronically submit to OSHA on an 
annual basis the required information recorded on their OSHA Form 300A. 
In addition to submitting the required data, employers subject to 
either of these requirements will also be required to create an account 
and learn to navigate the collection system.
    The final rule also requires employers subject to the part 1904 
requirements to inform their employees of their right to report 
injuries and illnesses. This requirement can be met by posting a 
recently-revised version of the OSHA Poster. The public disclosure of 
information originally supplied by the Federal Government to the 
recipient for the purpose of disclosure to the public is not included 
within the definition of collection of information (5 CFR 
1320.3(c)(2)).
    The burden hours for the final rule are estimated to be 173,406 for 
the initial year of implementation and 254,029 for subsequent years. 
There are no capital costs for this collection of information.
    The table below presents the new components of the rule that 
comprise the ICR estimates.

[[Page 29689]]

[GRAPHIC] [TIFF OMITTED] TR12MY16.000

    As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the 
following paragraphs provide information about this ICR.
    1. Title: 29 CFR part 1904 Recording and Reporting Occupational 
Injuries and Illnesses.
    2. Number of respondents: OSHA requires establishments that are 
required to keep injury and illness records under part 1904, and that 
had 250 or more employees in the previous year, to submit information 
from these records to OSHA or OSHA's designee, electronically, on an 
annual basis. There are approximately 34,000 establishments that will 
be subject to this requirement and that will submit detailed case 
characteristic data on approximately 700,000 occupational injuries and 
illnesses per year. OSHA also proposes to require establishments that 
are required to keep injury and illness records under part 1904, had 20 
to 249 employees in the previous year, and are in certain designated 
industries to electronically submit the information from the OSHA 
annual summary form (Form 300A) to OSHA or OSHA's designee on an annual 
basis. There are approximately 430,000 establishments that will be 
subject to this requirement. Finally, OSHA proposes to require all 
employers who receive notification from OSHA to electronically submit 
specified information from their injury and illness records to OSHA or 
OSHA's designee. This requirement will only incur a paperwork burden 
when the agency implements a notice of collection. For each new data 
collection conducted under this proposed provision, the Agency will 
request OMB approval under separate PRA control numbers.
    3. Frequency of responses: Annually.
    4. Number of responses: 1,644,661.
    5. Average time per response: Time per response varies from 20 
minutes for establishments reporting only under Sec.  1904.41(a)(2), to 
multiple hours for large establishments with many recordable injuries 
and illnesses reporting under Sec.  1904.41(a)(1). The average time of 
response per establishment is 41 minutes.
    6. Estimated total burden hours: The burden hours for the final 
rule are estimated to be 173,406 for the initial year of implementation 
and 254,029 for subsequent years. Also, there is an adjustment decrease 
of 750,637 burden hours due to decreases in (1) the number of 
establishments covered by the recordkeeping rule; (2) the number of 
injuries and illness recorded by covered employers; and (3) the number 
of fatalities, amputations, hospitalization, and loss of eye reported 
by employers. The proposed total burden hours for the recordkeeping 
(part 1904) ICR are 2,667,251.
    7. Estimated costs (capital-operation and maintenance): There are 
no capital costs for the proposed information collection.
    OSHA received a number of comments relating to the estimated time 
necessary to meet the paperwork requirements of the proposed changes 
published in the November 8, 2013 Improve Tracking of Workplace 
Injuries and Illnesses Notice of Proposed Rulemaking (78 FR 67254-
67283) and its August 14, 2014 Supplemental Notice (79 FR 47605-47610). 
References to documents below are given as ``Ex.'' followed by the 
document number. The document number is the last sequence of numbers in 
the Document ID Number on https://www.regulations.gov. For example, Ex. 
17, the proposed rule, is Document ID Number OSHA-2013-0023-0017. The 
comments are grouped and addressed by topic.
    Topic 1: A number of comments were submitted pertaining to the 
extra time required to submit data on a quarterly basis, rather than an 
annual basis (Exs. 157, 247). Paula Loht of Gannett Fleming Inc. wrote, 
``Based on my calculations, if the proposed reporting requirements are 
implemented, it would take my two-person staff two weeks of full-time 
work every quarter to comply,

[[Page 29690]]

and would also require input from our technical staff. That would be 
more than 160 person hours, four times per year.''
    Response: In the final rule, OSHA requires case-specific data to be 
submitted electronically on an annual basis rather than a quarterly 
basis. This will effectively reduce the time required to log into the 
collection system multiple times per year. It will also allow employers 
to comply with the existing review and certification requirements under 
Sec.  1904.32 prior to submitting their data to OSHA, eliminating the 
need for extra review employers would have taken prior to a quarterly 
submission. An annual submission, rather than a quarterly submission, 
results in a lower burden.
    Topic 2: Several comments were submitted pertaining to the time 
required to verify the accuracy of the data prior to its submittal to 
OSHA (Exs. 157, 247, 1205). Rick Hartwig of the Graphic Arts Coalition 
wrote, ``The time estimates by OSHA with regard to the electronic 
submission process also does not accurately account for the real time 
it will take an employer or its staff to review the reports, verify 
information, ensure accuracy of the data entered, enlist the assistance 
of knowledgeable opinions as necessary, redacting personal information, 
and to ensure compliance with all applicable regulatory requirements, 
all prior to submittal to OSHA'' (Ex. 1205).
    Response: The data is submitted after the employer has certified to 
the accuracy of the records in accordance with the already existing 
requirements of Sec.  1904.32, Annual Summary. The time required to 
review and certify the records is accounted for under this provision. 
The new reporting requirements under Sec.  1904.41 require the employer 
to submit the already verified information to OSHA. OSHA, therefore, 
did not adjust its estimates for this provision.
    Topic 3: Several comments were submitted pertaining to the time 
OSHA used to estimate the submittal of data from the OSHA form 300 
(Exs. 247, 1328, 1141). Eric Conn, representing the National Retail 
Federation (NRF), wrote, ``. . . OSHA bases its time estimates on the 
time it takes employers to submit data to the Bureau of Labor 
Statistics (BLS) in response to its survey. The data submitted for the 
BLS survey, however, is more limited in terms of information requested. 
BLS requests only certain data for up to 15 cases, but the Proposed 
Regulation would require all relevant Form 300 and/or 300A information 
from the entire injury and illness record. Thus the time burden would 
actually be much greater than OSHA predicts'' (Ex. 1328).
    Response: OSHA agrees that using the estimate of 10 minutes per 
establishment for entry of the OSHA Forms 300 and 300A data 
underestimates the time that will be required to respond to this data 
collection. Establishments with 250 or more employees will be required 
to submit the Form 300 data for all cases entered on the log. 
Accordingly, OSHA is now basing its estimation of the time required to 
submit Log 300 data on the number of injury and illness cases that will 
be submitted rather than on an estimate of time per establishment. OSHA 
now estimates employers will require 2 minutes to enter the Form 300 
one line entry for each of the 714,000 cases that will be submitted to 
OSHA. This is in addition to the 10 minutes per establishment for the 
data from the OSHA Form 300A. Basing estimates on case counts for Form 
300 data provides a truer estimate of the total.
    Topic 4: Several comments were submitted pertaining to keeping 
one's records electronically and to submitting a ``batch file'' in 
response to the new collection requirements (Exs. 247, 1326, 1336, 
1141, 1205). Michael Hall of the Pacific Maritime Association (PMA) 
wrote, ``Under the current recording system, PMA and other employers 
have not maintained electronic records that are capable of being 
uploaded or transmitted because they are only inspected during an OSHA 
inspection. Accordingly, moving to an electronic recording system 
capable of transmission will be both time consuming and costly'' (Ex. 
1326). Marc Freedman of the Coalition for Workplace Safety (CWS) wrote, 
``OSHA does not estimate how many employers currently maintain 
electronic records. As OSHA asserts, 30 percent of ODI respondents do 
not submit records electronically; therefore, one can assume that these 
records are not maintained electronically. From this, it can be safely 
assumed that a sizeable number of employers will also be copying the 
required injury and illness information from the establishment's paper 
forms into the electronic submission forms--a cost OSHA simply ignores 
when calculating the average cost per affected establishment with 250 
or more employees. Moreover, OSHA has not analyzed whether current 
existing electronic programs would present such data in a format 
acceptable to be uploaded to OSHA. Without knowing what types of 
electronic forms OSHA would consider for uploading, the regulated 
community is unable to estimate whether uploading such information 
would impose increased costs'' (Ex. 1141).
    Response: The final rule does not require employers to adopt an 
electronic system to record occupational injuries and illnesses and to 
maintain OSHA Forms 300, 301 and 300A. The new provisions only require 
employers to submit to OSHA the information they have already recorded. 
One or more methods of data transmission (other than manual data entry) 
will be provided, but use is not required. If the employer has software 
with the ability to export or transmit data in a standard format that 
meets OSHA's specifications, they may use that method to meet their 
reporting obligations and minimize their burden to do so. Most 
commercially available recordkeeping software platforms have such 
functionality and many large employers regularly use this method for 
responding to the BLS SOII survey.
    OSHA believes many large establishments subject to this requirement 
will already be keeping their records electronically and will export or 
transmit the required information rather than entering it into the web 
form. This will substantially reduce the time needed to comply with the 
reporting requirement. However, the estimates contained in the Final 
Economic Analysis (FEA) and the ICR are calculated with the assumption 
that all submissions will be made by manually entering the required 
data via the web form. No time savings are included in these estimates 
for employers that will submit their data through a batch file upload 
or electronic transmission. OSHA will adjust the estimates under 
renewed ICRs when we have solid information regarding the percentage of 
employers that take advantage of batch file upload or electronic 
transmission.
    Topic 5: Several comments were submitted pertaining to the 
necessity to train employees on how to use the newly created reporting 
system (Exs. 1205, 1336, 1141). Susan Yashinskie of the American Fuel & 
Petrochemical Manufacturers (AFPM) wrote, ``This estimate is highly 
inaccurate and significantly understates the costs given the amount of 
time it will take for employers to learn how to use and navigate the 
proposed electronic reporting system . . .'' (Ex. 1336). Rick Hartwig 
of the Graphic Arts Coalition wrote, ``Regarding the cost estimates 
outlined within the proposal, they do not account for actual activities 
and efforts that will be required by the employer. These additional 
costs can include the training of personnel . . . to

[[Page 29691]]

learn the different elements of the new system . . .'' (Ex. 1205).
    Response: OSHA agrees that employers will require time to create an 
account and familiarize themselves with the Web site prior to entering 
and submitting the required data. This will be a onetime cost in the 
initial year with costs in subsequent years for establishment with 
employee turnover. OSHA estimates employers will require 10 minutes to 
accomplish this task.
    In addition to these five common topics, several comments were 
submitted on miscellaneous issues pertaining to paperwork burden.
    Bill Taylor of the Public Agency Safety Management Association 
(PASMA)--South Chapter wrote, ``. . . One of our member sites has 
approximately 2,600 employees and their estimated cost of compliance 
with this proposed quarterly reporting requirement is $7,250 . . . This 
employer also assumed labor costs of $50 per hour, which includes 
benefits'' (Ex. 157). PASMA's labor cost estimate of $50 per hour 
including benefits is consistent with OSHA's estimate of $48.78 for an 
Occupational Health and Safety Specialist to perform the employer's 
day-to-day recordkeeping duties.
    Michael Hall of the Pacific Maritime Association (PMA) wrote, 
``OSHA's estimates do not take into account the costs described above 
that are unique to the maritime industry. In particular, the man-hours 
that will have to be devoted to attempting to prevent, if possible, 
duplicative reporting will be enormous'' (Ex. 1326). The costs of 
properly recording information on OSHA Forms 300, 301 and 300A are 
already accounted for in the current recordkeeping requirements burden 
estimates. The new reporting requirements under 1904.41 only require 
the employer to submit the data that is already recorded.
    Marc Freedman of the Coalition for Workplace Safety (CWS) wrote, 
``Because of the consequences of recording an injury under this 
proposal, employers can be expected to involve more experts in some 
cases. This is particularly the case with musculoskeletal disorders 
(``MSD'') . . . employers are more likely to incur substantial costs to 
conduct evaluations similar to Caterpillar's in order to determine 
whether an injury is truly work-related. This is particularly the case 
with musculoskeletal disorder injuries. OSHA has not accounted for 
these additional costs that are likely to flow from this proposed 
regulation'' (Ex. 1141). OSHA has not adjusted its estimate for the 
time it requires to determine the recordability of an injury or 
illness. Employers are already required to certify to the accuracy of 
the OSHA forms prior to submitting these data. The time required to 
record cases on the OSHA forms is already accounted for in the 
estimates. It should be noted that the ``MSD'' column Mr. Freedman 
references does not exist at this time. OSHA will account for burden 
associated with future rulemaking requirements in future ICRs. It 
should also be noted that OSHA currently publishes establishment-
specific injury and illness rates on its Web site and has not observed 
any indication that publication of that data has increased the time 
needed to record injuries and illnesses. OSHA does not agree with Mr. 
Freedman's conjecture that publication of the data captured by these 
revised requirements will result in additional burden for recording 
injuries and illnesses.
    The PRA specifies that Federal agencies cannot conduct or sponsor a 
collection of information unless it is approved by OMB and displays a 
currently valid OMB approval number (44 U.S.C. 3507). Also, 
notwithstanding any other provision of law, respondents are not 
required to respond to the information collection requirements until 
they have been approved and a currently valid control number is 
displayed. OSHA will publish a subsequent Federal Register document 
when OMB takes further action on the information collection 
requirements in the Recordkeeping and Recording Occupational Injuries 
and Illnesses rule.

XII. Consultation and Coordination With Indian Tribal Governments

    OSHA reviewed this final rule in accordance with Executive Order 
13175 (65 FR 67249 (Nov. 9, 2000)) and determined that it does not have 
``tribal implications'' as defined in that order. This final rule does 
not have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes.

List of Subjects

29 CFR Part 1904

    Health statistics, Occupational safety and health, Reporting and 
recordkeeping requirements, State plans.

29 CFR Part 1902

    Health statistics, Intergovernmental relations, Occupational safety 
and health, Reporting and recordkeeping requirements, State plans.

Authority and Signature

    This document was prepared under the direction of David Michaels, 
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and 
Health. It is issued under Sections 8 and 24 of the Occupational Safety 
and Health Act (29 U.S.C. 657, 673), Section 553 of the Administrative 
Procedure Act (5 U.S.C. 553), and Secretary of Labor's Order No. 41-
2012 (77 FR 3912 (Jan. 25, 2012)).

    Signed at Washington, DC, on April 29, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.

Final Rule

    For the reasons stated in the preamble, OSHA amends parts 1904 and 
1902 of chapter XVII of title 29 as follows:

PART 1904--[AMENDED]

0
1. The authority citation for part 1904 continues to read as follows:

    Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of 
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).


0
2. Revise Sec.  1904.35 to read as follows:


Sec.  1904.35  Employee involvement.

    (a) Basic requirement. Your employees and their representatives 
must be involved in the recordkeeping system in several ways.
    (1) You must inform each employee of how he or she is to report a 
work-related injury or illness to you.
    (2) You must provide employees with the information described in 
paragraph (b)(1)(iii) of this section.
    (3) You must provide access to your injury and illness records for 
your employees and their representatives as described in paragraph 
(b)(2) of this section.
    (b) Implementation--(1) What must I do to make sure that employees 
report work-related injuries and illnesses to me? (i) You must 
establish a reasonable procedure for employees to report work-related 
injuries and illnesses promptly and accurately. A procedure is not 
reasonable if it would deter or discourage a reasonable employee from 
accurately reporting a workplace injury or illness;
    (ii) You must inform each employee of your procedure for reporting 
work-related injuries and illnesses;
    (iii) You must inform each employee that:
    (A) Employees have the right to report work-related injuries and 
illnesses; and

[[Page 29692]]

    (B) Employers are prohibited from discharging or in any manner 
discriminating against employees for reporting work-related injuries or 
illnesses; and
    (iv) You must not discharge or in any manner discriminate against 
any employee for reporting a work-related injury or illness.
    (2) [Reserved]

0
3. Revise Sec.  1904.36 to read as follows:


Sec.  1904.36  Prohibition against discrimination.

    In addition to Sec.  1904.35, section 11(c) of the OSH Act also 
prohibits you from discriminating against an employee for reporting a 
work-related fatality, injury, or illness. That provision of the Act 
also protects the employee who files a safety and health complaint, 
asks for access to the part 1904 records, or otherwise exercises any 
rights afforded by the OSH Act.

Subpart E--Reporting Fatality, Injury and Illness Information to 
the Government

0
4. Add an authority citation to subpart E of 29 CFR part 1904 to read 
as follows:

    Authority:  29 U.S.C. 657, 673, 5 U.S.C. 553, and Secretary of 
Labor's Order 1-2012 (77 FR 3912, Jan. 25, 2012).


0
5. Revise Sec.  1904.41 to read as follows:


Sec.  1904.41  Electronic submission of injury and illness records to 
OSHA.

    (a) Basic requirements--(1) Annual electronic submission of part 
1904 records by establishments with 250 or more employees. If your 
establishment had 250 or more employees at any time during the previous 
calendar year, and this part requires your establishment to keep 
records, then you must electronically submit information from the three 
recordkeeping forms that you keep under this part (OSHA Form 300A 
Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of 
Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and 
Illness Incident Report) to OSHA or OSHA's designee. You must submit 
the information once a year, no later than the date listed in paragraph 
(c) of this section of the year after the calendar year covered by the 
forms.
    (2) Annual electronic submission of OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 20 or more 
employees but fewer than 250 employees in designated industries. If 
your establishment had 20 or more employees but fewer than 250 
employees at any time during the previous calendar year, and your 
establishment is classified in an industry listed in appendix A to 
subpart E of this part, then you must electronically submit information 
from OSHA Form 300A Summary of Work-Related Injuries and Illnesses to 
OSHA or OSHA's designee. You must submit the information once a year, 
no later than the date listed in paragraph (c) of this section of the 
year after the calendar year covered by the form.
    (3) Electronic submission of part 1904 records upon notification. 
Upon notification, you must electronically submit the requested 
information from your part 1904 records to OSHA or OSHA's designee.
    (b) Implementation--(1) Does every employer have to routinely 
submit information from the injury and illness records to OSHA? No, 
only two categories of employers must routinely submit information from 
their injury and illness records. First, if your establishment had 250 
or more employees at any time during the previous calendar year, and 
this part requires your establishment to keep records, then you must 
submit the required Form 300A, 300, and 301 information to OSHA once a 
year. Second, if your establishment had 20 or more employees but fewer 
than 250 employees at any time during the previous calendar year, and 
your establishment is classified in an industry listed in appendix A to 
subpart E of this part, then you must submit the required Form 300A 
information to OSHA once a year. Employers in these two categories must 
submit the required information by the date listed in paragraph (c) of 
this section of the year after the calendar year covered by the form or 
forms (for example, 2017 for the 2016 forms). If you are not in either 
of these two categories, then you must submit information from the 
injury and illness records to OSHA only if OSHA notifies you to do so 
for an individual data collection.
    (2) If I have to submit information under paragraph (a)(1) of this 
section, do I have to submit all of the information from the 
recordkeeping form? No, you are required to submit all of the 
information from the form except the following:
    (i) Log of Work-Related Injuries and Illnesses (OSHA Form 300): 
Employee name (column B).
    (ii) Injury and Illness Incident Report (OSHA Form 301): Employee 
name (field 1), employee address (field 2), name of physician or other 
health care professional (field 6), facility name and address if 
treatment was given away from the worksite (field 7).
    (3) Do part-time, seasonal, or temporary workers count as employees 
in the criteria for number of employees in paragraph (a) of this 
section? Yes, each individual employed in the establishment at any time 
during the calendar year counts as one employee, including full-time, 
part-time, seasonal, and temporary workers.
    (4) How will OSHA notify me that I must submit information from the 
injury and illness records as part of an individual data collection 
under paragraph (a)(3) of this section? OSHA will notify you by mail if 
you will have to submit information as part of an individual data 
collection under paragraph (a)(3). OSHA will also announce individual 
data collections through publication in the Federal Register and the 
OSHA newsletter, and announcements on the OSHA Web site. If you are an 
employer who must routinely submit the information, then OSHA will not 
notify you about your routine submittal.
    (5) How often do I have to submit the information from the injury 
and illness records? If you are required to submit information under 
paragraph (a)(1) or (2) of this section, then you must submit the 
information once a year, by the date listed in paragraph (c) of this 
section of the year after the calendar year covered by the form or 
forms. If you are submitting information because OSHA notified you to 
submit information as part of an individual data collection under 
paragraph (a)(3) of this section, then you must submit the information 
as often as specified in the notification.
    (6) How do I submit the information? You must submit the 
information electronically. OSHA will provide a secure Web site for the 
electronic submission of information. For individual data collections 
under paragraph (a)(3) of this section, OSHA will include the Web 
site's location in the notification for the data collection.
    (7) Do I have to submit information if my establishment is 
partially exempt from keeping OSHA injury and illness records? If you 
are partially exempt from keeping injury and illness records under 
Sec. Sec.  1904.1 and/or 1904.2, then you do not have to routinely 
submit part 1904 information under paragraphs (a)(1) and (2) of this 
section. You will have to submit information under paragraph (a)(3) of 
this section if OSHA informs you in writing that it will collect injury 
and illness information from you. If you receive such a notification, 
then you must keep the injury and illness records required by this part 
and submit information as directed.

[[Page 29693]]

    (8) Do I have to submit information if I am located in a State Plan 
State? Yes, the requirements apply to employers located in State Plan 
States.
    (9) May an enterprise or corporate office electronically submit 
part 1904 records for its establishment(s)? Yes, if your enterprise or 
corporate office had ownership of or control over one or more 
establishments required to submit information under paragraph (a)(1) or 
(2) of this section, then the enterprise or corporate office may 
collect and electronically submit the information for the 
establishment(s).
    (c) Reporting dates. (1) In 2017 and 2018, establishments required 
to submit under paragraph (a)(1) or (2) of this section must submit the 
required information according to the table in this paragraph (c)(1):

------------------------------------------------------------------------
                    Establishments
                   submitting under   Establishments
                   paragraph (a)(1)  submitting under
                    of this section  paragraph (a)(2)
 Submission year    must submit the   of this section      Submission
                       required       must submit the       deadline
                   information from      required
                    this form/these  information from
                        forms:          this form:
------------------------------------------------------------------------
2017.............  300A............  300A............  July 1, 2017.
2018.............  300A, 300, 301..  300A............  July 1, 2018.
------------------------------------------------------------------------

    (2) Beginning in 2019, establishments that are required to submit 
under paragraph (a)(1) or (2) of this section will have to submit all 
of the required information by March 2 of the year after the calendar 
year covered by the form or forms (for example, by March 2, 2019, for 
the forms covering 2018).

0
6. Add appendix A to subpart E of part 1904 to read as follows:

Appendix A to Subpart E of Part 1904--Designated Industries for Sec.  
1904.41(a)(2) Annual Electronic Submission of OSHA Form 300A Summary of 
Work-Related Injuries and Illnesses by Establishments With 20 or More 
Employees but Fewer Than 250 Employees in Designated Industries

----------------------------------------------------------------------------------------------------------------
                        NAICS                                                  Industry
----------------------------------------------------------------------------------------------------------------
11..................................................  Agriculture, forestry, fishing and hunting.
22..................................................  Utilities.
23..................................................  Construction.
31-33...............................................  Manufacturing.
42..................................................  Wholesale trade.
4413................................................  Automotive parts, accessories, and tire stores.
4421................................................  Furniture stores.
4422................................................  Home furnishings stores.
4441................................................  Building material and supplies dealers.
4442................................................  Lawn and garden equipment and supplies stores.
4451................................................  Grocery stores.
4452................................................  Specialty food stores.
4521................................................  Department stores.
4529................................................  Other general merchandise stores.
4533................................................  Used merchandise stores.
4542................................................  Vending machine operators.
4543................................................  Direct selling establishments.
4811................................................  Scheduled air transportation.
4841................................................  General freight trucking.
4842................................................  Specialized freight trucking.
4851................................................  Urban transit systems.
4852................................................  Interurban and rural bus transportation.
4853................................................  Taxi and limousine service.
4854................................................  School and employee bus transportation.
4855................................................  Charter bus industry.
4859................................................  Other transit and ground passenger transportation.
4871................................................  Scenic and sightseeing transportation, land.
4881................................................  Support activities for air transportation.
4882................................................  Support activities for rail transportation.
4883................................................  Support activities for water transportation.
4884................................................  Support activities for road transportation.
4889................................................  Other support activities for transportation.
4911................................................  Postal service.
4921................................................  Couriers and express delivery services.
4922................................................  Local messengers and local delivery.
4931................................................  Warehousing and storage.
5152................................................  Cable and other subscription programming.
5311................................................  Lessors of real estate.
5321................................................  Automotive equipment rental and leasing.
5322................................................  Consumer goods rental.
5323................................................  General rental centers.
5617................................................  Services to buildings and dwellings.
5621................................................  Waste collection.
5622................................................  Waste treatment and disposal.
5629................................................  Remediation and other waste management services.
6219................................................  Other ambulatory health care services.

[[Page 29694]]

 
6221................................................  General medical and surgical hospitals.
6222................................................  Psychiatric and substance abuse hospitals.
6223................................................  Specialty (except psychiatric and substance abuse)
                                                       hospitals.
6231................................................  Nursing care facilities.
6232................................................  Residential mental retardation, mental health and
                                                       substance abuse facilities.
6233................................................  Community care facilities for the elderly.
6239................................................  Other residential care facilities.
6242................................................  Community food and housing, and emergency and other relief
                                                       services.
6243................................................  Vocational rehabilitation services.
7111................................................  Performing arts companies.
7112................................................  Spectator sports.
7121................................................  Museums, historical sites, and similar institutions.
7131................................................  Amusement parks and arcades.
7132................................................  Gambling industries.
7211................................................  Traveler accommodation.
7212................................................  RV (recreational vehicle) parks and recreational camps.
7213................................................  Rooming and boarding houses.
7223................................................  Special food services.
8113................................................  Commercial and industrial machinery and equipment (except
                                                       automotive and electronic) repair and maintenance.
8123................................................  Dry-cleaning and laundry services.
----------------------------------------------------------------------------------------------------------------

PART 1902--STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE 
STANDARDS

0
7. The authority citation for part 1902 is revised to read as follows:

    Authority: Sec. 18, 84 Stat. 1608 (29 U.S.C. 667); Secretary of 
Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).


0
8. In Sec.  1902.7, revise paragraph (d) to read as follows:


Sec.  1902.7  Injury and illness recording and reporting requirements.

* * * * *
    (d) As provided in section 18(c)(7) of the Act, State Plan States 
must adopt requirements identical to those in 29 CFR 1904.41 in their 
recordkeeping and reporting regulations as enforceable State 
requirements. The data collected by OSHA as authorized by Sec.  1904.41 
will be made available to the State Plan States. Nothing in any State 
plan shall affect the duties of employers to comply with Sec.  1904.41.

[FR Doc. 2016-10443 Filed 5-11-16; 8:45 am]
 BILLING CODE 4510-26-P